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Mediating with a Higher Power: Mediation of Disputes with Governments and Governmental Agencies

Level: Intermediate
Runtime: 59 minutes
Recorded Date: December 06, 2019
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Payment of Claims and Judgments against the State
        • Cal. Gov. Code, section 948
        • Cal. Gov. Code, 
section 965
        • Cal. Gov. Code, 
section 965.2
California Public Records Act
        • Gov. Code, section 6253
        • Gov. Code, 
section 6254
Bagley-Keene Act
        • Gov. Code, section 11126

Runtime: 1 hour
Recorded: December 6, 2019


Although mediation is a recommended method of dispute resolution by many government agencies, in the bankruptcy context it is often hard to get government litigants to the table.

This panel will explore the issues and methods of mediating disputes in commercial cases that involve governments and such government agencies as the SEC, EPA, and FCC, as well as state attorneys general and relevant state agencies.

Issues to be discussed include how to get the decision maker into the room and how to get a governmental party to the table when its policy agenda may go beyond the business issues in the case at hand. In some instances, there may be perceived statutory impediments or “conflicts” between the government agency as regulator and as creditor. The focus will be on restructuring-determinative issues involving government agencies and adversary proceedings between debtors or other creditor constituencies and government agencies.

The program will not include discussions of chapter 9 mediations, which involve very different issues. The panel will include judges, mediators and public and private litigants with experience in this type of mediation.

This program was recorded on December 6th, 2019.

Provided By

American Bankruptcy Institute
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Mitchell E. Rishe

Deputy Attorney General
California Department of Justice

Mitchell E. Rishe is a deputy attorney general with the California Attorney General’s Office in Los Angeles. He practices environmental law in the Office’s Land Law Section, representing California state agencies including the Coastal Commission, State Lands Commission, Department of Conservation, Department of Parks and Recreation, and the Department of Housing and Community Development.

Mr. Rishe’s work includes defending Coastal Commission permitting decisions; representing California in federal court in connection with bankruptcy proceedings of oil, gas and mining companies; defending the Department of Parks and Recreation in litigation involving State Vehicular Recreation Areas (off-road vehicle parks); and challenging Trump Administration efforts to roll back protections against discriminatory housing practices. His cases at the Attorney General’s Office include Sunshine Enterprises v. California Coastal Commission, No. B284459 (Cal. Ct. App. Mar. 22, 2019) (affirming Commission’s denial of after-the-fact permit for a Santa Monica hotel built without a coastal development permit); and in private practice include Palmer/Sixth Street Properties, L.P. v. City of Los Angeles, 175 Cal. App. 4th 1396 (Cal. Ct. App. 2009) (invalidating Los Angeles’s inclusionary housing ordinance as inconsistent with the Costa-Hawkins Rental Housing Act, Cal. Civ. Code, § 1954.50, et seq.). He also has represented state agencies in mediation and settlements, including, among others, the 2015 Refugio oil spill in Santa Barbara County; a constitutional takings claim brought by a bankrupt oil and gas company against the state in connection with the decommissioning of the company’s oil and gas facilities; proceedings brought by a local air pollution control district against the Department of Parks and Recreation for pollution caused by off-highway vehicle riding; proceedings brought by or against the Coastal Commission relating to coastal development; and claims against the state relating to the permitting of underground injection wells. In addition, he participated in mandatory settlement conferences in California Environmental Quality Act cases (Cal. Pub. Resources Code § 21167.8).

Mr. Rishe has been with the Attorney General’s Office since 2008. He received his B.S. from the Wharton School of the University of Pennsylvania in 1993 and his J.D. from UCLA School of Law in 1997.

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David Peress

Executive Vice President
Hilco Streambank

David Peress serves as Executive Vice President of Hilco Retail Services where he provides critical oversight and vision for all Hilco retail valuation and monetization client teams. In 2017, David added this new role to his existing responsibilities as a principal at Hilco Streambank, where he has successfully built one of the top intangible asset valuation and monetization practices in the nation, focusing on brands, trademarks, patents, and domain names.

David has 25 years of experience working in the corporate restructuring and distressed investing industry as both an advisor and investment professional. Until 2000, he was a partner in the bankruptcy department of Wilmington, Delaware’s Young Conaway Stargatt & Taylor, LLP. He later served as Managing Director and General Counsel of The Ozer Group LLC, an asset disposition firm, and the Chief Operating Officer of Ozer’s Real Estate Services Company. Following the sale of The Ozer Group, he led the special situations investing business for Crystal Capital, a multi-strategy private investment fund. At Crystal Capital, David structured and managed debt and equity investments in several retail and consumer products companies including Tower Records, The Sharper Image, Polartec, Cranium, Tommy Armour Golf and Bob’s Stores. During this time, he deepened his understanding of how intangible assets are valued and trade.

David is a graduate of the University of Michigan and the University of Pittsburgh School of Law. He is a member of the Association of Insolvency and Restructuring Accountants, American Bankruptcy Institute, and the Turnaround Management Association, and is a frequent speaker and author on issues related to corporate restructurings and distressed investing.

