On Bankruptcy and Mediation
By Donald L. Swanson When preparing for a multiparty mediation, the following items 6 through 10 should be addressed by the mediator with the parties and their attorneys in advance communications. Item Six. First Offer Arrangements. Common questions about the first offer in a mediation are: (1) Which party will make the initial offer at... Continue Reading →
By: Donald L Swanson Unsecured Claim + Bankruptcy = You Lose. I came up with this formula back in 1983, while preparing for a seminar presentation on basic bankruptcy law. I was trying to come up with something creative to say. And . . . I must confess . . . I thought it was... Continue Reading →
Action Item. Issues relating to settlement impediments, parties, information and discovery, use of joint sessions, and tax implications need to be discussed in advance by the mediator with parties and their attorneys to prepare for multiparty mediation sessions.
By Donald L. Swanson Advance communications among the mediator, the parties and their attorneys can be helpful in creating an organization, structure and efficiency for multiparty mediation sessions. The following are items one through five in a ten-item checklist of the types of subjects that should be addressed in the advance communications: Item One. Settlement... Continue Reading →
By: Donald L Swanson Back in 2011, the Third Circuit Court of Appeals wrote a scathing opinion about the behavior of the disputing parties in the Nortel Networks bankruptcy case. The Third Circuit's opinion is published at In re Nortel Networks, Inc., 669 F.3d 128 (3rd Cir. 2011). However, the Third Circuit's judicial scolding has had... Continue Reading →
By: Donald L Swanson Proactive mediation seems to be gaining traction in cases with large numbers of claimants and large amounts of money at stake. Examples are the City of Detroit bankruptcy, the diocese bankruptcies, and the Argentina debt cases. We can now add another example to the list: the multi-district case of In re... Continue Reading →
By Donald L. Swanson Here’s a confession. I’m in a four-party mediation. It begins at 9:30 a.m. in a joint 30-minute meeting. The mediator then spends 30 minutes with each party. It’s now noon — we’re taking lunch orders — and the mediation process has only just begun! At mid-afternoon, positions are far apart, and... Continue Reading →
By: Donald L Swanson First of all, I know this suggestion will never happen. But it should. This suggestion, if implemented long ago, would have dramatically increased odds of a mediated settlement in the Nortel bankruptcy. Such a settlement would have stopped the excessively-expensive and excessively-long-running legal battles in the Nortel Networks bankruptcy (Case No.... Continue Reading →
By Donald L. Swanson Have you ever noticed that synonyms for "intransigence" often come from farm animals: e.g., bullheadedness, doggedness, pigheadedness, stubborn as a mule? Such qualities aren't very helpful on a farm. But they are killers in mediation. "Intransigence" describes the four-time failures of the Nortel Networks mediation efforts to reach a funds allocation and... Continue Reading →
By: Donald L. Swanson The primary issue in the Nortel Networks bankruptcy is this: How should the remainder of a $7.3 billion fund be allocated among creditors? $2 billion or-so of this fund has already been used to pay professional fees in the fight. The U.S. portion of the Nortel Networks case is in the... Continue Reading →
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