Mediation Committee

We are privileged to have observed many talented predecessors with years of dedicated service to ABI and the Mediation Committee during our time as co-chairs. We also have had the good fortune to work with very competent subcommittee directors. Several of our directors are seasoned hands, while others are relative newcomers.

The Mediation Committee presented several great CLE sessions this summer at regional bankruptcy workshops around the country. In addition, the committee just presented a fantastic CLE program at ABI’s Winter Leadership Conference this past weekend, which we will summarize in the next newsletter.

“[M]ediation provides a vital alternative to litigation;” its benefits “include its cost-effectiveness, speed, and adaptability.” [1] But despite these benefits, many litigants only turn to mediation to resolve their disputes after filing a lawsuit rather than before.

Our committee has been quite active during the last few months!

Retired Bankruptcy Judge Louis Kornreich has been a mainstay for the ABI Mediation Committee for many years and now serves as a co-chair. As a U.S. Bankruptcy Judge, he was respected for his innovative approach to solving problems that crop up in cases by employing mediation-like skills to help parties resolve their disputes without using the full panoply of litigation tools.

As bankruptcy cases of all types continue to be filed in record numbers, the use of mediation is increasing. This trend is likely to continue. This article focuses on the concepts that a lawyer must know and actions that he/she should take to avoid or overcome an impasse in mediation. The obstacles to reaching a settlement vary with each case.

In the last edition of this newsletter, Ed Schnitzer provided us with an excellent summary of the how and when a mediator may determine the absence of good faith. With an eye on topics of interest, Don Swanson republished Ed’s article on his weekly blog with an invitation for comment. I did just that and my response elicited further comment from many colleagues.

ABI has been running a mediation training program in conjunction with St. John’s Law School each December for the past nine years. This program stands apart from other programs that are available for training in a more generalized capacity.

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.