Preferred Management of Preference Cases

When you are filing a group of preference cases, you may want to consider the early retention of a mediator to assist in getting the cases settled promptly and efficiently. This procedure is mandated in Delaware within the first 120 days of filing a preference case. Early retention is most useful where the mediator utilizes a comprehensive, case management approach to the management of a group of preference cases. MWI routinely provides the services of a Case Manager whenever an MWI mediator is selected or appointed in a case or group of cases. The Case Manager, or CM at MWI, provides administrative, organizational and logistical support to the parties and the mediator. Significant cost savings and greater efficiency are realized when these functions are handled by the CM rather than the attorneys or Mediator.

The CM at MWI uses an organizational template for guiding the standard preference case to an early settlement. This is referred to as the “Settlement Track”. The Settlement Track is different from the litigation track of the case. Whereas the litigation track is about the numerous rules and deadlines to complete discovery, moving into pretrial, dispositive motions, and finally trial, the Settlement Track is uniquely about getting to a settlement of the case. Of course, the goal of the Settlement Track is to bury the litigation track once and forever. Having a Settlement Track for a case that is as comprehensive and consistent as the litigation track makes sense because over ninety percent of cases are going to settle before trial in any event. The CM at MWI is responsible for making sure this happens at the earliest possible point in time.

The CM at MWI is trained to provide a streamlined and consistent approach to each case. The Settlement Track begins with the intake of the case, setting up the contact information for the attorneys and Mediator and keeping it updated. An early intervention by the Mediator is then arranged through a pre-mediation conference call, primarily introductory and administrative. The convening of this first call sets the tone and individualized agenda of the Settlement Track for that particular case. The CM is on this call and from that point forward, the CM arranges frequent check-ins with the attorneys and the Mediator to keep the Settlement Track moving and focused on getting the case settled prior to mediation, if possible.

The benefits of the MWI Settlement Track are numerous. For the attorneys, there is a level of consistency and accessibility provided by the CM that is efficient, convenient and user friendly. Parties tend to speak more freely to the CM than the Mediator and the CM can usually provide answers to attorneys’ questions quickly. The Mediator’s time (and higher billing rate) is then preserved for more substantive tasks in the Settlement Track. The Mediator’s neutrality is better preserved as well through the intermediary of the CM. Finally, should the matter proceed to mediation, the session will have a much greater prospect of achieving a binding settlement because of the CM’s prior efficient management of the case in the Settlement Track.


Jack Esher

Jack Esher has represented lenders, trustees, creditors’ committees, business debtors and sophisticated consumer debtors in bankruptcy cases for over 25 years. He has also served as a mediator and arbitrator in bankruptcy and commercial matters for more than 20 years. Mr. Esher was a member of the distinguished panel of mediators… MORE >


Tad Mayer

Tad Mayer is the Director of Commercial and Corporate Programs at MWI. He has a decade of experience in managing ADR cases; mediating employment, business, residential, and organization disputes; facilitating strategic planning meetings; and training mediators and negotiators. MORE >

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