Mediation of a Bankruptcy Case

Journal Issue

May 2003

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Persuade
your neighbors to compromise whenever you can. Point out to them how the
nominal winner is often a real loser—in fees, expenses, and waste of
time. 
—Abraham Lincoln

One may win the lawsuit, but lose one's money. 
—Chinese Proverb

</blockquote>

Abe
Lincoln and the wise Chinese philosopher are correct. Parties should be
encouraged to resolve their disputes through compromise. This is particularly
true in an insolvency context, where time and cost are so critical. Statistics
show that well over 95 percent of all litigation settles. However, as
experienced litigators know, settlement is too often reached at the
"courthouse steps" after the parties have spent large amounts of
money, emotion and time conducting discovery and preparing for trial. If the
dispute is part of a bankruptcy or reorganization, the failure to settle early
may eliminate the opportunity to settle the lawsuit at all, due to the
resources spent and opportunities lost in the battles along the way.

Over the last decade or
so, alternative dispute resolution (ADR), especially mediation, has become an
acceptable method of resolving disputes in bankruptcy cases, and civil
litigation in general.<a href="#3" name="3a">3</a> For good reason, the trend is increasing. While a
settlement of a case pending in bankruptcy court will, in almost all instances,
require court approval after notice and hearing,<a href="#4" name="4a">4</a> this contingency is not
necessarily an obstacle. It is rare that a bankruptcy court would refuse to
approve a settlement agreed to by the parties.<a href="#5" name="5a">5</a> The purpose of this article is
to review the mediation process, look at ways that mediation has been used in
bankruptcy cases, and explain why mediation has become the preferred ADR
process in resolving many contested matters and adversary proceedings in
bankruptcy cases.

<h3>Anatomy of a Successful Mediation</h3>

In mediation, the
parties try to resolve their dispute by entering into an agreement with the
help of a neutral third-party facilitator, the mediator. However, unlike an
arbitrator or a judge, the mediator does not render a decision in the dispute.<a href="#6" name="6a">6</a>

On the other hand, arbitration, mini-trials, summary jury trials and judicial
settlement conferences involve a determination of a prevailing party, or an
evaluation of who will most likely win or lose. If the decision is binding, the
case is concluded. If the decision is non-binding, or an evaluation is given,
the result is expected to encourage the "losing" or
"weaker" party to settle. Conversely, the goal in mediation is to
negotiate and reach a settlement through the process itself. Although the
process involves reality testing and risk assessment, the main emphasis is to
encourage negotiation, exploration of creative solutions, and compromise.

The
mediator's role is to assist the parties in (1) separating the personalities
from the issues; (2) removing obstacles to communication; (3) suggesting and
exploring various (and often creative) settlement options and alternatives; and
(4) assisting the negotiators in concluding a final settlement agreement.<a href="#7" name="7a">7</a>
Since the mediator does not make a decision and has no power to impose a
settlement of any kind, the final settlement agreement is one that must be acceptable to all parties. The word "acceptable" is
emphasized because in mediation an important reality is that generally neither
party is particularly happy with the settlement. Rather, in most instances, the
parties find the settlement "acceptable" due largely to the fact
that (a) they had an active role in the determination of the final outcome and
(b) the final outcome is known, certain and quantifiable.

In
bringing the parties together, the mediator should establish a safe
environment for negotiation, assuring the disputants and their counsel that if
the case does not settle, the positions taken by them during the mediation
session will not be used against them in trial. By being an active listener and
using other negotiation skills, a skilled mediator acts as a guide, leading the
parties to common ground and, ultimately, to an acceptable agreement. If an
agreement is not reached, however, the parties are free to pursue litigation.

