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ABA Section of Dispute Resolution 2013 Annual Conference, Chicago, IL Symposium on ADR in the Courts Wednesday, April 3, 2013

Making Court ADR Happen Integrating Statewide Consistency and Local Court Autonomy
Presenters: Celia Ludi, Esq., ADR Program/Court Constituent Services Director, First Judicial District Court, Santa Fe, NM David Levin, Esq., Director, Court Alternatives, Second Judicial District Court, Albuquerque, NM Jacqueline Hagerott, J.D., LL. M., Manager, Dispute Resolution Section, Supreme Court of Ohio, Columbus, OH Debora Brownyard, J.D., Director, Dispute Resolution/Special Court Programs, Nebraska Supreme Court, Lincoln, NE

Description of Presentation Court ADR has evolved both from the trial court level and on a statewide basis. As court ADR progresses into the next decade, how can statewide consistency be balanced with local court autonomy? This session describes the lessons learned from three states ADR court staff who are working collaboratively: Ohio, New Mexico, and Nebraska. Mediator training and credentialing, statutory and court mediation and ADR rules and forms will be discussed. Integration and sustainability of ADR in court processes will be described. Participants will engage in a dialogue about future trends and issues regarding ADR as an essential court service.

TABLE OF CONTENTS

Section I: Section II:

ABA Dispute Resolution 2013 Court ADR Symposium Presentation Outline Nebraska Dispute Resolution A. Elizabeth R. Kosier, Mediation in Nebraska: An Innovative Past a Spirited Present, and a Provocative Future, 31 CREIGHTON L. REV. 183 (1997) Nebraska Statutory, Rule, and Policy Provisions in ADR Cynthia Savage and David Levin, ADR Developments in New Mexico After the NCSC Report (2013) David Levin, The New Mexico Experience: Change Challenges Early Established Programs (2007)

3 4

B. Section III: A. B. Section IV:

21 26 37

New Mexico Dispute Resolution

Ohio Dispute Resolution A. B. Jacqueline C. Hagerott, Foreclosure Mediation: Responding to the Current Crisis, 40 CAP. U. L. REV. 90832 (2012). The Supreme Court of Ohio Dispute Resolution Section (2012) http://www.supremecourt.ne.gov http://www.nemediation.org http://www.supremecourt.ohio.gov http://www.nmcourts.gov http://www.nmadr.org http://www.courtadr.org 44 80

Additional Web Resources

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Section I: ABA Dispute Resolution 2013 Court ADR Symposium Presentation Outline I. Overview and evolution of statewide court-connected dispute resolution: 1990-2013 A. Nebraska B. New Mexico C. Ohio II. Collaboration and lessons learned among the three states court ADR staff regarding statewide consistency and local court autonomy A. Lessons Learned 1.National Networking 2.Methods of Communication 3.Combining Resources a. Training Manuals b. Standards B. Mediator quality assurance, training, resourcing on state and local court levels 1. Education Assessment a. Needs Assessment b. Dispute Resolution Education Requirements c. Case Management Requirements 2. Curriculum Development Process a. Multi-Jurisdiction Curriculum b. Elements c. Delivery d. Evaluation C. Statewide consistency and local court autonomy: issues of collaboration, integration, and sustainability III. Future trends and issues of ADR as an essential court service A. State and local court ADR as a essential court service references from ABA Dispute Resolution Section, National Center for State Courts, RSI, others B. Activity: facilitated group dialogue on topic

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MEDIATION IN NEBRASKA: AN INNOVATIVE PAST, A..., 31 Creighton L. Rev. 183

31 Creighton L. Rev. 183 Creighton Law Review December, 1997 MEDIATION IN NEBRASKA: AN INNOVATIVE PAST, A SPIRITED PRESENT, AND A PROVOCATIVE FUTURE Elizabeth R. Kosier d1 Copyright (c) 1997 Creighton University; Elizabeth R. Kosier INTRODUCTION Only twice in my life have I felt utterly ruined -once when I lost a lawsuit, and once when I won. 1

For several years there has been a quiet transformation occurring in Nebraska's formal and informal systems of justice. 2 The forthright vision of leading individuals and the tenacious work of many others generated the momentum which has brought Nebraska's dispute resolution system forward as a respected and successful model for the delivery of mediation services. 3 What was envisioned as an effective and efficient framework for ensuring public access to community-based mediation has become a system which encompasses a broad array of readily accessible programs and services. Whether targeting court interface, family dynamics, or community decision making, these programs are grounded in principles of self-determination and capacity building, and their outcomes have far reaching impact on the lives of Nebraska residents. Nebraska's dispute resolution system celebrated its fifth birthday in 1997. To recognize five years of accomplishments and to ponder what seeds those efforts have germinated, this Article reviews the development, growth, and aspirations of Nebraska's dispute resolution system. The Article also outlines present and future challenges in Nebraska, *184 as well as some of the intriguing issues that are emerging as a natural consequence of system development. At a minimum, readers will acquire a definition of mediation and its outcomes in the context of Nebraska's dispute resolution system. More importantly, this overview invites attorneys, judges, and law students to contemplate their roles in shaping the relationship between the traditional practice of law or adjudication and contemporary alternatives for achieving justice. Optimally, readers will gain new perspectives regarding how to integrate mediation, and its underlying principles, into the legal and judicial arenas.

EARLY DEVELOPMENT Conflict resolution traditions throughout the world, issues of social justice, and increased burdens on America's judicial system influenced the development of mediation in the United States and in Nebraska. Many of today's collaborative or communityoriented problem solving mechanisms have their roots in religious communities, tribal practices, ancient concepts of law, and diverse philosophical frameworks. A historical review of world religions - from Christianity, Judaism, and Islam to Buddhism and Hinduism - reveals examples of cooperative or informal dispute resolution processes. 4 Prior to the encroachment of AngloEuropean influences in North America, Native American jurisprudence generally embraced concepts of public consensus and community harmony. 5 Cooperative settlement procedures, which continue to be utilized around the world, are particularly prevalent in Asian, African, and Latin American countries. 6 In China, mediation is the predominant method of civil dispute

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resolution and a conciliatory, relationship-building orientation characterizes Japanese negotiation style. 7 Disputes over natural resources regularly entail the intervention of neutrals in Ecuador, Honduras, and Costa Rica. 8 African tribes are known to turn to the assistance of tribal chiefs or councils to achieve negotiated resolutions. 9 *185 In the United States, consensual conflict resolution was spurred by civil unrest and the rise in the 1960's of social values rooted in participatory democracy, respect for human dignity, and personal autonomy. 10 Although Neighborhood Justice Centers were created around the nation in response to these developments, it was not until the agricultural crisis of the 1980's that mediation gained a foothold in Nebraska. 11 Joint efforts by organizations concerned with the legal implications of the crisis and its impact on Nebraska farmers, including the Nebraska State Bar Association, Interchurch Ministries of Nebraska, and the Legal Aid Society, helped ensure passage of the Nebraska Farm Mediation Act in 1988. 12 As the harbinger for mediation growth in Nebraska, the quality and success of farm mediation fostered broad, interdisciplinary interest in the application of the same concepts to family and community issues. 13 Careful deliberation by the Legal Aid Society and the Nebraska State Bar Association's Alternative Dispute Resolution Committee translated that interest into the drafting of the Dispute Resolution Act (the Act). 14 Nebraska's Unicameral Legislature passed the Act in 1991. 15 It serves as the state's most influential law governing dispute resolution and, more specifically, mediation.

NEBRASKA'S DECENTRALIZED DISPUTE RESOLUTION SYSTEM The Act established two important components of Nebraska's dispute resolution system: the Office of Dispute Resolution (ODR), which is part of the Administrative Office of the Courts/Probation under the authority of the Nebraska Supreme Court, and a process for the creation of not-for-profit mediation centers and court-established mediation programs. 16 An Advisory Council on Dispute Resolution (Advisory Council) composed of people knowledgeable about mediation and representing Nebraska's geographical, cultural and workforce diversity was also created. 17 ODR and the Advisory Council work together to administer the Act. The ODR director also serves as a liaison for referral development and systems design, and for state, national, and international *186 activities in the mushrooming field of dispute resolution. The centers form Nebraska's direct service delivery system. These centers play a significant role in providing high quality mediation and conflict resolution programs in Nebraska's ninety-three counties. All three system components - ODR, the Advisory Council, and the centers - work in concert to contribute to the on-going development of mediation programs in Nebraska, to advocate for the utilization of collaborative problem solving, and to maintain a standard of excellence characterized by effectiveness, efficiency, public accountability, and competency. 18 Upon approval in 1992, six regional mediation centers began operations funded by ODR-allocated grants. 19 The centers are governed by the Act as well as policies, procedures, and a Code of Standards and Ethics approved by ODR and the Nebraska Supreme Court. 20 As independent entities, each center further promulgates policies and procedures appropriate to their distinctive operational needs. 21 Since their inception, ODR and the mediation centers have built statewide continuity through mutual support, joint policy and procedure development, training coordination, systemic data collection and records management, and cooperative public education. Separately, each center's growth and development illustrates regional variations which reflect customized responses to local demand, systems and organizational interface, diverse funding sources, unique strengths and challenges, and center governance decisions. As 501(c)(3) non-profit corporations, centers constantly struggle to maintain a balance between rapid program expansion and fiscal growth. In 1995-96, resource development efforts more than doubled system funding. 22 Revenue
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sources include local, state, and federal public and private grants; contracts; training and case fees; private donations; and center membership dues. *187 Nebraska's dispute resolution system is viewed nationally as an innovative public-private partnership. Its hybrid decentralized, collaborative-but-independent structure is a remarkably effective model for statewide integration and program development. Internal perspectives suggest that every component of the structure - from ODR to each autonomous center has critical influence on whether the dispute resolution system as a whole is healthy and sustainable. From an external vantage point, the whole may indeed be greater than the sum of its parts. If the system's status after five years is any indication, the premise of the legislation which birthed it clearly remains viable.

