On Bankruptcy and Mediation
By Donald L. Swanson If I were a bankruptcy judge [I'm not and have no aspirations to become one], I’d be doing everything in my power to promote mediation in my court—right now. For example, I’d adopt local rules on mediation, establish mediation requirements for adversary proceedings and Chapter 11 plans, look for cases where... Continue Reading →
Action Item. Any party seeking appointment of a "sitting bankruptcy judge" as mediator should identify the desired judge and provide information on that judge's mediation training, background and experience -- and disclose compensation arrangements. #bankruptcy #mediation #bankruptcymediation
By Donald L. Swanson The Motion to appoint a mediator in the Caesars Entertainment bankruptcy suggests that an unnamed "sitting bankruptcy judge" be appointed. And filings by others in support of the Motion agree. The unnamed "sitting bankruptcy judge" suggestion seems to be common in many cases. But there is a better approach. Let's begin... Continue Reading →
Action Item. We should all look for special circumstances in which a mandatory mediation order might be beneficial–and then ask the court to require a mediation in such circumstances. #bankruptcy #mediation #bankruptcymediation #mandatorymediation
By Donald L. Swanson Ad hoc orders mandating mediation have a different dynamic than planned-for mediations. Usually, ad hoc orders arise because a judge sees special circumstances and orders the parties to mediate. Such orders get a bad rap because they tend to achieve fewer settlements from one-and-done sessions than are achieved in planned-for... Continue Reading →
By Donald L. Swanson Whoa Nelly!! Who saw this one coming? BloombergBusiness reports as follows about yesterday's hearing in Chicago on Caesars Entertainment's Motion to appoint a mediator: Mediation is a great idea that is months overdue, [Bankruptcy Judge] Goldgar said. But last month, the local rules that gave federal judges power to order mediation in... Continue Reading →
Action Item. Here's a simple procedural step: incorporate a mediation requirement into the court’s standard pre-trial order form for adversary proceedings. Such provision could be as short and simple as requiring attorneys to, “Identify a date by which the parties will schedule a mediation session.” #bankruptcy #mediation #bankruptcymediation #mandatorymediation
By Donald L. Swanson Caesars Entertainment recently filed its Motion to appoint a mediator for plan confirmation issues. Thereafter, nearly a dozen responses to the Motion are filed by creditors and other constituencies. No response opposes the Motion—most offer suggestions for maximizing mediation effectiveness. An ad hoc committee’s response even declares: “the Debtors’ proposed mediation... Continue Reading →
By Donald L. Swanson An assistant pokes her head into my office and says, "Momma doesn't want to settle." This assessment comes from observations made while escorting a husband/wife creditor to a conference room for today's mediation session. It's a court-mandated mediation. At issue are plan confirmation disputes in a Chapter 11 case. Sure enough, Momma does not want... Continue Reading →
By Donald L. Swanson Judge Gerald E. Rosen and Attorney Eugene Driker, mediators in the Detroit bankruptcy case, published this guest article in the Detroit Free Press on January 18, 2015. Here are some excerpts from the article: --“Mediation works, and can produce great benefits much more efficiently and expeditiously than other approaches.” --“Four ingredients... Continue Reading →
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