The Florida Supreme Court issued an order Monday, December 19, 2011, terminating the mandatory mediation program it created in 2009 as an emergency measure to deal with the foreclosure flood in Florida. While individual circuits can create localized mediation programs or refer foreclosures cases to mediation on a case-by-case basis, and some programs commit to remaining active, the statewide program will receive no new referrals as of yesterday.
Archive for 2011
Court ADR lost a champion yesterday when Judge Harris H. Agnew, RSI’s long-time Executive Committee Chair, passed away after a long struggle to regain his health. Judge Agnew led by example, with kindness and courage. This blog post I wrote back in April talks about the tremendous role he played in advancing court ADR in Illinois. But there was so much more to Harris than just his work with ADR.
Those of us who were fortunate to know him learned a lot from Harris:
Leading sometimes means doing what is right, even when others don’t see it.
Whether it was mentoring the first women to join the bench in the 17th Judicial Circuit or implementing arbitration and mediation there, Harris stuck his neck out. He opened doors for people and ideas that would bring positive change even in the face of opposition.
Be kind, but don’t be a patsy.
Harris was so kind to everyone he met that it took me a while to understand just how politically savvy he really was. (more…)
The foreclosure crisis is real, and it is not dissipating anytime soon. So why would a borrower advocate undermine a process meant to facilitate resolutions?
State and local governments seek creative ways to resolve the crisis. Some have looked to mediation and its rich history of providing a forum to disputing parties – including parties to foreclosures – to discuss alternatives to litigation. Courts (in judicial foreclosure states) and other government entities (in non-judicial foreclosure states) have created mediation programs to encourage borrowers and servicers to talk face-to-face about options other than foreclosure. These options include loan modifications as well as graceful exits.
Now, a court case in Nevada (Wells Fargo v. Renslow) challenging the constitutionality of Nevada’s non-judicial Foreclosure Mediation Program threatens to dismantle 30 years of good work mediators and mediation developers have done. And it’s not because Wells Fargo claims that the Program violates the U.S. Constitution’s contracts clause. (more…)
Child Protection Mediation is a growing area of ADR with a track record of positive effects for families brought into the child welfare system. Now, new comprehensive guidelines have been created to help programs ensure that they abide by best practices. The draft Guidelines for Child Protection Mediation were developed by the Child Welfare Collaborative Decision Making Network (CWCDMN), which is a combined effort of the Association for Family and Conciliation Courts (AFCC), the National Council of Juvenile and Family Court Judges (NCJFCJ), the Werner Institute for Negotiation and Dispute Resolution at Creighton University School of Law, and the National Center for State Courts (NCSC).
For my part, I’m pleased to see monitoring and evaluation included in the guidelines, as well as very specific guidance on mediator training. The guidelines are open for comment until January 24, 2012. If you work in the child welfare system, I encourage you to take a look and send in your comments.
Voluntary participation. It’s a core principle of mediation, as it structures an environment where self-determined settlement is possible. It’s also a primary distinction between mediation and litigation. Sure, a court can require parties to attend a mediation session. But, for an agreement to meet the needs of both parties and be sustainable, both parties’ participation must be voluntarily. A mediator may be able to report if you do not appear, but cannot—should not—make you participate. (more…)