THE PRINCIPLES BEHIND THE SYSTEM Without question, the Dispute Resolution Act targets specific principles regarding the practice of mediation and the role of mediators. The conceptual framework embodied in the Act's legislative findings emphasizes the social costs of unresolved conflict; the value of relationship and trust building in private, self-directed problem solving; the burden of litigation on the courts and on disputants; and the benefits that mediation offers to disputants and the legal system. 23 The Act's open-ended title might lead a reader to believe its content encompasses dispute resolution generally. However, the Act, as it stands, narrowly describes a model of mediation which is facilitative in nature and delineates the areas in which it may be applied, including civil claims, disputes in the area of domestic relations, and issues involving juveniles or juvenile offenses. 24 Mediation offered by ODR-approved centers involves a systematic process by which a third party neutral assists two or more people [to] reach a mutually agreed upon negotiated solution to their conflict. 25 It is a model which encourages open communication, improved relationships, and a future-oriented focus on problem solving. As defined by the Act, mediations are generally conducted in private and issues *188 discussed are held confidential by parties and by the mediators. 26 Participation in mediation is voluntary. 27 The process enables parties to take responsibility for their own solutions because the mediator has no authority to offer suggestions or in any way impose an outcome on the parties. Different from the third party function in arbitration and adjudication, a mediator has responsibility only for the negotiation process, not the content of the exchange. 28 The mediator facilitates negotiation between the parties by helping them exchange information, clarify and narrow differences, identify common interests, invent options for mutual gain, and design agreement terms that are satisfactory to all parties. The theoretical premise upon which Nebraska's model is based is derived from the principled, interest-based negotiation approach described by Fisher and Ury in their seminal book, Getting To Yes: Negotiating Agreement Without Giving In. 29 Focusing on the interests or needs people want satisfied, instead of their narrow, incompatible demands, provides the foundation for durable solutions. Although interest-based, facilitative mediation is a definition common to many practitioners and writers in the field of dispute resolution, 30 some in the field argue that it is not the only definition. 31 A number of organizations, legal scholars, and practitioners promote evaluative mediation in which the neutral contributes to the substantive content and offers suggestions for party consideration. 32 In contrast, mediation practice under the Act requires an impartial relationship to the parties and neutrality with regard to the issues discussed. 33 With capacity-building as an aspiration, it is the belief within Nebraska's system that facilitative mediation respects personal autonomy and that mediator-generated *189 content diminishes the ability of parties to take responsibility for creating solutions and to self-enforce the outcomes. 34

ASSURANCE OF QUALITY

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The question of quality control is the subject of much debate nationally. 35 Building a system which is responsive to the people of Nebraska requires mechanisms to ensure credible services and accountability. Nebraska's dispute resolution system has numerous measures imbedded in its structure to sustain the system and prevent it from operating in a vacuum. Mediation training is coordinated through the ODR Training Institute. Institute faculty, drawn from ODR and center staff, must meet rigorous competency standards to achieve and maintain Lead Trainer status. 36 As a result, training programs receive consistently superior ratings from participants. 37 Having gained a national reputation for the high quality of its mediator training program, Nebraska further contributes to professional development through American Bar Association activities, state and national conferences, ODR's presence on national task forces, and center participation in state and national conflict resolution training initiatives. 38 Nebraska's mediation centers play a unique role because they offer services in their respective communities that are different from all others. Public education activities reveal that a sizable percentage of Nebraskans are either uninformed about mediation or misunderstand the role of mediators. Those realities beg a question that should resonate at the core of the system's efforts to build competency: What will it take for the public to know quality when they see it? The system's response to that question is two-fold: public outreach which provides a framework for consumers to understand and compare dispute resolution models, and public input regarding service delivery. On one front, disseminating comprehensive information to *190 the public about the theory and standards of interest-based, facilitative mediation either underlies or dominates all ODR and center activities. From another direction, because mediation is a performance based skill and mediators have the power to influence both the process and the outcome, issues of program and practitioner competency require multilevel assessment. 39 A laundry list of methods proposed by practitioners - recruitment and selection of mediators, training and continuing education, direct supervision, certification, standards of conduct, and establishment of mediator liability - flourish in Nebraska's system and are supported by formal policies and procedures. 40 In a field that is largely unregulated, Nebraska's layers of evaluation invite public confidence. 41 Mediators that choose to affiliate with centers as volunteers are screened and interviewed prior to being accepted for training. Centers select mediators for training, not on the basis of their professional qualifications, but in view of their overall backgrounds (including geographic and ethnic diversity) and human relations skills. Neither a college degree nor a legal education is required although a number of center-affiliated mediators are full time attorneys. Competency indicators in training include the ability to establish rapport and balance among parties, to maintain neutrality, to communicate clearly, and to listen actively, as well as demonstrating comfort with facilitating resolution within a structured process. Following the completion of ODR training or its equivalent, center affiliated mediators agree in writing to comply with statutory guidelines and the system's Code of Standards and Ethics. 42 Most center affiliated mediators serve as volunteers until they have donated a designated amount of volunteer mediation time, at which point they are eligible to be certified and compensated for their mediation work. Each center's policy varies slightly. However, certification criteria operate across the state in accordance with ODR standards and generally include hours of mediation experience, compliance with training and continuing education requirements, and evidence of satisfactory performance derived from evaluations by supervising mediators and mediation participants. *191 Performance is gauged in many ways and at many points along the course of a mediator's experience. To measure competency, evaluation must take into account the composite of factors that determine mediation effectiveness. 43 Factors

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include, but are not limited to: rate of agreement, ability to deal effectively with situational variables and party characteristics, appropriate utilization of intervention strategies, and adjusting to case complexity. To comply with the Dispute Resolution Act and ODR Code of Standards and Ethics, newly trained Nebraska mediators first must complete an apprenticeship in which experienced mediators have supervisory responsibility. 44 Almost without exception, mediations are conducted by a team of two well-matched co-mediators. It is the system's belief that this format, when done competently, has far more benefits for the parties than risks. 45 Co-mediators model cooperative interaction and they blend complementary skills that serve as a system of checks and balances within a mediation session. All mediators, whether experienced or not, are evaluated by their co-mediators. Evaluations after individual sessions are generally informal and verbal. Assessment at the completion of every case is written and submitted to the respective center. Evaluations require their authors to measure mediator performance against the statutory principles, the ethics and standards of conduct adopted by Nebraska's system, and the skills expected of a competent mediator. In accord with ODR standards, centers require mediators to complete a minimum of two continuing education courses per year. For cases that have unique substantive or procedural characteristics, such as federal mediation or special education cases, mediators also are required to complete specialized training. One of the most important aspects of evaluating program and practitioner competency involves participant input. This encompasses both a mechanism for participants to report their level of satisfaction and an opportunity to file grievances and receive prompt responses to such complaints. In Nebraska, all mediation participants, including legal counsel and other advocates at the table, are requested to complete a comprehensive evaluation of services. These responses are compiled by ODR and centers and used to evaluate program quality, accountability to the public, and mediator competency. Programs that are associated with the courts and state agencies have administrative *192 oversight mechanisms, such as data analysis and annual reviews, in addition to participant input. The Act offers yet another layer of public protection without undermining principles of self-determination. An immunity clause protects center mediators, staff, and governing board members engaged in good practice from being held liable for civil damages for statements or decisions made within a mediation process. However, actions constituting willful or wanton misconduct have no protection under the Act. 46 Opportunities to examine the system on a macro level also occur on two other planes: the pooling of case management data and participant feedback through quarterly reporting and analysis, and annual center reviews. The body of information derived from these mechanisms is used to create an annual report to the Nebraska Legislature and to the public, and to determine whether center compliance with standards warrants continued ODR approval status. 47 Nebraska's comprehensive system of assessment embodies many, if not all, of the standards of practice recommended in the legal field today. Because the state's standards draw on, and contribute to, nationally accepted guidelines, few if any advocates for quality control in mediation could argue that Nebraska has failed to address the primary questions of access, conflicts of interest, confidentiality, mediator performance, program accountability and efficiency, and party self-empowerment. 48 A review of raw data in a later section offers a compelling answer to the question regarding the extent to which program implementation in Nebraska supports and defends both the principles outlined in the Dispute Resolution Act and those promulgated on a national level.

*193 PROGRAM IMPLEMENTATION OF STATUTORY PRINCIPLES

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During the past five years, the promise of the Dispute Resolution Act has been fulfilled, and in many ways surpassed, through the development of a multi-dimensional training unit and an impressive service delivery system. The ODR Training Institute develops and conducts the thirty-hour Basic Mediation and thirty-hour Family Mediation training required by the Act and determines mediator compliance with training requirements. 49 As the diversity and complexity of cases has grown since 1991, offerings through the Training Institute have expanded to include an extensive menu of continuing education seminars to prepare mediators for the specific case types and special issues discussed below. Training content conscientiously applies the statutory principles of neutrality, self-enforcement, voluntary participation, confidentiality, and respect for human dignity. 50 Consistent with national standards and contemporary learning theory, trainees are guided through a program of conflict theory, self-analysis, communication skills building, and situational application. 51 Training emphasizes participatory learning because mediation is a complex, difficult skill and the strategies necessary for wellexecuted facilitative mediation often counter the traditional assumptions people have about problem solving. 52 Following progressively more demanding performance-based application of mediation principles (including role plays and other active learning exercises), the training program culminates with a close examination of what rests at the heart of Nebraska mediation: a Code of Standards and Ethics that reinforces the standards of conduct for facilitative mediation. A continuing legal education course on Basic Mediation Skills sponsored by the Nebraska State Bar Association (NSBA) adds substantially to the vitality of mediation in Nebraska. Averaging three thirty-hour workshops a year, the ODR Training Institute faculty offers Nebraska attorneys a comprehensive Basic Mediation program with several purposes: to train attorneymediators, to enhance the *194 practice of law, and to better prepare attorneys representing clients in mediation. Judicial attendance at mediation training has precipitated the growth of court-based mediation programs in Nebraska as well. The early cooperation among Nebraska's mediation proponents, the Bar, and the Bench is maturing to a partnership supportive of healthy systemic change. In addition to the mediator training context, centers contribute to the system's capacity to serve the state through a variety of center-sponsored educational opportunities. Training topics include interest-based negotiation, parenting, crosscultural considerations in mediation, K-12 and higher education peer mediation, work place conflict resolution, conflict management systems design, community collaboration, classroom conflict resolution, facilitating welfare self-sufficiency contract negotiation, and restorative justice. Center training efforts also constitute a potent avenue for public education about mediation. Center service provision was framed by guidelines compiled during the system's first year of operation and was refined in subsequent years. 53 Generally, fees charged by centers are governed by a sliding scale, either based on individual household size and annual income or by number of employees. 54 In accordance with a waiver provision in the Act, no one may be denied services due to inability to pay fees. 55 Operations are further prescribed by individual center policies and procedures which govern recruitment, selection, and supervision of mediators; mediator training, performance, certification, and dismissal; program evaluation; and consumer grievances. Well-defined case intake procedures help center staff discern whether a case is suitable for mediation, educate parties about the process, and clarify the role of legal issues and attorneys in mediation. 56 For the most part, fact gathering during intake is limited to party identification and a brief description of the nature of the dispute. 57 Because getting to the table is one of the most difficult aspects of voluntary mediation, 58 centers make practical materials available to parties and their legal *195 representatives to assist in their understanding of and preparation for mediation. 59 Case intake is geared toward the consumers' needs and the trust building inherent in mediation starts at the point of inquiry.

