Washington, D.C. recently passed legislation requiring mediation prior to a home foreclosure, according to Benny Kass at the Washington Post.
According to the article, 23 states have enacted some form of mediation for foreclosure cases. The legislation requires lenders to send notice of default to the homeowner and a notice to participate in mediation. The mediation notice must contain the lender's contact information and contact information for a local housing counseling service. The legislation also requires the lender to provide a description of its loss-mitigation programs along with a loss-mitigation application.
Monday, December 6, 2010
Workplace confrontation
Here's a very interesting article from Jenna Goudreau at the Forbes blog. It's about handling conflict in the workplace. Here are some quotes:
In a workplace, you are standing in a field of conflict.
How you handle confrontation in the office may be as important as networking and technical skills.And checkout the slides that accompany the article--they are very good.
Friday, December 3, 2010
Texas Association of Mediators Annual Conference
I am a board member for the Texas Association of Mediators (TAM) and its conference is right around the corner. Starting on February 25, 2011, TAM will hold its annual conference at the Crown Plaza Riverwalk in San Antonio, Texas.
For more information about the conference, please click here.
The conference keynote speakers are top-notch. They are:
- Erica Ariel Fox, a lecturer at Harvard Law School, the Founder of the Global Negotiation Insight Institute, and a Partner of Mobius Executive Leadership;
- Lee Jay Berman, one of the country's top mediators, founder of the American Institute of Mediation and formerly Director of Pepperdine Law School's 'Mediating the Litigated Case'; and
- Richard Barnes, President of C. Richard Barnes and Associates, LLC and former director of the Federal Mediation and Conciliation Service
I'm looking forward to seeing you in San Antonio in February!
I'm back
It has been a year since I've posted. As many of you know, I made a run for judge of a civil district court here in Dallas County, and unfortunately lost in the general election by roughly 2,800 votes of 407,000 cast. I did not feel that it was proper for me to continue blogging during the election year, so I ceased that activity.
I'm ready to start back up.
A lot has been happening in the world of mediation and conflict resolution, and even though I have not blogged about it, I have kept up. I am anxious to share news and updates with you and I hope you will continue to enjoy the posts.
Monday, December 21, 2009
Probate Mediation
I ran across an excellent essay today by Rikk Larsen about mediating the estate case. Rikk suggests that mediation is underused in the estate planning and settlement field. He makes three suggestions to increase the use of mediation in this area:
What do you think? Are courts, attorneys, and financial planners using mediation in estate settlement procedures?1) Convince entrenched professionals, the lawyers, financial planners and CPA’s, that mediation is not a threat but a positive team option that can help make their job easier and not diminish their billable hours.
2) Continue to work with probate courts to include mediation as a formal court approved option that judges understand and embrace. Presently only a few courts have formal programs like the one New Hampshire is introducing this year on a statewide basis.
3) Continue general marketing to the public by word of mouth, print articles, other media pieces and professional association support.
Credit Cards and Consumer Arbitration
Capital One announced that is will no longer require consumer disputes to be resolved through binding arbitration. According to the Associated Press, Capital One will amend its credit card contracts starting next month.
Bank of America announced last week that it was removing the arbitration provisions from its consumer contracts. MSNBC reports here.
These amendments are subject to court approval.
We've blogged on this issue before with JPMorgan Chase & Co. as well as the National Arbitration Forum altering its practices in light of litigation. In this case, Capital One says that a class action suit naming it as a defendant did not drive the decision to eliminate the mandatory arbitration provision for its consumer contracts.
The AP reports that the class action suit, filed by Berger & Montague, alleges that major banks conspired to require card members to go to arbitration to resolve disputes.
But is this a good move? I'm not taking a position on this, but with current advancements in arbitration (including the company paying for arbitration, and not the consumer), does the argument that arbitration is more expensive (for the consumer) still hold water? Is there empirical evidence that arbitrators rule in favor of the creditors more often than the debtors? I would be interested to know what the empirical evidence suggests.
