Preferred Management of Preference Cases for Bankruptcy Mediation

by Jack Esher, MWI Bankruptcy & Finance ADR Panel

When filing a group of preference cases, early retention of a mediator can help settle cases promptly and efficiently. In fact, retaining a mediator is mandated in Delaware within the first 120 days of filing a preference case. Early retention is most useful when the mediator utilizes a comprehensive case management approach, which focuses the process on settlement prior to mediation, providing significant cost savings and greater all-around efficiency.

A Case Manager (CM) utilizes a schedule of procedures with due dates and deliverables to guide the standard preference case toward an early settlement. This is referred to as the “Settlement Track.” A case’s Settlement Track is markedly different from its Litigation Track. While the Litigation Track relies on numerous rules and deadlines in order to complete discovery,...

Bankruptcy Mediation Local Rules Make FL Mediators Report Bad Faith

By Tad Mayer, MWI Director of Commercial & Corporate Programs

Should all mediators who conduct court-ordered mediations be required to report when parties fail to negotiate in good faith?  In Florida, it appears so.

As Patrick Mastronardo, the Director of the Florida Academy of Professional Mediators, writes:  "In advisory opinion 2012-005, Florida Supreme Court's Mediator Ethics Advisory Committee stated a certified mediator may disclose a party failed to negotiate in good faith or willfully failed to appear at a court-ordered mediation as required by the local rules of the U. S. Bankruptcy Court for the Middle District of Florida." 

Apparently, reporting requirements that apply to bankruptcy mediation in Florida apply to all court-ordered mediation.  The author explains that the opinion is based...

Indianapolis Removes Bankruptcy ADR Requirement

By Tad Mayer, MWI Director of Commercial & Corporate Programs

In the United States Bankruptcy Court, Southern District of Indiana, the Indianapolis Division has eliminated the requirement for alternative dispute resolution (ADR) in Chapter 13 cases.  General Order 13-0002 has now “modified and replaced” General Order 10-0002.  This change only applies to the Indianapolis Division.

The Order was signed by Chief Judge James K. Coachys on April 11, 2013 to take effect on April 15, 2013.  It specifies that the Order applies to “…trustee motions to dismiss Chapter 13 cases in the Indianapolis Division.”  Interestingly, ADR is still encouraged by the Court for these cases. 

For more information, the General Order is available at:  www.insb.uscourts.gov/WebForms/genorder/130002.pdf

Sources:

Conspiracy Theorists and Mediation

By Chuck Doran, Mediator

I mediated a case in the mid-90’s that included a party who was dressed entirely in white and refused any offer to sit.  Her daughter, who was in her early twenties and also dressed head to toe in white, stood directly behind her with her arms akimbo, as though she were praying.  During a private session, she also intimated her belief that radio waves were projecting thoughts that were not her own into her head.

In this situation, it would be all too easy to assume that the woman was crazy and incapable of partaking intelligently in the process of mediation. After all, her behavior was outwardly bizarre and nonsensical and she even said that she experiences thoughts she does not believe to be her own.  In most people’s opinion, she must be crazy and trying to pursue...

An Introduction To Mediation and Alternative Dispute Resolution

By Diane Levin and Chuck Doran, MWI Mediation Trainers

"The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried." Sandra Day O'Connor Mediation is a form of alternative dispute resolution, popularly known as "ADR".  The term "ADR" describes a vast array of mechanisms for resolving disputes and differences outside the court.  Although ADR has existed for centuries throughout the world in a variety of forms, during the 20th century social and cultural forces conjoined to produce the modern ADR movement, a revolution in the way people and institutions address conflict.  The last 50 years in particular have witnessed the meteoric rise and broad popular acceptance of ADR in the U.S. and throughout the world.

What...

Can't We All Just Get Along? An Overview of ADR Methods and Roles

This post is one of a series of articles on the process and practice of mediation and originally appeared in the "MWI Mediation Training Manual", written by Diane Levin and Chuck Doran.

During the 20th century and into the 21st, the needs of individuals and institutions and the demands of the market have led to the development and refinement of numerous methods of ADR.  Different disputes and disputants pose different challenges and arrive with different needs, and it is crucial, as early ADR pioneer Professor Frank Sander once observed, to "fit the forum to the fuss".

The following are the most common kinds of ADR, although many more exist, some of which are hybrids or variations of the processes described below.  Note the differing roles neutrals play across a spectrum of processes.  ArbitrationArbitration is a form of private adjudication.  Pursuant to law...

Dan Pink on Attunement, Clarity, and Sales Negotiations

by Chuck Doran, Senior Negotiation Trainer

Dan Pink presented a lecture on sales at the Royal Society for the encouragement of Arts (RSA) that raised a number of interesting ideas that relate to negotiation.  His talk covers a number of topics, but there are a few points of particular relevance to someone with an interest in negotiation.

He presents the idea that people face the perennial challenge of selling something.  In other words they will continue to encounter negotiations of varying scale in their lives. In his own words, "convincing or persuading people to give up something they value (attention, effort, money, time, etc.) for something you can offer…" Citing examples such as convincing colleagues to spend time and energy working on your project as opposed to another one.

The takeaway, then, is that learning to negotiate skillfully is essential for most...

The Value of Empowering Your Negotiation Counterpart to Collaborate

Businessdictionary.com defines the Self-Fulfilling Prophecy as “[E]xpectations about circumstances, events, or people that affect a person’s behavior [such that] he or she (unknowingly) creates situations [that fulfill] those expectations.”  In other words, your predictions about a situation (and therefore how you act in that situation) will cause those predictions to come true.

But what does this have to do with you as a negotiator?  More than you think.  In a typical negotiation with at least two partners per side, your beliefs about them, and what you anticipate from them, will influence your actions, which will in turn influence their reactions.  When your counterparts on the other side of the table are in disagreement with each other, they look to you to confirm or disconfirm their various hypotheses.  Therefore, your actions inevitably and directly prove one side correct and the other incorrect, thereby empowering one faction over another,...

Managing Relationships from Yalta to the Kitchen

By Carl Kjellman, MWI Staff

Visiting my family for the holidays comes with a few guarantees. Among them: someone will be admonished for the unacceptable state of the dishwasher. “It was loaded incorrectly last night. Do you know anything about this?” After decades of this line of accusatory questioning, responding “for the love of all that’s holy, this is not that big of a deal” is second nature to most of the family. Predictably, this doesn’t usually go over well. Tempers flare, resentment festers, and the dishwasher invariably continues to be loaded sub-optimally.

It’s all too easy to get wrapped up in long-standing familial dynamics; because we’ve often been repeating a few interactions our whole lives, breaking out of a long established pattern is invariably difficult and sometimes painful. It may entail sacrificing some short-term gains, however, in the context of...