Mediation Committee Newsletter

vol 4, num 1 | February, 2017

Mediation

AN ABI COMMITTEE NEWSLETTER

Visit the Mediation Committee page

► IN this issue:

Results of the Survey of Bankruptcy Judges on Mediation
Compendium of Local Bankruptcy Court Mediation Rules
Eye on Bankruptcy Airs This Thursday
International Mediation Issues

Results of the Survey of Bankruptcy Judges on Mediation

Hon. Louis H. Kornreich (ret.)
Bernstein Shur
Portland, ME
Newsletter Editor

Judy W. Weiker
Manewitz Weiker Associates, LLC
Indianapolis
Newsletter Editor

We are pleased to report that many bankruptcy judges responded to our survey on the use of mediation in their courts. The response rate was 26 percent, and we are told this is a very high rate of return. We appreciate the time and effort each of the participating judges expended in this effort and hope you will find this summary of results to be useful. Of course, we caution everyone that this was not a “scientific” survey, and the results prove nothing beyond showing that a sampling of our bankruptcy judges are interested in employing mediation as a dispute-resolution device when doing so will benefit the parties. We also want all readers to know that we do not know the names of the respondents or the districts in which they sit. Indeed, it is possible that we received two or more responses from the same district. It is also possible that responses from the same district are contradictory. We have no way of knowing.

The questions we asked were: (1) Do you use mediation to resolve disputes? (2) Does your district have a mediation rule? (3) If not, has your court considered using the ABI Model Mediation Rule as a starting point or reference point in developing a local rule for your district? (4) Do you have a preference for judicial mediators over private mediators? If so, why? (5) Do you require mandatory mediation? If so, in what types of cases (adversary proceedings, contested matters)? Do you find that mandatory mediation tends to be as successful as voluntary mediation? Do you promote voluntary mediation? (6) How is a mediator selected in your district? (7) Has mediation been beneficial? (8) Do you have any suggestions about how the mediation process should be handled by bankruptcy courts generally? Is mediation beneficial or not? Should it be required?

READ FULL SURVEY

RULES 2

RULES 1

Compendium of Local Bankruptcy Court Mediation Rules

Jack Esher
MWI - CBInsolvency LLC
Boston

In 2009, I had a summer intern and together we spent the entire summer compiling an outline summarizing the contents of local rules concerning the use of mediation and other ADR processes in bankruptcy courts throughout the nation (I did some other stuff too like having lunch in the park instead of at my desk). This was long a project on the bucket list of the former ADR Committee of the American Bankruptcy Institute. My favorite part was calling it a Compendium. It was updated in mid-2013, catching the revisions of the Delaware rule that had just come out, but it hasn’t been updated since then. Don Swanson recently sent out a post on the Committee Listserv about it and his own similar efforts. That post asked, and I will reiterate it here, for people to let us know if the summary of rules in the Compendium pertaining to their district remains accurate. We have suggested that the Mediation Committee take on a new update as a project.

Eye on Bankruptcy Airs This Thursday

Join us on February 23 at 1:00 p.m. ET for the next episode of "Eye on Bankruptcy," a monthly online video show analyzing the latest judicial opinions.

"Eye on Bankruptcy" is hosted by Prof. Michelle Harner (Univ. of Maryland Francis King Carey School of Law). Her guests this month will be Hon. Thomas J. Catliota (U.S. Bankruptcy Court (D. Md.)) and Donald A. Workman (BakerHostetler).

The next episode will explore recent cases including:

U.S. Bank vs. T.D. Bank decision on the doctrine of explicitness
Kahn ruling on subordination of security claims
Tuscan Energy decision on retainer agreements
Veltre decision on consumer foreclosure sales and preferences

Gain a competitive edge from the comfort of your home or office by registering for Thursday's "Eye on Bankruptcy!"

An archive of past one-hour episodes is available online.

International Mediaion Issues

The Mediation and International Committees will work together at this year's Annual Spring Meeting to present a session titled "The Potential for, and the Challenges of, Mediation in Cross-border Insolvencies." This panel will discuss the evolution of mediation in cross-border insolvencies and how it is utilized today. It will also provide insight on how cross-border mediations differ from U.S.-centric mediations; when cross-border mediations are most (and least) effective; and how mediators and professionals can best prepare themselves and others for successful cross-border mediations.

Speakers include:

William A. Brandt - Moderator
Development Specialists, Inc.; New York

Peter L. Borowitz
Mangrove Mediation; Bonita Springs, Fla.

Jacob A. Esher
MWI - CBI; Beverly, Mass.

Justice Glenn A. Hainey
Superior Court of Justice - Toronto Region

This year's conference will be held at the Marriott Marquis in Washington, D.C., on April 20 - 23. Don't miss out on this intense networking and educational opportunity!