Bank of America announced last week that it was removing the arbitration provisions from its consumer contracts. MSNBC reports here.
These amendments are subject to court approval.
We've blogged on this issue before with JPMorgan Chase & Co. as well as the National Arbitration Forum altering its practices in light of litigation. In this case, Capital One says that a class action suit naming it as a defendant did not drive the decision to eliminate the mandatory arbitration provision for its consumer contracts.
The AP reports that the class action suit, filed by Berger & Montague, alleges that major banks conspired to require card members to go to arbitration to resolve disputes.
But is this a good move? I'm not taking a position on this, but with current advancements in arbitration (including the company paying for arbitration, and not the consumer), does the argument that arbitration is more expensive (for the consumer) still hold water? Is there empirical evidence that arbitrators rule in favor of the creditors more often than the debtors? I would be interested to know what the empirical evidence suggests.
GM won't challenge arbitration
The Detroit News is reporting that General Motors will not fight legislation that requires binding arbitration. The House Bill requires binding arbitration and an appeals process for those dealerships that were shut down this summer.
Thursday, December 17, 2009
More on the Nevada Foreclosure Prject
The Mercury News is reporting that the Nevada Supreme Court swore in 75 new mediators as part of its Foreclosure Mediation Program.
The Nevada Supreme Court's website shows that more than 3,400 homeowners have requested mediation. 372 mediations have been conducted. 1,401 cases have been assigned to mediators.
We've blogged about the Nevada program before. One of the important questions, to me, is how is a successful mediation and program outcome defined?
If a mediation results in a modified loan, but the homeowner defaults a few months down the road, is that a success? I'll be interested to know the general parameters of the settlements that are reached, what percentage of homeowners and mortgage companies participate, and the satisfaction levels of the mortgage companies and the homeowners immediately after the mediation and 6 months after the mediation.
The Nevada Supreme Court's website shows that more than 3,400 homeowners have requested mediation. 372 mediations have been conducted. 1,401 cases have been assigned to mediators.
We've blogged about the Nevada program before. One of the important questions, to me, is how is a successful mediation and program outcome defined?
If a mediation results in a modified loan, but the homeowner defaults a few months down the road, is that a success? I'll be interested to know the general parameters of the settlements that are reached, what percentage of homeowners and mortgage companies participate, and the satisfaction levels of the mortgage companies and the homeowners immediately after the mediation and 6 months after the mediation.
Holiday Conflict Resolution
Ah, the holidays. Times where families get together after not seeing each other for months, perhaps. Food. Football. Conflict.
Yep, lots of conflict happens during this most wonderful time of year. Here's a great story from phillyburbs.com about "Holiday conflict resolution." It's worth a read. The story is based upon a post from PhillyHealthInfor.org.
The articles list nine ways to resolve family conflicts. They are:
What do you think about this list? How would you use these principles in resolving conflict during this season?
Yep, lots of conflict happens during this most wonderful time of year. Here's a great story from phillyburbs.com about "Holiday conflict resolution." It's worth a read. The story is based upon a post from PhillyHealthInfor.org.
The articles list nine ways to resolve family conflicts. They are:
1. Respect everyone's ideas and needs.
2. Focus on the problem not the person.
3. Build power with, not over others.
4. Express feelings without blaming others (use “I” messages).
5. Own your part of the conflict.
6. Strategize to reach mutually agreeable solutions.
7. Create options ... having only one way always creates losers.
8. Listen so people will talk and talk so people will listen.
9. Solve the problem and build the relationship.
What do you think about this list? How would you use these principles in resolving conflict during this season?
Wednesday, November 11, 2009
Lights! Cameras! Mediation?
From the "never thought I'd see this" category.
There's going to be a television show about mediators.
The Hollywood Reporter is reporting that the USA Network has agreed to a pilot called "Facing Kate." It's the story of a divorced attorney who leaves her job to be a mediator.
If this gets off the ground, we all need to spruce up our offices and be prepared for the expectation of glamor.