A
successful mediation requires that the appropriate client representative be
present.<a href="#8" name="8a">8</a> By hearing the factual and legal arguments directly, and watching
opposing counsel and the other side, the client representative has the
opportunity to get a first-hand sense of the likelihood of success or failure,
and the costs and risks attendant to continued litigation. The client also
needs to have the chance to express its own side of the issues, and to discuss
the finer aspects of the case with both counsel and the mediator. Thus, for a
successful mediation, all individual parties should be present for the entire
process.<a href="#9" name="9a">9</a> Corporate clients should be represented by an executive officer (as
opposed to only in-house counsel) who has authority and discretion to settle.

During
mediation, the attorneys should be more diplomats than advocates. The
attorney's job is to persuade the other side that (1) his client's
position is well taken, (2) it will be adopted by the court and that his client
will win, and (3) the other side should settle the case to avoid this result.
During the caucuses, which are discussed below, the attorneys should analyze
the legal issues for their respective clients, provide advice based on the
realistic alternatives and, generally, help the clients define what is in their
best interest. This last task should involve weighing the risks and costs
involved in the continued litigation, in light of the proposed settlement
offers and opportunity to settle.

Although
the mediation session may take many different forms, generally there are three
distinct stages.

A. First Stage—General Session. The
first stage of mediation involves a general session attended by all parties and
counsel. The mediator will commence the general session by making introductory
remarks explaining the process, caucuses, confidentiality and agenda. The
mediator's introductory remarks should set a cooperative and calm tone.
The mediator will confirm that the parties have settlement authority and
emphasize that the day will be devoted to focusing on what is in the best
interest of each party and attempting to resolve the existing dispute on terms
that are acceptable to all parties. Then, each attorney summarizes the issues
and his or her client's position on each issue. Clients are invited, but
are not required, to participate in the general session. The mediator may ask
questions of the assembled group during or after the parties' summations.
After determining previous settlement negotiations, the mediator will adjourn
the general session and send the parties and their counsel into separate rooms.

B. Second Stage—Caucuses. The second
stage of mediation involves private caucuses between the mediator and each side
of the dispute. The mediator will not disclose any communications during the
caucuses without express approval of the communicating party. Because of the
forthrightness shown in these discussions, the caucuses carry a higher degree
of confidentiality than the general session. Although communications in the
general session are privileged, any information that is disclosed in the
general session will be known by the adverse party and may be established by
proof other than the privileged communication. The facts disclosed during the
caucuses are confidential and not communicated to the other side.<a href="#10" name="10a">10</a> The
caucuses thus allow the parties to frankly express their personal frustrations
with the mediator, and to give the attorneys an opportunity to openly discuss
all aspects of their client's case. Consequently, these discussions will
often focus on issues the attorneys may not want to disclose to opposing
counsel, but still want their clients to consider. During the caucuses, the
mediator talks directly with the client and discusses the strengths and
weaknesses of the case with counsel. The mediator may assume a devil's
advocate role and question the positions taken by the party and counsel. In
some respects, the session can be viewed as negotiating with the mediator. The
caucus is intended to permit the party, his or her counsel and the mediator to
review the risks involved in the dispute and the interest to be protected. The
mediator meets with each party and their counsel privately and repeats the same
process. By participating with the different sides, the mediator is able to
determine the extent of flexibility and the common ground that exists between
the parties. Moreover, through shuttle diplomacy, the mediator is in a position
to give feedback and bring the parties closer together and, ideally, to
agreement.

C. Third Stage—Closure. The third and
final stage of mediation is the closure of the agreement. When a general
agreement is reached, the mediator will assist the parties in drafting the
essential terms of the settlement agreement and will continue to smooth out
controversies as they arise. The settlement should be reduced to writing before
the parties leave the mediation. Since a complete agreement is usually not
practical, an executed memorandum of settlement that contains the essential
terms should be written and signed. As mentioned above, the settlement of a
controversy in a pending bankruptcy case will require a motion, notice to the
interested parties, an opportunity to be heard and court approval.

