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 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.
Tags: bad faith, compliance, confidentiality, enforcement mechanism, equality, foreclosure, foreclosure mediation, good faith, mediation, mediation training, mediators, neutrality, program development, resources, training
