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Just Court ADR

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Learning from the Gamble on Foreclosure Mediation in Nevada

Susan M. Yates, September 21st, 2010

(See the posting from Jen Shack, Good Faith, Revisited, on this subject, too.)

An article in Sunday’s New York Times purported to examine Nevada’s foreclosure mediation program, especially its shortcomings. The article, combined with a reading of the court rules for the program, points out continuing misunderstandings about mediation, such as what mediators do, the purpose of mediation, and how mediation functions. It also points up a glaring deficiency in many court mediation programs: not tracking the actual results of mediations. In this case, if people are really staying in their homes or moving, if temporary mortgage modifications are becoming permanent, if the foreclosure process is moving more quickly, etc.

In terms of what mediators do, the local rules indicate confusion about the actual role of the mediator. (more…)

ADR National Conference Reflections

Susan M. Yates, September 8th, 2010

It has been a few years since I attended an Association for Conflict Resolution (ACR) national conference. With a limited budget, I have chosen to attend the ABA Dispute Resolution Section annual conference instead because there is more of a court ADR focus and I am much more involved with the ABA DR Section.

But last week the ACR national conference was held in Chicago and I could afford to attend. Here are a few thoughts about the two conferences.

There are a lot of similarities between the conferences. Many presenters participate in both conferences and many of the sessions would be at home at either one. No doubt (more…)

Court-Ordered Mediation Agreement Must Be Written

Susan M. Yates, July 27th, 2010

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…)

Mediator’s Defining Moment

Susan M. Yates, July 20th, 2010

There has been quite a bit of hubbub online about a message circulating from NAFCM’s (National Association for Community Mediation) executive director, Justin Corbett. The message, copied below, asks for input on a definition of “mediator” for the U.S. Department of Labor. It will be used “by the federal government, and will be accessible online for all those considering a career or a volunteer commitment as a mediator.”

I find it fascinating that we (in the mediation field) continue to have such a difficult time defining what we do. I understand that there is great concern about potentially excluding sectors of the field, but we really need to be able to get on the same page (even if we have multiple ideas on that page!) if we are going to be able to provide quality services. We may disagree on many things, but there is so much more that brings us together. (more…)

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