The
cost of mediation generally is relatively low when compared to the other costs
of litigation.<a href="#11" name="11a">11</a>
Many disputes can be mediated in a single day. Some mediators charge a fee
based on an hourly rate, and others charge a flat daily rate that varies
depending on the number of parties and the amount in controversy. Even in a
complex case involving multiple parties and multiple days of mediation, the
cost of the mediation is inconsequential when compared with the litigation
expenses that will be incurred if the dispute goes to trial.

<h3>Mediation in Bankruptcy Court</h3>

The passage of the Alternative Dispute Resolution Act in 1998<a href="#12" name="12a">12</a> resolved any
questions concerning the bankruptcy courts' authority to order parties to
mediation. The Act requires all federal district courts to authorize, by local
rule, an ADR procedure in all civil cases, including adversary proceedings in
bankruptcy. This reference to district courts includes the bankruptcy court.<a href="#13" name="13a">13</a>
Prior to the passage of the Act, bankruptcy courts used the general inherent
powers granted to the courts under §105 of the Bankruptcy Code and the
provisions relating to the appointment of examiners under §§1104 and
1106 of the Code to appoint individuals to mediate negotiations in
reorganization plan cases, and in other cases to resolve litigation.<a href="#14" name="14a">14</a>

The
bankruptcy practitioner's first course of action to resolve most
contested matters and adversary proceedings has always been direct negotiation.
If this fails, mediation should be considered as the next step. Choosing the
mediator now becomes important, as an effective mediator can reduce the
emotional atmosphere and minimize the brinkmanship that is often prevalent in
the negotiation of bankruptcy issues. The mediator will focus the
parties' efforts on the real and practical problems that must be
addressed, and the costs and risks associated with having to fight through long
and complicated trials and appeals.

Mediation
has been used in bankruptcy cases for a wide range of disputes, including
complex multi-party chapter 11 reorganization plan negotiations, preference
and avoidance actions, objections to discharge other adversary proceedings,
claim objections and other contested matters.<a href="#15" name="15a">15</a> One of the first cases
involving ADR procedures to resolve disputed claims in advance of confirmation
of a plan was NLRB vs. Greyhound Lines.<a href="#16" name="16a">16</a>

In this case, a voluntary ADR procedure was proposed where claimants had the
option of mediating or liquidating their claims pursuant to the provisions of
the Bankruptcy Code. A claimant selecting the ADR procedure was required to
provide a standardized form confirming its loss. The debtor was then required,
within 30 days, to request additional information, deny liability, allow the
claim in full, make an offer to settle the claim or request mediation. If the
debtor denied liability, the claim went to mediation. If the dispute was not
resolved at mediation within 60 days, the claimant had the option of proceeding
to binding arbitration or filing a motion seeking release from the automatic
stay to liquidate a disputed claim in a non-bankruptcy forum. Greyhound resolved 95 percent of the more than 3,200
pre-petition tort claims through the ADR procedure.

In In re Columbia Gas Transmission Corp.,<a href="#17" name="17a">17</a>
the court used an ADR procedure to resolve contract claims involving rejected
gas purchase contracts. Prior to the bankruptcy, it was estimated that the
rejection of the contract would result in damages of $1.6 billion. However,
after the bankruptcy was filed and the bankruptcy claims for rejection of gas
contracts were totaled, the amount exceeded $15 billion. Since fixing the
amount of the claims threatened the viability of the reorganization, the debtor
moved to establish a comprehensive, estimation procedure for determining the
rejection damage claims. Although what was called a "claims
mediator" was appointed, the "mediator" in fact functioned
more as a master, since he was
charged with the responsibility of preparing recommendations for the court on
the legal and factual issues common to the claims. The claimants then applied
these recommendations in order to recalculate their claims. If the debtor
reached a settlement with the claimants, the mediator reviewed the settlement
to assess fairness and made a report to the court. If the debtor objected to
the recalculated claim, the parties and the mediator would determine what
further proceedings were necessary. Notably, this particular ADR procedure was
not a standard "mediation," as the mediator became actively
involved and made evaluations and recommendations to the court. Nevertheless,
the procedure is an example of ADR procedures being considered and adopted by
bankruptcy courts as a means to resolve contested matters.

