On Bankruptcy and Mediation
Direct discussions! By: Donald L. Swanson Allowing direct discussions between parties, when mediating a commercial case, can be an intimidating—and tricky—proposition. But it is effective when allowed . . . despite obvious concerns. Here are four concerns, about direct discussions between mediating parties, based on four goals of mediation: The first goal is to assure... Continue Reading →
A great idea (photo by Marilyn Swanson) By Donald L. Swanson “Mandatory mediation” is a self-explanatory term. It means this: --A court (or a mediator with authority from the court) orders disputing parties to participate in a mediation process. There seems to be a reticence in the bankruptcy world, generally, toward mandatory mediation. I'm not... Continue Reading →
By Donald L. Swanson There is a “need for mediation experts” and “some form of a mediation group in law firms, especially larger practices.” Dennis Klein, “The Case For Creating A Mediation Department At Your Firm,” Law360, 11/14/2017 [Footnote 1] In the article linked above, Mr. Klein says that most law firms “tout mediation experience” and... Continue Reading →
Favoring (photo by Marilyn Swanson) By: Donald L Swanson A recent bankruptcy opinion[fn. 1] recites the following arbitration policies under the Federal Arbitration Act (“FAA”), based on an old U.S. Supreme Court opinion[fn. 2]: “The FAA is rooted in the notion that arbitration agreements are private contracts affecting commerce, creating a strong presumption in favor of... Continue Reading →
Reprinted with permission from the ABI Journal, Vol. XLIII, No. 5, May 2024. View the original publication here. The U.S. Judicial Conference Committee on Court Administration and Case Management proposed guidance on March 121 to promote random case assignment in civil cases (not criminal or bankruptcy cases) in districtcourts. The Judicial Conference later clarified2 that... Continue Reading →
By: Donald L Swanson On April 23, 2024, the American Bankruptcy Institute’s Subchapter V Task Force issued its Final Report. This article is the eighth in a series summarizing and condensing the Task Force’s Final Report into “a nutshell.” The subject of this article is: whether the Subchapter V trustee or other party in interest should... Continue Reading →
Inherent power (Photo by Marilyn Swanson) By Donald L. Swanson “[O]rdering mandatory mediation is a proper exercise of a district Court’s inherent power.” That’s the “core holding” of the U.S. First Circuit Court of Appeals in its In re Atlantic Pipe Corp. opinion.[Fn.1] What follows is a summary of that opinion. Facts The dispute is over... Continue Reading →
Telling a tall tale (photo by Marilyn Swanson) By: Donald L Swanson “Subchapter V relieves small business debtors from the absolute priority rule.”[Fn. 1] This was the excuse for a contorted grammatical interpretation, against the debtor, of a Subchapter V statute by the Fifth Circuit Court of Appeals. The Fourth Circuit Court of Appeals gives the... Continue Reading →
Advocating for a position (photo by Marilyn Swanson) By: Donald L Swanson “Neutral Offering Solutions had long-term negative associations” in mediation. That’s a finding from a study of small claims mediations, titled “What Works” [Fn. 1] “Neutral Offering Solutions” refers to a mediator offering ideas for solutions and then advocating for those ideas. Study’s Conclusion In... Continue Reading →
Alive and well (Photo by Marilyn Swanson) By: Donald L Swanson You don’t see this very often: a dispute over the confidentiality of mediation communications. But such a dispute recently happened in In re Barretts Minerals, Inc., Case No. 23-90794, Southern Texas Bankruptcy Court. And the result is this: mediation confidentiality remains alive and well. In... Continue Reading →
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