I recently co-mediated a high-value family dispute with another bankruptcy lawyer. We made a good team. Even though the case had nothing to do with bankruptcy, we both seemed to have a clear sense of the facts and issues and what was at stake for the parties, and worked in sync as we explored needs and interests and challenged entrenched positions. As we debriefed at the end of the session, we both remarked that it seemed we were reading each other’s minds. It occurred to me that, even though we weren’t specialists in the legal issues involved, we were the perfect mediators for the case.
What am I talking about? This: Bankruptcy lawyers make great mediators. The nature of their practice requires that they be able to efficiently and competently handle a broad range of complex legal issues involving wide variety of individual and business matters. Those skills make them adept at understanding the legal and interpersonal dynamics of many types of disputes as mediators.
“Although general practice has gone the way of the dinosaur, bankruptcy is the last place … where you can be what lawyers used to be: the client’s go-to guy,” according to Sean Burke, founder of Whistler Partners, a New York recruiting firm. Bankruptcy attorneys are in demand, he says, because they handle a variety of complex corporate, litigation, employment, and other work. As a bankruptcy attorney, Burke says, “You hold clients’ hands through everything.”[1]
“Bankruptcy is truly an area where variety abounds,” according to Ira Levy, senior legal editor for Practical Law. “Bankruptcy attorneys may be called on to address corporate, tax, environmental, employment, real estate, finance, securities, class actions and litigation issues in [a] bankruptcy case. [They] need to know … and understand these issues in order to effectively represent their clients in the proceeding.”[2]
Burke and Levy are correct, but they hit on just a few of the issues a bankruptcy attorney may encounter in their practice. I’d add marital and community property rights, entertainment, sports, probate, trusts, personal injury, intellectual property, franchise, fraud, construction, logging, mining, gun rights, secured transactions, shopping center leases, government contracts, Indian law, immigration, and international banking, with a heavy helping of state and federal court litigation and bankruptcy motions practice and appeals and—well, you get the idea.
In addition, bankruptcy attorneys are usually well connected with other professionals—experts, accountants, financial advisors, investment bankers, appraisers, auctioneers, receivers, and trustees, and other lawyers—corporate, estate, tax, divorce, real estate, finance, employment, government—and keep up to date on what’s going on across many industries and practice areas. They have to; they never know what their next case is going involve but have to be ready for anything—just like a mediator.
But just as importantly, the bankruptcy process often involves limited assets that have to be divided between multiple parties—trustees, administrative claimants, tax agencies, landlords, secured creditors, unsecured creditors, and equity holders. Everyone involved is keenly aware that litigation costs money and the lawyers will get it if the parties aren't willing to compromise and accept a smaller slice of the pie when the alternative is that they might get much less or even nothing. This forces bankruptcy attorneys to become skilled negotiators who understand the importance of striking a deal when it is in their client's best interest.
What can I say? Bankruptcy attorneys are awesome, not only as lawyers, but as mediators as well, especially in cases that involve multiple complex legal issues. Of course, I’m a little biased. (You know, I'm something of a bankruptcy lawyer myself.) But don’t take my word for it; next time you need a mediator, hire a bankruptcy attorney and find out for yourself.
If you have questions or want to schedule a consultation about bankruptcy or mediation, please call Jeff at (206) 397-0020 or email jeffsmootlaw@gmail.com. I look forward to working with you!
Copyright © 2023 by Jeffrey L. Smoot.
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