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Since 1991, passage of other legislation related to mediation has helped secure a place for mediation in Nebraska. In 1993, a spate of laws implementing alternative dispute resolution mechanisms were enacted. Legislative interest in streamlining the resolution of claims under Nebraska's Fair Employment Practices Act prompted the passage of L.B. 124, which integrated mediation and other confidential informal actions into the settlement work of the Nebraska Equal Opportunity Commission (NEOC). 60 The legislation stimulated a two-year relationship between the NEOC and Nebraska's mediation centers by offering complainants filing under the Fair Labor Standards Act the option of voluntary mediation through the regional mediation centers. Following administrative changes at the NEOC, the utilization of mediation through the centers ceased. A 1993 amendment to the law governing Nebraska's Worker's Compensation Court created a structure for informal dispute resolution of worker's compensation claims by court staff or external mediators. 61 The amendment included principles of confidentiality and immunity similar to the Dispute Resolution Act. 62 Motivated by the legislation, worker's compensation court staff completed ODR Basic Mediation training and consulted with center staff to design their informal system. Court staff mediators and center mediators recently began co-mediating claims. The Parenting Act passed in 1993 and became operational September 1, 1994. 63 It supplements and extends legislative support for mediation in the area of domestic relations. Following legislative findings that describe the importance of joint parental decision making in the best interest of minor children experiencing divorce or separation, the Parenting Act mandates district court distribution of information regarding parenting plan mediation and encourages the use of mediation for the development of a parenting plan. 64 Although the Parenting Act requires the use of mediators who are knowledgeable about the court procedures and Nebraska family law, its reference to the *196 Dispute Resolution Act recognizes that family mediators need not be attorneys. 65 Safeguards relative to domestic violence, including multi-level case screening and additional training, are also required by the Parenting Act. 66 In 1994, the Legislature amended the Administrative Procedure Act by passing the Negotiated Rulemaking Act. 67 The purpose of the Negotiated Rulemaking Act is to enable greater public participation in the promulgation of rules and regulations under Nebraska's Administrative Procedures Act. 68 The Negotiated Rulemaking Act creates the opportunity and structure for public input through negotiated rulemaking committees in order to reach agreements consensually. 69 The Act also retains the ability of agencies to modify those agreements through the formal rulemaking process described in the Administrative Procedure Act. 70 Consistent with other legislation, the concept of third party neutrality and impartiality is spelled out in the Act as well. 71 This law emulates federal legislative developments that culminated in the Administrative Dispute Resolution Act passed by Congress in 1990. 72 A number of unsuccessful legislative proposals presented during the 1996-97 Legislative Session attempted to implement mediation into a variety of decision making arenas. L.B. 1023 proposed mandatory mediation by school districts for the resolution of special education issues. The introduction of L.B. 592 was for the purpose of making mediation under the Parenting Act mandatory. Two bills, L.B. 548 and L.B. 171, proposed the reinstatement of mediation for NEOC claims. L.B. 1195 was developed to implement victim/offender mediation options within the juvenile justice system. A review of program development across the state demonstrates that although these bills may have induced more mediation cases in Nebraska, they are not imperative to the continued utilization of mediation. 73 *197 Systems integration and referral development has enhanced mediation's legitimacy in Nebraska. In addition to the NEOC and Worker's Compensation Court projects, a number of other developments exemplify the public-private partnership that characterizes Nebraska's dispute resolution system. Court-related projects are in place within county courts, in the United States

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District Court for the District of Nebraska, in the state's district courts, and in juvenile court systems. In addition, ODR and the centers have contracts with the state's Department of Health and Human Services and Department of Education to provide mediation services and training. Small claims cases are being mediated through county courts around the state. Two program models predominate: a day of trial model and a court referral model. 74 For the day of trial model, teams of mediators are available in the small claims courtroom to offer disputants on-location access to mediation as an alternative to having the judge decide their cases. It is well-suited to court systems in urban settings. The court referral model requires referral of claims from the county court to the mediation center, after which cases are handled through the regular center intake process. This model works well in Nebraska's rural areas, as evidenced in a number of central, northeastern, and southeastern counties. Handling small claims in this manner offers disputants more choices and fosters a rapidly growing relationship between the mediation centers and the Nebraska court system. As a result of the Parenting Act and the Dispute Resolution Act's specific citation of mediation in the domestic relations area, cases dealing with the issues of dissolution and separation may be referred to the center by Nebraska district court judges. Although the scope of that option is not close to being fully realized around the state, a steady number of family mediation cases emanate from district court judges and from the attorneys that practice family law in the state. 75 In response to federal legislation, 76 the United States District Court for the District of Nebraska adopted General Order 95-10 directing federal judges to suggest certain cases for mediation. 77 Known as Fed-Med, this program has given Nebraska attorney- *198 mediators an opportunity to facilitate the resolution of federal claims through mediation. The Order also allows non-attorney mediators to serve as co-mediators. Knowing that similar programs around the nation restrict federal mediation practice to attorneys, this is an unusual and forward-thinking arrangement in the federal court system which sheds favorable light on the quality of ODR system mediators. The project is buttressed by the state's most formal procedural interface between the courts and the dispute resolution system, as well as a comprehensive training component conducted by nationally respected trainers. Since 1991, county attorneys, juvenile probation offices, and juvenile court judges have given some recognition of the value of juvenile victim-offender mediation and other restorative justice measures within juvenile justice systems. 78 Although juvenile mediation programs have burgeoned nationally and studies are showing their positive impact on recidivism, mediation referrals in Nebraska have been limited. 79 In response, several counties are presently engaged in collaborative efforts with mediation centers to either formalize or expand juvenile diversion and juvenile justice options. 80 Two of the state's systems integration programs are conducted under contract with state agencies. The Special Education Option, available through a partnership among the Department of Education, ODR, and the mediation centers, just completed its third year. Under the contract, centers provide public outreach, conflict resolution skills training, and mediation services for schools districts and families involved in special education. All costs are covered by the Department of Education. This project is likely to be bolstered in the near future by the 1997 reauthorization and amendments to the federal Individuals *199 with Disabilities Education Act (IDEA), which mandates that school districts establish and implement procedures . . .to allow dispute resolution through mediation, whenever a hearing is requested. 81 To date, referrals under IDEA have not occurred. To effectuate welfare reform, the Department of Health and Human Services (DHHS) contracted with ODR and the centers to provide conflict resolution skills training to Employment First case workers and to conduct mediation of welfare self-sufficiency contracts at two pilot sites in the state. Costs for Employment First mediation cases are borne by DHHS, and cases may be referred by consumers, their advocates, or DHHS staff.
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Mediation case types vary widely in Nebraska, which points to the versatility and responsiveness of the dispute resolution system. Development of referral bases through the special projects, contracts, and court programs account for a number of cases, including those in the areas of employment discrimination, small claims and federal civil court referrals, and special education issues. Family mediation, which has always remained an active area, deals with issues of divorce, custody and visitation, property settlement, parent-youth and other intergenerational relationships, elder law, and estate settlement. Other cases that are regularly handled by the centers include educational or school-related issues, community and public policy disputes, conflicts in the work place, supervision of public school and higher education peer mediation cases, issues of governance and organizational management, juvenile victim-offender restitution decisions, landlord-tenant disputes, and questions surrounding business contracts. Some centers also have the capacity to facilitate collaborative decision making, ideological discussions, strategic planning, and conflict management systems design.

STATEWIDE PROGRAM RESULTS Given the breadth of mediation development in Nebraska one question remains: is it working? A look at the wealth of data collected and analyzed for five years, and the scope and depth of center programs provide an impressive answer. 82 During the first year following passage of the Dispute Resolution Act, centers received 387 mediation inquiries. Of those inquiries, 230 became opened cases. A case is considered open when at least one of the parties decides to try mediation and the center has determined that the case is suitable for *200 mediation. Thirty-nine percent, or ninety of the opened cases, were mediated. In those not meeting, 42% of the second parties would not consent. A total of 489 people participated in mediation, and agreements were reached in 65% of the cases. Statistics collected during the first year show a seven day turn-around time for one session cases and an average of 51 days for cases where consent is difficult to obtain or when there are multiple sessions. Evaluations indicated that 94% of the participants perceived the mediator(s) to be neutral. Eighty percent of the participants were satisfied or very satisfied with the mediation process. Fifty two percent of the participants reported that the party relationship improved, and 28% believed the relationship stayed the same. The bulk of the cases, 38%, were referred by attorneys. Other referral sources included social service related organizations, other mediators, friends and family members, the Farm Mediation Service, and law enforcement. Cases were opened in 57% of Nebraska's counties. Seventy seven percent of the participants were Caucasian. Sixty six percent of the participants had household incomes of $20,000 or less. The average cost per session was less than $16 and no fee was charged to 45% of the participants. 83 Most centers had the equivalent of one full time staff member and an average of fifteen volunteer mediators by the end of the year. Over 4,300 people were reached directly through center outreach efforts. By July 1996, 664 people had been trained in Basic Mediation and another 155 in Family Mediation. Current estimates put the number of trained mediators close to 1,000. In July 1996, 15% of the mediators were non-Caucasian, as were 15% of the participants. Mediations now have occurred in 100% of Nebraska's counties. During fiscal year 1995-96, 2,189 people experienced mediation - more than four times the number in 1992-93. Household income level of parties (62% are at or below $20,000) changed very little. In 1995-96, 63% of participants paid no fee. For those who were charged a fee, the average session cost was approximately $74. The higher participant costs reflect both an increase in businesses involved as parties in employment cases, organizational disputes, and federal cases, and a higher fee rate charged to organizations. Last year's participant evaluations continued to demonstrate a very high rate of satisfaction. On a 1 (very high) to 5 (very low) scale, process fairness ratings averaged 1.5, mediator neutrality averaged 1.4, opportunity to express views averaged 1.6, and level of satisfaction with mediation averaged 1.9. Sixty-two percent the referrals came from courts and attorneys. After five years, centers now have an average of three staff members and 50 *201 to 150 volunteer mediators. In spite of a significant increase in case complexity, turn around time has decreased to an average of 41 days. Case
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volume last year peaked at 976. Remarkably, 1996-97 raw data indicates a conservative estimate of 1,600 opened cases and an agreement rate of 75%. Special projects account for sizable case expansion. There were 306 small claims cases last year with an agreement rate of 63%. Participant evaluations were consistently high. Fifty one federal mediation cases were handled in the first nine months of the project. Despite the overall agreement rate of only 42%, participant evaluations were very strong. Plaintiffs' attorneys offered the highest ratings, averaging 1.7. A recent annual review of the Special Education Mediation Option showed a 567% increase in cases over three years. Seventy four percent of the disputes reached agreement. Cases involved a variety of issues including program and service coordination, placement, evaluation and assessment, staff and facilities, due process and Individual Education Plans, and inclusion. More school administrators referred cases than ever before, but schools were still four times more likely to refuse to participate. Two other characteristics of these cases warrant attention: cost and utilization. The cost to the Department of Education for handling 34 mediation cases averaged $466 per case, the total of which was almost $34,000 less than the cost of conducting three administrative hearings. It is apparent that Nebraska's taxpayers are realizing considerable savings under this contract. In terms of utilization, 62% of the cases originated in small school districts in rural counties. Analysis leads to speculation that legal and other resources available to urban districts may block the potential for mediation, thereby reducing public access to the benefits inherent in mediated solutions. The new IDEA amendments may prove to be a helpful incentive for school involvement. In contrast to the overall success in special education, the contract with DHHS has not generated cases. Anticipating more referrals after the completion of training, centers have been surprised by the lack of action. For both of these projects, the challenge ahead will be to discover and overcome whatever barriers may exist. Systems integration between ODR and NEOC resulted in interestingly dissimilar outcomes. Over a two year period, centers opened close to 1200 cases, many of which had been backlogged with the NEOC for long periods of time. In three out of every four cases, the employer choose not to mediate. Most frequently stated reasons for not mediating were advised not to by attorney, not wanting to settle, and no basis for the claim. Mediated cases had a 58% average *202 rate of agreement. Whether or not cases reached agreement, participants consistently rated the experience as highly satisfactory. Satisfaction is likely grounded in the development of outcomes that are more responsive to both claimants and respondents than traditional remedies, and in the efficient and timely case management provided by the mediation centers. Cases backlogged for up to nine months were finally closed within weeks following notification to the parties of the mediation option. Looking beyond the mediation services described above, centers are exhibiting broad based community interface through a creative array of program development. Many of the national goals and strategies in the field of conflict resolution are in place in Nebraska. Cultural adaptations of the mediation model have been made to increase the sensitivity of the process to unique tribal and ethnic community needs. Centers are engaged in complex, long range projects involving multi-level organizational decision making, systems design, and public policy. A spectrum of youth programs to have been designed and implemented aiming at building resiliency to risk, and reducing juvenile violence and delinquency. Many peer mediation programs in public schools and higher education facilities have developed under the tutelage of Nebraska's mediation centers. Projects emphasizing parenting and family relationship dynamics have been established in recent years. Closer affiliation between centers and courts are resulting in innovations such as parent education programs for families experiencing divorce and separation. 84 Centers are collaborating with organizations to facilitate mutual gain problem solving in the areas of elder law and the Americans With Disabilities Act. Nebraska's youth and people in the workforce have reaped myriad benefits through programs created and implemented by mediation centers, which focus on the development of effective conflict resolution skills and violence prevention strategies. 85 Diverse center programs contribute to community capacity as mediation services strengthen individuals and relationships.

