Alternative Dispute Resolution Committee Meeting Minutes
2006 Winter Leadership Conference
The Alternative Dispute Resolution Committee and the Bankruptcy
Litigation Committee held a joint educational session at the Winter
Leadership Conference. The program was entitled “Litigation
Tactics: Strategic Uses of ADR after the Code Amendments.” As the
title of the program suggests, the panel focused on issues surrounding
the strategic use of ADR following BAPCPA's enactment. Specifically,
Dillon Jackson of Foster Pepper & Shefelman PLLC in Seattle,
Washington addressed strategic points from the lawyer's perspective in
mediations; Judge Barbara Houser, Chief Bankruptcy Judge, N.D. Tx.,
addressed using judges as mediators and the strategic implications of
your choice of mediators in a case; Judge Redfield Baum, Chief
Bankruptcy Judge, D. of Az., addressed why judges like the mediation
process; and Judge Barry Russell, Chief Bankruptcy Judge, C.D. of Ca.,
addressed why judges may not like the mediation process. Tom Salerno of
Squire, Sanders & Dempsey LLP in Phoenix, Arizona moderated the
panel. The panel engaged in a lively discussion of these topics for 90
minutes, taking questions from the audience during the course of the
presentation.
2006 Annual Spring Meeting
The Alternative Dispute Resolution and Commercial Fraud Task Force
Committees held a joint panel presentation at ABI’s 2006 Annual
Spring Meeting in Washington, D.C. entitled “Impact of Commercial
Bankruptcy Fraud on the ADR Process: How to Avoid The Perfect Bankruptcy
Fraud!"
The panel included: Irving E. Walker of Saul Ewing
LLP in Baltimore, Kristin Mihelic of Spector Gadon
& Rosen PC in Philadelphia and Patricia Brown Fugee
of Roetzel & Andress in Toledo, Ohio.
Chief Judge Barbara J. Houser of the U.S. Bankruptcy
Court for the Northern District of Texas and co-chair of the ADR
Committee, and Jack Seward of Jack Seward Associates
LLC in New York, co-chair of the Commercial Fraud Task Force Committee,
made a short introduction regarding the mission statement of their
respective committees and welcoming active participation by those in
attendance at this years ASM.
The presentation covered the following topics:
• Bankruptcy court jurisdiction over alleged fraud perpetrated
on another court
• Electronically-stored information under the new proposed
FRCP
• Uncovering fraud by debtors and insiders in the digital age
The committees thank the panelists for making this informative
information available along with acknowledging the efforts of
Kathleen P. Makowski of Saul Ewing LLP for assistance
in preparing the material regarding the recent decision by the district
court in Tennessee, which addressed the "fraud on the court" issue.
Comments received from those attending, included “this was the
best information at the ASM” - Judge (Ret.) Roger M.
Whelan.
2004 Winter Leadership Conference
The committee teamed up with Mass Torts to present a panel discussion
covering two areas where ADR techniques are being explored and utilized
to resolve highly contentious issues that are recurring regularly in
mass tort cases: (1) the resolution of disputes between mass tort
debtors, putative mass tort creditors and insurance carriers as to the
availability and timing of insurance assets in mass tort cases, and (2)
the use of ADR techniques to resolve putative mass tort claims during
the pendency of mass tort bankruptcies and as part of the post
confirmation claims allowance and distribution process.
2003 Winter Leadership Conference
The subject matter for the meeting was "Why is ADR used less
frequently in bankrutcy cases than in other areas of commercial law?" To
answer this question, committee chairs Lester Levy and Barbara Houser,
together with committee member Jack Fishman, presented a survey of ADR
programs in selected bankruptcy courts around the country, including
Delaware, New York, Chicago, Texas, San Francisco and Los Angeles.
The presenters reported on statistical information maintained by
the courts, including numbers of cases referred into the ADR program,
the ADR processes used, success rates and comments from the
clients, lawyers and judges involved.
The committee also discussed two substantial projects: (1) the
completion of an ADR Manual to be published by ABI, and
(2) the development of content for the ADR section of the ABI
web site, including useful information for bankruptcy
practitioners. Plans were made to move forward with both
projects.
2001 Annual Spring
Meeting
At the ADR Subcommittee's meeting, Co-chair Jack Esher
(Boston/Cambridge) reported on current ADR developments in the
bankruptcy courts. There are a total number of about thirty bankruptcy
courts with mediation programs, rules or general orders around the
country, with Delaware being among the most recent. Federal District
Court programs are similarly developing under the Federal ADR Act of
1998 (28 USC §651 et. seq.). The Northern District of
Indiana is also in the process of promulgating a mediation rule. This
District based their Rule largely on the ADR Subcommittee's Model Local
Rule, as has the Southern District of Indiana.
There followed a report on the ongoing projects of the committee, as
follows:
- ADR Web Site development on abiworld.org: Former Judge and new Dewey
Ballantine partner (LA) Lisa Hill Fenning spoke about this effort, which
will soon be visible on the abiworld web site. The site will have forms
and examples of ADR processes used in specific cases, as well as various
articles and other resource materials concerning using ADR in bankruptcy
cases. The site will also contain links to Local Bankruptcy Court Rules
on ADR across the country, as well as links to related organizations.
ABI is presently in discussion with the Federal Judicial Center for
collaboration on the task of compiling needed materials.
