On Bankruptcy and Mediation
Bifurcated? (Photo by Marilyn Swanson) By: Donald L Swanson When an enforcement authority issues guidelines to its personnel for making enforcement decisions and makes those guidelines public, all who are subject to that authority should sit-up and take notice. On June 10, 2022, the U.S. Trustee’s Office, Department of Justice, issues “Guidelines” to its personnel... Continue Reading →
Contempt of the rules of road? (photo by Marilyn Swanson) By: Donald L Swanson “the specter of sanctions and contempt spawns ancillary litigation that often eclipses the issues at the heart of the underlying dispute.” --From In re A.T. Reynolds & Sons, Inc., 452 B.R. 374, 376 (S.D.N.Y. 2011), reversing a Bankruptcy Court order of contempt... Continue Reading →
An effective tool (photo by Marilyn Swanson) By: Donald L Swanson Mediation-in-bankruptcy has been an effective tool for resolving mass tort cases. That effectiveness has been for the benefit of all parties involved, such as: helping to maximize recoveries for tort claimants;helping to allocate scarce funds among competing tort claimants and other creditors; andhelping to keep... Continue Reading →
Not tough and firm (photo by Marilyn Swanson) By: Donald L Swanson Being “tough and firm” in negotiations: Takes “less effort than being warm and friendly”; Results “in better financial outcomes; has “no apparent social cost”; butis commonly viewed, incorrectly, as less effective than “warm and friendly.” Such are the conclusions drawn from a four-part study [Fn. 1]... Continue Reading →
Working a plan? (photo by Marilyn Swanson) By: Donald L Swanson In large, complex bankruptcy cases: The mediator must have a plan;Otherwise, the mediator is going to get run over;These are tough cases with very experienced lawyers who often have significant resources to put into the fight; andThe mediator has to be just as resourceful, just... Continue Reading →
Reflecting back on what works and what doesn’t (photo by Marilyn Swanson) By: Donald L Swanson A recent research project measures the effects (both short and long term) of four mediator strategies on party attitudes and outcomes. [Fn. 1] What follows is a summary of the project’s findings on these mediator strategies: Eliciting Participant Solutions;Neutral Offering... Continue Reading →
By: Donald L Swanson "Trillions of dollars": That's the amount of civil penalty claims a group of 40 States are asserting against Johnson & Johnson for consumer protection law violations. [Fn. 1] Such civil penalty claims: are independent of, and in addition to, any claims of individuals who used Johnson & Johnson’s talc products; andarise from... Continue Reading →
The BEST way? (Photo by Marilyn Swanson) By: Donald L Swanson Johnson & Johnson (“J&J”) sold baby powder for decades. Today, J&J is facing tens of thousands of lawsuits alleging that its baby powder causes cancer. And the number of new cancer claimants is increasing daily—with many thousands yet to be identified over decades to come.... Continue Reading →
Procedural guidance? (Photo by Marilyn Swanson) By Donald L. Swanson How are private practice mediators compensated in a bankruptcy case—procedurally? We have a new court order providing guidance on how such procedures can work. The new guidance is from Sears Holding Corp. v. Lampert (In re Sears Holdings Corp.), Adv. Pro. No. 19-08250, SDNY Bankruptcy Court. ... Continue Reading →
Appearing and being heard? (Photo by Marilyn Swanson) By: Donald L Swanson "The trustee shall . . . appear and be heard at . . . any hearing that concerns . . . the value of property . . . confirmation of a plan . . . sale of property." § 1183(b)(3) (emphasis added). In every... Continue Reading →
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