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*203 EMERGING ISSUES, CHALLENGES, AND FUTURE TRENDS Due to the sheer volume of opinions and literature, it is not the purpose of this Article nor in the best interest of the reader to review in any detail the emerging issues in the field of dispute resolution. Suffice it to say that Nebraska is not free from the philosophical and theoretical controversies observed elsewhere. The most pervasive issue in the state resides in the arena of mediator competency and standards of conduct. Much has been written about mediator orientations as a way to describe and delineate mediator behavior. 86 In theory, the facilitative mediator focuses on self-determination and enhancing communication between parties. 87 An evaluative mediator takes responsibility for content, gives advice, and assumes that parties need direction regarding the merits of their case and grounds for settling. 88 The issue of which behaviors are appropriate for mediators practicing within the Nebraska system has come to the forefront as more attorneys receive training in mediation. The quandary arises from a role conflict. It is every attorney's ethical obligation as an advocate to use evaluative strategies in the assessment of a client's legal position within the context of governing law. It is those maxims embedded in legal education and the Code of Professional Responsibility - to judge the merits of a case and to advise within the boundaries of external standards - that make mediation difficult for many attorneys. In Nebraska, the principles detailed in the Dispute Resolution Act and subsequent legislation, as well as in the Code of Standards and Ethics, clearly define the role of a mediator as facilitative. ODR training provides attorney-mediators with facilitative skills and emphasizes that providing substantive content as a mediator subverts the intent of the process and, in all likelihood, the parties' desired outcome. Deciding when to put which hat to the side becomes the dilemma for attorney-mediators. One response to the confusion is the development of Canon 10 of the Code of Professional Responsibility and its submission to the Nebraska Supreme Court for approval. Canon 10 defines the standards of conduct for attorney-mediators and parallels the same elements of neutrality, empowerment, and facilitated decisions by the parties found in the Dispute Resolution Act. Another answer to the question requires a look at one of the purposes of the statutes and rules governing mediation in Nebraska: much of the intent is to inform the public *204 of what to expect in mediation. The distinction between facilitative and evaluative postures only becomes important when mediator style is in opposition to party expectations. The dispute resolution system authoritatively leads people to believe they will exercise control in finding solutions to their problems. The system and its mediators are then obliged to grant them that privilege. By bullying and being dangerously persuasive, affiliated mediators, whether they are attorneys or not, not only act outside Nebraska's standards of conduct, but also mislead the public. 89 The possibility exists that the dichotomy described above will serve to categorize mediators in a divisive way. If mediators choose to be evaluative and therefore outside ODR standards, where will they land professionally? If they choose to employ an evaluative model of mediation, how will consumers be informed of their own procedural choices? One of the challenges ahead will be to maintain an atmosphere of collaboration among Nebraska mediators to keep the public well informed and find common ground among practitioners in order to move forward constructively. Confusing the public serves no one. ODR and the centers face other challenges. The NEOC and special education experiences suggest that a representative group of people are not convinced that they should come to the table. Understanding the variables that make it difficult to get people to the table and acting on that knowledge will dispel the myths compelling people to decline. Concentrating on attorneys and their role will be a critical step. Studies indicate that lawyers who have been involved in a mediation are much more willing to encourage its use again. 90 Creating opportunities for attorneys to experience mediation will motivate them to share their perceptions with clients and ultimately prepare their clients for mediation. Getting mediation into the legal vocabulary as one of

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the options available to clients may get the client to the table. Training attorneys, or their clients, in mediation is an optimal way of facilitating that change. Integrating mediation into law school curricula, as is being done in higher education in Nebraska, is a critical factor for building a resilient foundation for contemporary legal advocacy. Cultural competency is an on-going challenge both for mediators and for programs. It is not enough to scrutinize our individual skills. The cultural assumptions about negotiation and problem solving inherent in a system and the model it promotes warrant scrutiny in light of the diverse perceptions of justice and community norms in our *205 neighborhoods, courts, and schools. Standards of practice may not be standard after all. 91 In terms of future trends, the field of dispute resolution is well positioned to help institutions and individuals deal effectively with the repercussions from major policy shifts affecting the country, such as welfare reform and managed care. The transformation necessary to adapt to systems change is ripe with potential conflict. Sustainable dispute resolution systems like Nebraska's have the capacity to help states and local entities deal with conflict related to service delivery, accessing public input, and internal organizational complexities. Nebraska's dispute resolution system has both the proven expertise to customize prevention strategies such as training and skill building, and the depth of resources to implement intervention mechanisms. System capabilities in Nebraska also may be called upon in the future to provide more services to the aging adult population and to other people protected by laws that are increasingly more likely to include alternative dispute resolution mechanisms. There is already a visible movement to define problem solving within those arenas in terms of mediation and consensual decision making. 92 What makes Nebraska's future provocative is the element of the unknown. The rapid and successful growth of Nebraska's dispute resolution system to date signals that the people of the state have a need for the services. Similar to its early track record, the future of ODR and the mediation centers will be shaped by the needs within Nebraska's communities and by the system's response to those demands, whatever they may be. Allow the consumer to define the problem. 93

Footnotes d1 B.A., M.A., University of the Pacific, 1974, J.D. University of Nebraska College of Law, 1993, Executive Director, Lincoln/Lancaster
Mediation Center

S. Res. 971, 101st Cong., 135 Cong. Rec. 5166 (1989) (enacted) (statement of Sen. Grassley, quoting the 18 th Century French philosopher Voltaire). By delineating formal and informal justice systems it is my intention not only to highlight procedural changes in the mechanisms we look to for the protection of our rights - the legal adversarial system and the law that frames it - but also to acknowledge a shift in the perceptions human beings have about their choices for responding to conflict dynamics in their personal, work place, neighborhood, and community relationships. Kathleen Severens, director of Nebraska's Office of Dispute Resolution, and Nebraska Senator David Landis were early pioneers in Nebraska's mediation movement. They continue to work tirelessly to expand Nebraska's options for justice, and lend extraordinary credibility and expertise to statewide efforts. The strength of Nebraska's dispute resolution system is forged from the unwavering contributions of time and energy by countless volunteers and dedicated mediation center staff. While this Article is designed to inform the legal community about Nebraska's dispute resolution system, it is also a tribute to all who have participated in the system's evolution.

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4 5

Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict 20-22 (2d ed. 1996). See generally John W. Ragsdale, The Institutions, Laws, and Values of the Hopi Indians: A Stable State Society, 55 UMKC L. Rev. 335 (1987); James W. Zion, The Navajo Peacemaker Court: Deference to the Old and Accommodation to the New, 11 Am. Indian L. Rev. 89 (1983); Michael Coyle, Traditional Indian Justice in Ontario: A Role for the Present?, 24 Osgoode Hall L.J. 605 (1986); Rennard Strictland, Fire and the Spirits 11 (1975). Moore, supra note 4, at 32-40. Kimberlee K. Kovach, Mediation: Principles and Practice 18 (1994). Moore, supra note 4, at 36. Id. Id. Id. at 24; Kathleen Severens, Neb. Office of Dispute Resolution Basic Mediation Training Manual I, at 1 (Reissue 1996). Severens, supra note 11, at 1-3; see generally Neb. Rev. Stat. 25-4801 to -4816 (Reissue 1991). Severens, supra note 11, at 3. Neb. Rev. Stat. 25-2901 to -2920 (Reissue 1995). Id. Id. Neb. Rev. Stat. 25-2905 (Reissue 1995). See generally Severens, supra note 11, XIII, at 3-20. Id. I, at 3. The centers are Metro Mediation Center in Omaha (serving the counties of Sarpy and Douglas), Nebraska Justice Center in Walthill (serving 24 northeast and north central counties), Lincoln/Lancaster Mediation Center in Lincoln (serving Lancaster County), Southeast Nebraska Mediation Center in Beatrice (serving 16 southeast counties), Central Mediation Center in Kearney (serving 31 south central and southwest counties), and Panhandle Mediation Center in Scottsbluff (serving 19 western counties). Nebraska Office of Dispute Resolution, Nebraska Mediation: Another Way to Resolve Conflicts - The Win-Win Solution (1992). See generally Severens, supra note 11. All centers have governing boards and/or advisory councils that participate in developing center policies. Board size and configuration differ from center to center. Members constitute a diverse representation of residents in each region. Nebraska Office of Dispute Resolution, 1995-1996 Annual Report 4 (1996). Neb. Rev. Stat. 25-2902 (Reissue 1995). Leonard L. Riskin, Mediator Orientations, Strategies and Techniques, 12 Alternatives to High Cost Litig. 111 (1994). Facilitative denotes a mediator role which prohibits judgment of the merits of disputed issues by the mediator and vests disputants with the responsibility for decision making. Neb. Rev. Stat. 25-2911 to -2913. There is no prohibition in this Act against integrating other alternatives and other case types into center operations, and future amendments to the statute might include a broader cross-section of dispute resolution models. These possibilities are available to centers now as long as legislative appropriations awarded by grant to centers under the Act are not utilized for the provision of service outside what is described in the Act. Clearly, ODR-approved centers that describe their services as mediation, fund their service provision through ODR grants, and train and label their mediators in accordance with the Act, are bound by the codified principles of the statute.

