On Bankruptcy and Mediation
By Donald L. Swanson Non-bankruptcy cases usually have a different priority than bankruptcy cases: namely painting a picture v. maximizing value. In non-bankruptcy cases, an event or series of events occur, and the focus is, typically, on (i) painting a clear picture of what happened, and (ii) assigning or absolving liability accordingly. In non-bankruptcy cases,... Continue Reading →
By Donald L. Swanson A sale in bankruptcy of assets owned by Nortel Networks Inc. results in a $7.3 billion (yes, that's $7,300,000,000) pot of gold for creditors. Guess what: creditors can't agree on how to divide the pot. So what do creditors do instead? They spend $2 billion from the pot of gold on... Continue Reading →
By Donald L. Swanson --Mediators “showed a marked preference toward” a facilitative style of mediation, but --Mediators “believe that parties and their advisers expect them" to use an evaluative style of mediation. These findings are recently published (on May 11, 2016) by the Centre for Effective Dispute Resolution (located on Fleet Street in London, England)... Continue Reading →
Action Item. Preparation efforts must be made in a multi-party mediation before the parties will be ready for final mediation sessions.
By Donald L. Swanson Two-party and three-party mediations can fit well into a one-and-done session model. But four and more parties are difficult to manage in a one-and-done. Consider this: in a four-party mediation that begins at 9:30 a.m. with a 30 minute joint meeting and a 30 minute caucus with each party, it’ll be... Continue Reading →
By Donald L. Swanson I’m in a mediation session for a state court commercial case. The parties have been at it for a couple years. And everyone’s expectation is that this will be a one-and-done session. One of the first things Plaintiff’s president says to me is, “Can you believe we’ve paid over [$xxx] in... Continue Reading →
Action Item. All participants in a bankruptcy mediation need to understand, in advance, that a discovery vacuum, (1) might require a recess in the mediation session until the discovery vacuum can be filled, or (2) needs to be identified and addressed in pre-session communications..
By Donald L. Swanson I’m mediating a bankruptcy valuation dispute between a bank secured creditor and debtor. The asset is a building in need of repair. The dispute has been pending for a short while, and a hearing on declaration evidence is to occur soon. During the mediation, the banker says: “We need to see... Continue Reading →
Action Item. At every significant development in a bankruptcy case, beginning at its earliest stages, parties should consider whether a mediation process might be helpful immediately in resolving remaining disputes. #bankruptcy #mediation #bankruptcymediation
By Donald L. Swanson "You can't fight every battle all the time," and "You have to get as many settlements as you can—as fast as you can." These are truisms for debtor's bankruptcy counsel. In a Chapter 11 case, the debtor's best-interest is to identify resolvable disputes promptly, get each of them settled as quickly... Continue Reading →
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