On Bankruptcy and Mediation
By: Donald L. Swanson This article is a two-centuries history of Federal bankruptcy laws and economic conditions in the United States: from the Declaration of Independence in 1776 through the enactment of the current Bankruptcy Code in 1978. The Late 1700s In 1776, at the signing of the Declaration of Independence, thirteen colonies along the... Continue Reading →
By Donald L. Swanson Timeline for a Plan Confirmation Dispute November 11: Creditor requests an order requiring mediation November 14 (a.m.): Debtor objects to request for mediation order November 14 (p.m.): Court orders mediation December 6: Debtor and creditor reach a settlement agreement February 7: Debtor’s bankruptcy plan is confirmed This timeline is from a... Continue Reading →
By: Donald L. Swanson The U.S. Supreme Court has already dismissed one bankruptcy appeal this term as “improvidently granted.” This is an oddity. And it should have also dismissed U.S. Bank National Association v. Village at Lakeridge, Case No. 15-1509, for the same reason. Instead, the Court held oral arguments in the Lakeridge case on... Continue Reading →
By: Donald L. Swanson “Studies show that parties who have entered mediation reluctantly still benefited from the process even though their participation was not voluntary.” D. Quek, Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program, Cardozo Journal of Conflict Resolution, Vol 11:479, at 483 (Spring 2010). Dorcas Quek is arguing... Continue Reading →
By: Donald L. Swanson Financially strapped farmers and their lenders finally get some much-needed bankruptcy tax relief. Normally, pre-bankruptcy income and capital gains tax claims have a priority and non-dischargeable status in bankruptcy. And the same taxes, when arising during bankruptcy, add an administrative claim status. Some Farm History Such normal rules had a devastating... Continue Reading →
By: Donald L. Swanson There’s a lawsuit now in progress in a Florida Federal Court over a local pub. The Pub Dispute Plaintiff claims to be "a franchisor” of “establishments” that sell “imported and domestic beers” and other products used in “a distinctive pub environment.” Plaintiff also claims to have “methods and procedures—a system—” that... Continue Reading →
By Donald L. Swanson Puerto Rico is dealing with the storms of financial disaster and a hurricane’s aftermath. Here is a false narrative about the financial storm: Forgiving Puerto Rico’s debt “would only free Puerto Rico’s politicians from having to address the policies that were suffocating its economy to begin with.” --Wall Street Journal Op. Ed.,... Continue Reading →
By: Donald L. Swanson What do mediating parties say about their mediators? That’s what Prof. Stephen B. Goldberg and Margaret L. Shaw wanted to know. So, they do a study and report on it back in 2008, as follow-up to a prior study. And the mediating parties are more-than-happy to hand out reviews. Prior Study... Continue Reading →
By Donald L. Swanson During the entire existence of the Bankruptcy Code (enacted in 1978), Chapter 11 rules have been essentially the same for large and small businesses. General Motors, for example, is governed by the same Chapter 11 bankruptcy rules that govern every small Mom & Pop enterprise. I've always thought this same-treatment to... Continue Reading →
By: Donald L. Swanson The U.S. Circuit Courts of Appeals have, for many years, administered their own mediation programs for civil cases. The administrators and mediators in such programs are, typically, Federal employees. Such mediation programs are also characterized, typically, by the following: --mandatory referral of cases to mediation with no-extra-charge for mediator services --mediation... Continue Reading →