- Proposed Federal Rule of Bankruptcy Procedure: Certain recurring
issues in bankruptcy ADR would be clarified and achieve consistency in
result under a uniform national rule, primarily dealing with
mediator/neutral retention in cases. The committee will be working on a
proposal for such a rule. However, the committee is of the view that
local courts should continue to be in charge of the design and
implementation of ADR rules. This is consistent with the approach of the
1998 Federal ADR Act.
- Revision of Mediation Manual and Model Local Rule: With the
work on the web site, these prior projects of the committee will be
updated as well.
- ABI Mediator Panel: The committee is continuing to discuss the
formation of a panel of ADR providers/practitioners. This project is
spearheaded by co-chair Judge Erwin Katz (Chicago) and attorney Colin
Wied (San Diego).
- Joint Project with Former Bankruptcy Judge's Association: The
Committee is planning a joint presentation with the FBJA to be conducted
at the 2001 NCBJ in Orlando. Rather than repeating prior programs merely
introducing ADR concepts, this program will offer substantive practice
pointers and guidance to attorneys and judges who are using or planning
to use ADR in specific cases.
The meeting concluded with a discussion of court-approved ADR Claims
Facilities, used in cases to resolve claims in an efficient, orderly and
cost-reducing manner. While of particular help in cases involving mass
tort claims, even small and medium cases where reduction of
administrative expense is equally if not more crucial to a successful
reorganization, can and have benefitted greatly through use of these
procedures. The ADR Web Site will initially focus on this area and
disseminate needed information.
2000 Winter Leadership
Conference
At the ADR Subcommittee's meeting, Co-Chair Jack Esher
reported on current ADR developments in the bankruptcy courts. There are
a total number of about 30 bankruptcy courts with mediation programs,
rules or general orders around the country, with Delaware being among
the most recent. Federal District Court programs are similarly
developing under the Federal ADR Act of 1998 (28 USC Sec. 651 et.
seq.).
Former Judge Lisa Hill Fenning spoke about her vision for the
continued development of ADR in the bankruptcy courts. Her inspiring
talk gave rise to several important new directions for work by the
Committee, including:
ABI Web Site development on ADR
Proposed Federal Rule of Bankruptcy Procedure
Revision of Mediation Manual and Model Local Rule
These projects are now being planned and implemented. Additionally,
based on a letter received by the Subcommittee from Attorney Colin
Wied of San Diego, an additional project of creating a national
panel of Chapter 11 plan mediators is being planned. Attorney Wied and
the recently appointed Co-Chair of this Subcommittee, Judge Erwin
Katz of Chicago, will spearhead this effort.
2000 Annual Spring
Meeting
At the ADR Subcommittee's meeting, Chair Jack Esher reported on
current ADR developments in the bankruptcy courts. During the last year,
new mediation programs were implemented or being worked on in the
Northern and Southern Districts of Indiana, bringing the total number of
mediation programs to about thirty around the country. Existing programs
are maturing§for example, the Central District of California has
reported handling over a thousand cases, with an excellent success
ratio. Federal district court programs are similarly developing,
particularly with the strong push from Congress under the Federal ADR
Act of 1998 (28 USC §651 et. seq.).
There followed a discussion concerning mediator immunity. This
question arose recently in the Northern District of Indiana as they
worked on a local rule for a mediation program. They received an opinion
from the Administrative Office of the U.S. Courts that quasi-judicial
immunity extends to mediators in a court ADR program. This is based on
common law and has been recognized in several cases, such as Wagshal
v. Foster, 28 F.3d 1249 (D.C. Cir. 1994), cert. denied, 514
U.S. 1004 (1995).
The subcommittee then turned its attention to current projects. These
include a revision of the Mediation Manual published by the Subcommittee
in 1996, and the creation of a client-oriented handout explaining the
uses, benefits and risks or disadvantages of ADR. Members were urged to
provide comments, revisions and any other assistance to the chair at jack@rileyesher.com. The
subcommittee plans a follow-up meeting at the 2000 Winter Leadership
Conference on these projects.
1999 Annual Spring
Meeting
The Alternative Dispute Resolution (ADR) Subcommittee, chaired by
Jack Esher, reviewed recent developments in ADR. John Carr presented the
new Local Rule of the Southern District of Indiana for using mediation
in bankruptcy cases. The rule closely tracked the suggested ABI Model
Local Rule developed by the subcommittee over the last two years in
conjunction with the Mediation Manual. It is the first
jurisdiction to have adopted the ABI model, to the best of our
knowledge! New rules and/or programs continue to be developed around the
country as ADR grows and more cases are benefitted by it.
The subcommittee discussed the Alternative
Dispute Resolution Act of 1998 (Public Law 105-315, 11 U.S.C. 651 et
seq.). The act is addressed to the district courts and mandates that all
courts, by local rule, authorize the use of ADR in all civil actions,
"including adversary proceedings in bankruptcy." At this time, the
Administrative Office of the U.S. Courts' (AOUSC) interpretation of this
phrase is that it refers to the adversary proceedings to which the
reference has been withdrawn to the district court. As a result, it does
not appear that bankruptcy courts that do not have local rules
authorizing ADR will be compelled to adopt one.
The subcommittee also discussed the impact of proposed legislation
(H.R. 833) and resolved to consider a role that ADR could play in
assisting the courts and parties, particularly in light of Judge
Newsome's comments at the conference opening reception concerning the
multiple points of litigation to be anticipated.
|
