Subchapter V Trustee: Initial And Subsequent Zoom Meetings–A Facilitation Tool

A Vise-Grip Tool By: Donald L Swanson “The [Subchapter V] Trustee shall— . . . facilitate the development of a consensual plan of reorganization.”  11 U.S.C. § 1183(b)(7). That’s what we Subchapter V trustees are supposed to do. Ok, fine.  But how are we supposed to do that? A facilitation tool that many Subchapter V trustees... Continue Reading →

Tough Guys Finish Last In Negotiations (A Study)

Finishes last? (Photo by Marilyn Swanson) By: Donald L Swanson Negotiators consider, (i) the reputation of the opposition, in an effort to decrease uncertainty, and (ii) their own reputations, recognizing that past behaviors can influence future efforts. A study examines the effects of a negotiator’s tough guy reputation on negotiation processes (fn. 1, the “Study”). Distributive... Continue Reading →

Bankruptcy Judge = A Mediator in the Judge’s Own Court: An Old and Meritorious Idea

By: Donald L Swanson Many years ago, back when mediation is a rarity in bankruptcy disputes, I asked an old-timer this question: Why is the bankruptcy system a lagging adopter of mediation?” A Surprising Answer The old-timer gave this surprising answer: “At the time of the Bankruptcy Code's enactment, the bankruptcy judge was viewed as a... Continue Reading →

Mediation And The Boy Scouts Bankruptcy: From A Court Opinion On Plan Confirmation

Scouting? (Photo by Marilyn Swanson) By: Donald L Swanson “Without these [mediated] settlements, there is no Plan.” From Opinion on Plan confirmation, In re Boy Scouts of America, Case No. 20-10343, Delaware Bankruptcy Court, Doc. 10136, at 80 (issued July 29, 2022). The Boy Scouts of America bankruptcy has achieved a milestone: on July 29, 2022,... Continue Reading →

Face-To-Face Discussions: Studies Show It’s The Best And Most-Popular Way To Mediate

Face-to-face discussions (photo by Marilyn Swanson) By: Donald L Swanson Common Practice. A common practice in these United States is for commercial lawsuits to be mediated in a caucus-only format.  That means: the parties never see each other during the mediation, except during the mediator’s opening comments and on visits to the toilet; andthe mediator shuttles... Continue Reading →

Reputation For Honesty = Protection Against Deception In Negotiations (A Study)

Honest Abe (photo by Marilyn Swanson) By: Donald L Swanson A negotiator’s reputation for honesty minimizes the danger of being deceived. That’s the finding of a recent study. [Fn. 1, the “Study”] Background  Reputations endow negotiators with a set of expectations about their intentions and behaviors, influence interpretations of their behavior, and impact response to their... Continue Reading →

Good Faith In A Mandated Mediation: Are Contempt and Sanctions Appropriate? (In re A.T. Reynolds)

Contempt of the rules of road? (photo by Marilyn Swanson) By: Donald L Swanson “the specter of sanctions and contempt spawns ancillary litigation that often eclipses the issues at the heart of the underlying dispute.” --From In re A.T. Reynolds & Sons, Inc., 452 B.R. 374, 376 (S.D.N.Y. 2011), reversing a Bankruptcy Court order of contempt... Continue Reading →

Mediation-In-Bankruptcy: An Effective, But Difficult, Tool For Resolving Mass Tort Disputes

An effective tool (photo by Marilyn Swanson) By: Donald L Swanson Mediation-in-bankruptcy has been an effective tool for resolving mass tort cases.  That effectiveness has been for the benefit of all parties involved, such as: helping to maximize recoveries for tort claimants;helping to allocate scarce funds among competing tort claimants and other creditors; andhelping to keep... Continue Reading →

A Negotiations Study: Being “Tough & Firm” v. “Warm & Friendly”

Not tough and firm (photo by Marilyn Swanson) By: Donald L Swanson Being “tough and firm” in negotiations: Takes “less effort than being warm and friendly”; Results “in better financial outcomes; has “no apparent social cost”; butis commonly viewed, incorrectly, as less effective than “warm and friendly.” Such are the conclusions drawn from a four-part study [Fn. 1]... Continue Reading →

Mediating Large/Complex Cases: The Mediator Must Have A Plan (In re City of Detroit)

Working a plan? (photo by Marilyn Swanson) By: Donald L Swanson In large, complex bankruptcy cases: The mediator must have a plan;Otherwise, the mediator is going to get run over;These are tough cases with very experienced lawyers who often have significant resources to put into the fight; andThe mediator has to be just as resourceful, just... Continue Reading →

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