On Bankruptcy and Mediation
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 →
By Donald L. Swanson By mid-November 2015, the Archdiocese of Milwaukee has been battling its sex abuse claimants in Bankruptcy Court for nearly five years. The fight has been tough: described as "scorched earth." The Archdiocese has been fighting to limit payouts on sex abuse claims to the low single-digits of millions of dollars. But... Continue Reading →
By: Donald L. Swanson A Bankruptcy Court Judge is concerned about “leaks of sensitive, non-public information concerning the bidding process and mediation.” The bankruptcy case is In re Molycorp, Inc. (Case No. 15-11357 in the District of Delaware). A "Leaks" Problem The Bankruptcy Judge identifies three Bloomberg articles authored by Jodi Xu Klein and others... Continue Reading →
By Donald L. Swanson Action Item. Before blindly following a one-and-done mediation model from non-bankruptcy cases, we need to consider how each bankruptcy mediation might differ from non-bankruptcy contexts. #bankruptcy #mediation #bankruptcymediation
By Donald L. Swanson Bankruptcy needs a larger mediation process than the one-and-done-session model that’s common in non-bankruptcy cases An iteration of the title above ["Bankruptcy mediation is a process, not a one-and-done session"] is often greeted by bankruptcy professionals with blank stares. They can't imagine why they'd want to mediate bankruptcy disputes any differently... Continue Reading →
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