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Posts Tagged ‘Nevada’

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Good Faith, Revisited

Jennifer Shack, September 21st, 2010

(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…)

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Posted in Ethics, Program Management | No Comments »

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…)

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Posted in Program Management, Research | 1 Comment »

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…)

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Posted in Program Management | 3 Comments »

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…)

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Posted in Ethics, Program Management | 1 Comment »

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