No one wants parties in a mediation to sit at the table with their arms crossed, refusing to talk. But who, if anyone, should tell mediators how to evaluate a party’s good faith participation in mediation? (more…)
Posts Tagged ‘good faith’
Foreclosure Mediation goes to Washington: U.S. Senate Committee on the Judiciary Hears Testimony on Foreclosure MediationHeather Scheiwe Kulp, February 1st, 2011
In the face of a tremendous snow storm, another storm received air time this morning. The housing crisis has resulted 1.2 million foreclosed homes, with promise of a million more during 2011, the anticipated peak year. So far, 27 states or localities have created some form of foreclosure mediation program to deal with the storm, with Washington State close behind.
The federal government’s voice has recently risen above the squall. (more…)
(See the posting from Susan Yates, “Learning from the Gamble on Foreclosure Mediation in Nevada,” on this subject, too.)
An article in Sunday’s New York Times examined the shortcomings some see in Nevada’s foreclosure mediation program. The article focuses in part on complaints that the lenders are not participating in good faith. Mediators who have recommended sanctions against the lenders say they have been removed from the program’s roster. They state that they are bound by statute to make the recommendation. The court rule makes no mention of good faith participation, and the Court appears to be relying on the rule in its decision to bar the mediators from the roster.
The Missouri Court of Appeals has issued a decision that is instructive as to what can happen when an agreement reached in a court-ordered mediation is not reduced to writing before everyone leaves the mediation. The decision also highlights the potential tension between an emphasis on good faith participation and confidentiality, although it never discusses good faith.
Missouri’s Supreme Court Rules 17.01(d) and 17.06(c) specifically require that agreements be memorialized. In this situation, one party left the mediation, saying they would return to finalize the agreement, but did not do so for an hour, at which point the other party and the mediator ended the mediation. During the ensuing week, there were follow-up efforts to finalize the agreement, but the party who had left the mediation quibbled with various drafts of the agreement.
The Appellate Court, reversing the trial court, found that the plain language of Supreme Court Rule 17.06 (c), (more…)