Theory (i.e., mediator neutrality and party self-determination) gives way to the practical need for achieving a settlement.
Mediating Civil Cases: A Disconnect Between Theory and Practice
Subchapter V Debt Limit: Lease Rejection Damages and PPP Loans (In re Parking)
Well-defined limits (photo by Marilyn Swanson) By Donald L. Swanson The opinion is In re Parking Management, Inc., Case No. 20-15026, in the Maryland Bankruptcy Court (decided August 28, 2020, Doc. 224). The Question The question is whether Debtor has too much debt to qualify for Subchapter V relief. Background —Subchapter V The new Subchapter V... Continue Reading →
Violating Mediation Confidentiality: To Sanction Or Not (Adkisson v. Jacobs Engineering)
A confidential location (photo by Marilyn Swanson) By Donald L. Swanson The opinion is Adkisson et al. v. Jacobs Engineering Group, Inc., Case Nos. 13-CV-505 et al., in the U.S. District Court for Eastern Tennessee (decided July 7, 2020, Doc. 561). The opinion addresses Defendant’s Motion for an order: Enforcing the confidentiality of mediation; andImposing sanctions... Continue Reading →
Subchapter V and § 543 “Custodian” Rules (In re U.S.A. Parts Supply)
Custodians By: Donald L Swanson The case is, In re U.S.A. Parts Supply, Cadillac U.S.A. Oldsmobile U.S.A., L.P., Case No. 20-bk-241, U.S. Bankruptcy Court, Northern West Virginia (decided Aug. 17, 2020, Doc. 143). On March 22, 2020, Debtor files a voluntary Chapter 11 petition under Subchapter V as a small business debtor. Creditors promptly file a... Continue Reading →
“Unavailable” Witness (Under Hearsay Rules) In A Zoom Trial?
Access is unavailable (photo by Marilyn Swanson) By Donald L. Swanson Like many attorneys, I’ve recently participated electronically in many court hearings, mediations and trials. That participation is via Zoom and similar platforms (I’ll refer to all, collectively, as “Zoom”). The Zoom technology is wonderful! It is revolutionizing litigation processes. And the resulting changes are here... Continue Reading →
Pre-Bankruptcy Planning To Maximize Exemptions: Distinguishing What’s Proper From What Isn’t
Comparing and contrasting (photo by Marilyn Swanson) By Donald L. Swanson Pre-bankruptcy planning is an important part of representing an individual debtor in a bankruptcy case. In fact, such planning may be the most-crucial part of the entire bankruptcy process. In pre-bankruptcy planning, the goal is to establish a strategy for the upcoming bankruptcy and an... Continue Reading →
When Mediation Confidentiality Doesn’t Apply–As A Matter of Law (Northern v. Coffey)
Unlimited access (photo by Marilyn Swanson) By: Donald L Swanson Mediation confidentiality is sacrosanct. Or, so we are all taught in mediation training courses. But in a New Jersey case, from earlier this year, mediation confidentiality is not sacrosanct at all: communications before, during and after mediation sessions are testified to profusely by parties, attorneys and... Continue Reading →
Subchapter V and § 1111(b) Election
An election system and process (photo by Marilyn Swanson) By: Donald L Swanson Wow—didn’t expect to see an § 1111(b) election opinion under Subchapter V this soon! But here it is: In re Body Transit, Inc. d/b/a/ Rascals Fitness, Bky. No. 20-10014 in Eastern Pennsylvania Bankruptcy Court (decided August 7, 2020, by Hon. Eric. L. Frank,... Continue Reading →
Why Early Mediation is More Effective in Bankruptcy Reorganization Disputes than in Regular Commercial Litigation
By: Donald L. Swanson “’Early’ (mediation) is good and usually best”; but “Lawyers are not easily persuaded away from the view that they ‘need more info’ before they engage settlement discussions in mediation”; and “in many cases, they may be right.” --Comment by a mediation professional on a discussion board. I agree with this comment—100%—for regular... Continue Reading →
Default Judgment In Bankruptcy, Based on “Implied Consent” Under Wellness International
Implied consent (photo by Marilyn Swanson) By: Donald L Swanson “Sharif contends that to the extent litigants may validly consent to adjudication by a bankruptcy court, such consent must be express. We disagree.” --U.S. Supreme Court in Wellness Int’l Network, Ltd. V. Sharif, 575 U.S. 665 (2015). The Supreme Court’s Wellness opinion adds the following: “The... Continue Reading →