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Ted A. Berkowitz

Partner & General Counsel
Moritt Hock & Hamroff, LLP

Ted A. Berkowitz is partner in the firm’s Bankruptcy and Creditors’ Rights, Litigation and Dispute Resolution Practice Groups. In addition, he also serves as General Counsel to the firm.

Mr. Berkowitz concentrates his practice on complex bankruptcy and restructuring related matters and commercial litigation. The scope of his practice is diversified and includes the representation of corporate debtors, secured and unsecured creditors, official committees, landlords, purchasers of assets and other parties of interest in bankruptcy court proceedings. He defends preference and fraudulent conveyance actions as well as claims arising out of failed business transactions. Mr. Berkowitz also counsels clients in out-of-court workouts and debt restructurings. Since 2002, he has developed a practice in health care restructuring on behalf of both debtors and creditors.

With more than 35 years in the bankruptcy field, Mr. Berkowitz’s experience includes the representation of major institutional lenders and corporate and individual creditors in many well-known Chapter 11 matters. He has represented the Official Creditors’ Committees in some of the largest and highest profile Chapter 11 cases filed in the Eastern and Southern Districts of New York. He has been appointed as both an Examiner and Chapter 11 operating trustee by the Bankruptcy Court for the Eastern District of New York, and is a member of the official mediation panel for the Bankruptcy Courts of the Southern and Eastern Districts of New York. He also served on the subcommittee which advised the Bankruptcy Court for the Eastern District of New York concerning the formulation of the new local bankruptcy rules.

In 2012, Mr. Berkowitz was appointed to the Board of Editors of the Journal of Bankruptcy Law. An often-published author on bankruptcy and secured lending topics, he served as editor of The Bankruptcy Strategist, a publication of the New York Law Journal, and is currently a member of its board as well as frequent contributor. As a recognized leader in his field, Mr. Berkowitz provides educational seminars on various topics and issues affecting the bankruptcy and restructuring industries.

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Susan A. Berson

Partner & Co-Founder
Berson Law Group

Susan A. Berson is a partner with and co-founder of the Berson Law Group LLP in Overland Park, Kan., and has more than two decades of legal experience in financial, tax and regulatory matters. She previously worked at the U.S. Department of Justice’s Tax Division in Washington, D.C., where she was awarded the Outstanding Attorney Award from the Attorney General in 1996 for trying tax cases in her representation of the IRS.

Since entering private practice, Ms. Berson has advised entrepreneurs and small business owners in various industries and professions, including other attorneys and financial service professionals, on diverse tax, business and regulatory matters. She is also experienced in blockchain, FinTech and virtual currency matters. For practitioners and their clients in the bankruptcy realm, she has provided pre-bankruptcy planning tax-consequence analysis on tax-indebtedness discharge, negotiating acceptable IRS offers-in-compromise, pursuing administrative remedies, guiding officers and directors of troubled businesses through tax-related fiduciary duties, and handling state and federal tax disputes.

In addition, she is a certified mediator and provides mediation services in business and partnership disagreements, commercial contracts, tax disputes and conflicts among family beneficiaries in trusts and estates matters. The author of many articles and several books, including Federal Tax Litigation (Law Journal Press), which she is responsible for updating twice a year, Ms. Berson has written on a variety of topics and received an ASBPE Award of Excellence, as well as an Azbee Bronze writing medal for her ABA Journal work.

Susan received her J.D. from the University of Nebraska College of Law and her LL.M. in Taxation from Georgetown University Law Center.

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Hon. Melanie L. Cyganowski (Retired)

Adjunct Professor
St. John University School of Law

Judge Cyganowski is a member of the firm of Otterbourg, Steindler, Houston & Rosen, P.C. in New York City. Prior to this, she served as a United States Bankruptcy Judge for the Eastern District of New York from 1993-2007 and as Chief Judge from 2005-2007. She received her J.D., magna cum laude, from the State University of New York at Buffalo School of Law. Following graduation from law school, Judge Cyganowski served as a law clerk to the Honorable Charles L. Brieant, United States District Judge for the Southern District of New York. Following her clerkship, she was a litigation associate at Sullivan & Cromwell (1982-1989) and a senior attorney in litigation at Milbank, Tweed, Hadley & McCloy (1989-1993).

Judge Cyganowski has written numerous articles concerning pressing issues in bankruptcy and frequently appears as a commentator on Fox Business News. She is a Fellow of the American Bar Foundation and also an active member of the Commercial and Federal Litigation Section of the New York State Bar Association, the ABI, the Federal Bar Council, the Bar of the City of New York, and the National Conference of Bankruptcy Judges.

Judge Cyganowski teaches Bankruptcy Ethics, Fraud and Malpractice with Judge Morris and has, in the past, also taught Domestic Relations in Bankruptcy and Chapter 11 Reorganization.

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