I just completed the Inaugural STEP USA Conference that reminded me why I’m proud to be a STEP member.

Fraudulent Transfers or Voidable Transactions?

Here is a nice analysis of fraudulent transfer law by Jay Adkisson in light of the Uniform Voidable Transactions Act of 2014 (formerly the Uniform Fraudulent Transfer Act).

“The Uniform Voidable Transactions Act – What’s With The Name Change?”

(This article is the first in a series on the Uniform Voidable Transactions Act of 2014 (“UVTA”) , as found at  [PDF] and adopted by the Uniform Law Commission on July 16, 2014. [Jay Adkisson] was an American Bar Association Advisor to the Drafting Committee to this Act.)

Our modern law of fraudulent transfers can be traced to Roman Law. When the Byzantine Emperor Justinian I commanded that great compilation or Roman Law known as the Corpus Juris Civilis, or more commonly the Civil Code, the accompanying commentary known as the Institutes of Justinian gave a very detailed treatment of fraudulent transfer law which in substance is little changed from when those Institutes were published in the year 533 A.D.

In the Institutes, we are given the basic concept of a fraudulent transfer as a transfer by a debtor that is meant to defeat the creditors of the debtor. The standard remedy was that the transfer could be avoided by the creditor; that is, treated as if the transfer had never occurred at all, and the transferred asset was still owned by the creditor. However, if the creditor could not be satisfied by unwinding the transaction, then the creditor may obtain a money judgment against the transferee for the value of the asset that was transferred. If the transferee did not know the debtor had outstanding creditors, and the transferee paid equivalent value for the asset, then the transferee had a valid defense against the creditor’s action for the fraudulent transfer.

These are the basic concepts of Roman fraudulent transfer law, and are the basic concepts of American fraudulent transfer law as well. In fact, the Romans considered these issues in far more depth than I have just briefly described, such as in holding that if a debtor refused to accept an inheritance so that those assets would not go to his creditors (what we could today call a “disclaimer”), that was not a fraudulent transfer, as is now stated in the probate laws of most states.

It is widely presumed that the American law of fraudulent transfers derives in whole from English law, more particularly the Fraudulent Conveyances Act of 1571, sometimes referred to as the Statute of 13 Elizabeth. There is some truth to that, but only in part.

Continue reading  . . . 

New IRS Rule for 2014

By – Gerry W. Beyer


“Effective January 1, the IRS requires those assigned an Employer Identification Number (EIN) to provide periodic updated information.

EINs are the equivalent of a Social Security number for taxpayers other than individuals, such as corporations, LLCs, trusts, and government agencies.  The new rule requires these entities to update information related to “responsible parties” and changes in business addresses.  If an entity has a change in the identity of its responsible party, the updated information must be filed with the IRS within 60 days using the Form 8822-B.  Changes before January 1 must be reported to the IRS no later than March 1.

See Stephen Sherman, What You Should Know About a New IRS Rule for 2014, Stoll Kennon Ogden LLP, Jan. 24, 2014.”

What went wrong with mediation?

This article by Christian-Radu Chereji and Constantin-Adi Gavrilă points to the need for Alternative Dispute Resolution (ADR) providers to become better providers of a preferred method of dispute resolution, rather than just an alternative method, because alternative qua alternative dispute resolution hasn’t been selling very well worldwide:

Presenting recently the results of the study on ‘Rebooting’ the Mediation Directive [PDF], Giuseppe de Palo talked about the “European Union mediation paradox” – the existence of a “highly acclaimed, efficient, effective process that very few people use”, in his own words – and the need of “rebooting” the implementation of mediation process in the EU in the light of the limited effects of current legislation upon the number of civil cases mediated.

The same situation can be seen on the other side of the Atlantic, in the US, where a number of prominent experts have pointed to the fact that, after almost half a century of mediation programs implemented by courts, organizations and policy-makers, mediation is still a [marginal] method of dispute resolution, in spite of its obvious advantages.

Continue reading . . .

Nelson Mandela: Greatest Negotiator

By Susan Hackley

Nelson Mandela was “the greatest negotiator of the twentieth century,” wrote Harvard Law School professor and Program on Negotiation Chair Robert H. Mnookin in his seminal book, Bargaining with the Devil, When to Negotiate, When to Fight. In his chapter on Mandela, Mnookin cites Mandela’s patience, tenacity, pragmatism, and strategic thinking.

“He rejected the simple-minded notion that one must either negotiate with the Devil or forcibly resist. He did both. He was willing to make concessions, but not about what was most important to him. With respect to his key political principles, he was unmovable.”

Mnookin admired Mandela’s ability to persuade his adversaries.

“He ultimately achieved through negotiation an outcome that could never have been accomplished solely through violence or resistance. “

(From the Program on Negotiation Daily Blog.)