In
1992, the U.S. Bankruptcy Court for the Northern District of Texas in Dallas
ordered a mediator to assist the creditors in their efforts to negotiate a
consensual consolidated reorganization plan in In re Zale Corp., et. al.,
debtors.<a href="#18" name="18a">18</a> A similar order was issued in the reorganization case
involving Colt Manufacturing Co. Inc.<a href="#19" name="19a">19</a> In the Northern District of New York, Judge Lefland approved
mediation in the 1994 In re H.R. Macy bankruptcy for the purpose of formulating a consensual reorganization
plan.<a href="#20" name="20a">20</a>

In
the bankruptcy cases of In re Quality Beverage (a liquidation of a wholesale liquor distributor) and In re Sunrise Energy Co. (a liquidating chapter
11 case involving a company involved in the oil and gas trading business), the
respective courts appointed a mediator to assist in the settlement of
preference actions, turnover actions and other adversary proceedings being
pursued by the trustees in those cases. Out of approximately 75 cases in the Quality
Beverage case and approximately 55 cases in
the Sunrise Energy Co. case, all
but two of the contested cases settled at mediation, and those two ultimately
settled. (To illustrate the procedure used by the trustee in Sunrise, a copy of the motion to have a mediator appointed in
the Sunrise case is shown below.)

Bankruptcy
judges in the Southern District of Texas have also appointed mediators in a
number of cases to attempt to resolve contested matters and adversary
proceedings, and to assist in resolving contested reorganization plans.<a href="#21" name="21a">21</a> The
adversary proceedings and contested matters have included claims of breach of
contract, negligence, usury, priority of liens, real estate title contests,
equitable subordinations, plan objections, payment of administrative expenses,
preferences, turnover actions, fraudulent conveyances and objections to
discharge. Experience has shown that the vast majority of these disputes have
been settled at mediation. Even in cases where settlement was not achieved at
the mediation, a dialogue and framework was reached for ultimate settlement of
the outstanding issues.

In
1996, one of the largest chapter 11 cases ($110 million in assets) was filed in
the Southern District of New York.<a href="#22" name="22a">22</a> The debtor in the case was Best Products,
a national retailer with 169 stores in 23 states, 9,600 employees and more than
7,000 creditors. This was the second chapter 11 case of Best Products, and the
petition was filed before all payments were made under the previously confirmed
reorganization plan. Shortly after the second bankruptcy filing, it was
determined that the debtor should be liquidated. After the sale of assets and
the determination of claims, all unsecured creditors received distributions of
almost $0.96 on the dollar. While many factors contributed to the unusually
large distribution, one of the major factors contributing to the success of the
liquidation was the court's approval of the debtor's proposal,
which empowered the debtor to require the holder of a disputed claim to
participate in mediation. More than 85 percent of the mediated cases reached
settlement.<a href="#23" name="23a">23</a>

A
survey involving approximately 2,000 mediations was taken in November 1997 to
determine the extent and severity of any problems regarding mediation conducted
after judicial referral.<a href="#24" name="24a">24</a> Notably, the respondents reported that problems
occurred in 2.5 percent or less of the matters mediated for the various
problems asked about in the survey.<a href="#25" name="25a">25</a> Although problems were rare, the highest
number of problems involved breach of confidentiality, perceived comments
between mediators and judges, and mediators who were not
"disinterested" (as defined by the bankruptcy court).<a href="#26" name="26a">26</a>

Another
interesting result of the survey was that among the matters referred to
mediation:

<ol>
<li>bankruptcy judges referred less than 24 percent sua sponte;

</li><li>less than 7 percent of the matters were referred over the objection of one or
more parties;

