Here’s an important rule for mediators:

• When the parties try to present you with a binary equation—“either this or that”—reject it; instead
• Get the parties involved in the process with you—try to help think your way out of the binary box they are trying to put you in.

–From Judge Gerald E. Rosen [fn. 1] in a May 2021 interview on mediation in the City of Detroit bankruptcy [fn. 2].

And here’s an illustration of how Judge Rosen faced a binary equation of huge proportions in the City of Detroit bankruptcy—from that interview.

Justice Stephen G. Breyer is set to retire from the U.S. Supreme Court in a few months.

But he’s not easing into retirement.

Instead, he’s out there swinging—fighting for his beliefs: trying to instruct / persuade current and future jurists on how the law should be applied.

Justice Breyer’s latest punch is a lone-dissent, against an eight-Justice majority, dated March 31, 2022. In this dissent, Justice Breyer explains his doctrine of statutory interpretation.

The Breyer Doctrine

Justice Breyer’s doctrine goes like this:

Two years into the pandemic, policymakers struggle to strike a balance between mitigating the ongoing human costs of the crisis and exacerbating the financial strain caused by economic support measures. The 2022 World Development Report (Report) considers the central role that finance will play in enabling countries to recover economically from the pandemic, which in 2020 caused the global economy to shrink by approximately 3% and led to the largest singleyear surge in global debt in decades.

This month sees a statement by the Charity Commission on the Ukraine crisis and how this impacts charities, and a factsheet released by the UK government on the impact the war has had on energy.

There are also some very interesting articles regarding support for domestic abuse victims to how to deal with Social Housing complaints.

Finally there is a press article on TLT’s involvement in the innovative second modular deal for Town and Country Housing and Legal and General Modular Homes.

Here’s a first of its kind: a report about federal judges mediating other judges’ cases.

• It’s a January 22, 2022, report titled, Other Judges’ Cases, authored by Melissa B. Jacoby, Professor of Law, University of North Carolina at Chapel Hill—scheduled to publish in 72 NYU Annual Survey of American Law (2022).

What follows is an attempt to summarize portions of the report, including its description of a can-this-actually-happen case.

The U.S. Supreme Court, in its Fulton v. City of Chicagoopinion, let Chicago off the automatic stay hook for holding onto impounded vehicles owned by Chapter 13 debtors.

But Fulton is not the last word on that subject.

The new opinion is Cordova, et al. v. City of Chicago, Case No. 19-0684 in the Northern Illinois Bankruptcy Court (issued December 6, 2021, Doc. 154).

Background

This past year was marked by extraordinary deal activity. Record breaking M&A activity drove record breaking private credit activity. Private equity M&A activity was at a substantial high, with over 8,500 deals worth $2.1 trillion, a 60% increase over 2020. Not surprisingly, in this environment, defaults were at all-time lows. The Proskauer Private Credit Default tracker showed an active default rate of approximately 1% at the end of 2021, compared to 3.6% in 2020.

“I have an opening statement that I give at the beginning of every mediation, and it goes like this”:

• “I don’t have a lot of rules but I have one firm rule and that is nobody uses the ‘F’ word—“final offer.”

“And it’s very true. If I had listened to the parties in the Detroit bankruptcy when they said, ‘This is our final offer,’ and banged their laptops shut, Detroit would still be in bankruptcy. So ignore the ‘F’ word.”

Every now and then, (i) something is blatantly obvious, but (ii) those in charge insist that what seems obvious is actually false. Such a disconnect breeds distrust.

That’s precisely what exists in our bankruptcy system. The U.S. Constitution requires that bankruptcy laws be “uniform . . . throughout the United States”:

The opinion is from In re The Diocese of Buffalo, N.Y., Case No. 20-10322, Western New York Bankruptcy Court (entered December 27, 2021, Doc. 1487).

The Diocese of Buffalo asks the Bankruptcy Court to refer its Chapter 11 case and related adversary proceedings to mandatory global mediation–it does so twice. Its first request is denied. It’s second is granted . . . but with limitations.