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While mediation is used in many forums, mediation in the bankruptcy context at times offers some very unique and key distinctions. One key difference is that the party often acting as the plaintiff in the adversary proceeding or contested matter1 is not necessarily the business owner but rather a litigation committee2 or trustee who is running a court ordered process long after the debtor has failed.3 Thus, the procedural context is very different than other traditional cases where both parties involved in the mediation were also involved in the original “dispute” and are at the table resolving their own personal issues and competing claims. In these cases, the plaintiff has no historical knowledge of the facts, or underlying business arrangements that relate to the dispute at hand. Moreover, it is entirely possible that the key employees or other parties with knowledge of the history and facts are long since gone—having lost their jobs months or years prior during the failed restructuring of the corporate operations or having left for greener pastures when things turned rocky or uncertain. Thus, the plaintiff has to learn all of the key facts at a time when there may be no one with first-hand knowledge to educate them.

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