ABI’s Mediation Committee: A Home For The “Facilitate” Role Of Subchapter V Trustees

https://youtu.be/0kEXfRwXDSg By: Donald L Swanson The Mediation Committee of the American Bankruptcy Institute promotes mediation as a tool for resolving bankruptcy disputes. The new statutory duty of a Subchapter V trustee to “facilitate the development of a consensual plan of reorganization” (under § 1183(b)(7)) is a mediator-like role, which finds a home in ABI’s Mediation Committee.... Continue Reading →

Observations on the Survey of Facilitation by Subchapter V Trustees

11 U.S.C. Sec. 1183(b)(7) — Duty to facilitate The following article is reprinted with permission from the American Bankruptcy Institute—originally published in its Mediation Committee Newsletter.  Here is a link to the original publication, dated 6/30/2021. By: Hon. Louis H. Kornreich, David A. Mawhinney & Donald L Swanson The Bankruptcy Code directs the trustee in... Continue Reading →

Facilitation Skills For Subchapter V Trustees

Webinar -- Promotional Notification By: Donald L Swanson What follows is a script (more or less) of my portion of a panel presentation in an webinar, presented on September 14, 2021, sponsored by the Mediation Committee of the American Bankruptcy Institute ("ABI"), titled "Facilitation Skills for Subchapter V Trustees." A video of the webinar appears at... Continue Reading →

The Four “C’s” of Mediation: Candor, Cooperation, Creativity and Courage (from Judge Rosen)

Bankruptcy Petition for City of Detroit By: Donald L Swanson Judge Gerald Rosen [fn. 1] served as Chief Judicial Mediator in the City of Detroit bankruptcy.  He is credited with masterminding an $820 million deal that rescued the City of Detroit from bankruptcy. In a fascinating discussion, Judge Rosen recently explained and illustrated his Four "C’s”... Continue Reading →

Litigious People Are Going to Litigate—And Mediation Can’t Change That Fact (In re Butko)

Stubborn persistence (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Butko, Case No. 20-21255 in the Western Pennsylvania Bankruptcy Court (decided 2/10/2021, Doc. 91). Litigious Parties The parties have been at it for awhile.  You know the history is bad, when a Court opinion begins its “Background” explanation like this: “In... Continue Reading →

Subchapter V Trustee As “De Facto Mediator” (In re 218 Jackson)

De facto end of the harbor? (photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V trustee “acts more like a mediator than an adversary”; and A “substantial part of the Subchapter V trustee’s pre-confirmation role” is to “serve as a de facto mediator between the debtor and its creditors.”  --From In re 218 Jackson... Continue Reading →

Perils Of Mediating / Settling With Less Than All Defendants (Kennedy v. Alliance)

Include them all? (photo by Marilyn Swanson) By: Donald L Swanson Settling with less than all defendants in a lawsuit is always tricky. And mediating without all interested parties involved is also tricky. The problem is that non-settling / non-participating parties might, (i) blow a settlement up, once they learn of it, (ii) be released unintentionally... Continue Reading →

Zoom Mediations And “Trust”: A Study

Trusting? (Photo by Marilyn Swanson) By: Donald L Swanson A 2019 study [Fn. 1] examines whether mediating parties will trust a mediator when the mediation occurs over Zoom (or similar platform), instead of in-person. Here are the study’s conclusions: all fifty-nine study participants "felt that they could trust the mediator and perceived the mediator as trustworthy”—whether... Continue Reading →

Enforcing Agreements To Mediate And To Arbitrate (Garcia v. ISS Facility)

Rules for overlapping activity (photo by Marilyn Swanson) By: Donald L Swanson Agreements to mediate and agreements to arbitrate are both enforceable and effective.  But how they are used together, when they overlap, can get tricky.  That’s illustrated by the case of Garcia v. ISS Facility Services, Inc., et al.  The case begins with a U.S.... Continue Reading →

How Mediation Helps Resolve the Unsolvable (In re Zimmer)

Unsolvable? (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Zimmer, Case No. 17-20543 in the Bankruptcy Court for the Western District of Pennsylvania (issued December 14, 2020, Doc. 452). The case is a mess—you’ve got to read it to believe it. Beginning Facts Daniel and Lucille Morris (the “Morris couple”) are... Continue Reading →

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