On Bankruptcy and Mediation
By: Donald L Swanson The phrase, “honest but unfortunate debtor," has been a part of bankruptcy laws for centuries. A bankruptcy treatise published in 1801, for example, says that bankruptcy laws in England and the U.S. "are meant to protect an honest but unfortunate trader." [Fn. 1] No one knows when or how the phrase began.... Continue Reading →
By: Donald L Swanson “All your assumptions on this are wrong.” --A visionary, back in 1999, on why video communications will work. Change It was nearly a decade ago, when I suggested participating in a mandated and far-away mediation by Skype. The Judge said, “No, because face-to-face communication is essential to mediation.” It was nearly a... Continue Reading →
By: Donald L Swanson Cash in a business is like blood in a body: without it, you die! A Huge Challenge Cash availability is a huge challenge for family businesses in bankruptcy. Here’s why: Running out of cash is a common symptom of financial stress that leads to bankruptcy; and A bankruptcy filing will magnify that... Continue Reading →
By: Donald L Swanson Parties and their attorneys can misbehave in mediation. It happens . . . not very often—but it does happen. Sometimes, the misbehaviors can result in sanctions—but most times, they do not. This article is about two companion opinions, issued by the same court (U.S. Eleventh Circuit Court of Appeals) and within a... Continue Reading →
By: Donald L. Swanson Over the years, there have been some really-bad ideas for punishing debtors. Examples from Olden Times Under Draco’s Law, back in Athens of the 600s, death and dismemberment could be a debtor’s fate (not sure which occurred first), with sale into slavery as an alternative. Fast forward to Merry Olde England... Continue Reading →
By: Donald L Swanson Here’s a cool development on enforcing mediated settlements of international commercial disputes: 46 nations have signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Convention is linked here). A list of those 46 nations is available on this site. Resolution Adopting the Convention Here is a condensed version... Continue Reading →
By: Donald L. Swanson The U.S. economy is constantly changing; and our bankruptcy laws must change with it. The months of March and April, 2020, bring massive disruptions in our economy; and our bankruptcy laws must adjust. Here are a few of the needed changes: Middle class debtors must be allowed to select Chapter 7 relief;... Continue Reading →
The progress of bankruptcy mediation is nearly-always upward: toward expanding the use of local mediation rules.
By: Donald L Swanson Five different bankruptcy courts have allowed Subchapter V designations for debtors whose Chapter 11 cases were already existing on the effective date (February 19, 2020) of the Small Business Reorganization Act (“SBRA”). And their opinions are instructive on procedures and legal standards for doing so. These five cases run the gamut of... Continue Reading →
The Uschold v NSMG opinion provides another illustration of the post-settlement work that mediation can accomplish when a court must weigh-in on the merits of a mediated agreement.
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