Action Item. We should all be encouraging our local bankruptcy courts to adopt local rules on mediation, establish mediation requirements for adversary proceedings and Chapter 11 plans, look for cases where mandatory mediation orders might be helpful–and issue such orders, and get the local bar accustomed to using mediation as a standard dispute resolution tool.... Continue Reading →
Mandatory Mediation: Here’s How it’s Done – The Detroit Example
By Donald L. Swanson Sometimes, the old ways aren’t enough. Sometimes, a little creativity (or lots of it) is needed to address the task at hand. You’ve got to hand it to the Bankruptcy Judge in the Detroit case: Steven Rhodes. He knew it when he saw it: the old ways would not be enough... Continue Reading →
If I were a Bankruptcy Judge, I’d be Promoting Bankruptcy Mediation Now — Part One
By Donald L. Swanson If I were a bankruptcy judge [I'm not and have no aspirations to become one], I’d be doing everything in my power to promote mediation in my court—right now. For example, I’d adopt local rules on mediation, establish mediation requirements for adversary proceedings and Chapter 11 plans, look for cases where... Continue Reading →
ACTION ITEM: From “Sitting Bankruptcy Judges” Post
Action Item. Any party seeking appointment of a "sitting bankruptcy judge" as mediator should identify the desired judge and provide information on that judge's mediation training, background and experience -- and disclose compensation arrangements. #bankruptcy #mediation #bankruptcymediation
What’s the Fascination With Requesting an Unnamed “Sitting Bankruptcy Judge” as Bankruptcy Mediator? (Updated on 3/3/16 with Responses)
By Donald L. Swanson The Motion to appoint a mediator in the Caesars Entertainment bankruptcy suggests that an unnamed "sitting bankruptcy judge" be appointed. And filings by others in support of the Motion agree. The unnamed "sitting bankruptcy judge" suggestion seems to be common in many cases. But there is a better approach. Let's begin... Continue Reading →
Local Bankruptcy Rules Without Mandatory Mediation Authority Are Like A Toolbox Without A Vise-Grip
By Donald L. Swanson Fix-it folks have tool boxes full of screw drivers, pliers, box-end and open-end wrenches, crescent and socket wrenches, etc., for handling nuts, bolts and screws. But when fix-it folks need a tool that grabs-and-holds and won't-let-go, they pull a vise-grip from the toolbox. Similarly, judges have local rules [a toolbox] full... Continue Reading →
ACTION ITEM: from “Momma Doesn’t Want to Settle” — Part Two Post
Action Item. We should all look for special circumstances in which a mandatory mediation order might be beneficial–and then ask the court to require a mediation in such circumstances. #bankruptcy #mediation #bankruptcymediation #mandatorymediation
“Momma Doesn’t Want to Settle”: The Value of Mandatory Mediation — Part Two
By Donald L. Swanson Ad hoc orders mandating mediation have a different dynamic than planned-for mediations. Usually, ad hoc orders arise because a judge sees special circumstances and orders the parties to mediate. Such orders get a bad rap because they tend to achieve fewer settlements from one-and-done sessions than are achieved in planned-for... Continue Reading →
ACTION ITEM: from “Momma Doesn’t Want to Settle” — Part One Post
Action Item. Here's a simple procedural step: incorporate a mediation requirement into the court’s standard pre-trial order form for adversary proceedings. Such provision could be as short and simple as requiring attorneys to, “Identify a date by which the parties will schedule a mediation session.” #bankruptcy #mediation #bankruptcymediation #mandatorymediation
Judge Denies Mediation Motion in Caesars Entertainment Bankruptcy “As Unnecessary”
By Donald L. Swanson Caesars Entertainment recently filed its Motion to appoint a mediator for plan confirmation issues. Thereafter, nearly a dozen responses to the Motion are filed by creditors and other constituencies. No response opposes the Motion—most offer suggestions for maximizing mediation effectiveness. An ad hoc committee’s response even declares: “the Debtors’ proposed mediation... Continue Reading →
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