There's going to be a television show about mediators.
The Hollywood Reporter is reporting that the USA Network has agreed to a pilot called "Facing Kate." It's the story of a divorced attorney who leaves her job to be a mediator.
If this gets off the ground, we all need to spruce up our offices and be prepared for the expectation of glamor.
Tuesday, November 10, 2009
What do attorneys want?
As part of my role as Communications person for the ADR section of the Dallas Bar Association, I have the privilege of attending monthly section meetings. Yesterday's meeting was fabulous.
Three very prominent attorneys and one former judge were on a panel discussing everything from the value of a joint session, ethical considerations, and mediation tips. I came away with a page full of notes.
Most importantly, to me, was the unanimous viewpoint by all three experienced attorneys that they want a mediator who will evaluate the case and be advocates for settlement. "Evaluate the case and the party's position", "hold people accountable", "help clients understand risks" were phrases that were used.
I know some mediators who agree with this position. I know others who believe the evaluative model is flawed because it takes the mediator out of a truly neutral position. What do you think? Should we do what our "customers" want and desire?
Three very prominent attorneys and one former judge were on a panel discussing everything from the value of a joint session, ethical considerations, and mediation tips. I came away with a page full of notes.
Most importantly, to me, was the unanimous viewpoint by all three experienced attorneys that they want a mediator who will evaluate the case and be advocates for settlement. "Evaluate the case and the party's position", "hold people accountable", "help clients understand risks" were phrases that were used.
I know some mediators who agree with this position. I know others who believe the evaluative model is flawed because it takes the mediator out of a truly neutral position. What do you think? Should we do what our "customers" want and desire?
Thursday, October 15, 2009
Happy Conflict Resolution Day
To all: Happy Conflict Resolution Day!
Please take a moment to reflect upon, and promote, the use of resolving conflicts in the legal system, businesses, schools, families, and communities.
Thursday, September 24, 2009
Words from George Mitchell
George Mitchell is the current Special Envoy for Middle East Peace. Very recently, he briefed reporters about the trilateral meeting President Obama had with Prime Minister Netanyahu of Israel and President Abbas of the Palestinian Authority. The transcript of Mr. Mitchell's briefing can be found here.
Mr. Mitchell made some interesting comments about conflict resolution--regardless of one's view of the situation between Israel and the Palestinian Authority--and I'd like your comments.
Q: What are the advantages of reminding parties where they have been? And the advantages or disadvantages of taking a firm position, such as talks cannot be restarted from scratch? How do you deliver the message that "painful compromise" may be necessary to resolve a dispute?
Q: Often during negotiations, one of the parties will say "we're not making any progress, we're out of here." How do you keep parties at the table during times when seemingly no progress is being made? How do you educate parties to a negotiation that resolving conflict is process, often times not a quick one?
Mr. Mitchell made some interesting comments about conflict resolution--regardless of one's view of the situation between Israel and the Palestinian Authority--and I'd like your comments.
The tone was positive and determined. The President made clear his commitment to moving forward, and the leaders shared that commitment.Q: What is the importance of having initial commitments to the success of resolving conflict? How do you achieve these initial commitments?
The President told them that we cannot restart talks from scratch. That said, neither side should hold out for the perfect formula. Painful compromise by all will be necessary. This was a message that the President conveyed to each of the leaders in private as well.
Q: What are the advantages of reminding parties where they have been? And the advantages or disadvantages of taking a firm position, such as talks cannot be restarted from scratch? How do you deliver the message that "painful compromise" may be necessary to resolve a dispute?
So yes, we haven’t gotten everything we wanted, we haven’t gotten it as fast as we want it. But in conflict resolution, if one adopts the standard that one must always get 100 percent of what one seeks at every stage of the process, otherwise you’re failure, well, then of course, there would never ever be a resolution of any conflict. Painful compromises are necessary for everybody. So we are determined to proceed. We will not be deterred by – I don’t want to say accusations, but criticisms, by descriptions of failure. We believe that we are doing the right thing. We believe we have made substantial progress and we intend to continue with full determination until there is comprehensive peace in the region.
