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Archive for March, 2012

What Makes a Mediator Effective? The Need for Empirical Evidence

Jennifer Shack, March 23rd, 2012

As a mediator, I was trained that particular actions I took during mediation would bring the parties closer to settlement in a facilitative process. As a researcher, I know that no one has proven what I was told to do is effective. As a field, we’ve examined the outcomes of mediation, but we haven’t examined empirically the reasons for those outcomes. Now, Gary Weiner, a mediator and administrator for an appellate mediation program, has proposed that we do just that. He has organized a mini-conference on research for the upcoming ABA Section of Dispute Resolution Annual Conference in April that is designed to get participants discussing the possibilities for researching the effectiveness of mediator behaviors.

In preparation for the mini-conference, Weiner has written a very lucid and thought provoking paper that outlines why he believes such research is necessary. He recognizes that gauging whether something is effective should depend on what the goals are. He sees the outline of those goals for each program as the first step in determining whether 1) mediation is effective and 2) what behaviors lead to its being effective. He then notes that research into the effectiveness of particular behaviors has been reliant on mediator self-evaluation or participant feedback, both of which are unreliable methods for assessing what happened in mediation and the causal connection between behavior and outcome, starting with settlement. He’s interested in devising other ways in which mediator behaviors can be empirically tested. Does providing an evaluation of the case really lead to settlement, or is something else the mediator is doing the causal factor?

Research in other fields, most notably psychology, provides promising evidence that mediator behavior can be examined empirically to discover what is effective. I’m looking forward to discussing the possibilities at the conference.  If you would like to weigh in before then, comment here or get in touch directly with Gary at Gary.Weiner@jud.ca.gov.

Part 3 of 3: Foreclosure Mediation Best Practices

Heather Scheiwe Kulp, March 14th, 2012

MEDIATION SESSION ELEMENTS

Ensure Mediators are Well-Trained

Some programs, fearing they will not be able to attract people to mediate, lower the requirements for training mediators. Instead of the normal 40 hour mediation training, they may require only 12 hours of training with an additional training in foreclosure law, or only require that the mediator be an attorney. This lack of training jeopardizes the mediation process itself, as people may not have the tools after 12 hours of training to manage such a complicated discussion. Connecticut’s program boasts a high settlement rate, in part because (more…)

Part 2 of 3: Foreclosure Mediation Best Practices

Heather Scheiwe Kulp, March 7th, 2012

PRE-MEDIATION SESSION ELEMENTS

Conduct Extensive, Personalized Outreach to Borrowers

Outreach to borrowers is key to getting participation in the program. Most people do not open their mail or answer the phone when they are in foreclosure. For those that do, legal notices should be written in simple language with a clear instruction for what borrowers should do next. Programs should find ways other than mail to help borrowers access mediation programs.

One jurisdiction has dedicated funds for (more…)

Part 1 of 3: Foreclosure Mediation Best Practices

Heather Scheiwe Kulp, March 1st, 2012

With the proliferation of foreclosure mediation programs, legislation, and reports, states and other entities attempting to create such programs need clear, expert guidance about lessons learned during foreclosure mediation’s four-year history. Especially with additional funding from the 49 state attorney general foreclosure settlement, states have the powerful opportunity to create high quality mediation programs. This report, which will be featured in three parts on this blog, highlights wisdom collected from existing programs, failed attempts to create programs, and mediation’s long history of success in resolving court-based and other types of disputes. The first section is on how to begin a foreclosure mediation program to ensure its success.

PROGRAM BEGINNINGS

Set Goals and Define Success

The initial step of gathering everyone in a room to talk about goals is a difficult one, but is essential for the subsequent foreclosure mediation program to succeed. (more…)