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Insolvency and Bankruptcy Issues in Mediation for Advocates and Mediators

Faculty:  Rebecca Callahan and Keith McDaniels

This is an advanced course that addresses how various types of disputes might be impacted by the threat of insolvency or bankruptcy. This will be a highly interactive class using “real life” hypotheticals, breakout groups and class discussion. The instructors will provide the attorney-advocate and mediator views. You will leave this course with a set of tools, tips and strategies you can use the next time insolvency or the threat of bankruptcy become issues in your mediation. This course provides one CLE unit in ethics.

What you will learn:

  • Understanding the bankruptcy backdrop, debt discharge, and the significance of holding a claim that may be excepted from debt discharge
  • Dealing with the automatic stay and other issues when bankruptcy is threatened or filed midstream in a pending litigation
  • The proper (and improper) role of “estate planning” once the dispute arises
  • The “special treatment” in bankruptcy of such things as punitive damages, tax liabilities, spousal and support awards, co-owned property, and insurance
  • The enforceability of attorney’s fee provisions and contingent fee arrangements in bankruptcy
  • Anticipating and negotiating around “preference” and “fraudulent transfer” attacks on a pre-bankruptcy settlement
  • Special issues related to general partners, co-obligors and indemnitors

Rebecca Callahan is an independent neutral who provides private mediation and arbitration services. Callahan received her law degree from UC Berkeley School of Law and her undergraduate degree from the University of Southern California. She also has an LLM in alternative dispute resolution (ADR) from the Straus Institute at Pepperdine University School of Law. Callahan speaks and writes frequently on various ADR topics and is currently chairing a program on insolvency issues in mediation, which will be presented at the ABA Dispute Resolution Section’s 2011 spring conference in Denver, Colorado.

Keith McDaniels is a partner in the Cooley Bankruptcy & Restructuring practice group in San Francisco, California. McDaniels represents debtors and creditors in complex bankruptcy cases and out-of-court restructurings, with particular expertise in the technology, telecommunications, consumer products, automotive, finance, pharmaceutical, and construction industries. He regularly represents boards of directors, companies, creditors’ committees, investment funds, and acquirers of assets in matters dealing with distressed and insolvent businesses. McDaniels received his law degree from New York University School of Law and his undergraduate degree, with distinction, from the University of Washington. After graduating from law school, McDaniels clerked for Judge Leslie Tchaikovsky, United States Bankruptcy Court for the Northern District of California.