Q: Often during negotiations, one of the parties will say "we're not making any progress, we're out of here." How do you keep parties at the table during times when seemingly no progress is being made? How do you educate parties to a negotiation that resolving conflict is process, often times not a quick one?
Conflict Resolution Day Approaches
October 15 is Conflict Resolution Day, sponsored by an organization that I belong to and respect, the Association for Conflict Resolution. As Conflict Resolution Day approaches, a number of local ACR Chapters begin publicizing the day as well as local governmental units and agencies.
Here's the first article that I've come across, it's from the Maryland Gazette, announcing that Maryland's Judiciary's Mediation and Conflict Resolution Office is sponsoring a Conflict Resolution Day Student Bookmark Art Contest.
Congratulations to the Maryland Judiciary's Mediation and Conflict Resolution Office in kicking off Conflict Resolution Day, and what a great way to start--by inviting children to think about resolving their conflicts peaceably.
We'll keep posting on Conflict Resolution Day activities as they become available.
Friday, September 18, 2009
Health care
Like most folks, I'm interested in the debate on health care that is going on in this country. Being the good neutral, I'm not going to let you know my preferences.
But I got to thinking this morning on the way back from the courthouse: how would I mediate the health care debate?
The health care debate has all of the issues relating to a really sophisticated piece of complex litigation: opinions on all sides from authorities in the field and interesting legal issues (the Wall Street Journal has run pieces discussing the constitutionality--rather, unconstitutionality of the federal government regulating or requiring health care--see WSJ stories here and here and related stories here and here).
If you were appointed to mediate the health care debate, how would you approach the mediation? How would you try to get the parties to "settle" the issue? How would you set up the mediation? How would you help the parties frame the issues?
I'm interested in your thoughts.
But I got to thinking this morning on the way back from the courthouse: how would I mediate the health care debate?
The health care debate has all of the issues relating to a really sophisticated piece of complex litigation: opinions on all sides from authorities in the field and interesting legal issues (the Wall Street Journal has run pieces discussing the constitutionality--rather, unconstitutionality of the federal government regulating or requiring health care--see WSJ stories here and here and related stories here and here).
If you were appointed to mediate the health care debate, how would you approach the mediation? How would you try to get the parties to "settle" the issue? How would you set up the mediation? How would you help the parties frame the issues?
I'm interested in your thoughts.
Monday, September 14, 2009
ADR and Healthcare
Here's a very interesting article by Emily P. Walker at medpagetoday.com. In it, she discusses the efficiencies of ADR procedures in the health care arena. She cites a study by Chris Stern Hyman of the Medical Mediation Group that of 19 cases that were mediated, 13 reached an agreement in an average of 2.3 hours. Of the 19 cases, 11 had an apology offered by a hospital system representative, and when the apology occurred, settlement was about two and a half times more frequent then when there was no apology.
Tuesday, September 8, 2009
More on foreclosure mediations
What happens when you invite people to a party, but no one shows up?
This is happening with foreclosure mediations in the Dayton area. According to an article in the Dayton Daily News (here), of the 62 cases referred to mediation in Montgomery County, 40 homeowners failed to respond. Seven were settled, 13 are pending, and 2 were canceled.
What does this mean when almost 65% of the folks don't show up? And I think most people would conclude that mediation of foreclosure actions is designed to help the homeowners.
Similarly, in Franklin County, the administrator for its Foreclosure Mediation project is that "30 percent" of the completed mediations are keeping their homes.
In Nevada, after expecting 1,250 and 1,500 homeowners a month flocking to a foreclosure mediation program, only 10 homeowners requested mediation--during a six week period. Click here for the article.
My initial thought is that mediators need to educate homeowners about the benefits of mediation. But it may also be that the mediators aren't able to get in contact with the borrower to talk with them in the first place. Also, it may be the the borrower identifies the situation as hopeless and would rather turn resources toward starting over instead of trying to maintain what is perceived to be an impossible situation.
