Welcome Frank Monaco

The Benefits of Mediation in Bankruptcy Proceedings

Frank Monaco, with more than 35 years of experience representing a variety of stakeholders in bankruptcy transactions and litigations, has joined Gavin/Solmonese as Senior Managing Director. He brings to the firm his expertise and proven success in reaching settlements in both consensual and court-appointed mediations.

Frank regularly mediates in commercial litigation disputes in the Chancery, District and Superior Courts of Delaware. His involvement in major cases including Trump Casinos, Columbia Gas Systems and Continental Airlines has earned him peer recognition and professional honors. As the newest member of the Gavin/Solmonese team, Frank weighs in on how and why mediation and large bankruptcy proceedings are a good fit, and why the creativity and flexibility of the mediation process resonates with parties.

With more than 35 years’ experience in mediation and representing parties in bankruptcy transactions and litigation, what keeps you excited about doing what you do?

First and foremost, I enjoy meeting and working with people. The great thing about bankruptcy practice is that it is varied not only in terms of the type of industries, the state and federal law that you encounter and the multiple parties. Bankruptcy is a hybrid practice that involves both litigation and transactional work. It is never boring and always about getting a deal done.

How is mediation used in large bankruptcy proceedings?

Often times, bankruptcy judges will use mediation in multi-party disputes in an effort to achieve a global resolution. This could include fee and lien disputes as well as plan confirmation issues. In Delaware, mediation is mandatory in the case of adversary proceedings, which are generally two-party disputes.

In your experience, what’s the advantage of mediation for large bankruptcy proceedings?

It can often avoid costly and protracted litigation. Bankruptcy is well suited for mediation because it is about getting a financial solution. This is not only an advantage for parties, but the court as well, which has a very busy docket.

What makes an optimal case for mediation?

First of all, the parties must want to mediate and have a mindset that they can reach a settlement. Because bankruptcy is usually about money, it is uniquely suited for mediation. It’s often easier in a bankruptcy case because emotions are not as big a factor.

How do you prepare for a mediation case?

My starting point is reading the pleadings. After that, I usually schedule an initial call with the parties. This is helpful for several reasons. First, it allows me to assess the parties and their counsel if I am not familiar with them. Second, we address scheduling matters, not just for the mediation itself, but also the length and type of position papers. Finally, I use it as a way of resolving certain preliminary issues that may be an impediment to mediation as well as trying to get the parties into the mindset of reaching an accommodation before we even go to mediation. I always encourage the parties to exchange factual information and legal theories, so that there are no surprises at the mediation. I often find that the most successful mediations are ones where the parties are fully informed about each other’s position.

Why were you drawn to this work?

I think it suits my personality as a consensus builder. It is also satisfying from a professional standpoint when I’m able to get parties to agree on a matter.

Which of your mediation cases really stand out and why?

I don’t know that there is any one particular mediation that stands out, but I have had a number of mediations where it did not look like a settlement was possible at the outset, but through hard work and perseverance by the parties and myself, we were able to reach a resolution when it seemed one was not possible. This often entails reaching out to parties after the mediation session.

The G/S mission statement is to “improve outcomes.” Why does this mission ring true to you on a personal as well as professional basis?

I think that improving outcomes is the essence of providing value to clients, whether as a financial advisor, mediator or attorney.