The hour-long webinar is being presented by the National Association for Community Mediation (NAFCM) on May 17 at 3:30 Eastern. It’s free for NAFCM members and only $20 for non-members. Click here to register.

Q: How many transformative mediators does it take to change a light bulb?
A: Transformative mediators don’t change light bulbs; they empower them to change themselves.

Q: How many facilitative mediators does it take to hang a picture?
A: Facilitative mediators don’t hang pictures; they re-frame them.

Neutrals Go to Heaven
St. Peter was guarding the pearly gates of Heaven one day and he had to run an errand. He sighted St. Theresa off in the distance and called her over to ask if she would take over while he was gone. She said, “What do I have to do?” He replied, “Here’s the Great Book. Make sure that the person is in the Great Book and that the time is right, and then you can let them in.” She said, “Fine.”

St. Peter went off and she took over. Pretty soon, a mediator and an arbitrator showed up. They were both one week early. St. Theresa said, “I’ll tell you what. You can go back to earth and be anything you ever wanted to be for one week, and then come back and we’ll let you in.” The mediator said, “I’ve always wanted to be an eagle.” The arbitrator said, “I want to be a stud.” St. Theresa agreed and they returned to earth.

St. Peter returned. He asked St. Theresa, “How did it go?” She explained what happened. St. Peter said, “That’s great. Where are they now?”

“The mediator is a golden eagle, soaring over the Grand Canyon. And the arbitrator is a stud in a snow tire in North Dakota.”

As an attorney shifting her career toward mediation, I am always on the lookout for training opportunities to further my skill set and knowledge base. I have previous experience with litigation and electronically-stored information, including participating in a half-dozen large-scale cases where tens of thousands of electronic documents had to be reviewed, tagged, and logged. So, I was thrilled to link my interest in mediation and my previous experience by attending a recent two-day training program offered by the American College of e-Neutrals on the use of mediation to resolve electronic discovery, or e-Discovery, disputes.

As many familiar with court procedure know, discovery can take a lot of time, both for judges and for parties. The advent of e-Discovery has driven the costs of discovery up significantly and made the discovery process more complicated by providing large mines (or possibly “clouds”) of information, beyond the limits of traditional paper files, to be searched, including  hard drives, e-mail servers and other electronic devices. It is a brave new world where deletion isn’t necessarily permanent and where terms like “metadata” and “native format” can be confusing for clients and attorneys alike. When attorneys fight about document requests and bring motions to compel, it further ramps up the costs of litigation (and often the frustration of the clients).

The use of e-Discovery mediation can make the court process flow more efficiently for the parties and their counsels, particularly if it is used at the beginning of the case. Although the area is new, one model being advanced is for the court to refer the parties to e-Discovery mediation with a court-affiliated mediator, or e-Neutral.

E-Discovery mediation allows parties to discuss their discovery expectations to avoid confusion and the need for motions to compel. Mediation for e-Discovery can be used early on in the case to help parties figure out parameters for searches including: time limits; the people whose data should be searched; the e-Discovery programs to be used; search terms; requirements for a privilege log; guidelines for preservation, and much more.

A major benefit of e-Discovery mediation is that the parties can bring other personnel with valuable information, such as IT staff, into the mediation process under a protective umbrella of confidentiality. Computer technology experts tend to know a lot more about how data is stored than attorneys, and their input in the early stages can help prevent costly mistakes in the preservation and production processes. In large-scale litigation, it is highly beneficial to have attorneys, IT personnel, and executive teams on the same page regarding:

• what information is retained;
• how it is retained;
• how long it is retained; and
• where it is retained.

The facilitation of e-Neutrals can help parties agree on discovery, giving the parties the satisfaction of participating in the decision-making and lessening the chance that either party will be sanctioned for failure to produce or preserve electronically-stored information. The e-Neutral would ideally have training in this specific type of training and would be able to help the parties decide the e-Discovery parameters and discuss any issues. If the parties have a subsequent disagreement as the case proceeds, an e-Neutral can help facilitate a resolution.

With the use of mediation in e-Discovery, attorneys can help protect their clients and themselves, freeing up time and energy to delve into the merits of the case. Using mediation to resolve e-Discovery disputes can also help judges manage their caseloads and create greater efficiencies in the judicial system. One point the training drove home is the consequences for attorneys who do not proceed with caution and a detailed discovery plan once there is even the reasonable anticipation of litigation [See the Zubalake v. UBS Warburg cases, particularly Zubalake V, 2004 WL 1620866 (S.D.N.Y. July 20, 2004)].  Having worked on extensive document review projects, I can attest that the process is smoother and ultimately cheaper if parameters are laid out in the beginning and not cobbled together as the discovery process proceeds. The cost of backing up tapes can be cheap; the cost of restoring tapes after they have been deleted is likely to be exponentially more expensive. No one wants to be in the sticky situation of telling your client that they have to spend hundreds of thousands of dollars to restore data that could have been cheaply preserved in the first place. The clients will be even less impressed if other sanctions like fines, issue preclusion, evidence preclusion, an adverse inference jury instruction, or dismissal are imposed. Involving IT personnel in an early e-Discovery mediation will allow all the parties not only to be better informed about practical technological discovery questions but also to develop a joint e-Discovery plan that meets both sides’ needs.

