On Bankruptcy and Mediation
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 →
LinkedIn Discussion Response to Mediator Testifying as a Witness?! A New Appellate Opinion on Mediation Confidentiality Click here to view full discussion commentators credentials.
By Donald L. Swanson Every now and then something happens that becomes the model for how-not-to-do-this and a symbol of don't-let-this-happen-to-you. The Archdiocese of Milwaukee bankruptcy is one of those somethings. It's the "longest-running and most contentious" of the 14 Catholic Church bankruptcies filed since 2004 to address sex abuse liabilities. So says The Milwaukee... Continue Reading →
Action Item. This Regional Mediation Hubs proposal would mitigate many concerns of far-away defendants, improve efficiency of preference processes, and increase the number of cases actually mediated. Accordingly, it should be adopted and implemented as soon as possible. #bankruptcy #mediation #bankruptcymediation
By Donald L. Swanson The proposal for mega-case avoidance actions is to hold mediation sessions in regional hub cities near where multiple defendants reside (instead of Wilmington or New York City) and include trained mediators from those regions on the panel of mediators. A West Coast example of how the proposal could help is In... Continue Reading →
By Donald L. Swanson Avoidance defendants from fly-over country believe they get a raw deal in mega-case mediations. An example is In re VeraSun Energy Corporation, et al, Case No. 08-12606 in Delaware. The VeraSun case involves eighteen ethanol production plants located throughout the corn producing areas of the United States. After § 363 sales... Continue Reading →
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