Friday, November 6, 2009

The Ideology of Party Self Determination

In seeking to practice both commercial and community mediation, I am struck by the differences in ideology regarding party self determination between the two forms of mediation. I am beginning to believe that the two realms of mediation should experience more cross fertilization, as I am not certain either ideology can prosper in isolation.

In commercial mediation, I find that the desirable ideology is that I am there to help the parties remove barriers to their reaching an agreement. If the parties reach agreement, then they have determined their own resolution, as opposed to submitting their conflict to a court for a judicial or jury determination. Party self determination has been upheld. I have facilitated their self determination even if I have been critical and evaluative in helping the parties remove the barriers that had previously prevented agreement. I am an advocate for agreement, but not for any particular terms of any agreement, as any advocacy of a particular result would prevent the parties from achieving self determination.

In community mediation, I find that the desirable ideology is that I am there to reflect and summarize and make neutral the parties' statements so that the parties' interests can be identified and understood by each of them, so that the parties then can move, or not move, to a point of common ground. The parties must take each step on their own, without my helping (or really being perceived to help) the parties to remove any barriers to their taking those steps. I am not an advocate for agreement, as any advocacy, even of agreement, would prevent the parties from achieving self determination.

Both ideologies need to inform each other. The commercial mediator risks losing the perception of neutrality each time the mediator tries to dismantle a barrier, as that barrier is usually dear to one party or the other, but not both. The community mediator risks missing the opportunity of relieving the great emotional pain that the parties experience in their conflict by not offering a suggestion that the parties would embrace, even though it has not been self generated.

My current operating assumption is that I should try to emulate the community mediator, at least a bit, when I am in commercial mediation, and try to emulate the commercial mediator, at least a bit, when I am in community mediation. I suppose Aristotle would approve.


Tuesday, July 28, 2009

How I Would License Mediators

Mediation will never become a respected profession, as I believe it should be, unless it can advertise to its customers that the mediator has been licensed by the state in which the mediator practices. While one may argue that this is not the way things should be, it is simply the way of the world. Customers who need any medical, legal, plumbing, electrical, home contractor (etc.) services expect the provider to be licensed by the state. Why should mediators be any different?

The major complaint lodged by anyone opposing mediation licensing is that mediation practice is too variable and idiosyncratic to apply a single licensing test. I have discovered a mediation test that I think makes a lot of sense and certainly can be applied by state mediation licensing boards in a way that will ensure to all customers of mediation that mediators possess minimum mediation skills. It is the test used by Safe Horizon in qualifying their community mediators.

I am a commercial mediator, but I recently decided to acquire training in community mediation. Two reasons: first, I think it is always good for a mediator to venture outside the mediator's comfort zone, as it sharpens skills and provides perspective; also, it allows me to provide community service in a way that uses my mediation skills.

Safe Horizons uses a three pronged certification methodology for their community mediators. First, there is a standard mediation skills training program, which I believe is 40 hours of lecture and role playing. I was permitted to opt out of this since I already have acquired over 100 hours of similar mediation training. Second, there is a 12 week long apprenticeship program (one 3 hour session per week), where four mediators in training conduct actual mediations under the supervision of a mentor. If there are no mediations scheduled for your meeting, the mentor discusses prior mediations conducted by the group, or the group may observe and critique videos of role play mediations. Third, you are required to conduct a mock mediation with role players which is videotaped and subjected to evaluation. The video evaluation of your mock mediation is intended to verify that you have sufficient mediation skills to professionally mediate a mock mediation.

Your video is evaluated by the Safe Horizon mediation training staff and, if you pass, you are accepted into the Safe Horizons mediation program. You become a certified Safe Horizons mediator once you have conducted some 20 mediations.

Now, why can't this model be used for state licensure of mediators generally. The evaluators for the video evaluation need not subscribe to any particular form of mediation. They could be provided an evaluation form (as are the Safe Horizons video evaluators) that could specify those mediation skills that are generally observed as common to the mediation practice, all of which would be codified in the state mediation licensing statute.

If you purport to be a professional mediator, you should be able to prove that you possess a minimum level of expertise in a mock mediation video, just as a plumber must display rudimentary plumbing skills before an examination board before the plumber enters your kitchen (except for "joe the plumber"...which leads one to consider whether mediators really should accept the notion that they are not required to seek any more qualification than that forgettable charlatan).


Wednesday, March 4, 2009

Mediation and Mortgage Foreclosure

I have commented previously here on the characteristics of disputes that are appropriate for resolution by mediation. With the large number of mortgage foreclosures anticipated during the rest of the current recession, only some of which are anticipated to be prevented by federal mortgage refinance and modification guidelines , one may wonder whether it makes sense for state court systems to implement mandatory mediation programs as an adjunct to court determination of these foreclosure actions. Perhaps you saw CNN video footage of a Florida state court's rapid fire processing of foreclosure actions. The Florida Bar has recently proposed mandatory mediation of foreclosures (perhaps they saw the video footage too). Apart from the policy and political implications of this proposal, is mediation likely to have a beneficial effect on the court administration of a large number of foreclosure actions?

Some states, such as Connecticut, have already implemented such mortgage foreclosure mediation programs, while New York, where I hang my hat, has not (New York requires, with respect to subprime mortgages, for homeowners to receive 90-day pre-foreclosure notice to alert borrowers that they are in default or foreclosure and advise them that there may be help available. Another provision establishes mandatory settlement conferences to bring a borrower together with the party initiating the foreclosure proceeding to attempt to reach a satisfactory conclusion. No mediation is called for in these settlement conferences).

Which court system has got it right?

I think mediation is probably not an apt dispute resolution mechanism in the mortgage foreclosure context. There is no real relationship between the parties in which interests and objectives can be worked through. The lender wants to maximize its net present value. While there may be information that the homeowner can provide the lender that will lead the lender to pursue modification as opposed to foreclosure (hence the New York mandatory subprime pretrial conference), there would be nothing tangible that I see that a mediator can add to this informational exchange that would enhance the resolution of the dispute.

Moreover, while there may be substantial asymmetry in knowledge and resources available to the foreclosing lender and the homeowner that should be addressed (hence the New York mandatory pre-foreclosure notice of where to get help), mediator neutrality would seem to prevent a mediator from expanding upon the type of information the homeowner could get from the local legal aid/housing rights office.

So what would mediation offer of any tangible benefit to the process beyond the information and meeting requirements set forth in the New York statute?