BANKRUPTCY MEDIATION TRAINING COURSE – DECEMBER 2016

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9/11 Memorial

By Donald L. Swanson

The American Bankruptcy Institute and St. John’s University School of Law do an annual forty-hour [yes, that’s 40-hour] “Bankruptcy Mediation Training” course.  The next course is coming soon — it’s scheduled for December 11 – 15, 2016.

I took this course two years ago – and loved it!  Here are some reasons why.

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Course Site

First of all, this is not a vacation.  These are long, hard days of study and work and thought, complete with working-lunches, no less!  But being from Omaha, I get up early and walk around lower Manhattan to see the City each morning before showing up – on time – for the course.

The course turns out to be what I expected:  high-quality instruction and training from highly-skilled experts, with students who’ve already excelled in their bankruptcy professions.

What I didn’t expect is how high the expertise would actually be.  To illustrate, here’s an opening part of an article I wrote about a regional mediation hubs proposal:

The proposal comes about like this.  I walk into a lunch-time session of the ABI’s Mediation training course at St. John’s University, sit by a distinguished-looking gentleman and start chatting—as if he is one of my peers.  Turns out, he’s the lunch-time speaker.  He is the Bankruptcy Judge for many of the mega-cases we’ve all read and heard about.  [Oops.  Didn’t know that…sit up straighter in my chair…try to adopt a more dignified air…].  During the presentation, he talks about difficulties in mediating cases on the East Coast for far-away defendants.  “Like those from Nebraska,” he says with a nod to me [a nice and much-appreciated touch].  And he expresses openness to suggestions for addressing those difficulties.  Unfortunately, I have no suggestion at the time, other than allowing defendants to participate in mediation sessions by Skype.  That’s “not acceptable,” the Judge says.

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Little Italy

Another surprise is the broad application of the training.  Much of my bankruptcy experience is as counsel for committees and trustees.  These roles are often mediation-ish: working with multiple parties to resolve disputes.  Many times during the course, I find myself muttering, “Wish I’d learned this two decades ago.”

A third surprise is the burst of creativity among students in the course.  For example, I had been writing for publication (to a limited extent) throughout my career.  But it was from this course that I decided to redouble such efforts – and, specifically, to write about bankruptcy mediation.  Such efforts led to starting this blog:  https://mediatbankry.com/ .

And back to meeting expectations:  I expected to develop new relationships with great people that would continue beyond the course.  Expectation is accomplished.

And a huge “thank you” to Prof. Elayne Greenberg of St. John’s for making all this happen!

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Coffee Shop

 

What Should be the Mediator’s Role in Documenting a Settlement Agreement?

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By: Donald L. Swanson

Conventional thinking (as I understand it) is that mediators should not have a role in preparing a settlement-terms document that concludes a successful mediation.

I’m suggesting that a mediator can/should have a limited-and-neutral role in preparing such a document.  Here’s why.

Some Ancient History

Its 25 years ago — or more.

I’m in a mediation session with a senior partner and a client. This is the first mediation session I’ve ever experienced — and I’m trying to figure out how it’s done.

The mediation lasts all day. And the case settles. By the end, everyone is tired and cranky.

Around 5:30 p.m., all attorneys are in the mediator’s office to prepare the settlement document. The mediator pulls out a single sheet of paper.  It’s a pre-printed form. It has: (1) a state court name at the top, with a blank for filling-in the specific court involved, (2) lines  for filling-in the case caption and case number, and (3) lines at the bottom of the page — presumably, for the parties’ signatures.  Otherwise, the page is blank.

The mediator pens-in the court name, case caption and number and hands the page to the attorneys to write-in the settlement terms. One attorney does most of the writing. An opposing attorney then makes hand-written edits, including carets with lines to the sides of the page where many words are added. Further edits occur. And then the parties sign the still-one-page paper. Copies are made and distributed to everyone.

As we prepare to leave the mediation, I’m looking at this newly-finalized document. I’m trying to follow the nearly-indecipherable penmanship and all the chicken-scratch lines.

