On Bankruptcy and Mediation
By: Donald L. Swanson It's always great to see an experiment produce successes that lead to an expansion of the experimental endeavor. This success-and-expansion is exactly what's happened with mandatory mediation experiments in the Delaware Bankruptcy Court. Delaware's Mandatory Mediation The Delaware Bankruptcy Court began mandating mediation, by local rule, in preference cases back in... Continue Reading →
By Donald L. Swanson Who would ever think that mediation could serve an important role in pre-packaged Chapter 11 cases? --After all, the essence of a pre-packaged plan is speed: all major issues are supposed to be resolved in advance of the bankruptcy filing so the plan can move promptly to confirmation. But disputes do... Continue Reading →
By: Donald L. Swanson The Court’s opinion is new: entered December 23, 2016. The case is In re Hunt, Case No. 14-13109, in the New Mexico Bankruptcy Court. The dispute is between the Chapter 13 Debtor and his home mortgage lender. Scheduled value of the home is $155,000, and the mortgage lien balance is $223,631... Continue Reading →
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!”
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 →
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 →
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 →
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 →
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 →
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 →
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