Alternative Dispute Resolution

This panel will explore the effectiveness (and, sometimes, lack thereof) of creditor strategies to restrict by contract a borrower’s ability to obtain bankruptcy relief, whether by limiting the ability of a corporate borrower to seek bankruptcy relief without certain stakeholder approvals, limiting the type of available bankruptcy relief, choosing which country’s bankruptcy laws will apply to an insolvency proceeding involving the borrower, bankruptcy-remote structuring techniques, and other means. For example, the U.S. Court of Appeals for the Fifth Circuit recently upheld a “golden share” arrangement whereby a creditor was able to prohibit the debtor limited liability company from filing bankruptcy; and in the international realm, choice of law clauses have at times limited a debtor’s ability to obtain relief under the Model Law for Cross-Border Insolvency. This panel will also explore variations in international public policies with respect to restrictions on a borrower’s ability to seek bankruptcy relief.

This panel will discuss the role that alternative dispute resolution (ADR) can and does play in bankruptcy, starting with the tension between bankruptcy and ADR, as all ADR processes conflict with bankruptcy’s goal of centralizing estate administration into a single proceeding. In the U.S., this tension is most prevalent when a creditor seeks to enforce a pre-petition arbitration agreement. The panel will next examine the role that mediation plays in U.S. bankruptcy cases by examining the types of issues and disputes that are amenable to resolution via mediation. Finally, the panel will explore the power and potential of ADR in the cross-border arena, looking at models for how cross-border insolvency issues have been handled procedurally and identifying types of disputes that are well-suited to resolution via ADR.

The mediation may be done but the work has just begun. Drafting the settlement agreement in a form that is enforceable and captures the intent of all parties can be a formidable task. Who drafts it? What must be included, at a minimum? Is it a final agreement or just an outline to be later committed to an agreement? Pitfalls are everywhere - let our expert panel of speakers guide you through the process!

Interested in mediation? Attend this session to experience a mock mediation and discuss mediation’s benefits and pitfalls. The panel will also examine plan mediation vs. targeted specific issues, as well as material nonpublic information concerns.

Join panelists as they explore the issues of confidentiality and privilege in bankruptcy mediations. The panel will discuss the current landscape for what may be the most critical component to the success of a mediation; and delve into what parties and courts are, and/or should be, doing to protect and preserve parties' reasonable expectations regarding the confidentiality of all that is said and exchanged during the course of a bankruptcy mediation. It promises to be an interesting discussion for anyone representing a party, or otherwise participating, in a bankruptcy mediation.

Hosted by the Mediation and Health Care Committees

Tax debts are often viewed as unsurmountable obstacles to a financial future. Both businesses and individuals have options. One popular program is the “Offer in Compromise”, which allows taxpayers to wipe out their tax debts for less than is owed. Bankruptcy is also a powerful solution for certain types of tax liabilities. This webinar will explore which resolution option will be the most effective restructuring tool.

Hosted by the Business Reorganization and Mediation Committees

This judges' panel will include a discussion of various aspects of mediation, the judges' views on developing and encouraging younger lawyers, and a discussion of the important role served by Delaware lawyers when acting as local counsel.

This session will highlight particularly interesting case law developments to date in 2017 and their impact on bankruptcy law and practice.