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 →
Preparing for Multiparty Mediation: A Checklist — Part Three, Items 6-10
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 →
U.S. Supreme Court Will Weigh-In on Bankruptcy Settlement Issue: A Choice Between Rigidity and Flexibility
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 →
ACTION ITEM: From Preparing for Multiparty Mediation — Part Two
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.
Preparing for Multiparty Mediation: A Checklist — Part One, Introduction
By Donald L. Swanson Here’s a confession. I’m in a four-party mediation. It begins at 9:30 a.m. in a joint 30-minute meeting. The mediator then spends 30 minutes with each party. It’s now noon — we’re taking lunch orders — and the mediation process has only just begun! At mid-afternoon, positions are far apart, and... Continue Reading →
Mediation as a Condition for Confirmation of a Disputed Chapter 11 Plan
By Donald L. Swanson Here's a proposal: Mediation among disputing parties should be a condition precedent for a final confirmation hearing on a contested Chapter 11 plan. The short history of bankruptcy mediation bears out the value of this proposal. --Songs of praise have been sung everywhere (in a bankruptcy / professional sort of way)... Continue Reading →
Discovering How Mediation Can Bring Order Out of Chaos
By Donald L. Swanson Eons ago, as measured by the short history of bankruptcy mediation, we are representing a creditor in a contentious Chapter 11 case. The case has many creditors, a wide range of constituencies and a chaotic existence. Efforts to bring order are having limited success. So someone suggests mediation. Most parties think... Continue Reading →
ACTION ITEM: From Part Six — Differing Priorities
Action Item. An urgency and an immediacy exist in business bankruptcy cases to preserve and maximize value—otherwise there will be nothing for creditors to fight over. Mediation plans, strategies and models must provide immediate help in these urgent situations.
6 Reasons Why Bankruptcy Mediation is a Process, Not a One-and-Done Session: PART SIX — DIFFERING PRIORITIES
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 →
ACTION ITEM: From Part Five — Multi-Party Realities
Action Item. Preparation efforts must be made in a multi-party mediation before the parties will be ready for final mediation sessions.
MEDIATBANKRY 