In recent years, bankruptcy judges — including the co-author of this article — have been mediating cases with more frequency. Parties in bankruptcy-related disputes often request that one of the local bankruptcy judges mediate their cases, or in other cases, that a bankruptcy judge refer a matter to a colleague for mediation.
Autonomy. Flexibility. Privacy. Cost Efficiency. Closure. These are some of the many reasons that parties choose to mediate. But once the parties agree to mediate, then what? Below are suggestions to help you maximize the value of mediation in bankruptcy cases.
A. How to Get the Most Out of Your Mediation
We asked our joint membership to respond to mediation-related survey questions in order to better understand the experience and to receive comments from the litigant’s and mediator’s perspectives. We would like to thank all those who responded to the survey. We received a robust response and are providing highlights to our joint membership.
This article by C. Edward Dobbs provides a detailed outline for party advocates and mediators.
Unlike the more common pre-dispute arbitration agreement in which the contracting parties agree to arbitrate disputes if and when they occur, a structured arbitration agreement is a negotiated contract created after a dispute arises. It is customized to fit the facts and risks facing the parties and includes dispute-specific procedural rules applicable to both the parties and the arbitrator or arbitration panel.
Mediation has become an invaluable tool in large chapter 11 cases.
Here’s a confession: I’m in a four-party mediation. It begins at 9:30 a.m. in a joint 30-minute session. 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 pressure mounts to make lots of progress in a hurry.
Mediation will continue to expand as a resource in all types of bankruptcy cases. It is the hope of the Mediation Committee that the ABI Mediation Model Rules will become a valuable resource for judges, local rules committees, professionals and parties, and that the rules will help facilitate the growth and accessibility of bankruptcy mediation to the entire bankruptcy community.
It’s January 2011. I’m sitting in a conference room at the Federal Courthouse in Omaha (the building is new and beautiful; you should visit it sometime). It’s a “brown-bag luncheon” for the local bankruptcy bench and bar. We’re on the last agenda item (open forum), and the judge asks for input. Having recently completed a couple of state court mediations, I raise my hand and say, “What about using mediations in bankruptcy?” Next thing that happens: I’m chair of the Nebraska Bankruptcy Court Mediation Committee.
