On Bankruptcy and Mediation
Making it work -- Mandating action (photo by Marilyn Swanson) By Donald L. Swanson Recent expressions of concern about courts mandating mediation reminded me of a mandated mediation process that worked well: the City of Detroit bankruptcy. An illustration of the success of mandated mediation in the Detroit case is this line: The Bankruptcy Judge... Continue Reading →
Backing away? (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Legarde, Case No. 22-12184, Eastern Pennsylvania Bankruptcy Court (issued September 14, 2023; Doc. 112). Facts Debtor claims Creditor raped her. Then, Debtor posts stuff about Creditor on the internet. So, Creditor sues Debtor for defamation, alleging willful and malicious conduct. Bankruptcy... Continue Reading →
Facilitating an adventure (Photo by Marilyn Swanson) By: Donald L Swanson “(b) Duties.—The [Subchapter V] trustee shall— . . . (7)facilitate the development of a consensual plan of reorganization.” From 11 U.S.C § 1183(b)(7)(emphasis added). Facilitation is, by statute, a duty of every Subchapter V trustee—something a Subchapter V trustee must do. But the nature and boundaries... Continue Reading →
Court authority? (Photo by Marilyn Swanson) By: Donald L Swanson In a mass-tort bankruptcy, when 95% of 120,000 creditors vote to accept a mediated plan paying over $7 billion to creditors, shouldn’t the plan be confirmed? That’s the question, decided in favor of plan confirmation by the Second Circuit Court of Appeals, in In re Purdue... Continue Reading →
A dilemma: elegance or country? (Photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V Trustee “shall . . . facilitate the development of a consensual plan of reorganization.” [Fn. 1] This is a mediator-ish role: a “third party” who “participates to assist in the resolution of issues in controversy.” [Fn. 2] Subchapter V Trustee... Continue Reading →
A tapering approach? (Photo by Marilyn Swanson) By: Donald L Swanson "What’s the Best Way to Give Ground in Negotiations?" is the report of a study on negotiating strategies. [Fn.1] What follows is a summary of that report. Overview In negotiating, a key challenge is to decide how much to change your offer at each round... Continue Reading →
In-person involvement (photo by Marilyn Swanson) By: Donald L Swanson 3M’s Chief Executive Officer “must personally attend, and listen and engage directly with the mediators.” From mediation Order entered May 19, 2023, in In re 3M Combat Arms Earplug Products Liability Litigation, Case No. 3740 (Doc. 3740), by U.S. District Court in Northern Florida. Wow! That’s... Continue Reading →
Disclosure? (Photo by Marilyn Swanson) By: Donald L Swanson “within three (3) business days of termination of the mediation, the Debtors shall publicly disclose the terms of the last offers extended by each of the Mediation Parties, respectively.”[Fn. 1] Say what!? Whoever heard of such a thing—a requirement that the “last offers” of the mediating parties... Continue Reading →
From antiquity (photo by Marilyn Swanson) By: Donald L Swanson Conceit-of-the-present is this: thinking that people of today are smarter, more sophisticated and better than people of the past. There is, of course, some truth in that conceit for today: (i) improved hygiene and medicine, for example, enable people of today to be bigger, stronger and... Continue Reading →
Impressions (Photo by Marilyn Swanson) By: Donald L Swanson A study compares the self-reported experiences of individuals who use mediation in a lawsuit with those who go through a lawsuit without mediation. It uses surveys of litigants taken before and immediately after the lawsuit—and then 3-6 months later. “Radically Different” Study The study claims to be... Continue Reading →
MEDIATBANKRY 