On Bankruptcy and Mediation
By: Donald L. Swanson We all make assumptions -- every day -- about many things. Our false assumptions are our illusions. There are many illusions about mediation, most of which place restrictions on the role and effectiveness of the mediation process. We all have them. Fortunately, we now have solid evidence to dispel some of... Continue Reading →
By: Donald L. Swanson “The civil Appeals Management Plan (CAMP), now operating in the United States Court of Appeals for the Second Circuit, is an innovative set of reforms in the appellate process. . . . This is the first time the [mediation] procedure has been implemented systematically.” --1977 Report of the Federal Judicial Center,... Continue Reading →
By Donald L. Swanson Not everyone is a fan of mediation. And one Texas Bankruptcy Judge is emphatically opposed. Judicial Actions Here is an unofficial transcription (from the official recording) of an in-court exchange occurring on September 3, 2014, as reported on this webpage: “The Court: . . . Is the Trustee eventually going to... Continue Reading →
By: Donald L. Swanson Mandatory mediation is a good thing [see, e.g., my blog post titled, "Local Bankruptcy Rules Without Mandatory Mediation are Like a Toolbox Without a Vise-Grip"]. But the words "mandatory mediation" refer only to a required process. They do not suggest any such thing as compelled settlement or compelled concession or even... Continue Reading →
By: Donald L Swanson Unsecured Claim + Bankruptcy = You Lose. I came up with this formula back in 1983, while preparing for a seminar presentation on basic bankruptcy law. I was trying to come up with something creative to say. And . . . I must confess . . . I thought it was... Continue Reading →
By: Donald L Swanson Back in 2011, the Third Circuit Court of Appeals wrote a scathing opinion about the behavior of the disputing parties in the Nortel Networks bankruptcy case. The Third Circuit's opinion is published at In re Nortel Networks, Inc., 669 F.3d 128 (3rd Cir. 2011). However, the Third Circuit's judicial scolding has had... Continue Reading →
By: Donald L Swanson Proactive mediation seems to be gaining traction in cases with large numbers of claimants and large amounts of money at stake. Examples are the City of Detroit bankruptcy, the diocese bankruptcies, and the Argentina debt cases. We can now add another example to the list: the multi-district case of In re... Continue Reading →
By: Donald L Swanson First of all, I know this suggestion will never happen. But it should. This suggestion, if implemented long ago, would have dramatically increased odds of a mediated settlement in the Nortel bankruptcy. Such a settlement would have stopped the excessively-expensive and excessively-long-running legal battles in the Nortel Networks bankruptcy (Case No.... Continue Reading →
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 →
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 →
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