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Just Court ADR

The blog of Resolution Systems Institute

Author Archive

Honoring Roger Fisher, ADR Leader and Innovator

Heather Scheiwe Kulp, August 29th, 2012

Most law school or business school students will, at some point, be asked to read, “Getting to Yes: Negotiating Agreement Without Giving In.” Written in 1981, the ideas the book espouses form the basis for much negotiation and mediation theory taught today. Any ADR practitioner, whether they’ve read the book or not, can give thanks for the life of Roger Fisher, Professor Emeritus at Harvard Law School and co-author of “Getting to Yes,” who passed away August 25, 2012.

Roger Fisher’s experiences in World War II prompted him to look for another, better way to resolve conflict without sacrificing people’s individual needs and interests. Thus, along with William Ury and Bruce Patton, Mr. Fisher developed the principle that people can be moved from focusing on their positions to identifying their underlying interests and coming up with creative solutions to have those interests met. The authors also co-founded Harvard’s Program on Negotiation and wrote extensively on negotiation theory and practice.

His ongoing work to promote peace through understanding each other’s true needs will forever shape the landscape of ADR. His passing is a loss to us all.

Foreclosure Mediation Upheld against Constitutional Challenge

Heather Scheiwe Kulp, August 23rd, 2012

For the second time in as many years, a foreclosure mediation program has faced a constitutional challenge. This time, the 153,000-person city of Springfield, Massachusetts, will be allowed to move forward with a foreclosure mediation program for residents.

The first was a constitutional challenge from Wells Fargo against the Nevada Supreme Court Foreclosure Mediation Program. Wells Fargo claims the mediation program itself violates the due process clause. More specifically, Wells Fargo claims a provision that allows sanctions for non-compliance, violated the U.S. constitution. Nevada’s mediation program allows judges to issue sanctions if the lender does not participate in good faith. Sanctions may include an ordered write-down of the mortgage. Wells Fargo says this violates the contracts clause and the takings clause by interfering with a contract provision and appropriating private real and personal property for public use without compensation. The court (more…)

The Silent Space: Mediation Confidentiality, the Right to Privacy, and the Mediator’s Role

Heather Scheiwe Kulp, July 12th, 2012

In her recent article in The Ohio State Journal on Dispute Resolution (and in previous articles here and a workshop here), Susan Oberman discusses the tension between mediation’s promotion of confidentiality and the constitutional right to privacy. While the article examines extensively the history of privacy, confidentiality, and constitutional/state law, I want to point mediators and court mediation program administrators to an issue of particular relevance for their practice. (more…)

Uniform Law Commission and Foreclosure Mediation

Heather Scheiwe Kulp, June 12th, 2012

This month, Resolution Systems Institute was invited to consult on residential mortgage foreclosure mediation at the Uniform Law Commission’s (ULC) Mortgage Foreclosure Committee meeting. The ULC is a non-governmental organization that drafts laws which states may voluntarily adopt in whole or use in part to create their own laws. The Committee is considering drafting a uniform law on foreclosures and is interested in including a provision on foreclosure mediation. RSI provided its Mortgage Foreclosure Mediation and Mitigation Models report, along with other materials, to the Committee prior to the meeting.  I, as staff attorney at RSI, along with four program managers from foreclosure ADR programs around the country,  addressed the Committee and forty interested observers from lending, borrowing, academic, and governmental sectors. The following are my opening remarks:

Greetings, members of the Committee and observers. Thank you for the opportunity to present you with our research and experience in foreclosure alternative dispute resolution programs. We represent a few of the 23 states, (more…)

Using Foreclosure Settlement Funds for Effective Mortgage Dispute Resolution

Heather Scheiwe Kulp, May 21st, 2012

The settlement was huge. Five major banks signed an agreement with 49 Attorneys General after the AGs instigated an investigation into the foreclosure crisis and the banks’ involvement in it. The result: an unprecedented $25 billion is flowing into states over the next three years to repair the damage the foreclosure crisis has caused to infrastructure, lending and homes. The settlement agreement earmarks $2.66 billion of this money for foreclosure prevention efforts, which could include increased housing counseling availability and more robust dispute resolution programs.

So where is the money going? (more…)