On Bankruptcy and Mediation
A coffee orchard: here's how it's done By: Donald L. Swanson There are many reasons to mandate mediation in certain circumstances. One is to improve the quality of justice. Another is to manage an expanding docket and burgeoning caseload. A third is to create a mediation culture where none currently exists. There are two ways to... Continue Reading →
Window refreshed? (Photo by Marilyn Swanson) By: Donald L Swanson Everyone knows by now of a problem in the Southern Texas Bankruptcy Court with a judge who resigned over ethics controversies. That resignation did not solve anything for the cases in which that judge was involved. Instead, the controversies continue to mushroom in a variety of... Continue Reading →
What are the rights, powers, functions and duties here? (Photo by Marilyn Swanson) By: Donald L Swanson This ideal is floating around: upon removal of a Subchapter V debtor from possession, for fraud or other cause, the Subchapter V trustee has no expanded right, power, function or duty beyond operating debtor’s business (the “Ideal”). This Ideal... Continue Reading →
Roundness (photo by Marilyn Swanson) By: Donald L Swanson A study on using round-number offers and precise-number offers in negotiations reaches these two conclusions: Round numbers signal completion—and so, negotiators are more likely to accept a round number offer (e.g., $3,000) than a precise number offer (e.g., $3,278.23); and Precise numbers are perceived as factual and... Continue Reading →
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 →
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