On Bankruptcy and Mediation
Advocating for a position (photo by Marilyn Swanson) By: Donald L Swanson “Neutral Offering Solutions had long-term negative associations” in mediation. That’s a finding from a study of small claims mediations, titled “What Works” [Fn. 1] “Neutral Offering Solutions” refers to a mediator offering ideas for solutions and then advocating for those ideas. Study’s Conclusion In... Continue Reading →
Alive and well (Photo by Marilyn Swanson) By: Donald L Swanson You don’t see this very often: a dispute over the confidentiality of mediation communications. But such a dispute recently happened in In re Barretts Minerals, Inc., Case No. 23-90794, Southern Texas Bankruptcy Court. And the result is this: mediation confidentiality remains alive and well. In... Continue Reading →
All are included (photo by Marilyn Swanson) By: Donald L Swanson Here’s a due process question that’s percolating before the U.S. Supreme Court and a related mediation issue: The due process question is whether an insurer who must fund a mass tort bankruptcy plan is a “party in interest” that’s entitled to appear and be heard... Continue Reading →
A handshake? (Photo by Marilyn Swanson) By Donald L. Swanson The handshake, as a social ritual, has been around for a very long time. In days of olde, the handshake probably served a dual role: as a sign of peaceful greeting; and as a way to assure that the other person isn’t holding a dagger or... Continue Reading →
Window refreshed? (Photo by Marilyn Swanson) By: Donald L Swanson Everyone knows by now of a problem in the Southern Texas Bankruptcy Court with a judge who resigned over ethics controversies. That resignation did not solve anything for the cases in which that judge was involved. Instead, the controversies continue to mushroom in a variety of... Continue Reading →
Roundness (photo by Marilyn Swanson) By: Donald L Swanson A study on using round-number offers and precise-number offers in negotiations reaches these two conclusions: Round numbers signal completion—and so, negotiators are more likely to accept a round number offer (e.g., $3,000) than a precise number offer (e.g., $3,278.23); and Precise numbers are perceived as factual and... Continue Reading →
Making it work -- Mandating action (photo by Marilyn Swanson) By Donald L. Swanson Recent expressions of concern about courts mandating mediation reminded me of a mandated mediation process that worked well: the City of Detroit bankruptcy. An illustration of the success of mandated mediation in the Detroit case is this line: The Bankruptcy Judge... Continue Reading →
Backing away? (Photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Legarde, Case No. 22-12184, Eastern Pennsylvania Bankruptcy Court (issued September 14, 2023; Doc. 112). Facts Debtor claims Creditor raped her. Then, Debtor posts stuff about Creditor on the internet. So, Creditor sues Debtor for defamation, alleging willful and malicious conduct. Bankruptcy... Continue Reading →
A dilemma: elegance or country? (Photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V Trustee “shall . . . facilitate the development of a consensual plan of reorganization.” [Fn. 1] This is a mediator-ish role: a “third party” who “participates to assist in the resolution of issues in controversy.” [Fn. 2] Subchapter V Trustee... Continue Reading →
A tapering approach? (Photo by Marilyn Swanson) By: Donald L Swanson "What’s the Best Way to Give Ground in Negotiations?" is the report of a study on negotiating strategies. [Fn.1] What follows is a summary of that report. Overview In negotiating, a key challenge is to decide how much to change your offer at each round... Continue Reading →
MEDIATBANKRY 