CBInsolvency LLC

Thought Leadership

View our presentation on mediation to a visiting delegation from Brazil

Jack Esher

One of CBI’s primary goals is to promote the use of mediation to achieve consensual resolutions in cross-border insolvency matters. Recent legislative developments in insolvency and pre-insolvency restructuring procedures across Europe show that we are certainly not alone in our thinking.

  • The French Sauvegarde
  • The Dutch Akkoord
  • The German Protective Shield
  • The Spanish Pre-Concorso
  • The Romanian Preventive Concordat

Not to mention

  • The UK Scheme of Arrangement
  • The US Plan of Reorganization

All consensual restructuring proceedings.

In the UK, schemes of arrangement are based on obtaining the consent of at least 75% in value and a majority in number of the impaired creditor classes. The US has similar majority rules for creditor consents in Chapter 11 case plans as well (majority in number and 2/3 in amount). Achieving the necessary majorities may require dispute resolution that can be facilitated by mediation. Even the European Parliament has recognized the value of mediation by promulgating rules and recommendations for the broader use of mediation for resolving disputes in cross-border matters within the European Union. CBI’s principals have extensive training and experience in mediation, including serving as mediators in significant cases such as Lehman Brothers, Nortel, and Radio Shack. Recently, CBI principal Jack Esher presented on the subject of insolvency mediation to a distinguished group of judges and attorneys from Brazil visiting the US for a five-day program on mediation.

pdf_icon Attached is an excerpt from Jack’s presentation. This excerpt includes Jack’s presentation on the development of the use of mediation in the US Bankruptcy Courts, the recently adopted ABI Model Local Mediation Rule which Jack worked on, and the provisions of the ADR Procedure in the Lehman Brothers case for using mediation to resolve large, complex derivative contract claims.


By Jack Esher