</li><li>the bankruptcy estate paid the mediator's fee in less than 21 percent of
the mediations; and

</li><li>the mediator played a role in formulating a reorganization plan in
approximately 9 percent of the mediator-identified matters.<a href="#27" name="27a">27</a>
</li></ol>

<h3>Mediation as the Preferred ADR Process in Bankruptcy Cases</h3>

In bankruptcy cases, the creditors generally are angry and, in most cases,
distrusting of the debtor and its management. Likewise, the debtor usually has
no love for its creditors and is skeptical that the creditors are interested in
reorganizing the debtor. Further, the parties and their counsel are or should
be aware that the costs and delay associated with litigation on most cases
reduce the chances of a successful reorganization and reduce the amount of distributions
ultimately made to the creditors.

In
a case involving conflicting claims and litigation, and/or objections to the
reorganization plan, a mediator is helpful in pulling the parties together to
air their differences and assist counsel and their clients in coming to a
compromise on the various issues. Mediation affords the parties an opportunity
and a forum to meet on an informal basis, without prejudice to their positions,
and explore options to resolving the numerous issues and disputes necessary to
conclude the case. An enormous amount of time, energy and expense can be saved
by structuring a series of mediation sessions with all interested parties and
counsel (and then only with counsel, and then with counsel and parties together
again) reviewing the interests of the parties, giving each of the parties an
opportunity to evaluate the costs and alternatives to settlement, and exploring
options to remove the impediments to settlement. Even if the entire case is
not resolved, experience has proven that many of the contested issues are
resolved, and the remaining issues are narrowed for trial, or potentially
settled in the future.

Mediation
thus provides the parties with the opportunity to confront each other and
explain and justify their respective positions, and to focus on what the real
return may be after an assessment of professional fees, expenses and other
costs associated with the typical delays involved in litigating the case.
Additionally, mediation gives the parties the control of determining the
outcome of the dispute and avoids the uncertainty inherent in all litigation.
Even if there is no settlement, the expenses of preparing for and participating
in mediation are well spent. Experience has shown, for example, that the
process of preparing for mediation and marshalling the evidence and arguments
in support of your position is a valuable exercise in formulating your
presentation for trial. Furthermore, any information that you gain from your
adversary's arguments and positions is also helpful in the presentation
of your case. Of course, if the case is settled, the costs associated with
continuing litigation are avoided. Finally, the most important reason for the
popularity of mediation is that it works, and with only a small percentage of
problems.

<h3>Conclusion</h3>

Over
the last 10 years, bankruptcy filings have soared by more than 43 percent (in
excess of 96 percent of the total filings involve individual petitions).<a href="#28" name="28a">28</a> It
is expected that the enactment of the pending revisions to the Bankruptcy Code
will increase litigation.<a href="#29" name="29a">29</a>
This growth, both in filings and in subsequent litigation, has led bankruptcy courts
to search for ADR procedures and other means of better managing the caseload.<a href="#30" name="30a">30</a>

Corporations
in the United States pay billions of dollars a year in attorneys' fees
for litigation. These fees are in addition to the direct cost of key personnel
being diverted from their management and business duties.<a href="#31" name="31a">31</a> Considering what is
at stake in these lawsuits, the benefits of reaching settlement through
mediation, and not engaging in combat in bankruptcy and reorganization cases,
are as great, if not greater, than in a general civil litigation setting.

