On Bankruptcy and Mediation
Patience and perseverance are required (photo by Marilyn Swanson) By: Donald L Swanson A mediator’s motto must always be, “Never give up.” At the beginning of any mediation, a mediator will hear, all the time and from all the parties, “No, never!” So, a mediator must ignore such statements and keep talking—exercising patience and perseverance .... Continue Reading →
Reprinted with permission from the ABI Journal, Vol. XL, No. 9, September 2021. View the original publication here. By: Donald L Swanson Mandated mediation is authorized by federal statute. As such, 28 U.S.C. § 652(a) provides, “Any district court that elects to require the use of alternative dispute resolution in certain cases may do so only... Continue Reading →
When hazards happen (photo by Marilyn Swanson) By: Donald L Swanson “Puffing” is famously—or notoriously—known as acceptable negotiating behavior in these United States. “Puffing” means something akin to “fibbing”: taking exaggerated positions, pursuing hidden agendas, hiding the ball on willingness to bend, etc. Although “puffing” in negotiations may be acceptable behavior, it is, often, not a... Continue Reading →
An expired deadline? (Photo by Marilyn Swanson) By: Donald L Swanson Every party in a mediation or other negotiation effort puzzles over time limits for responding to offers. Questions that offering parties often grapple with include: How long should the time limit be for responding?Should the time-limited offer be presented as a step in the negotiating... Continue Reading →
https://youtu.be/0kEXfRwXDSg By: Donald L Swanson The Mediation Committee of the American Bankruptcy Institute promotes mediation as a tool for resolving bankruptcy disputes. The new statutory duty of a Subchapter V trustee to “facilitate the development of a consensual plan of reorganization” (under § 1183(b)(7)) is a mediator-like role, which finds a home in ABI’s Mediation Committee.... Continue Reading →
11 U.S.C. Sec. 1183(b)(7) — Duty to facilitate The following article is reprinted with permission from the American Bankruptcy Institute—originally published in its Mediation Committee Newsletter. Here is a link to the original publication, dated 6/30/2021. By: Hon. Louis H. Kornreich, David A. Mawhinney & Donald L Swanson The Bankruptcy Code directs the trustee in... Continue Reading →
Webinar -- Promotional Notification By: Donald L Swanson What follows is a script (more or less) of my portion of a panel presentation in an webinar, presented on September 14, 2021, sponsored by the Mediation Committee of the American Bankruptcy Institute ("ABI"), titled "Facilitation Skills for Subchapter V Trustees." A video of the webinar appears at... Continue Reading →
Bankruptcy Petition for City of Detroit By: Donald L Swanson Judge Gerald Rosen [fn. 1] served as Chief Judicial Mediator in the City of Detroit bankruptcy. He is credited with masterminding an $820 million deal that rescued the City of Detroit from bankruptcy. In a fascinating discussion, Judge Rosen recently explained and illustrated his Four "C’s”... Continue Reading →
Stubborn persistence (photo by Marilyn Swanson) By: Donald L Swanson The opinion is In re Butko, Case No. 20-21255 in the Western Pennsylvania Bankruptcy Court (decided 2/10/2021, Doc. 91). Litigious Parties The parties have been at it for awhile. You know the history is bad, when a Court opinion begins its “Background” explanation like this: “In... Continue Reading →
De facto end of the harbor? (photo by Marilyn Swanson) By: Donald L Swanson A Subchapter V trustee “acts more like a mediator than an adversary”; and A “substantial part of the Subchapter V trustee’s pre-confirmation role” is to “serve as a de facto mediator between the debtor and its creditors.” --From In re 218 Jackson... Continue Reading →
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