–And I’m saying to myself: “Seriously?! This is how it’s done?!”

–What I’m seeing is a mess. It looks like scribbling everywhere. Some hand writing is barely legible. Edits are hard to follow.

–It’s sloppy. And this is a commercial case with lots of knotty issues and lots of money at stake.

Some Later History

Fast forward 15 years or so.

I’m in a mediation session with an associate attorney and a client.

The mediation lasts all day. And the case settles. By the end, everyone is tired and cranky.

Around 5:30 p.m., all attorneys are in the mediator’s office to prepare the settlement document.  The mediator pulls out a one-page form . . . and I swear . . . its the same form as the one from a decade and a half earlier: different mediator / same form.

I’m irritated.  First thing I say upon seeing it is, “We’re in Federal Court.” Whereupon, the mediator takes a pen, scratches out the state court info and writes the Federal Court’s name at the top of the page—while mumbling something like, “No big deal.”

Then the document-completion routine from a decade-and-a-half earlier is repeated—except that the mediator disappears after correcting the court name. We never see him again.

I know, I know.  It’s my own fault.  I should have come prepared with my own draft of a settlement document.  But still . . . shouldn’t the mediator have done something more?!

Some Mediator History

So, when I start working as a mediator, my first “innovation” is to prepare and distribute, in advance of the mediation session, a type-written settlement agreement form in an editable format.

This form contains:

–the court name, case caption, case number, names of the parties

–a recitation of some undisputed and neutral information about the mediation and disputes involved

–a bunch of blanks for filling-in the settlement terms

–a representation by all parties that they have evaluated the tax consequences of the settlement terms

–formal signature blocks with names of parties and attorneys typed-in.

Then I send this form to the attorneys, in advance of the mediation session, suggesting that they:

–correct any inacurate information on the form

–begin filling in blanks with draft settlement language

–start working together to fill-in the form, narrow the issues involved, and minimize the number of blanks that need to be completed by the end of the mediation session.

In my earliest experiences as mediator, I act as scrivener at the end of the session (I’m a darn-good typist) to help the attorneys put their settlement terms into the form I provided.  This seems to work well, and I like doing it.

–But then a continuing education instructor says I shouldn’t be doing this. So I stop.

Conclusion

But I still think it’s a good idea for mediators to prepare and circulate an advance settlement form containing basic-and-neutral information. And I especially think its a good idea to encourage attorneys to begin the session with an already-started settlement document — regardless of whether that document uses the form I provide or one they prepare on their own.

I’m not trying to buck conventional thinking on a mediator avoiding the role of settlement-terms scrivener.

But I am suggesting that a mediator should be pushing-the-edge on assuring that the document preparation function is being handled in a proactive manner and long before the session’s end.

Notably, when a preliminary draft is available, negotiations can center on developing language that fills in remaining blanks.  This helps create clarity in the negotiation process and assures that all important terms are included in the settlement document — and none forgotten.

 

ACTION ITEM: from Regional Mediation Hubs Proposal Post — Part One

Action Item.  Here’s the proposal: hold mediation sessions in regional hub cities near where multiple defendants reside (instead of Wilmington or New York City) and include trained mediators from those regions on the panel of mediators.

 

We Need Regional Mediation Hubs for Mega-Case Avoidance Actions — Part One, The Proposal

Here’s the proposal: hold mediation sessions in regional hub cities near where multiple defendants reside (instead of Wilmington or New York City) and include trained mediators from those regions on the panel of mediators.

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By Donald L. Swanson

My Nebraska client has a problem.  He’s unhappy.  He’s an $80,000 preference defendant [what can be worse than that?] in Delaware [oh, yeah, that could be worse] and must travel 1,200 miles [with his attorney] for a mandatory mediation of the disputed preference claim.  Although he thinks the claim is “bogus” [despite my explanations to the contrary], he has a what-choice-do-I-have-but-to-capitulate perception of all this.

So, I have a proposal to address the problem: Regional Mediation Hubs. Continue reading “We Need Regional Mediation Hubs for Mega-Case Avoidance Actions — Part One, The Proposal”