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.
The Mediation Model Rules were recently adopted by ABI’s Executive Committee and will be disseminated to bankruptcy courts and practitioners throughout the country. Both sets of the Mediation Model Rules are attached to this article.
An interview with Richard Mikels (RM), co-chair of ABI’s Mediation Committee and chair of the Model Rules Committee, and Judy Weiker (JW), member of the Model Rules Committee and the Mediation Committee’s newsletter editor.
JW: Why did ABI’s Mediation Committee undertake drafting model rules?
RM: The Mediation Committee and its chair, Bob Fishman, perceived a real need for uniformity with respect to bankruptcy mediation. Bankruptcy mediation is growing in popularity, and it is being utilized to reduce the cost of litigation in cases large and small. Sometimes it is used to facilitate the resolution of numerous preference actions, and sometimes it is used to facilitate plan negotiations. Bob thought that as mediation continued to roll out as a tool, courts would benefit from the availability of model local rules, which could be used as a resource as bankruptcy mediation rules are developed and modified across the country.
JW: What did the committee’s research of the current state of mediation rules reveal of note?
RM: It revealed a lack of uniformity. Some courts have local rules, and some do not. Some local rules tend to be more facilitative, while some are more rules- and regulations-driven. Our goal was to provide rules that allow for party self-determination in the process and result, with the court always having the right in appropriate cases to set timeframes and other procedural matters when deemed necessary. The rules are also designed to be easily modified by local districts to reflect their own customs and practices.
JW: How do these model rules differ from those already adopted by the Bankruptcy districts? In particular Delaware and SDNY?
RM: We started with the rules in effect in different jurisdictions and expanded upon them or modified them. We certainly looked at the Rules in New York and Delaware as well as other jurisdictions. In fact, one of our committee members, Frank Monaco, had just finished working on the Delaware Local Mediation Rules, and he suggested that those new rules might be a good starting point for drafting. I think the end result is different from the rules in any particular district, but since the subject matter is the same (mediation), there are certainly similarities.
JW: How will the rules be disseminated to the bankruptcy courts and practitioners? How can members of the mediation committee assist in these efforts?
RM: We are working on that now. I have asked Jerry Markowitz, Scott Stuart and the Hon. Ray Lyons (ret.) to help, and I am pleased that all have expressed an interest in doing so. If anybody else would like to join us in our efforts, please let me know. The more people from the more districts, the better. There have been great suggestions made already, including the possibility of a webinar discussing the rules, circulation of the rules to chief judges around the country, and overtures to judges in districts that do not yet have rules, among others. If any judges are interested in talking to us about the rules, we are very eager to do so.