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25 26 27 28 29 30

Severens, supra note 11, V, at 1. Neb. Rev. Stat. 25-2914. Neb. Rev. Stat. 25-2903(5). Severens, supra note 11, V, at 7 (emphasis added); Kovach, supra note 7, at 9. See generally Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In (2d ed. 1991). See generally Moore, supra note 4; Kovach, supra note 7; Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (1994); Bruce C. McKinney et al., Mediator Communication Competencies: Interpersonal Communication and Alternative Dispute Resolution (4th ed. 1995); Stephen B. Goldberg et al., Dispute Resolution: Negotiation, Mediation, and Other Processes 103 (2d ed. 1992). See generally Mark D. Bennett & Michele S. G. Hermann, The Art of Mediation (1996); John W. Cooley, Mediation Advocacy (1996); Dwight Golann, Mediating Legal Disputes: Effective Strategies for Lawyers and Mediators (1996). See Bennett & Hermann, supra note 31; Cooley, supra note 31; Riskin, 12 Alternatives to High Cost Litig. at 111. Severens, supra note 11, V, at 7. As in other parts of the nation, this is a fertile debate in Nebraska. Later discussion regarding facilitative versus evaluative mediation, and its relationship to mediator competency and ethical practice within Nebraska's system, may shed some light on these emerging issues. Kovach, supra note 7, at 202. Neb. Office of Dispute Resolution, Training Institute Standards and Guidelines 5-6 (1995) (listing competency standards). Neb. Office of Dispute Resolution, supra note 22, at 2. ODR's director, Kathleen Severens, actively participates in national dialogue within entities that include the National Council of State Dispute Resolution Programs, the Commission for Qualifications for Court Neutrals, and the Center for Public Resources' Working Group on Ethics for Attorney Mediators. Centers, particularly Panhandle Mediation Center and Nebraska Justice Center, make significant contributions through the National Association for Community Mediation on behalf of the National Commission on Community Service (known as AmeriCorps). Kovach, supra note 7, at 31. Id. at 203; Neb. Rev. Stat. 25-2915 (Reissue 1995). Kovach, supra note 7, at 190; Richard C. Reuben, Lawyer Turned Peacemaker, 82 A.B.A. J. 60 (1996). In Nebraska, there are no standards that inform the practice of mediation outside those applicable to the work done by the centers under the Dispute Resolution Act. Virtually anyone Nebraska may hang up a shingle and claim expertise. The dispute resolution system has a procedure in place which enables mediators trained outside of Nebraska to request system affiliation upon approval of their educational program and mediation experience. See generally Douglas A. Henderson, Mediation Success: An Empirical Analysis, 11 Ohio St. J. on Disp. Res. 105 (1996). Neb. Rev. Stat. 29-2913(1). Severens, supra note 11, IX, at 7-9. Some proponents of facilitative mediation consider co-mediation the rule rather than the exception. See James L. Greenstone & Sharon C. Leviton, Elements of Mediation (1997).

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46 47

Neb. Rev. Stat 25-2915. See generally Nebraska Office of Dispute Resolution, 1992-93 Annual Report 1 (1993), 1993-94 Annual Report 2 (1994), 1994-95 Annual Report 3 (1995), 1995-96 Annual Report 4 (1996), 1996-97 Annual Report 5 (1997). Readers desiring to measure Nebraska's standards against others may consult policy drafts and other publications: Melissa Brodrick et al., Draft: Quality Assurance and Qualifications, N.A.F.C.M. News, 1996, at 1-8; Center for Dispute Settlement-Institute of Judicial Administration, National Standards for Court-Connected Mediation Programs; Joint Committee of American Bar Association, American Arbitration Association, and Society of Professionals in Dispute Resolution, Final Draft, Model Standards of Conduct for Mediators (1995); Margaret L. Shaw, Selection, Training, and Qualifications of Neutrals (1993); State Justice Institute Draft, Qualifying Dispute Resolution Practitioners: Guidelines for Court-Connected Programs (1997); S.P.I.D.R. Comm. on Qualifications, Ensuring Competence and Quality in Dispute Resolution Practice (1995). Subsequent passage of the Parenting Act in 1993 expanded an important domestic violence component within the Family Mediation training requirements. Neb. Rev. Stat. 43-2904(2) (Reissue 1993). Severens, supra note 11. Kathleen Severens, Nebraska Office of Dispute Resolution Family Mediation Training Manual (1994). See generally Kovach, supra note 7; Moore, supra note 4; Cooley, supra note 31. Those assumptions often reveal themselves within mock mediations through authoritarian postures, assessments of liability, Tell me when its over passivity, or hide-the-ball innuendo. Ideally, the cognitive processing in participatory learning stimulates the selfawareness which is inherent in a conceptual framework that embraces mediation. These include Rules Relating to the Dispute Resolution Act; Office of Dispute Resolution Policy Manual; Manual of Standards and Ethics for Center Mediators, Directors, and Staff; and A Field Guide to Forms and Procedures for the Nebraska Mediation Centers. Nebraska Office of Dispute Resolution, 1992-93 Annual Report 1 (1993). Neb. Rev. Stat. 25-2910 (Reissue 1995). Id. For a detailed description of intake considerations, see generally Severens, supra note 11; Moore, supra note 4, at 81-97. Information gathering at intake is limited because facilitative, neutral, interest-based mediation assumes that the bulk of information exchange should take place when all parties and the mediators meet together for the first time. Goldberg et al., supra note 30, at 106. See generally Severns, supra note 11, XI, at 3 (citing Elaine Hallmark, The Role of Lawyers: Helping Clients Resolve Their Own Disputes Using Mediation, What Is Mediation?, How To Prepare for Mediation?, and Your Mediation Day (1989)). Neb. Rev. Stat. 48-1117(4), -1118(1) (Reissue 1994). Neb. Rev. Stat. 48-168(2)(a), (b) (Reissue 1994). Neb. Rev. Stat. 48-168(2)(b). Cf. Neb. Rev. Stat. 25-2901 to -2920 (Reissue 1994). Neb. Rev. Stat. 43-2901 to -2919 (Reissue 1994). Neb. Rev. Stat. 43-2902. Neb. Rev. Stat. 43-2905. Neb. Rev. Stat. 43-2904(2).

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67 68 69 70 71 72 73

Neb. Rev. Stat. 84-921 (Reissue 1994). Neb. Rev. Stat. 84-920.01 (Reissue 1994). Neb. Rev. Stat. 84-922 (Reissue 1994). Id. Neb. Rev. Stat. 84-923(3), (4) (Reissue 1994). Administrative Dispute Resolution Act, 5 U.S.C.A. 571 to 583 (1994). It was evident during discussions with the staff of Nebraska Senator Don Wesely that his bill was viewed as an important way to nudge the state's juvenile justice systems, which for the most part are not making referrals to mediation centers in spite of the absence of impediments. The author received notice while writing this Article that strategy meetings will begin soon in preparation for another Fall interim study on the juvenile victim-offender bill, which is likely to be reintroduced during the 1997-98 legislative session. See generally Susan Keilitz et al., A Working Paper for the National Symposium on court Connected Dispute Resolution Research (1993). Day of trial programs are currently flourishing in Nebraska's urban counties. It is unknown how the recent decision to shift domestic relations cases to county court judges will affect mediation referrals. Interface with county court judges has been initiated in anticipation of the change. Civil Justice Reform Act, 28 U.S.C. 471 to 482 (Supp. V 1993). General Order No. 95-10, In re Court Annexed Mediation (D. Neb. June 30, 1995). See generally Mark R. Privratsky, A Practitioner's Guide to General Order 95-10: Mediation Plan For the United States District Court of Nebraska, 75 Neb. L. Rev. 91 (1996). The Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska, has been instrumental in the development and success of this project. In contrast to traditional punitive or retributive models of justice, where the focus is on coercive authority, restorative justice describes a model in which the offense is viewed as a wrong against people and communities. Restorative alternatives within justice systems are strategies which focus on the crime's impact on the victim, offender, and the community. A high priority is placed on restoration of the victim and holding the offender accountable for the human consequences of the crime and making things right. See generally Mark S. Umbreit, Development and Impact of Victim-Offender Mediation in the United States, 12 Mediation Q. 263 (1995). For a comprehensive review of youth related mediation see generally Glenda L. Cottam, Mediation and Young People: A Look At How Far We've Come, 29 Creighton L. Rev. 1517 (1996); Mark S. Umbreit & Robert B. Coates, Cross-site Analysis of VictimOffender Mediation in Four States, 39 Crime & Delinq. 565 (1993). Funding from the U. S. Office of Juvenile Justice and Delinquency Prevention has been committed to the development of restorative justice programs, including victim-offender mediation, in Lancaster and Douglas counties. The success of these programs, as well as increasing referrals in some rural counties, will likely provide impetus to other counties and to the Legislature to consider broader implementation statewide. Individuals With Disabilities Education Act, 20 U.S.C. 1400 to 1491 (1997). The statistics that follow are drawn from the last four ODR Annual Reports as well as an informal reporting of 1996-97 figures. The full report of the 1996-97 data will be available to the public in Fall 1997. Sessions last an average of 2.6 hours. District Court Judge Robert Hippe and mediation center staff in western Nebraska have forged a proactive relationship in the area of family mediation, resulting in innovative court-based programs designed to help families experiencing divorce cope with change and

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85

For example, the majority of Nebraska's AmeriCorps members, located within human service organizations and public agencies throughout the state, have received training through the dispute resolution system and have service responsibilities which enable them to integrate their mediation and conflict resolution skills into their respective communities. State agencies dealing with health care and environmental issues also acquired conflict resolution skills through the statewide system for the purpose of enhancing their service to the public. See generally Riskin, 12 Alternatives to High Cost Litig. at 111; Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing the Grid Lock, 24 Fla. St. U. L. Rev. 985 (1997). Riskin, 12 Alternatives to High Cost Litig. at 111. Id. Stulberg, 24 Fla. St. L. Rev. at 991. Reuben, 8 A.B.A. J. at 55. See generally Lester P. Schoene, Jr. & Marcelle E. DuPraw, Facing Racial and Cultural Conflict: Tools for Rebuilding Communities, (2nd ed. 1994); Selma Myers and Barbara Filner, Mediation Across Cultures: A Handbook About Conflict and Culture (1994); Edward C. Stewart & Milton J. Bennett, American Cultural Patterns - A Cross-cultural Perspective (1991); and Thomas Kochman, Black and White Styles in Conflict (1981). See generally Eve L. Hill, Mediation of Disputes Under The Americans With Disabilities Act of 1990, 3 Dispute Resolution Magazine 16-19 (1997). Al Condeluci, Interdependence: The Route to Community 93 (2d ed. 1995).

