Resources / Study / Innovation for Court ADR

Just Court ADR

The blog of Resolution Systems Institute

Archive for the ‘Program Management’ Category

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…)

Overcoming Fear of Failure

Jennifer Shack, August 20th, 2010

FAILFaire is a gathering of technology non-profits to share stories of failure and give an award to the worst one. The purpose is to learn from each other’s failures and not replicate them. According to a New York Times article on FAILFaire, non-profits are leery of revealing failures because it may turn off donors and thus harm those they are trying to help. This type of thinking has led many not to examine the reasons behind failures, instead focusing on what has worked rather than what has not. There is a school of thought that says we can learn more from our – and others’– mistakes than we can from our successes.

So, in the interest of improving monitoring and evaluation practices, I’m going to share RSI’s worst failure. RSI was working with an Illinois court to develop a monitoring system for its family mediation program. The system we came up with included case management data that the Clerk’s Office collected, along with data collected by the court through post-mediation reports and questionnaires. In Illinois, the Clerk’s Office is an entirely separate governmental entity from the court system, with an elected Clerk in each county. We thought the best approach, then, would be to create software that would download data from the Clerk’s database into the database for the program. This would eliminate the need to re-enter the Clerk’s data as well as the constant need for the Clerk to send that data to court staff. In essence, the Clerk’s database and our database would be connected, but not integrated. It seemed like a good way to reduce the amount of work that staff would have to do in order to monitor the program. (more…)

Do Courts Need to Rethink Their Approach to ADR?

Jennifer Shack, August 3rd, 2010

In my last post, I gave two examples in which mediators were being called upon to act outside of their accepted roles in order to obtain fairer outcomes. One side of the coin was asking that mediators recommend sanctions against parties who fail to negotiate in good faith. The other side wanted mediators to obtain the same outcomes for cases with the same set of facts. The latter, in particular, stretches the concept of mediation beyond its defined borders because it requires mediators to insert themselves into the decision-making process in order to get the same results with different parties.

Nancy Welsh discusses even more egregious examples in “You’ve Got Your Mother’s Laugh: What Bankruptcy Mediation Can Learn from the Her/History of Divorce and Child Custody Mediation.” She cites programs in which mediators were asked or allowed by the court to make binding decisions, request discovery, and otherwise act outside of their appropriate role. As in the Nevada Foreclosure Mediation Program, these roles were given to mediators in order to address specific needs that cannot be addressed by the traditional role of mediation. (more…)

Pushing Fairness, Failing Mediation

Jennifer Shack, July 30th, 2010

What is the proper role of a mediator? Is it appropriate for mediators to recommend sanctions against one party for not negotiating in good faith? Should mediators attempt to get similar outcomes for similar cases? These two questions, which arose from two articles on the Nevada Foreclosure Mediation Program published in the Reno Gazette Journal in July, highlight that age-old question of whether mediators can be fair and neutral at the same time (Unfortunately, the articles are no longer available online). In the first article, a mediator complains of not being assigned cases because he has recommended sanctions – and states that mediators should be able to do so. In the second, a legislator states, “If you have a situation where two homeowners share the same facts, and two different mediators get different results, that shouldn’t be happening…I think the court will have to step in with some rules to guide mediators so that they are all in step with the program.”

These two statements share a common thread – the desire for mediation to be fair in a way that it perhaps cannot be. They demonstrate the tension between basic tenets of mediation – neutrality and self-determination – and the perception of fairness. (more…)

Verified by ExactMetrics