On Bankruptcy and Mediation
By: Donald L Swanson Many years ago, back when mediation is a rarity in bankruptcy disputes, I asked an old-timer this question: Why is the bankruptcy system a lagging adopter of mediation?” A Surprising Answer The old-timer gave this surprising answer: “At the time of the Bankruptcy Code's enactment, the bankruptcy judge was viewed as a... Continue Reading →
Scouting? (Photo by Marilyn Swanson) By: Donald L Swanson “Without these [mediated] settlements, there is no Plan.” From Opinion on Plan confirmation, In re Boy Scouts of America, Case No. 20-10343, Delaware Bankruptcy Court, Doc. 10136, at 80 (issued July 29, 2022). The Boy Scouts of America bankruptcy has achieved a milestone: on July 29, 2022,... Continue Reading →
Face-to-face discussions (photo by Marilyn Swanson) By: Donald L Swanson Common Practice. A common practice in these United States is for commercial lawsuits to be mediated in a caucus-only format. That means: the parties never see each other during the mediation, except during the mediator’s opening comments and on visits to the toilet; andthe mediator shuttles... Continue Reading →
Honest Abe (photo by Marilyn Swanson) By: Donald L Swanson A negotiator’s reputation for honesty minimizes the danger of being deceived. That’s the finding of a recent study. [Fn. 1, the “Study”] Background Reputations endow negotiators with a set of expectations about their intentions and behaviors, influence interpretations of their behavior, and impact response to their... Continue Reading →
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 →
MEDIATBANKRY 