Jennifer S. LaDuke has worked in the conflict resolution field for over a decade, honing her skills in both the private practice and administrative arenas. Currently she volunteers at Resolution Systems Institute and serves as a part-time Legal Advisor to the Illinois Racing Board. She has been trained in general and divorce mediation and is also an e-Neutral.

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.

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 its mediators are dedicated ADR court staff with extensive mediation training that regularly mediate foreclosure cases.

Allow Multiple Sessions and Communication Between Sessions

Connecticut’s mediators also attribute their success to their ability to manage the communications between borrower and servicer in between sessions. Managing communication before and between sessions is a key to success, as communication between servicer and borrower has often been the key challenge to settling the case prior to mediation. If the program permits mediators to engage in communication with each party separately in between sessions, the mediator may facilitate progress on the case where before, parties just sat on the file until the next mediation session. Communication between sessions gives the case a sense of urgency and is a good use of the mediator’s facilitation skills. It may also reduce the number of sessions needed before a case settles. As Florida’s statewide program mediators identified, most cases did not settle in one session because work needed to be done by both parties (documents exchanged, checking a settlement option with an investor, etc.) before a final decision could be made. So, allowing multiple sessions can lead to a higher rate of settlement, especially if coupled with communication between sessions.

Provide Judicial Enforcement Mechanisms for Not Complying with Program Requirements

Some programs require mediators to report on non-compliance with mediation requirements. If the only program requirement is attendance, having the mediators report on it is acceptable. But, if program requirements include document review and exchange, certain behavioral expectations (like good faith participation), or other things that require a subjective interpretation of communication or behavior, mediation best practices state that a mediator should not be the reporting mechanism for such requirements.

Even if a program requires the mediator to report some behaviors, the mediator should never, in any circumstance, determine the enforcement mechanism for non-compliance.  This turns the mediator—a role defined by neutrality to ensure equal treatment of parties and confidentiality to ensure freedom to explore options—into a judge. As highlighted in recent foreclosure case law, only judges should sanction parties for not complying with program requirements, and the judges should not rely on information provided by the mediator to do so.

Therefore, compliance with program requirements should be checked in one or both of two settings: prior to mediation in a public session or in a court hearing after the mediation session occurs.  In the former, a screener will check documents from one or both parties to determine readiness for mediation. If more documents need to be exchanged or updated, the screener can complete an order requiring those steps before mediation is scheduled. In the later, a judge reviews whether parties complied with mediation program requirements. Since oral statements made during mediation should not be allowed in the court proceedings, the judge may review a prepared form that resulted from the mediation.  This form may include an action plan for what needs to happen next (which could be the basis for an order) or may articulate the agreement both parties reached (which may be entered as the final order). Either way, this document can form the basis for an enforceable order. If there are problems with compliance, the court or other management entity should have specific consequences—applied consistently and equally—for each type of non-compliance.

Treat Parties Equally

As in any mediation, parties should be treated equally not only by the mediator, but also by the program and program partners.

Programs have struggled with this concept in the area of party preparation before mediation. Some programs, citing the goal of holding the servicer’s feet to the fire, require servicers to submit extensive documentation before allowing the mediation (and thus the foreclosure process) to move forward. Often, these programs do not require anything of the borrower. Even before the mediation begins, the servicer feels like the mediation is designed to punish them and let the borrower coast. This does not set up mediation to be a productive discussion. Therefore, if an expectation is set for the servicer (e.g., the servicer must send someone with authority to sign an agreement, or the foreclosure is barred), that same expectation should apply to the borrower (e.g., every person on the note must appear, or the foreclosure may go forward). A perceived sense of fairness from both sides helps set the stage for a process that values each parties’ voice and interests equally.

Another potential area for inequality in foreclosure mediation is in the discussion itself. Most borrowers already feel an imbalance of power as they face their bank’s representative, perhaps for the first time. They may feel even more uncomfortable actually talking about options with their bank and as a consequence, may not bring up information that would actually assist the settlement process. Therefore, it is essential that mediators be trained in how to level the playing field as much as possible during the mediation. This includes developing skills around giving parties equal time to share their stories, not letting the servicer’s attorney dominate the process, and addressing emotions from both servicer and borrower related to the foreclosure process.

FURTHER ASSISTANCE

Resources on Foreclosure Mediation

Resolution Systems Institute (RSI) offers an extensive, free resource center that features expert information on foreclosure mediation. This includes rules, abstracts of reports and evaluations, contact information for current programs, and RSI-developed resources about program funding, purposes, and development. Find these resources for free online at courtadr.org/specialtopics.php?sec=6.

Latest News on Foreclosure Mediation

RSI staff members blog regularly about the latest developments in the field of foreclosure mediation, including updates on individual states, court decisions, and general trends. Subscribe to the Just Court ADR blog at blog.aboutrsi.org/.

Assistance with Program Development

RSI provides expert consulting services for courts and other entities wishing to develop or improve foreclosure mediation programs. To contact a foreclosure mediation system design expert, please call staff attorney Heather Scheiwe Kulp at 312-922-6475 or email hskulp@aboutrsi.org.