What Makes Mediation in a Bankruptcy Case Unique?
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)
Oil and gas matters
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:
Plans of reorganization