On Bankruptcy and Mediation
By Donald L. Swanson The case is In re Sunnyslope Housing Ltd. Partnership, 859 F.3d 637 (9th Cir. 2017). It’s before the U.S. Supreme Court on Petition for a Writ of Certiorari, which is set for conference on January 5, 2018. In Sunnyslope, the Ninth Circuit’s ruling is based on a Chapter 13 valuation standard established... Continue Reading →
By: Donald L. Swanson “[I]n settings like mediation, rhetorical questions may not be effective as a persuasion device, and under certain circumstances may even be counter-productive.” --Profs. James Stark & Douglas Frenkel, “Changing Minds: The Work of Meidators and Empirical Studies of Persuasion.” [All information below is from this 2013 article; and see Footnote below.]... Continue Reading →
By Donald L. Swanson “For the reasons set forth below, the Court holds that S corporation status is not ‘property’ for the purposes of 11 U.S.C. §§ 544(b), 548.” --Judge Kevin R. Huennekens in Arrowsmith v. USA (In re Health Diagnostic Laboratory, Inc., Case No 17-04300, Doc. 54 (Bankr.E.D.Va., December 6, 2017). The reasons identified by... Continue Reading →
By Donald L. Swanson “Mediation of consumer bankruptcy disputes has been very successful in our Bankruptcy Court.” --Steven W. Rhodes, Chief Bankruptcy Judge (Ret.) in Detroit. Consumer disputes in bankruptcy cases rarely mediate. This appears to be a stubborn reality just about everywhere. A Successful Consumer Bankruptcy Mediation Program So, when I hear the words “consumer... Continue Reading →
By Donald L. Swanson It’s a decade-or-more ago. I’m sitting in a continuing legal education seminar on bankruptcy law hoping to learn something new-and-useful for my day-to-day practice. Threatening Bankruptcy Attorneys With Criminal Prosecution?!! What we get, instead, is an hour-long warning from a representative of the U.S. Government on, (i) how attorneys in bankruptcy cases... Continue Reading →
By Donald L. Swanson “the Court finds that mediation may be an efficient and effective mechanism . . . to consensually resolve or narrow the objections to the plan.” --Hon. Stuart M. Bernstein, U.S. Bankruptcy Judge, Southern District of New York, in Avaya Inc. mediation referral Order dated 9/13/2017 (emphasis added). We can all take a... Continue Reading →
By Donald L. Swanson The consensus I’ve been reading these days is that a split of authority is shaping up between the Second and Third Circuit Courts of Appeals on enforcability of make-whole premiums in bankruptcy. --The first of two cases is from the Third Circuit: In re Energy Future Holdings Corp., 842 F.3d 247 (3rd... Continue Reading →
By Donald L. Swanson The problem with early neutral evaluation is this: it’s a prediction. An early neutral evaluator is an expert, who is trying to predict what a judge, jury or appellate court will decide about the merits of a dispute. Early Neutral Evaluation – A Tricky Business Prognostication is always a tricky business. And... Continue Reading →
By: Donald L. Swanson The U.S. Supreme Court has, for four decades, been rocking the boat [that's Justice Blackmun's metaphor] on bankruptcy court authority. First, they almost kill the Code—coming within one vote of declaring the entire Bankruptcy Code unconstitutional. Then they limit and mess with it some more. And now, finally, it seems they are... Continue Reading →
By Donald L. Swanson Mediation needs to be included — explicitly and by name — in the Federal Rules of Bankruptcy Procedure. A new Rule is needed to cover two specific subjects: (i) mediation authorization, and (ii) mediation confidentiality. All other areas of mediation practice and procedure can be addressed in local rules, provided that the... Continue Reading →
MEDIATBANKRY 