On Bankruptcy and Mediation
By Donald L. Swanson You are out there: professionals who've had mediation training and are set-to-go as mediators of bankruptcy disputes but, alas, are still looking for cases to mediate. I'd like to introduce you to some attorneys who can't afford a mediator for their smaller-amount cases: they are reading this article. Attorneys with smaller-amount... Continue Reading →
By: Donald L. Swanson A tragedy of recent Chapter 11 times is this: --it looks like Congress tried to remove the absolute priority rule from individual Chapter 11 cases (see the "individual" exception in § 1129(b)(2)(B)(ii) photo above); but Congress didn't quite get the removal words right, according to subsequent court rulings. We now have... Continue Reading →
By: Donald L. Swanson Mandatory mediation is a good thing [see, e.g., my blog post titled, "Local Bankruptcy Rules Without Mandatory Mediation are Like a Toolbox Without a Vise-Grip"]. But the words "mandatory mediation" refer only to a required process. They do not suggest any such thing as compelled settlement or compelled concession or even... Continue Reading →
By Donald L. Swanson I don't need to see a study or commission report for the title of this article. I've seen the problem play out many, many times in real life. Here is an attempt to explain. Some Propositions Proposition # 1: When one party has 0% odds of success at trial, a mediation... Continue Reading →
Action Item. Issues relating to first offer arrangements, non-monetary terms, settlement documentation, number of sessions, and use of an assistant mediator need to be discussed in advance by the mediator with parties and their attorneys to prepare for multiparty mediation sessions. Advance communications on subjects identified in this three-part series will significantly enhance the efficiency... Continue Reading →
By Donald L. Swanson When preparing for a multiparty mediation, the following items 6 through 10 should be addressed by the mediator with the parties and their attorneys in advance communications. Item Six. First Offer Arrangements. Common questions about the first offer in a mediation are: (1) Which party will make the initial offer at... Continue Reading →
By: Donald L. Swanson On June 28, 2016, the United States Supreme Court grants certiorari, in the case of In re Jevic Holding Corp. from the Third Circuit Court of Appeals, to resolve this narrow issue: “Whether a pre-plan settlement in a Chapter 11 bankruptcy may provide for payment to general unsecured creditors when priority claims remain... Continue Reading →
By: Donald L Swanson Unsecured Claim + Bankruptcy = You Lose. I came up with this formula back in 1983, while preparing for a seminar presentation on basic bankruptcy law. I was trying to come up with something creative to say. And . . . I must confess . . . I thought it was... Continue Reading →
Action Item. Issues relating to settlement impediments, parties, information and discovery, use of joint sessions, and tax implications need to be discussed in advance by the mediator with parties and their attorneys to prepare for multiparty mediation sessions.
By Donald L. Swanson Advance communications among the mediator, the parties and their attorneys can be helpful in creating an organization, structure and efficiency for multiparty mediation sessions. The following are items one through five in a ten-item checklist of the types of subjects that should be addressed in the advance communications: Item One. Settlement... Continue Reading →
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