By Donald L. Swanson Last night I came across this new book on bankruptcy mediation. I ordered it immediately! And can't wait to read it. I know its authors. They all have great legal minds and a depth of practical and scholarly experience in bankruptcy mediation. This book is a must-have and can be ordered here.
Mediation as a Condition for Confirmation of a Disputed Chapter 11 Plan
By Donald L. Swanson Here's a proposal: Mediation among disputing parties should be a condition precedent for a final confirmation hearing on a contested Chapter 11 plan. The short history of bankruptcy mediation bears out the value of this proposal. --Songs of praise have been sung everywhere (in a bankruptcy / professional sort of way)... Continue Reading →
Intransigence = Mediation Failures (the Nortel Networks Bankruptcy, Part Three)
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 →
Should We Choose “Confidentiality” Over “Ensuring Good Behavior” in Mediation? A Legal Malpractice Debate in California
By Donald L. Swanson In the early 1980’s, mediation began gaining acceptance in California as a means of resolving disputes. Since then, California law has placed a high value on mediation confidentiality and privacy. The Supreme Court of California, in Simmons v. Ghaderi, 44 Cal. 4th 570, 588, 187 P.3d 934, 80 Cal. Rptr. 3d... Continue Reading →
Discovering How Mediation Can Bring Order Out of Chaos
By Donald L. Swanson Eons ago, as measured by the short history of bankruptcy mediation, we are representing a creditor in a contentious Chapter 11 case. The case has many creditors, a wide range of constituencies and a chaotic existence. Efforts to bring order are having limited success. So someone suggests mediation. Most parties think... Continue Reading →
A 2015 Judicial Scolding for “Self-Serving” and “Narcissistic” Mediation Positions (the Nortel Networks Bankruptcy, Part Two)
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 →
Mediation is “A Very Young Profession”: A New Study of Mediation in the U.K. [Part 2]
By Donald L. Swanson “Commercial mediation is firmly established in the dispute resolution landscape. We are, however, still a very young profession.” This is a finding of the Centre for Effective Dispute Resolution (located on Fleet Street in London, England) in its “Seventh Mediation Audit: A survey of commercial mediator attitudes and experience” dated May... Continue Reading →
ACTION ITEM: From Part Six — Differing Priorities
Action Item. An urgency and an immediacy exist in business bankruptcy cases to preserve and maximize value—otherwise there will be nothing for creditors to fight over. Mediation plans, strategies and models must provide immediate help in these urgent situations.
6 Reasons Why Bankruptcy Mediation is a Process, Not a One-and-Done Session: PART SIX — DIFFERING PRIORITIES
By Donald L. Swanson Non-bankruptcy cases usually have a different priority than bankruptcy cases: namely painting a picture v. maximizing value. In non-bankruptcy cases, an event or series of events occur, and the focus is, typically, on (i) painting a clear picture of what happened, and (ii) assigning or absolving liability accordingly. In non-bankruptcy cases,... Continue Reading →
The Monstrous Costs of Mediation Failures (the Nortel Networks Bankruptcy, Part One)
By Donald L. Swanson A sale in bankruptcy of assets owned by Nortel Networks Inc. results in a $7.3 billion (yes, that's $7,300,000,000) pot of gold for creditors. Guess what: creditors can't agree on how to divide the pot. So what do creditors do instead? They spend $2 billion from the pot of gold on... Continue Reading →
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