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Nebraskas Mediation Statutes, Standards, Policies through 2008


debora.brownyard@nebraska.gov; www.supremecourt.ne.gov/mediation

Labor Contract Negotiations: Neb.Rev.Stat.81-1381 (1987); provides that if parties in labor contract negotiations do not reach agreement, the dispute may be referred to a mediator mutually selected or appointed by the Federal Mediation and Conciliation Office. Nebraska Farm Mediation Act: Neb.Rev.Stat.2-4801, et seq. (1988); establishes the farm mediation service in the Nebraska Department of Agriculture; describes mediation and mediator ethics, practice; reporting; financial, legal, and mediation services; authorizes contracts to provide. Nebraska Dispute Resolution Act: Neb.Rev.Stat.25-2901, et seq. (1991); establishes the Office of Dispute Resolution within the Administrative Office of the Courts; mediator training and ethical requirements for affiliated mediators; establishes approval, granting, and reporting process for regional non-profit mediation centers; creates an Advisory Council appointed by the Nebraska Supreme Court. ODR Policy Manual (1993, 2007): www.supremecourt.ne.gov/mediation; sets forth policies for ODR and ODR-approved mediation centers; Advisory Council; grievance procedures; mediator competency. Equal Opportunity Commission: Neb.Rev.Stat.48-1118 (1993); provides that the commission shall endeavor to resolve claims through informal methods, including mediation or arbitration. Nebraska Constitution: Article I-13 (1996): states: All courts shall be open, and for every person . . . shall have a remedy by due course of law and justice administered without denial or delay, except that the Legislature may provide for the enforcement of mediation, binding arbitration agreements, and other forms of dispute resolution which are entered into voluntarily and which are not revocable other than upon such grounds as exist at law or in equity for the revocation of any contract. Water disputes: Neb.Rev.Stat.46-2,117 (1997); provides that the director of the Department of Natural Resources shall not conduct a contested case hearing on an instream appropriation filed after 1-1-97 until parties have completed mediation or nonbinding arbitration. Costs to be shared by parties. Commission on Industrial Relations: Neb.Rev.Stat.48-816 (1997); provides that upon request of either party, the commission shall require the parties to an industrial dispute to submit to mediation or factfinding, or to a special master. Nebraska Juvenile Code: Neb.Rev.Stat.43-245; 274; 276 (1998); county attorney may offer mediation to the juvenile and victim, if both parties agree and it is a nonviolent act. Minimum training requirement for juvenile mediation; juvenile pays fees. Nebraska Uniform Mediation Act: Neb.Rev.Stat.25-2930, et seq. (2003); applies to mediation and mediation communications covered under the Act; privilege; confidentiality; exceptions; mediators disclosure of conflicts of interest; background. Specific Powers of Trustee: Neb.Rev.Stat.30-3881(2003); allows a trustee to resolve a dispute concerning the interpretation of a trust or its administration by mediation, arbitration, or other procedure for alternative dispute resolution. Interstate Compact for Adult Offender Supervision: Neb.Rev.Stat.29-2640(2003); authorizes the Governor to enter into such a compact; terms include addressing mediation, arbitration, and dispute resolution. Fence Dispute Mediation: Neb.Rev.Stat.34-112.02 (2007); sets forth that in any court proceeding regarding fence disputes, mediation information will be given to the parties by the Clerk; Farm Mediation and ODR-approved mediation centers named; costs to be shared by the parties. Limited Cooperative Association: Neb.Rev.Stat.21-2989 (2007); sets forth mediation or arbitration as ways to settle disputes during the winding up of activities. Nebraska Parenting Act: Neb.Rev.Stat.43-2920, et seq. (2007, 2008); requires the State Court Administrator to adopt uniform standards of practice for mediation of cases under the Parenting Act; provides for both traditional mediation of parenting cases as well as specialized alternative dispute resolution (SADR) for parties in domestic intimate partner abuse; sets forth mediator training and ethics requirements; requires the State Court Administrator to approve court-referred mediators under the Act; new definitions of mediation and domestic intimate partner abuse; new definition of best interests of the child; states that all trial courts shall have a court rule on or before July 1, 2010 to mandate referral to mediation if parties have not developed a parenting plan by a date certain. Nebraska Dissolution Statutes: Neb.Rev.Stat.42-364 (2007, 2008); reiterates referral of parenting time, child custody, etc. Referral of Civil Court Cases to Mediation: Neb.Rev.Stat.25-2943 (2008); authorizes courts to refer civil cases to mediation or another form of alternative dispute resolution; requires voluntary agreements; provides that trial or appellate courts may adopt rules of practice governing the procedures for referral of cases; states that services may be provided by approved centers on a sliding scale of fees under the Dispute Resolution Act. Family Group Conferencing and Pre-hearing Conference Facilitation: Neb.Rev.Stat.43-2404.02 (2008); authorizes funding for family group conferencing from the County Juvenile Services Aid Program; Neb.Rev.Stat.43-247.01 (2008); defines family group conferencing and prehearing conference; provides for confidentiality and privileged communications. Nebraska Standards and Ethics for Family Mediators (2008); www.supremecourt.ne.gov/mediation; sets forth standards and ethics for family mediators, specifically pursuant to the Nebraska Parenting Act; based on the model standards adopted by the American Bar Association (ABA) and the Association of Family and Conciliation Courts (AFCC). Nebraska Mediation Statutes and Policies; Rev. 2/15/13 1 Policy for Approval of Parenting Act Mediators (2008); www.supremecourt.ne.gov/mediation; provides for the approval; training and education; and grievance procedures for parenting act mediators.

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Amendments to Nebraskas Mediation Statutes: 2008-2012


Dispute Resolution Act (25-2901 to 25-2921) 2011 revision of 25-2911 allows court approved mediation centers to accept contested guardianship/conservatorship cases. It also requires court approved mediation centers to inform the court as to whether an agreement has been reached, if the case was sent there as a court-referral. Additionally, the centers must provide a copy of said agreement to the court, if the court requests one. 2012 revision of 25-2920 requires that annual reports by the director concerning the implementation of the Act must be submitted to the Legislature electronically. 2009 revision of 25-2921 permits the Supreme Court to have discretion to direct the Dispute Resolution Cash Fund from the effective date of the Act until June 30, 2011; 2011 revision extended the sunset clause through June 30, 2013. Uniform Mediation Act (25-2930 to 25-2942) 2011 revision of 25-2943 allows the court to refer guardian/conservatorship matters to mediation or other forms of alternative dispute resolution. Family Group Conferencing 2010 and 2012 revisions of 43-2404.02 had no relevant changes concerning mediation The Parenting Act (43-2920 to 43-2943) 2011 revision of 43-2922 had no relevant changes concerning mediation 2010 revision of 43-2923 had no relevant changes concerning mediation 2011 revision of 43-2929 requires that the court make accommodations for children and parents in military families when creating a parenting plan the serves the best interests of the child (relevant as to the development of the parenting plan in mediation) 2010 revision of 43-2937 allows the court to waive the mediation or specialized alternative dispute resolution requirement for good cause shown when both parents agree on a bond fide parental agreement or when mediation or specialized alternative dispute is not possible without undue delay or hardship to either parent. (In that case, the court will hold an evidentiary hearing and the burden of proof for those seeking waiver is by clear and convincing evidence.) Nebraska Law on Child Custody 2009 revision of 42-364 added cash medical support language to subsection (4) which pertained to child support calculations; 2010 revision allows the court to waive the mediation or specialized alternative dispute resolution requirement for good cause shown when both parents agree on a bond fide parental agreement or when mediation or specialized alternative dispute is not possible without undue delay or hardship to either parent. (In that case, the court will hold an evidentiary hearing and the burden of proof for those seeking waiver is by clear and convincing evidence.)
Nebraska Mediation Statutes and Policies; Rev. 2/15/13 2

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Nebraska Juvenile Code (43-245 to 43-2,129) 2009 and 2010 revisions of 43-245 had no relevant changes concerning mediation 2011 revision of 43-246 had no relevant changes concerning mediation 2009 revision of 43-276 allows the Court to take into consideration whether a juvenile is a criminal street gang member in its determination of whether to refer the juvenile to mediation; 2012 revision allows the Court to take into consideration whether the juvenile has been previously committed to a youth rehabilitation and treatment center in its determination of whether to refer the juvenile to mediation. 2011 revision of 43-286 eliminated the Beginning July 15, 1998, when and changed it to When, which eliminated the time limitations of section (3); 2012 revision had no relevant changes concerning mediation 2010 revision of 43-2,108.01 pertains to the eligibility of juveniles who may have their records sealed, stating that those who were offered mediation as an option can be eligible; 2011 revision had no relevant changes concerning mediation 2010 revision of 43-2,108.02 requires the county attorney or city attorney to provide the juvenile with written notice that the juvenile may petition the court to seal the record when they have satisfactorily completed mediation; 2011 revision also allows the juveniles parent or guardian to petition to file a motion to seal the juveniles record with the court when the juvenile has satisfactorily completed mediation 2010 revision of 43-2,108.03 states that if the county attorney or city attorney has offered and the juvenile has agreed to mediation, the county attorney or city attorney is responsible for notifying the appropriate public office or agency responsible for the arrest or custody that the juvenile has satisfactorily completed the mediation; 2011 revision replaced public office or agency with government agency 2011 revision of 43-2,108.04 added how the juveniles behavior changes after mediation as a factor that the court may use to determine whether a juvenile has been rehabilitated to a satisfactory degree. Interstate Compact for Juveniles (43-1011) Implemented in 2009 to govern the process of dealing with matters involving juveniles across state lines. Article VII (B)(2) states that the Interstate Commission must promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states Article XI(A)(1)(b) states that the Interstate Commission may impose Alternative Dispute Resolution on a compacting state that defaults in its performance of any of its obligations or responsibilities.