<hr>
<h3>Footnotes</h3>

<a name="1">1</a> Michael
Wilk is a managing shareholder of Hirsch & Westheimer P.C. This article
expresses the personal views of the authors and does not necessarily represent
the views of Hirsch & Westheimer P.C. <a href="#1a">Return to article</a>

<a name="2">2</a> Rik
Zafar is an associate at Hirsch & Westheimer P.C. <a href="#2a">Return to article</a>

<a name="3">3</a> See,
generally, Wirth, Steven R. & Mitchell,
Joseph P., "A Uniform Structural Basis for Nationwide Authorization of
Bankruptcy Court Annexed Mediation," <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…
Am. Bankr. Inst. L. Rev. 213, 214 (1998)</a>. <a href="#3a">Return to article</a>

<a name="4">4</a> Fed.
R. Bankr. P. 9019(a) ("On motion by the trustee and after a hearing and
notice to creditors, the court may approve a compromise or a settlement. Notice
shall be given to creditors, the U.S. Trustee, the debtor and indenture trustee
as provided in Rule 2002 and to any other entities as the court may
direct."). See <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=4…
re United States Brass Corp., 45 B.R. 189, 192
(Bankr. E.D. Tex. 2000)</a>. See, also, <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=4…; Note 3 at 216</a> (1998)
("Settlements are typically evaluated under a 'fair and
equitable' standard, with the overriding concern of the bankruptcy court
to protect the best interests of the estate."). <a href="#4a">Return to article</a>

<a name="5">5</a> See,
generally, <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=7…
re Bell & Beckwith, 77 B.R. 606 (Bankr.
N.D. Ohio 1987)</a> (to be approved, a settlement must be
reasonable). Compare Burr, Anne M.,
"Building Reform From the Bottom Up: Formulating Local Rules for
Bankruptcy Court—Annexed Mediation," 12 Ohio St. J. on Dispute
Resolution 311, 335 (1997) ("[A]lthough the parties involved may reach
agreement, they must realize that the settlement may not be approved based on
objections by creditors.") (citing Izard, Robert A. Jr., et al., "Alternative Dispute Resolution in
Bankruptcy," 3 J. Bankr. L. Prac. 291, 297 (1991)) with Lomax, Lisa A.,
"Alternative Dispute Resolution in Bankruptcy: Rule 9019 and Bankruptcy
Mediation Programs," <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…
Am. Bankr. L. J. 55, 59-50 (1994)</a> (citing Bell and Beckwith for the following propositions:
(1) a party seeking approval must present enough facts to provide an adequate
basis for the court to make an independent evaluation; (2) one need only show
that the settlement falls within a range of reasonable outcomes, not that it is
the best possible outcome; and (3) a settlement made on this basis should
withstand a creditor's objection.). <a href="#5a">Return to article</a>

<a name="6">6</a> See,
generally, <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…
Norton Bankr. L. & Prac. 2d §146:7</a>. <a href="#6a">Return to article</a>

<a name="7">7</a> See
<a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…; <a href="#7a">Return to article</a>

<a name="8">8</a> See Burr, Anne M., "Building Reform from the
Bottom Up: Formulating Local Rules for Bankruptcy Court—A Next
Mediation," 12 Ohio St. J. on Dispute Resolution 311, 347 (1997). <a href="#8a">Return to article</a>

<a name="9">9</a> See
<a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…; <a href="#9a">Return to article</a>

<a name="10">10</a> See <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=F….
408</a>. See, generally, Burr,
Anne M., "Building Reform from the Bottom Up: Formulating Local Rules for
Bankruptcy Court—Annexed Mediation," 12 Ohio St. J. on Dispute
Resolution 311, 322 (1997). <a href="#10a">Return to article</a>

<a name="11">11</a> See Mabey, Ralph R., Tabb, Charles J. and Dizengoff, Ira
S., "Expanding the Reach of Alternative Dispute Resolution in Bankruptcy:
The Legal and Practical Bases for the Use of Mediation and the Other Forms of
ADR," <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=4…
S.C. L. Rev. 1259, 1261 (1995)</a>. <a href="#11a">Return to article</a>

<a name="12">12</a> <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=2…
USC §651</a>. <a href="#12a">Return to article</a>

<a name="13">13</a> <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=2…
USC §151</a>. <a href="#13a">Return to article</a>