Mandela – A Titan Remembered

By Art Hinshaw

“With the death of Nelson Mandela, without doubt the most significant political leader in my lifetime, lots has been written about his impact not only on South Africa but also on the world. And plenty is still to be written. Mandela’s impact comes in many ways large and small, but more importantly it still resonates today. One of my most rewarding experiences in my life has been meeting members of the Truth and Reconciliation Commission. And of course, without Mandela the TRC would not have existed. Mandela is/was a true titan.

Earlier today FOI Charlie Craver (George Washington) sent out an email on the ADR listserv describing his work as a mediator in South Africa while the terms of both the Interim Constitution and the fall 1994 elections were being negotiated. I asked him if he would take the time to discuss his experience further and here’s what he’s sent along.


South Africa was a most unusual country. A small group of wealthy white persons completely dehumanized millions of individuals solely because of their race. When I met with white leaders, it was as if they had no idea how blacks were living. I had a discussion with two Conservative Members of Parliament who emphasized the fact their families had gone back 350 years in South Africa. When I politely suggested that black South Africans had gone back somewhat further, I could tell from the looks on their faces that they had never even considered this fact. Our subsequent discussions became much more productive after this exchange.

The worst day of my professional life was when I spent a day in Soweto. The conditions in many areas of that Township were unconscionable. Many homes had no sewage, no electricity, and minimal water. A huge percentage of residents were unemployed and without monetary support. When I had lunch, I could hardly eat. Although the food was lovely, I could not eat in an area surrounded by so many persons who were treated in such a subhuman manner.

South Africa was able to finally achieve true democracy because of an extraordinary man named Mandela. He spent twenty-seven years of his life in cruel prison cells fighting for the freedom of all South Africans. Although the government tried on several occasions to talk him into accepting something less than true democracy in exchange for his freedom, he made it clear that he would never accept such terms. He and Gandhi were two of the most exceptional leaders of the past century. I only wish that they could have lived on forever to the benefit of all citizens of the entire world.”

(From the ADR Prof Blog.)

All things considered, in mediation and settlement

What do you and I mean when we say “all things considered?”

The weather, we say, is good, “all things considered;” a new car, we say, isn’t bad, “all things considered;” a dinner, a movie, a vacation, a job, a new house, a day of the week, a month of the year, a year, a decade, an enemy, a friend, a family member, a city, a town, an old pair of shoes, all can be described with the words: “all things considered.”

But what do we really mean?

Do we mean “all things considered” when we say “all things considered?” No. We mean the opposite. When we say: nice day, week, husband, wife, daughter, son, pair of shoes, “all things considered,” we mean in spite of the weather, their criminal conviction, their tendency to lie, to tell the truth, to sell drugs, to buy shoes, or to hurt our feet. We mean to say all things not considered, and we mean to say we have considered those other things, too.

“All things considered” is a simple acknowledgment of the fact that life is not simple, that true perfection in life is nonexistent, that things might be better or worse for others, maybe most others, that things might be better for us, maybe a lot better, maybe a lot worse, but, given all of these irrefutable facts of which we acknowledge the absolute truth, we are accepting, no, pleased, no, thrilled, no, overjoyed with the current state of our life, the weather, this day, this pair of shoes, or whatever – all things considered – and we are looking forward to what tomorrow may bring.

Unless tomorrow brings a presidential election, an armed conflict overseas (whether or not we are a combatant), a lawsuit (in which we are a named party), a mediation conference (in which we may be required to acknowledge, as we already do in every other aspect of our lives, that certain facts take precedence over certain other facts), or any other circumstance in which we choose to pretend that all facts are created equal and, frankly, must all be considered.

“All things considered,” then, is a comfortable lie, a euphemism, that enables us to live our daily lives. We often hear or say words to the effect that: “if you think too long or too hard, consider all of the options, evaluate all of the consequences, then you will never get married, divorced, have children, go to college, drop out of college, get a new job, buy a new car, get a haircut or anything else.” But, we do get our hair cut, have children, change jobs, and basically live our daily lives because we understand that we cannot consider all things and accomplish anything.

Until we go to mediation. Then we make believe, or pretend to believe, or actually believe, that everything matters, and if not everything, then only those things that matter to the other party, or parties, do not matter to us, and vice versa. During mediation we forget the lie of “all things considered” that so well lubricated our lives before mediation and, will again after mediation ends. During mediation we require not only that all facts be considered, but also that all facts be demonstrated if not beyond any doubt, then beyond any reasonable doubt, and if any such fact can be so demonstrated to be true then, and only then, can such a fact be relegated to the pile of facts not relevant to the resolution of the matter in dispute.

Unless you are the mediator; if you are the mediator, then you are charged with achieving a settlement of the matter in dispute in the minds of the disputing parties on terms acceptable to the parties, all things considered. And the mediator means all things considered in the usual sense, not the literal sense, because the mediator knows from experience the truth of the statement that nothing can be settled if all things are considered.

All things considered, then, to the mediator means discovering from the parties through questioning, through listening, through divine guidance, or through any appropriate means necessary what things in fact and in truth matter to each of the parties. Once the parties’ truth is discovered, if it is discovered, then the mediator knows what things may be useful to any settlement and can attempt to help the parties find common ground on those things.