Nebraska Mediation Statutes and Policies; Rev. 2/15/13

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Interstate Compact for the Placement of Children (43-1103) Implemented in 2009, governs the process that places children in homes across state lines. Article XI(H)(10) charges an Intestate Commission to promulgate rules to address mediation, arbitration and dispute resolution. ArticleXII(b)(2) states the Interstate Commission must promulgate a rule that provides for both mediation and binding dispute resolution for disputes among compacting states, and states that the costs of said processes are the responsibilities of the parties to the dispute. Interstate Compact on Educational Opportunity for Military Children (79-2201) Implemented in 2011, the purpose of the Compact is to remove barriers of educational success imposed on children of military families because of frequent moves and deployment of their parents Article XIII(C)(2) allows the Interstate Commission to establish a rule providing for both mediation and binding dispute resolution as means to resolve disputes concerning educational opportunities for military children Nebraska Farm Mediation Act (2-4801 to 2-4815) 2009 revision repealed 2-4816 which sunsetted the Act on June 30, 2009; no substantive changes on other subsections Nebraska Uniform Limited Liability Company Act (21-101 to 21-197) 2010 revision conforms Nebraska law on Limited Liability Companies with the nation rules set forth in the Uniform Limited Liability Company Act, and it states in 21-148 that a dissolved LLC may settle disputes by mediation or arbitration when winding up their business. Nebraska Law on Workers Compensation 2009 revision of 48-168 allows for the Nebraska Workers Compensation Court to refer cases to a mediator or to court staff for informal dispute resolution. The court may state a date for the case to return to court, which can be no longer than ninety days after the date the order was signed unless the court grants an extension per the parties request. No settlement reached by an informal dispute resolution proceeding is final or binding unless it is consistent with the Act, and it must be voluntary. A mediator cannot make any disclosures about a mediation to a judge on the workers compensation court that can make a ruling on the case that was mediated, and cannot be considered by said judge with the following exceptions: o Mediator may disclose whether the mediation occurred or was terminated, whether a settlement was reached and disclose attendance o Mediator may disclose to the proper authority a communication evidencing abuse, neglect, abandonment or exploitation of another

Nebraska Mediation Statutes and Policies; Rev. 2/15/13

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Insurance Producers Licensing Act (44-4047 to 44-4067) 2009 revision of 44-4065 included in its definition of administrative action arbitration or mediation awards, meaning that Insurance agents or brokers are required to report to the Director of Insurance any such awards against an Insurance agent or broker in another jurisdiction Industrial Relations Act (48-801 to 48-839) 2011 revision of 48-816 had no relevant changes concerning mediation 48-818.01 implemented in 2011 pertains to school districts, educational service units, and community colleges and their certificated and instructional employees. Creates a negotiation time-line and mandatory mediation with a resolution officer, unless both parties decide to forgo the mediation. Negotiations must begin by November 1. If no agreement by February 8, the parties must submit to mandatory mediation, unless the parties agree to forgo. The resolution officer chooses the most reasonable final offer on each issue in dispute. If a party is not satisfied with the resolution officer's decision, the party may file an action with the Commission on Industrial Relations (CIR). If there is no such filing, the resolution officer's decision is final and binding. If by March 25, there is no agreement or decision by the resolution officer, a party may file a petition with the CIR by April 10. The CIR must issue a decision by September 15. According to this section, a mediator can be a resolution officer. Equal Opportunity Commission 2012 Revision of 48-1117 concerning the Equal Opportunity Commissions duties and powers had no relevant changes concerning mediation; allows the EOC to eliminate unfair employment practices by having the ability to refer parties to conference, mediation, conciliation, arbitration or persuasion Motor Vehicle Industry Regulation Act (60-1401 to 60-1440) 2010 and 2012 revisions of 60-1437 had no relevant changes concerning mediation (if a charge back is the subject of a mediation, no charge backs may be made until a final order has been issued in the case of an adjudication or legal action.) Industrial Relations Act and the State Employees Collective Bargaining Act (81-1369 to 811388) 2011 revision of 81-1381 had no relevant chances concerning mediation 2011 revision of 81-1382 had no relevant chances concerning mediation

Nebraska Mediation Statutes and Policies; Rev. 2/15/13

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ADR Developments in New Mexico After the NCSC Report 1


by Cynthia Savage, ADR Expert, NCSC David Levin, Co-Chair, New Mexico Statewide ADR Commission TRENDS STATEMENT: discussion the impact of the NCSC Report on courtconnected ADR in New Mexico, including lessons being learned from the NCSC process and from New Mexicos on-going efforts to implement the recommendations of the Report. I. Introduction Court-connected alternative dispute resolution (ADR) is valuable component of any high performing court system.2 Many states struggle with how to best integrate ADR into their courts in order to maximize the benefits without exceeding constrained budgets. The New Mexico courts took steps in 2010-2011 to assess their court-connected ADR systems and restructure services toward more productive methods.3 In 2010-2011, with funding from the State Justice Institute, the National Center for State Courts (NCSC) conducted a statewide, comprehensive assessment of New
1

Advancing Alternative Dispute Resolution in the New Mexico Judiciary: Key Strategies to Save Time and Money (National Center for State Courts, Final Report April 15, 2011, funded by the State Judicial Institute)(The New Mexico Report) www.nmcourts.gov/pdf/NCSC_New_Mexico_ADR_Final_ReportWithAppendices04-19-2011.pdf 2 ADR can save time and money by promoting early case resolution and more lasting settlements, avoiding future trips to court. Both common sense and numerous studies support the utility, efficiency and economy of settling court cases early in their life. Some research examples include: 1) A 2004 study of five courtconnected civil mediation programs (three mandatory and two voluntary) in California evaluated the programs in five areas: trial rate, time to disposition, litigant satisfaction, litigant costs, and court workload. The authors found that 58% of unlimited jurisdiction cases and 71% of limited cases settled as a result of mediation. The trial rate was reduced 24 to 30 percent, resulting in substantial savings to both litigants and the court. Savings were also realized by a decrease in the number of motions and/or pretrial court events for program cases. There was also a positive impact on the time from filing to disposition for mediated cases, and attorney satisfaction was higher in program cases than non-program cases2) A Department of Justice (DOJ) study of 15,000 civil cases filed in federal courts between 1995 and 1998 by Indiana University social scientists reported in the Ohio State Journal on Dispute Resolution (2009) found that 65 percent of the cases where mediation was used settled compared to 29 percent of the cases that settled when ADR was not used. The conclusion: ADR has the potential to improve dispute processing without sacrificing the quality of justice. 3 Rarely does an entire state court system study its alternative dispute resolution programs in such a wideranging, inclusive fashion as [was] done in the NCSC study. Rarer still is a predisposed desire by court leaders to use such data to craft ADR options in stronger, more vibrant ways as part of a renewed mosaic of justice services offered to the public. NCSC consultants know of no other state in recent times that has commissioned such a pervasive analysis. The New Mexico Report, p. 2.

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Mexicos court-connected ADR programs in appellate, district, metropolitan, and magistrate courts, in order to suggest practical strategies for improving the use and impact of ADR programs. three-person NCSC project team4 assisted by NCSC 5 research assistants, spent nearly year working in concert with twelve member statewide ADR Steering Committee6 which helped guide and direct the study. Although the analysis primarily focused on court-connected programs, it expanded to include executive branch offerings, University of New Mexico Law School mediation training, and statewide electronic Internet survey of lawyers, neutrals, judicial officers, and ADR program staff about their attitudes and opinions regarding ADR in general, and court ADR programs in particular. To complement this data gathering, NCSC team members visited the Court of Appeals, each of the 13 judicial district courts, Bernalillo County Metropolitan Court, and several magistrate courts. They interviewed scores of judges, lawyers, neutrals, and court staff about local programs and projects. Existing court-connected alternatives were making positive impacts throughout the state, but in many instances their full potential was unrealized. The assessment report offered ten ways to strengthen and improve court-connected ADR.7 These ten recommendations, not overly dependent on more money, more staff, or more space, were in harmony with the courts access to justice goals and overall 5-year strategic plan.8 The recommendations also enhanced the courts re-engineering efforts to increase efficiency. The recommendations built on prior work done by the NM courts and lessons learned from a review of national court-connected ADR programs, as well as prior analyses of then current ADR programs in the New Mexico courts. The report recommended that New Mexico: 1. Appoint and staff a permanent, high-level Supreme Court ADR Commission to provide leadership from the top to develop, organize, and monitor ADR programs throughout New Mexicos courts. 9 2. Leverage court programs through collaboration with other New Mexico organizations. 3. Maximize internal court system resources to enhance ADR programs.10
4 5

Cynthia Savage, Gordon Griller, and Kent Kelly Denver-based Erika Friess and David Sayles 6 Chaired by New Mexicos Second Judicial District Court Judge Nan Nash 7 The New Mexico Report, pp. 51 76. 8 The New Mexico Judciary Strategic Plan 2008-2013 is found at http://www.nmcourts.com/admin/2009_nmj_strategic_plan.pdf. See in particular Section V, (8) which provides, Improve the use of alternative dispute resolution methods and educate the public about the availability of such methods.
9

The New Mexico Access to Justice Commission was a model for this recommendation. For example, promote more widespread judicial commitment through concerted in-house education, training and mentoring programs, increase court-to-court technical assistance, train and utilize court staff as mediators, hold periodic retreats of court leaders to develop action plans for statewide and local court-connected directions and priorities, assess and advance transferrable, replicable court--connected programs, provide statewide technical assistance to requesting courts, and collaborate on program performance improvements. Also, a cadre of court system in-house resource experts should be determined, recruited
10

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4. Structure new and expanded ADR initiatives in short-term, intermediate and long-term phases and in pilot projects. 5. Enhance ADR training, management and operations through technology. 6. Nurture different approaches in large and small court jurisdictions. One size does not fit all. 7. Publicize and market multi-door courthouse concept, but limit advertising to what can be delivered. 8. Give self-represented litigants adequate access to court-connected ADR, through development of mutually beneficial strategies and initiatives by the ADR and Access to Justice Commissions. 9. Increase the number and quality of ADR neutrals and court programs.11 10. Upgrade services through long-term, dedicated funding.12 II. Lessons from Conducting the Assessment In the course of conducting the study, the NCSC learned several valuable lessons about what aspects of the assessment process worked well, in addition to challenges to overcome. These lessons could help other states interested in conducting similar assessments. Two key elements helped the assessment succeed and helped ensure implementation of the resulting recommendations. First, the local steering committee, combined with autonomy for NCSC project staff, was critical to structuring and implementing the assessment so that it was most appropriate and relevant to the courts and other ADR-related organizations and individuals in New Mexico. This combination also helped promote buy-in for the resulting recommendations. The challenges of working with the committee were primarily logistical, as committee members resided and worked throughout the state. Project staff met with the committee about once a month, beginning with video-conferencing and subsequently changing to teleconferencing, which was easier to accomplish technologically. Staff met in person with most of the committee during a site visit about two months into the project; this meeting helped build rapport and trust. Having the initial visual provided by video-conferencing and the
and utilized to work with programs and courts outside their jurisdictions as consultants under the authority of the Commission in court-to-court technical assistance efforts through teaming and partnership programs. The members of the ADR Study Steering Committee represent a brain trust of knowledge and expertise in ADR that is extremely valuable in building and sustaining momentum about the issues and suggestions outlined in the NCSC report 11 Although much of the discussion of quality in ADR focuses on the neutral, there are number of other interconnected topics which also need to be addressed in order to maintain and enhance quality, particularly for court-connected programs. These themes fall under the umbrella of program design, and include selecting ADR processes, the case referral system, program policies and procedures, staff and related personnel, ethics, marketing/education, funding, and program evaluation. 12 Sustainable funding for court-connected dispute resolution alternatives is only possible through two approaches: either stable, General Fund core support for court-connected ADR, and/or a specific surcharge attached to filings that cannot be diverted to offset reductions elsewhere in court budgets.