<a name="14">14</a> See

<a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=9…
re Public Services Co. of New Hampshire, 99
B.R. 177 (Bankr. D. N.H. 1989)</a>. See, also, 7 Collier, Bankruptcy §§1104.03, 1006.05 (15th. Ed. Rev.). <a href="#14a">Return to article</a>

<a name="15">15</a> See,
generally, Wirth Steven R. and Mitchell,
Joseph P., "Note: A Uniform Structural Basis for Nationwide Authorization
of Bankruptcy Court-Annexed Mediation," <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…
Am. Bankr. Inst. L. Rev 213, 218 (1998)</a>. <a href="#15a">Return to article</a>

<a name="16">16</a> See
<a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=1…
re Eagle Bus Mfg. Inc., 134 B.R. 584 (Bankr.
S.D. Tex. 1991)</a>; <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=1…
B.R. 421 (S.D. Tex. 1993)</a>. See
"Building Reform from the Bottom Up: Formulating Local Rules for
Bankruptcy Court—A Next Mediation," 12 Ohio St. J. on Dispute
Resolution 311 (1997). <a href="#16a">Return to article</a>

<a name="17">17</a> (Bankr.
D. Del. 1992); See Burr, Anne M.,
"Building Reform from the Bottom Up: Formulating Local Rules for
Bankruptcy Court—Annexed Mediation," 12 Ohio St. J. on Dispute
Resolution 311, 340-42 (1997). <a href="#17a">Return to article</a>

<a name="18">18</a> Order
signed Nov. 4, 1992, Case No. 392-30001-SAF-11. <a href="#18a">Return to article</a>

<a name="19">19</a> See
Bankruptcy Court Decisions (March 11,
1993). <a href="#19a">Return to article</a>

<a name="20">20</a> See Mott, Cassandra G., "Note and Comment:
Macy's Miracle on 34th Street: Employing Mediation to Develop the
Reorganization Plan in a Mega-chapter 11 Case," 14 Ohio St. J. on Disp.
Resol. 193 (1998). <a href="#20a">Return to article</a>

<a name="21">21</a> See,
generally, <a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…
Norton Bankr. L. & Prac. 2d §146:16</a>. <a href="#21a">Return to article</a>

<a name="22">22</a> See Dabney, H. Slayton Jr. and Hayes, Dion W.,
"Bankruptcy Lawyers Better Tune Up Their ADR Skills—Best
Products is One Case Wherein Mediation
Really Worked," Am. Bankr. Inst. J. (June 1999) at 16. <a href="#22a">Return to article</a>

<a name="23">23</a> See
<a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…; <a href="#23a">Return to article</a>

<a name="24">24</a> See Niemic, Robert J., "Mediation in
Bankruptcy—Results of FJC Survey," Am. Bankr. Inst. J. (September
1999) at 30. <a href="#24a">Return to article</a>

<a name="25">25</a> See
<a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…; <a href="#25a">Return to article</a>

<a name="26">26</a> See
<a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…; <a href="#26a">Return to article</a>

<a name="27">27</a> See
<a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…; <a href="#27a">Return to article</a>

<a name="28">28</a> See Hopkins, Theodore S. and Simmer, Jarred,
"Local Bankruptcy Court to Launch Mediation Program," 14 Lawyers J.
(July 2000) at 3. <a href="#28a">Return to article</a>

<a name="29">29</a> See
<a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…; <a href="#29a">Return to article</a>

<a name="30">30</a> See
<a href="http://www.westlaw.com/find/default.wl?rs=CLWD3.0&vr=2.0&cite=6…; <a href="#30a">Return to article</a>

<a name="31">31</a> See Allison, John R., "Five Ways to Keep Disputes
Out of Court," Harv. Bus. Rev. (January-February 1990) at 166. <a href="#31a">Return to article</a>

Journal Authors

Michael Wilk

Rick Zafar

Journal Date

Thursday, May 1, 2003 - 12:00

Bankruptcy Rule

2003