On Friday, United States Vice President Joe Biden announced fresh support for foreclosure mediation programs.
The official plan flows from recent work of the Department of Justice’s Access to Justice Initiative, which focuses on increasing lower and middle class citizens’ ability to understand and effectively employ the law to protect their rights.
Earlier this week at a gathering in Baltimore where administrators, program evaluators and researchers provided input on Maryland’s plan for a comprehensive study of court ADR in the state, Heather Anderson commented that the court system resembles an ecosystem. (Heather is a brilliant staffer for the Judicial Council of California, Administrative Office of the Courts, and an incredibly dedicated, knowledgeable worker in the court ADR field.)
This idea of the court system as an ecosystem makes good sense. A quick definition of ecosystems from Encarta lends itself to courts: “a localized group of interdependent organisms together with the environment that they inhabit and depend on.” Heather also pointed out that individual courts can be seen as microecosystems. Ever-trusty Wikipedia says microecosystems “can exist in locations which are precisely defined by critical environmental factors within small or tiny spaces.”
Why is this metaphor so meaningful? Because it reminds those of us who work to develop and improve court ADR systems that nothing works in isolation. There is interdependence of entities within the courts – lawyers, judges, neutrals, administrators – and external environmental factors – politics, economy, society – that have a significant impact on how court ADR programs are established and refined. All of these factors need to be taken into consideration when working with courts to develop or improve their ADR programs.
When middle and upper class people think of poverty, the mental image is often of the scruffy middle-aged man wrapped in dirty clothing, begging for a dime on a bustling downtown street. The word “suburb” conjures images of smooth paved streets and well-kept single family homes with two-car garages. “Rural” evokes even more pristine pictures: fields of healthy crops, tanned farmers smiling next to tractors, families gathering around a table giving thanks over heaping plates of home-cooked food. These archetypes are simply that: Platonic forms that do not reflect reality.
I hope this recession changes our image of poverty. Poverty is not confined to the grit of city life, and it never has been. But the picture is even more different today. Up to 73% of suburban legal services agencies’ clients are coming from families with no prior connection to social services. Previously “secure” middle-class jobs and bank accounts are shrinking such that some experts say the middle-class will never be able to save up enough to get where they once were. Even the recent spate of home foreclosures, which started with subprime, mostly urban mortgages, is now happening at a higher rate to suburban dwellers with “regular” mortgages than to urbanites with subprime mortgages. It’s time we face the mirror. Poverty is a problem for urban, suburban, and rural communities alike to acknowledge and address.
For the first time, suburban America contains more poor people—1.5 million more—than the cities. Even more, people drop below the poverty line in Illinois, and in many other states, at a much faster rate in the suburbs than in the cities. Nevertheless, the suburbs often have fewer social and legal services than the city, and certainly not enough to meet the demand.
Mediation programs can certainly give those in poverty a chance to access justice in the midst of conflict. Especially in suburbs struggling to deal with the increasing number of residents in poverty, mediation programs can relieve some of the overburdened caseload at legal services agencies and fill in a small part of the 21.7% cut in services these agencies experienced in the last year. Suburban mediation programs, like their urban counterparts, need to keep low-income disputants in mind, even if and especially when those mediation programs are in traditionally high-income areas.
This conscientiousness will influence how programs are designed. Providing access to justice for disputants with low-income should influence where the programs are held (i.e., Are there public transportation options to the mediation site? Is it in a building that may be confusing to people?), the time of the mediation (i.e., Are there opportunities for people to mediate outside of the 9-to-5 workday? Will there be child care available?), and what is communicated before and during the mediation (i.e., Will the introduction to the mediation sessions be simply worded? Will any pre-mediation instructions be available in multiple languages? In paper form instead of only on a computer?). By asking these questions, suburban court systems can better see the poor in their midst and could greatly assist those who most benefit from mediation.
(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.
Leaving aside the question of which authority prevails, I’d like to examine the wisdom of requiring mediators to recommend sanctions against a party. NRS 107.086 states in part: (more…)
