Action Item: Every bankruptcy court should have its own set of local rules on mediation. Every bankruptcy court without such rules needs to get them adopted. In the words of a famous Nebraskan: Let’s "git-r-done!”
How to Mediate in Bankruptcy Courts Without Local Mediation Rules: A Seldom-Used Pathway
By: Donald L. Swanson Mediation is standard dispute resolution tool in many bankruptcy cases – especially in large and complex cases. A limited number of bankruptcy courts, however, still haven’t adopted local mediation rules. Reasons for the absence of such rules are diverse and range from: --the somewhat-bizarre development in Chicago, where the Bankruptcy Court... Continue Reading →
Structured Dismissals are Ripe for Mediation – But are They a Bridge Too Far?
By Donald L Swanson A “structured dismissal” of a Chapter 11 bankruptcy involves a settlement agreement among major parties that liquidates substantially all of debtor’s assets, distributes the proceeds, grants releases, and dismisses the bankruptcy case—all as a negotiated package deal. Most everyone will agree that a bankruptcy settlement with the following terms is a... Continue Reading →
Mediators Just Want to Get Paid: A Recent Hiccup in Bankruptcy
By Donald L. Swanson "Girls just want to have fun," according to Cyndi Lauper. --And mediators just want to get paid! We receive an important lesson for mediators getting paid out of bankruptcy from a recent mediation hiccup. The lesson is this: --If you want to get paid from bankruptcy estate funds, you need court... Continue Reading →
What’s With Judges Wanting to Re-Write Settlement Agreements?!
By Donald L. Swanson What’s with judges re-writing terms of bankruptcy settlement agreements?! A Current Example That’s exactly what the dissenting judge wants to do in the In re Jevic Holding Corp. case (certiorari granted by U.S. Supreme Court on June 28, 2016; oral argument held on December 7, 2016). This dissenting judge would: (i)... Continue Reading →
Mediation Confidentiality: The Second Circuit’s Sensible Standard for Disclosure
By: Donald L. Swanson “Confidentiality is an important feature” of mediation, because it "promotes the free flow of information that may result in the settlement of a dispute." “We vigorously enforce the confidentiality provisions” of our own mediation system “because we believe that confidentiality is essential" to its “vitality and effectiveness.” U.S. Second Circuit Court... Continue Reading →
1899 Treatise (First Edition) on U.S. Bankruptcy Law
By: Donald L. Swanson Original-source documents from antiquity are always fascinating! They provide a wealth of historical information and a wealth of insight into life in an earlier day. It’s mind-boggling, for example, to read the words of an author, who lived in an ancient time, writing about events of “ancient days” from his/her perspective-in-time.... Continue Reading →
A List of Bankruptcy Districts that HAVE and HAVE-NOT Adopted Local Mediation Rules
By: Donald L. Swanson I've been asked many times for the number of bankruptcy court districts who, (i) HAVE adopted local rules on mediation, and (ii) HAVE-NOT adopted such rules. --The have-not courts, it seems, are hanging on to the past -- for reasons that are unknown . . . and not readily apparent. Initial... Continue Reading →
Five Reasons Why Mediation Must be Added to the Federal Bankruptcy Rules
By: Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure. Mediation Authorization and Confidentiality The new mediation provision must cover two specific subject areas: (i) mediation authorization, and (ii) mediation confidentiality. Authorization. If a city is a Chapter 9 debtor in a jurisdiction... Continue Reading →
Proactive Mediation is Becoming Standard: The Syngenta Example
By: Donald L. Swanson In a remarkable demonstration of cooperation and coordination, three separate courts (both Federal and State) enter proactive mediation orders and appoint the same mediator in three related cases. Fact Background The cases involve a genetically modified strain of corn developed and marketed by Syngenta. The new strain gets regulatory approval from... Continue Reading →
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