Regardless, mediation can be a very effective tool in helping lenders and borrowers come together and see if a workable solution exists.
This is happening with foreclosure mediations in the Dayton area. According to an article in the Dayton Daily News (here), of the 62 cases referred to mediation in Montgomery County, 40 homeowners failed to respond. Seven were settled, 13 are pending, and 2 were canceled.
What does this mean when almost 65% of the folks don't show up? And I think most people would conclude that mediation of foreclosure actions is designed to help the homeowners.
Similarly, in Franklin County, the administrator for its Foreclosure Mediation project is that "30 percent" of the completed mediations are keeping their homes.
In Nevada, after expecting 1,250 and 1,500 homeowners a month flocking to a foreclosure mediation program, only 10 homeowners requested mediation--during a six week period. Click here for the article.
My initial thought is that mediators need to educate homeowners about the benefits of mediation. But it may also be that the mediators aren't able to get in contact with the borrower to talk with them in the first place. Also, it may be the the borrower identifies the situation as hopeless and would rather turn resources toward starting over instead of trying to maintain what is perceived to be an impossible situation.
Regardless, mediation can be a very effective tool in helping lenders and borrowers come together and see if a workable solution exists.
Green Thinking
Andrew Winston writes in his management blog for Harvard Business about businesses like Toyota who were thinking "green" way back in the '90s when oil was at $17.00 a barrel.
Going "green"--taking steps to enhance and protect the environment--is very popular these days. My wife and I were registering for baby necessities yesterday and I was amazed at the number of baby products that were "green." I was also amazed at the number of books that are published to read to one's kid about the environment, ecology, and doing what one can to save the environment.
What about the ADR profession? Are professionals in the ADR community thinking "green"? I'm looking for input on this question because I don't have the answers. I'm thinking of more than replacing light bulbs and turning down (or up) the thermostat. What should we, as ADR professionals, be doing to go and think green? Should we? I'd like to hear from you.
Going "green"--taking steps to enhance and protect the environment--is very popular these days. My wife and I were registering for baby necessities yesterday and I was amazed at the number of baby products that were "green." I was also amazed at the number of books that are published to read to one's kid about the environment, ecology, and doing what one can to save the environment.
What about the ADR profession? Are professionals in the ADR community thinking "green"? I'm looking for input on this question because I don't have the answers. I'm thinking of more than replacing light bulbs and turning down (or up) the thermostat. What should we, as ADR professionals, be doing to go and think green? Should we? I'd like to hear from you.
Being you
How many times have we heard someone say (or that we've said), "Oh, that's just the way that I am." We usually say that when trying to explain behaviors that are not productive (or some would say annoying).
Marshall Goldsmith, blogging for Harvard Business Publishing, asks the question, "Do You Have an Excessive Need to Be Yourself?" The post can be found here.
Goldsmith's analysis, and questioning that he provided to a CEO, are terrific for mediators and ADR professionals. Part of our goal, in my opinion, is to help lead people from one place to another. This often means candid and uncomfortable conversations. But those conversations are necessary.
So the next time that we say, "Oh, that's just the way that I am," let's ask ourselves not only why are we that way, but also, what effect does our behavior have on other people? What effect do we have on people by focusing on ME instead of THEM?
Marshall Goldsmith, blogging for Harvard Business Publishing, asks the question, "Do You Have an Excessive Need to Be Yourself?" The post can be found here.
Goldsmith's analysis, and questioning that he provided to a CEO, are terrific for mediators and ADR professionals. Part of our goal, in my opinion, is to help lead people from one place to another. This often means candid and uncomfortable conversations. But those conversations are necessary.
So the next time that we say, "Oh, that's just the way that I am," let's ask ourselves not only why are we that way, but also, what effect does our behavior have on other people? What effect do we have on people by focusing on ME instead of THEM?
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