On Bankruptcy and Mediation
By: Donald L. Swanson “I think it is unwise for the Court to decide” this issue because: (i) “Experience shows that we would greatly benefit from the view of additional courts of appeals on this question,” and (ii) “We also would have benefited from full, adversarial briefing.” --Justice Clarence Thomas, dissenting in Czyzewski v. Jevic... Continue Reading →
By: Donald L. Swanson When mediation occurs early-in-a-case, instead of late, “cases are more likely to settle, fewer motions are filed and decided, and case disposition time is shorter, even for cases that do not settle.” --B. McAdoo, N. Welsh & R. Wissler, “What Do Empirical Studies Tell Us About Court Mediation?” (2004) A lawsuit... Continue Reading →
By: Donald L. Swanson The plan confirmation process does not provide a party to the mediation “with a renewed opportunity to challenge the [mediated] settlement to which they are bound.” --In re RPP, LLC, 547 B.R.158, 164 (Bkrtcy.W.D.Pa. 2016). The RPP, LLC bankruptcy case is a Chapter 11 reorganization, with plan confirmation occurring on June... Continue Reading →
By: Donald L. Swanson Mediation is firmly entrenched as a dispute resolution tool in bankruptcy. Mediation is commonly and regularly used throughout the bankruptcy system. And mediation’s value in bankruptcy is almost-universally recognized. A Mediation Gap But there are wide gaps in bankruptcy where mediation is still under-utilized. One of the gaps is consumer cases. ... Continue Reading →
By: Donald L. Swanson It's always great to see an experiment produce successes that lead to an expansion of the experimental endeavor. This success-and-expansion is exactly what's happened with mandatory mediation experiments in the Delaware Bankruptcy Court. Delaware's Mandatory Mediation The Delaware Bankruptcy Court began mandating mediation, by local rule, in preference cases back in... Continue Reading →
By Donald L. Swanson Who would ever think that mediation could serve an important role in pre-packaged Chapter 11 cases? --After all, the essence of a pre-packaged plan is speed: all major issues are supposed to be resolved in advance of the bankruptcy filing so the plan can move promptly to confirmation. But disputes do... Continue Reading →
By Donald L. Swanson "Girls just want to have fun," according to Cyndi Lauper. --And mediators just want to get paid! We receive an important lesson for mediators getting paid out of bankruptcy from a recent mediation hiccup. The lesson is this: --If you want to get paid from bankruptcy estate funds, you need court... Continue Reading →
By: Donald L. Swanson Original-source documents from antiquity are always fascinating! They provide a wealth of historical information and a wealth of insight into life in an earlier day. It’s mind-boggling, for example, to read the words of an author, who lived in an ancient time, writing about events of “ancient days” from his/her perspective-in-time.... Continue Reading →
By: Donald L. Swanson "Each United States district court shall,” by local rule: --“authorize . . . the use of alternative dispute resolution processes in all civil actions, including adversary proceedings in bankruptcy”; --“devise and implement its own alternative dispute resolution program "; --"encourage and promote the use of alternative dispute resolution in its district";... Continue Reading →
By: Donald L. Swanson The Ninth Circuit Court of Appeals, in a new ruling, helps point-the-way for cities facing the complexities of Chapter 9 bankruptcy. The Facts On March 28, 2003, three citizens of Vallejo, California, have a violent encounter with two of Vallejo’s police officers. A lawsuit ensues. Then, the City of Vallejo files... Continue Reading →
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