Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
When Is Mediation Appropriate Pursuant to Bankruptcy Code Section 327(a)?
Mediation of a bankruptcy dispute takes place outside the presence of the judge before whom the case is pending. There is usually no direct communication between the mediator and the presiding judge before, during or after the mediation. Accordingly, with the utilization of mediation as a dispute resolution tool in bankruptcy cases becoming increasingly common, it is important that courts remain vigilant in protecting the integrity of the mediation process. As the U.S. Court of Appeals for the Second Circuit once famously stated in another context, “[t]he conduct of bankruptcy proceedings not only should be right but must seem right.” In re Haupt, 361 F.2d 164, 168 (2d Cir. 1966).
The decision of the court in In re Cody Smith, 524 B.R. 689 (Bankr. S.D.Tex. 2015), highlights the importance of ensuring that bankruptcy mediations are conducted with sufficient judicial oversight, and it demonstrates the appropriateness of evaluating whether a particular case is suitable for mediation before mediation is ordered. Smith discusses the risk of at least an appearance of favoritism that is posed where the proposed mediator is a former bankruptcy judge. Unfortunately, that court's holding that a mediator is a professional person whose employment must be approved by a bankruptcy court pursuant to section 327(a) of the Bankruptcy Code leaves the misleading impression that a mediator is employed by just one side involved in the dispute, a trustee or debtor, and is not a neutral third party working to assist all parties in reaching a consensual resolution of their dispute
There is not a large body of case law addressing the issues discussed in Smith. A close look at this case and its reasoning is warranted, because this ruling, though helpful in many ways, could inadvertently undermine both the effectiveness of a mediator and confidence in mediation as a fair means of resolving contested matters, adversary proceedings and other litigations that constitute obstacles to successful conclusion of Chapter 11 and Chapter 7 cases.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
Hyperlinked Documents: The Latest e-Discovery Challenge
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
Identifying Your Practice's Differentiator
How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.
Risks and Ad Fraud Protection In Digital Advertising
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
Turning Business Development Plans Into Reality
This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.