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Vol 2, Num 2 l June 2015

Technology and Intellectual Property

► In This Issue:

An Interview with Richard Mikels


Richard E. Mikels
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC


Judy W. Weiker
Manewitz Weiker
Associates, LLC

Mediation will continue to expand as a resource in all types of bankruptcy cases. It is the hope of the Mediation Committee that the ABI Mediation Model Rules will become a valuable resource for judges, local rules committees, professionals and parties, and that the rules will help facilitate the growth and accessibility of bankruptcy mediation to the entire bankruptcy community.

The Mediation Model Rules were recently adopted by ABI’s Executive Committee and will be disseminated to bankruptcy courts and practitioners throughout the country. Both sets of the Mediation Model Rules are attached to this article.

An interview with Richard Mikels (RM), co-chair of ABI’s Mediation Committee and chair of the Model Rules Committee, and Judy Weiker (JW), member of the Model Rules Committee and the Mediation Committee’s newsletter editor.

JW: Why did ABI’s Mediation Committee undertake drafting model rules?

RM: The Mediation Committee and its chair, Bob Fishman, perceived a real need for uniformity with respect to bankruptcy mediation. Bankruptcy mediation is growing in popularity, and it is being utilized to reduce the cost of litigation in cases large and small. Sometimes it is used to facilitate the resolution of numerous preference actions, and sometimes it is used to facilitate plan negotiations. Bob thought that as mediation continued to roll out as a tool, courts would benefit from the availability of model local rules, which could be used as a resource as bankruptcy mediation rules are developed and modified across the country. » Read More

Bankruptcy Mediation Start-Up: A History from One Jurisdiction


Donald L. Swanson
Koley Jessen
Omaha, Neb.

It’s January 2011. I’m sitting in a conference room at the Federal Courthouse in Omaha (the building is new and beautiful; you should visit it sometime). It’s a “brown-bag luncheon” for the local bankruptcy bench and bar. We’re on the last agenda item (open forum), and the judge asks for input. Having recently completed a couple of state court mediations, I raise my hand and say, “What about using mediations in bankruptcy?” Next thing that happens: I’m chair of the Nebraska Bankruptcy Court Mediation Committee.

How hard can this be? We gather together a blue-ribbon committee, including a couple of law school mediation professors, a clerk of court official, and a bunch of attorneys that span the business/consumer and debtor/creditor divides. » Read More

ABI Mediation Committee’s Model Guidelines for Mediation


Richard E. Mikels
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC


Robert M. Fishman
Shaw Fishman Glantz
& Towbin LLC

More and more, alternative dispute resolution is providing an efficient methodology for reducing the costs of bankruptcy proceedings and bankruptcy litigation. It was not that long ago that bankruptcy lawyers inherently believed that they were capable of settling their own cases and did not need outside help. (The authors were among those people.)

However, as with litigation generally, much has changed in the bankruptcy world. Now, in many bankruptcy courts, alternative dispute resolution, particularly mediation, is an accepted—and sometimes even required—part of the process. Private attorneys have found that mediation provides a mechanism for attempting to resolve disputes that often prove problematic without the help of an independent third party. The obstacles to resolution are often varied. Sometimes, the problem is as simple as a client not wanting to hear what his attorney has to say or an attorney finding it awkward (and bad business) to provide bad news to the client. In another instance, an attorney may feel that his/her adversary has fallen in love with his/her own case and that an objective third party can help shed light on the parties’ relative positions and bring the parties to resolution.

People are often so emotionally invested in a case (whether as client or counsel) that they are unable to hear the other side’s point of view. Having an independent person explain the other side’s point of view, without the emotional component, might make it easier to digest and may lead to consensual resolution. The authors believe that many—if not most—legal disputes have a strong dose of miscommunication involved, and mediation can effectively cut through that problem. » Read More

New and Improved! ABI’s Committee Website has Moved

You may have noticed a few changes to the committee site over the last week, including a new location. The committees’ webpages have now been integrated into the main ABI website. To access these new pages, simply visit, hover over the “Membership” tab, and click on “Committees.” Here, you will be able to access newsletter articles, recent recordings, announcements, listserve activity and contact information for your leadership team.

Not sure of what committees you are a member? Update your profile, select the “Committees” tab and use the check boxes to update your status. While you’re here, take a few moments to update your full preferences, including CLE and bar information, contact information, title, and more. Uploading a professional photo is also a great way to make yourself more visible in the directory. Not only will your photo be included in the directory, but ABI staff will also have it available for use with any future article or speaking bylines.

Have comments, questions or concerns? Email us through our new support system: [email protected].

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