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.
The Mediation Committee’s Program at the 2022 Northeast Bankruptcy Conference & Consumer Forum
On July 15, 2022, the committee presented a program at the Northeast Bankruptcy Conference, held in Rockport, Maine, titled, “So You Think You Can Mediate: A Guide to Upping Your Game.” The program panelists included Hon. Joan N. Feeney (ret.) (JAMS), Hon. Louis H. Kornreich (ret.) (Bernstein Shur), Richard E. Mikels (Pachulski Stang Ziehl & Jones) and Hon. James. J. Tancredi (U.S. Bankruptcy Court (D. Conn.)).
The panelists discussed several issues that can arise during mediation, such as assessing and negotiating a fee structure; information gaps on factual, legal or financial issues; dealing with disruptive behavior or rifts between attorneys and their clients; and tips to break impasses, such as agreements on nonessential issues, projections of legal costs if the matter does not settle, and mediators’ proposals. The panelists also discussed the conclusion of mediations, such as documenting settlements, discussing Rule 9019 if required, and issues with a party refusing to consummate the settlement.
The Mediation Committee’s Program at the 2022 Southeast Bankruptcy Workshop
During the annual Southeast Bankruptcy Workshop, held July 20-22, 2022, in Amelia Island, Fla., the committee presented a program titled, “Loose Lips Sink Ships: Mediation Confidentiality, Privilege, and Ethics.” The program was moderated by Committee Education Director Sylvia Mayer (S. Mayer Law PLLC), and panelists included Hon. Kevin J. Carey (ret.) (Hogan Lovells US LLP), Hon. Roberta A. Colton (U.S. Bankruptcy Court (M.D. Fla.)), and C. Edward Dobbs (Parker, Hudson, Rainer & Dobbs, LLP).
The panelists discussed the confidentiality provisions of several local rules and model rules, and as contained in various mediation orders, including recent updates to the Delaware Local Rules to clarify the protections afforded mediation submissions. The panel also discussed several cases in which parties moved to compel documents, amend complaints, or otherwise obtain and/or use documents or information divulged during mediation.
Upcoming Mediation CLE at the Winter Leadership Conference in La Quinta, Calif.
We invite all members to attend the Winter Leadership Conference in La Quinta, Calif., Dec. 8-10, 2022. The location cannot be beat, and ABI has a great lineup of both social and educational events. The Mediation Committee will be presenting a panel titled, “Mediating Mass-Tort Multiparty Matters: The Four Ms.” This will be a great opportunity to learn some tips and tricks to successfully conduct or participate in mediation — one of the hottest areas of bankruptcy today. We hope to see you there!
Article: Should Parties Mediate Prior to Litigation?
Included in this newsletter is an article authored by Mediation Committee Membera Claudia Springer (Novo Advisors) and Catherine L. Steege (Jenner & Block LLP). In “Mediation Before Litigation: Why Isn’t It More Common?,” the authors discuss the pros and cons of parties attempting mediation prior to initiating litigation.
Call for Articles!
We are always looking for timely articles to include in our committee’s newsletters. If you would like to submit an article for publication in an upcoming newsletter, please contact Mike Riela at michael.riela@genworth.com.
Ideas for Future Webinars and Programs
The Mediation Committee is actively seeking input on and participation from our members in future programs. Topics can include (1) mediation ethics, (2) mediation in consumer cases and (3) mediation skills training. All ideas are welcome; please submit your ideas and suggestions to our leadership team.
Please Join Our Committee!
Finally, we encourage all ABI members to join our committee to listen, learn about and provide input on the changing times of mediation in bankruptcy.
Hope to see many of you at Winter Leadership or other upcoming events!
— Kara, Joe and Mike