On Bankruptcy and Mediation
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 →
By: Donald L Swanson Amendments to the Uniform Commercial Code are receiving widespread acceptance in a large number of state legislatures, across party lines and as an apolitical and nonpartisan piece of legislation. That’s as intended and expected. Until now. Apparently, there is a newly-found concern that the definition of “money” in these Amendments does three... Continue Reading →
This did not end well (photo by Marilyn Swanson) By: Donald L Swanson Here’s a hard-knocks rule: When you can’t or won’t explain the true reason for taking a position in negotiations or litigation, distrust and suspicion of the worst-possible motives will follow. An Exhibit A for this rule is an opinion issued February 9, 2023,... Continue Reading →
A Vise-Grip Tool By: Donald L Swanson “The [Subchapter V] Trustee shall— . . . facilitate the development of a consensual plan of reorganization.” 11 U.S.C. § 1183(b)(7). That’s what we Subchapter V trustees are supposed to do. Ok, fine. But how are we supposed to do that? A facilitation tool that many Subchapter V trustees... Continue Reading →
Finishes last? (Photo by Marilyn Swanson) By: Donald L Swanson Negotiators consider, (i) the reputation of the opposition, in an effort to decrease uncertainty, and (ii) their own reputations, recognizing that past behaviors can influence future efforts. A study examines the effects of a negotiator’s tough guy reputation on negotiation processes (fn. 1, the “Study”). Distributive... Continue Reading →
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