It can be and has been argued that a problem with mediation is that the parties’ truth is not the actual truth, that there is a problem with “deception” in mediation, that the problem is the parties are trying to fool the mediator, and the mediator is trying to fool the parties and the lawyers are trying to fool everybody, and there is, well, something just not right about all of that tomfoolery; whatever happened to “the whole truth and nothing but the truth?”

Whatever happened is that “the whole truth and nothing but the truth” doesn’t fit mediation. It fits litigation (somewhat), but it requires a Code of Evidence and a Code of Civil Procedure and the Rules of Court to make it fit, and it is very expensive and subject to appeal and takes a very, very, very long time. What happed is the realization that “all things considered” does not always mean “all things considered.” It sometimes means that some facts take precedence over others, and that some facts do not matter at all, today, at this time, in this context, to this settlement.

Settlement is defined as an adjustment of doubts and differences. If the mediator is unable to successfully discover from the parties those things, out of all things, to be considered relevant today, to this settlement, then the settlement track will be circular, and endless, and there will be no adjustment of doubts and differences, and the mediation will fail.

The parties will then be left with “the whole truth and nothing but the truth,” as an alternative, as an option. Maybe, all things considered, it is a better option. Maybe, all things considered, it is the only option. If a search for the whole truth and nothing but the truth is your quest, then perhaps you should seek it through litigation in the first place, because proof is not the goal of mediation. The parties in mediation already know the truth of the matter. They don’t require the proof of the matter.  Mediation is a quest for settlement, for an adjustment of the doubts and differences existing between parties, today, in this case, in a manner acceptable to all of the parties, nothing more, and nothing less, all things considered.

(Reposted from 2009.)

Not Bargaining With Syria

From Jack Goldsmith of LAWFARE:

United States Senators Joe Manchin (D-W.Va.) and Heidi Heitkamp (D-N.D.) are working on an alternative Syria resolution that provides:

If the Government of Syria does not sign the [Chemical Weapons] Convention within 45 [days] after the date of the enactment of this resolution, all elements of national power will be considered by the United States government.

In other words, our President has told Syria that the Unities States is going to bomb them because they used chemical weapons to kill civilians. And now our Senate is proposing to tell Syria that the United States will bomb them unless they sign a promise not to use chemical weapons.

Whatever these threats by our elected representatives are, they are not bargaining, and they fall far below the quality of service that we are entitled to expect from our leaders.

Continue reading about the Manchin/Heitcamp Syria Proposal and the Vienna Convention on Treaties.

Nonviolent Alternatives in Syria

News Release – War Prevention Initiative Advocates Nonviolent Alternatives in Syria:

For Immediate Release: August 28, 2013

Contact: Patrick Hiller: (541) 490-4485,

War Prevention Initiative Advocates Nonviolent Alternatives in Syria

Portland, Oregon nonprofit cites Global Peace System trends as opportunities to prevent military intervention and avoid further escalation of violence in Syria and the Middle East.

The War Prevention Initiative promotes continued nonviolent approaches to address the escalated violence and atrocities in Syria. Experts point to several factors against the use of military intervention:  (1) the potential grave consequences for this already unstable region, (2) the lack of serious negotiations between the United States, Russia, China and Iran to end the violence, (3) the still ambiguous and unconfirmed information on the use of chemical weapons, (4) the extremist nature of the opposition in the armed conflict, and (5) the current division on this topic within the Arab League.

An evolving Global Peace System offers many opportunities to address the escalated violence and atrocities against civilians. Options include, but are not limited to:

  • Supporting the UN investigation to establish culpability of war crimes, in particular the recent chemical attack
  • Prosecuting the parties responsible for atrocities as criminals through the International Criminal Court rather than waging war against a country and its civilians
  • Invoking targeted economic and political sanctions through the UN Security Council
  • Supporting local nonviolent campaigns
  • Supporting diplomacy, mediation, negotiation or reconciliation to include:
    • Within Syria: the regime, all opposition parties and all societal sectors
    • Globally: Alliances currently backing the regime and the opposition respectively (USA, China, Russia, Turkey, Saudi Arabia, etc.)
  • Initiating a peace conference with all internal and external stakeholders (including civil society organizations) leading to a ceasefire agreement, an immediate moratorium of all arms transfers in the region and the process of disarmament
  • Engaging conflict resolution experts in the media to report on the effectiveness of nonviolent conflict transformation

We assert that there is no quick and single solution – as we have seen in Afghanistan and Iraq. It is proven that nonviolent approaches will be more effective and less costly than any kind of military approach.  We urge national and international decision-makers to recognize that it is time to shift from military responses toward the existing, tested and proven nonviolent alternatives to alleviate human suffering.

#             #

War Prevention Initiative, (, is committed to advancing the global peace system by supporting, developing and collaborating with peacebuilding efforts in all sectors of society. The global peace system is evidence of the emergence and effectiveness of trends toward peaceful conflict resolution and justice for all.