How An Official Committee Member Breaches Fiduciary Duties–And Pays A Price

By: Donald L Swanson Defendant “seriously breached her fiduciary duties” as a member of the Official Committee of Unsecured Creditors. Naylor v. Farrell (In re Farrell), 610 B.R. 317, 323 (Bkrtcy.C.D.Cal. 2019). Facts Here’s what happened: Defendant failed to play by the rules. Debtor filed a voluntary Chapter 11 bankruptcy. Debtor and and his spouse (the... Continue Reading →

Model Local Mediation Rules: A Service of Great Value

By: Donald L. Swanson Every once in a great while, a group of people perform a voluntary service of hard and diligent effort that produces a result of excellence and provides great value to others. That is precisely what a small group of people did in creating model local rules and supporting commentary on bankruptcy mediation.... Continue Reading →

Mandated Mediation: Authorized By Federal Statute

By: Donald L Swanson “Any district court that elects to require the use of alternative dispute resolution . . . may do so only with respect to mediation, . . . “         --From 28 U.S.C. § 652(a)—Alternative Dispute Resolution Act of 1998. The correct view on a Federal court's authority to mandate... Continue Reading →

Are Emotional Arguments Helpful or Harmful in Mediating Commercial Disputes?

By: Donald L Swanson Settlement = Assessment of Risks + Math I made up this unsophisticated formula decades ago to explain what happens when a negotiated settlement occurs in a commercial dispute. What I’ve found, since then, is that the formula holds true in the vast majority of cases—even when emotions and tempers are on edge.... Continue Reading →

Mediation — And the Role of the Small Business Trustee

By: Donald L Swanson “Those with business, managerial, consulting, mediation and operational experience are encouraged to apply.” --From “Solicitation” by U.S. Trustee for Applicants to Serve as Subchapter V Trustees (emphasis added) Back in August of this year, the Small Business Reorganization Act of 2019 became law. It’s effective date is 180 days later—February 19, 2020.... Continue Reading →

Empirical Studies and the Mediator’s Proposal — A Portal to Decision

By: Donald L. Swanson Let’s try combining a couple empirical studies on unrelated matters to support the following proposition: --The “mediator’s proposal,” as a form of choice delegation, can help parties reach settlement.  The proposal becomes a portal or entryway to decision. First Study: Delegating Difficult Choices The first study is titled, “Delegating Decisions: Recruiting Others... Continue Reading →

When Impasse on a Legal Issue Impedes Mediation: An Example of Effective Action

By: Donald L Swanson There is often a tension in mediation that goes something like this: Party of the first part says: We win on a technical legal issue—100% certainty! Party of the second part responds: You do not win on that issue—100% certainty! Party of the first part reacts: Do so! Party of the second... Continue Reading →

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