On Bankruptcy and Mediation
By Donald L. Swanson On February 27, 2018, the U.S. Supreme Court issued an eagerly awaited bankruptcy opinion on the § 546(e) safe harbor defense against trustee avoidance actions. The new opinion is Merit Management Group, LP v. PTI Consulting, Inc., Case No. 16-784. The opinion, at first read, appears to dramatically narrow the reach and effect... Continue Reading →
By Donald L. Swanson “The conflict won’t be resolved by the parties if left to themselves. If it were possible for them to resolve it on their own, they would have done so. Ergo, they need outside help.” Tony Blair, A Journey: My Political Life, 189, Alfred A. Knopf, 2010 Chapter 6 of Tony Blair’s memoir... Continue Reading →
By: Donald L Swanson Puerto Rico’s long-standing financial straits, rendered more dire by Hurricane Maria, create an issue of bankruptcy priority: should available funds be used to, (i) address hurricane devastation and daily citizen needs, or (ii) pay creditor claims when due? --The answer to this priority is simple and easy in Puerto Rico: citizen needs... Continue Reading →
By: Donald L. Swanson “Where does a bankruptcy judge get authority to order parties into mediation?” —Question at a discussion of bankruptcy mediation. This question comes from a skeptic. And it has little to do with the topic under discussion. So, the others in the discussion hem and haw. One finally says, “Section 105.” The questioner then... Continue Reading →
By Donald L. Swanson Every now and then a battle shapes up between two heavyweights: --Think Muhammed Ali v. George Forman; Magic Johnson v. Larry Bird; Bart Starr v. Roger Stauback. It looks like such a battle is shaping up between two Federal court heavy-weights on bankruptcy issues: --It’s between the Second Circuit Court of Appeals... Continue Reading →
By: Donald L. Swanson 2018 is the twenty-year anniversary of the Alternative Dispute Resolution Act of 1998 (codified at 28 U.S.C. § 651 et seq., the “ADR Act”). Bankruptcy Courts – Lagging Adopters but Making Progress Bankruptcy courts, generally, have been lagging adopters of mediation. And a few bankruptcy districts remain stubbornly opposed to complying... Continue Reading →
By Donald L. Swanson Here are some basic rules on bankruptcy court jurisdiction: --“Core” proceedings can be heard and decided by bankruptcy courts; --“Related to” proceedings can be heard and decided by bankruptcy courts upon consent of the parties but, otherwise, must be resolved through proposed findings of fact and conclusions of law to the district... Continue Reading →
By: Donald L. Swanson England and Wales have a Civil Justice Council that, in 2016, formed an ADR Working Group to “review the ways in which” mediation is “encouraged and positioned within the civil justice system.” In October 2017, the Working Group issued its “Interim Report.” The Interim Report evaluates pros and cons of mandating... Continue Reading →
By: Donald L Swanson Ancient History Millenia ago, advanced civilizations flourish around the Mediterranean, across east Asia, and in portions of the Western Hemisphere. Mediterranean and east Asia civilizations communicate and trade, back then, across silk roads but remain isolated from the Western Hemisphere. That isolation continues for a very-long time: until 1492. In the... Continue Reading →
By: Donald L. Swanson Mandatory mediation works. It results in case settlements. And it helps creates a culture for voluntary mediation. But the idea of a mandated mediation is repugnant to some because it violates a "voluntary" ideal. This is unfortunate. Evaluating Mediation The ultimate goal of all civil litigation is this: to resolve disputes under... Continue Reading →
