Compensating Mediators: Procedural Guidance From Sears v. Lampert

Procedural guidance? (Photo by Marilyn Swanson) By Donald L. Swanson How are private practice mediators compensated in a bankruptcy case—procedurally? We have a new court order providing guidance on how such procedures can work. The new guidance is from Sears Holding Corp. v. Lampert (In re Sears Holdings Corp.), Adv. Pro. No. 19-08250, SDNY Bankruptcy Court. ... Continue Reading →

Subchapter V Trustees: Satisfying The § 1183(b)(3) Duty To “Appear And Be Heard”

Appearing and being heard? (Photo by Marilyn Swanson) By: Donald L Swanson "The trustee shall . . . appear and be heard at . . . any hearing that concerns . . . the value of property . . . confirmation of a plan . . . sale of property." § 1183(b)(3) (emphasis added). In every... Continue Reading →

Honesty, the Small Cheat, and Reputation

By: Donald L Swanson Business people value their reputations because they take pride in their good names, and “not for some nebulous financial gain.” They: are guided “by their consciences”; and avoid cheating and “keep promises” because they “believe it is right to do so, not because it is good business.” [Fn. 1] The internal drive... Continue Reading →

Mediators: Reject A Binary Equation — “Either This Or That” (In re City of Detroit)

“Either this or that” (photo by Marilyn Swanson) By Donald L. Swanson Here’s an important rule for mediators: When the parties try to present you with a binary equation—“either this or that”—reject it; insteadGet the parties involved in the process with you—try to help think your way out of the binary box they are trying to... Continue Reading →

Subchapter V Trustee Duties: Facilitation Conflicts With Other Statutory Duties

Rainbow—a spectrum of light (photo by Marilyn Swanson) 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). Facilitation is a mediator-like tool that can be used by every bankruptcy trustee in every case.  Conflicting Duties For Subchapter V trustees, however,... Continue Reading →

Judicial Mediator Serving As Deciding Judge In Same Case: An Overreach? (McAdams v. Robinson)

An overreach? (photo by Marilyn Swanson) By: Donald L Swanson “Mediating judges have largely slipped through the cracks of widespread academic discussion. . . . Yet, some practices create the perception or the reality of judicial overreach in ways that elude standard judicial accountability measures.” Prov. Melissa B. Jacoby, “Other Judge’s Cases,” at 68 (January 22,... Continue Reading →

Judges Mediating Other Judges’ Cases: A Report (Harder/Sunwest)

A report By: Donald L Swanson Here’s a first of its kind: a report about federal judges mediating other judges’ cases.  It's a January 22, 2022, report titled, Other Judges’ Cases, authored by Melissa B. Jacoby, Professor of Law, University of North Carolina at Chapel Hill—scheduled to publish in 72 NYU Annual Survey of American Law... Continue Reading →

In Mediation, Ignore The “F” Word: “Final Offer”

Ignoring? (photo by Marilyn Swanson) By: Donald L Swanson “I have an opening statement that I give at the beginning of every mediation, and it goes like this”: “I don’t have a lot of rules but I have one firm rule and that is nobody uses the ‘F’ word—“final offer.” “And it’s very true. If I... Continue Reading →

Mediation Timing And Details: Adjusting To Unique Circumstances (In re Diocese of Buffalo)

Adjustments to unique circumstances? (Photo by Marilyn Swanson) By Donald L. Swanson The opinion is from In re The Diocese of Buffalo, N.Y., Case No. 20-10322, Western New York Bankruptcy Court (entered December 27, 2021, Doc. 1487). The Diocese of Buffalo asks the Bankruptcy Court to refer its Chapter 11 case and related adversary proceedings to... Continue Reading →

Mediation Order in Purdue Pharma Bankruptcy: Managing A Tension

Managing tension (photo by Marilyn Swanson) By: Donald L Swanson On January 3, 2022, Reuters reports, under the heading “Judge orders mediation for Purdue, Sacklers over opioid settlement,” as follows: A U.S. bankruptcy judge orders mediation in the Purdue Pharma bankruptcy [fn. 1], calling for the company, the Sackler family members that own it and nine... Continue Reading →

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