Mediation is an excellent means of resolving disputes. It allows parties to negotiate with the help of an independent, neutral, third party – the mediator. But a mediator should be more than a potted plant who silently passes offers back and forth. At the appropriate time in the process, a skilled mediator can help the parties explore their interests and potential settlements which are in the best interest of everyone involved. In a bankruptcy case, a knowledge of the underlying substantive issues is important, but so is a knowledge of the overarching paradigm in which those issues must be addressed – the bankruptcy.
Bankruptcy practitioners are knowledgeable of the bankruptcy process but may have limited familiarity or experience with other complex issues which might arise in a dispute involving a bankruptcy.
The list of substantive complex issues which may be involved in a bankruptcy case is as long as those involved in any other civil dispute, and may include:
Multi-district litigation (MDLs)
Class actions
Consumer fraud
Lender liability
Environmental claims
Toxic torts
Pharmaceutical claims
Compliance issues
Construction law
Federal contracts
Public works
Sureties
Wrongful death
Products liability
Dram shop
Aviation
Federal regulation
Mass torts
Employment claims
ERISA
Benefits
Oil and gas matters
Healthcare
Intellectual property
Licensing
Likewise, someone familiar with the substantive issues at play in the underlying dispute may not appreciate the unique challenges of resolving that issue in the context of a bankruptcy case, with unique issues such as:
Chapter 11s
Debtor-in-possession
Debtor financing
Workouts
Plans of reorganization
Trustee’s claims
Involuntary filings
Plan approval
Claim prioritization
Chapter 7s
Liquidations
Fraudulent transfers
Preferences
Adversary proceedings
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