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subsequent in-person contact both contributed to being able to work together more effectively. The second critical element was the in-person site visits to all judicial districts by NCSC project staff. These visits were particularly important for gathering accurate information, including a deeper understanding of New Mexicos cultural and geographic diversity and how this mix impacted different districts range of possibilities for designing and implementing ADR programs.13 The logistical challenge was addressed by having the project staff split up and conduct many of the site visits individually rather than having the entire team visit every site. third element of the assessment, the Internet surveys, provided important information but were also challenge to design and administer. Challenges included identifying appropriate groups, limiting the number of questions, and securing participation. Ultimately, four separate surveys were distributed, targeting different categories of responders: attorneys, neutrals/providers, judges, and non-judicial court staff managing ADR programs. Respondents who functioned in dual roles, such as attorneys also serving as neutrals, were free to complete more than one survey to report differing perspectives if they wished. Anonymity was assured to encourage candid and open feedback. Ultimately, the surveys generated less participation than would have preferred, but enough to provide input. III. Release of the Report

The NCSC report had an immediate impact in New Mexico. Anticipation of the reports release had been growing. The actions of the Supreme Court to commission the study created an expectation that something was going to happen. The NCSC activities during the ADR study, such as the site visits, also generated considerable interest. The Steering Committee engaged many key members of the New Mexico judiciary and the ADR profession. Organizations, such as the State Bar ADR Committee and the New Mexico Mediation Association, prepared to respond to the report. The release of the report was turning point. On the same day the report was presented, the Supreme Court adopted the report and the ten recommendations.
As in many states New Mexicos approach to court-connected ADR was largely locally operated and varied as to quality and sophistication throughout the state. Urban, higher populated jurisdictions had dedicated staff, well structured programs, website information, standard procedures, and departmental dockets organized by case type which permit efficient, uniform front-end ADR applications by staff. At the opposite end of the spectrum were unsystematic efforts in sparsely populated regions where judicial officers had limited staff, programs were developed individually by judges, courts generally had no website presence, procedures were minimal or varied from judge-to-judge, judges often handled an eclectic assortment of matters each day hampering methodical ADR assistance, and trained neutrals were not available. Existing programs could be grouped in three clusters of activities: court-connected programs that operated under statewide guidelines, unique stand-alone jurisdictional programs, and independently operated and locally developed initiatives. Each had certain strengths, weaknesses and target audiences.
13

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Supreme Court Justice, Edward L. Chavez, agreed to be Co-Chair of the Commission. If previously ADR had been minimized as found by the Report, now the highest court in the state had made ADR priority.14 IV. Commission Formation

The NCSC role was completed with the release of the Report. Implementation of the ten approved recommendations was delegated to the Statewide ADR Commission. During the summer of 2011, the Commission was formed. By design, the 20 Commissioners included members of the judiciary and the bar, representatives from organizations, such as the University of New Mexico School of Law, the New Mexico Mediation Association, the State Bar ADR Committee, and individuals from diverse backgrounds, including Commissioners from different geographic areas, nonattorney ADR professions, and the business community. Co-Chair was selected, David Levin, and full time staff member of the Administrative Office of the Court. Marsha Lichtenstein, was assigned as part-time statewide ADR coordinator to support the work of the Commission. The Commission had strong starting philosophy. On one hand, one size does not fit all. Each judicial district needed the autonomy to develop ADR programs which fit their local needs and resources. On the other hand, statewide resources could be mustered to provide an otherwise unavailable economy of scale, and statewide leadership could support program development and quality assurance. This twofold approach was deemed to be critical. In addition, the imperative for results was expressed by Justice Chavez, government does not fail for lack of ideas, government fails for lack of execution of the ideas.
The Commission also recognized that immediate implementation of all ten recommendations and each aspect of each recommendation was unrealistic. As will be seen, the work of the Commission is continuing to seek out what priorities would lead the way to doable implementation of the overall mission to strengthen courtconnected ADR in New Mexico.

early success was the establishment of scholarship fund for two members of the judiciary to attend every Basic and Family Mediation 40 Hour Training at the University of New Mexico School of Law. Justice Chavez attended Basic Mediation Training during the fall semester. The purpose was to provide judicial officers and

14 There had been previous studies of court-connected ADR in New Mexico, although none were as thorough and comprehensive as the NCSC report. For example, on July 31, 1993, massive report, The Future of Alternative Dispute Resolution in New Mexico: Study and Recommendations to the New Mexico Supreme Court was submitted. Notwithstanding the high quality of the report and the excellence of the consortium which prepared the document, the report was relegated to gathering dust on shelf somewhere in the library.

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staff with first-hand knowledge of mediation as a tool for leading the design of enhanced court-connected ADR programs in their respective courts.. During the fall, the Commission worked to organize an approach for achieving its mission. Commissioners were divided into three committees to develop set of strategic plans addressing three areas: education, quality, and resources. The Commission anticipated preparing an overall strategic plan from the work of the committees. The committee reports were presented at the January, 2012 Commission meeting. However, by then an important lesson had been learned which redirected the immediate focus of the Commission.. V. The Summit

The original goal had been to rollout comprehensive ADR plan at the Judicial Conclave in the spring of 2012. However, the Commission leadership observed that the statewide understanding and awareness of court connected ADR, including that of the Commission itself, needed to be stronger. The spring goal shifted to education. Summit would be held, where the leaders of the judiciary could come together to acquire common understanding of ADR, and where enthusiasm for going forward to build and/or improve ADR programs in the New Mexico courts could be inspired. concomitant belief was gaining recognition: Beyond improving docket control, ADR could enhance the quality of justice and provide significant benefits for the parties as well as the courts. The Summit was intended to explore the full range of ADR benefits. In addition, while the Commission desired to address all forms of court-connected ADR, the decision was made to focus the Summit on the single most popular form of dispute resolution, mediation. The Summit was planned for May, 2012. In the preceding months, preparation went beyond inviting representatives from each judicial district and from other judicial courts and administrative entities, and included three elements: A planning team , chaired by Commission Co-Chair David Levin. The team designed a program to stimulate interest, provide information and understanding, evoke conversation, and generate enthusiasm. The format included: a combination of plenary presentations and plenary discussions, small group roundtables and breakout groups, surveys, and materials to read before the Summit. Three research teams prepared reports and presentations on mediator basic qualifications, mediator basic standards, and mediation program basic requirements. The teams looked at the available national standards, the experiences of other select states, and the experiences of court-connected ADR services within the state of New Mexico. In addition, each team considered whether these targeted areas might vary by subject matter area, as well as how the

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areas would impact the relationship between the Supreme Court/Administrative Office of the Courts and local courts. A partnership with the state of Ohio. Jacqueline Hagerott, Manager, Dispute Resolution Section, Supreme Court of Ohio, joined the Summit planning team. She recruited W. Milt Nuzum III, former Judge and Director, Office of Judicial and Court Services, Supreme Court of Ohio and Richard Altman, Magistrate Judge, State of Ohio, to participate in the Summit. Ohio had a history of developing court-connected ADR services in a state analogous to New Mexico. For example, there was a statewide ADR office and an ADR commission, a vast number of independent judicial districts, and a desire to balance local autonomy with statewide resources and quality assurance. The participation of Ohio brought an important dimension to the Summit: the vision of bringing court connected ADR to a diverse state was possible. The Summit was tremendous success.15 People left energized and interested in working on furthering court-connected ADR in New Mexico. However, there was lingering concern regarding how to find resources and the specific doable ideas which would implement those aspirations. These concerns led to new set of initiatives. VI. Post-Summit Initiatives: Pilot, Marketing, and Rules

The Commission faced two post-Summit challenges. First, the planning team and the Commission leadership had dedicated time to the Summit in addition to their respective regular duties. After the Summit, the planning team and the Commission leadership had to return more exclusively to their ordinary duties, reducing the energy and time for follow up. Second, concrete projects for capitalizing on momentum were needed. Three were chosen: A Pilot Project was established to support the development of a family mediation program in the Ninth Judicial District. Commissioners visited the district on the far eastern side of the state and began a working partnership with the Staff Attorney and the Chief Executive Officer of the district. Collaboration included work on forms, organizational ideas, mediation mentoring, program design, and how to build a mediation court services program. The goal was twofold: to support the local program and to develop a prototype of how to support other programs around the state. To date, the results are impressive. The early returns indicate that mediations are helping cases move forward and the participants are highly satisfied with the service.

15

While a detailed description of the Summit discussions would exceed the scope of this article, the Summit page on www.nmadr.org has comprehensive information and materials, including participant surveys and feedback forms and flip charts..

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A Marketing Committee was established to promote court-connected ADR. The committees first task was to develop a video(s) for use throughout the state. Work on this project is on-going. A Rules Committee was established to draft proposed rules governing court mediation services. The primary resources for the draft were: Model Standards of Conduct for Mediators, National Standards for Court-Connected Mediation Programs, Model Standards for Family Mediation, and applicable New Mexico law. Proposed rules were drafted and approved by the Commission at the August, 2012 meeting.16 The Supreme Court then approved publication of the Proposed Rules for comment, bringing unexpected results. VII. Post-Comments Action

There were 133 pages of comments from throughout the state. There were constructive suggestions, favorable comments, criticism, and significant misunderstanding of the intent of the proposed rules. Adoption of the rules after minor modifications was not an option, because of the scope and depth of the comments. However, the comments did open an important opportunity for serious discussion of court-connected mediation. The Commission, once again, revised its approach. Goals for the first half of 2013 were selected: Back to the Drawing Board. The Rules Committee was charged to work with the commenters and their concerns. The substantive issues include the difference between guidelines and rules, practical mechanisms for program administration and quality assurance, clarification between the goals of local initiatives and statewide standards, how the rules would differently impact existing programs and new startup programs, and how to prepare a simplified, yet effective, statewide statement of purpose and implementation, whether as a rule, standards, or guidelines. How To Toolboxes. The Commission also decided to pursue developing a concrete set of toolboxes for use by courts in developing and/or supporting their programs. Ideas included how to handbooks developed from the pilot project, web based resources and communications, and regional trainings. Training on Program Development. The Ohio Summit participants were invited to return to conduct, along with New Mexico subject matter experts, a prototype training for how to establish a magistrate court mediation program by creating a source of program development ideas, task outlines, materials, policies,
16

The Proposed Rules are found that www.nmadr.org.

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and procedures for individual courts to consider for when working on their programs. The training is scheduled for March, 2013. Work on these initiatives is on-going. However, another long term goal was also identified: Staffing. There was a significant missing resource for the Commission: a fulltime court connected ADR professional. Volunteer time and a part time staffer had successfully achieved results which exceeded all expectations during the first year of the Commission. However, volunteer time plus a part time staffer was not enough for the long term. How to meet this need remains an important issue. VIII. Conclusion: Lessons Learned Going Forward

The story of the first year of the Commission is instructive. The NCSC report provided clear and thorough vision. However, discovering how to implement the vision had been delegated to the Commission. To quote from the NCSC report, page 55, Implementing court-annexed dispute resolution alternative in complex court case flow process is not for the short-winded or organizationally challenged. Major change takes time, sometimes lots of time. And it requires methodical, thoughtful planning and experimentation focused on range of short-term, intermediate and long-term timelines. Italics added. There is need for immediate successes to reassure people that realizing the vision provided in the NCSC report is possible. There is natural desire to have the world change overnight. Yet, change does take time and does require deliberate and flexible sequence of developmental stages. The goal of balancing local initiative and statewide standards and resources is complex undertaking, which requires listening to others, being creative and responsive to various needs and interests, learning the field and being open to new ideas, collaborating with sister state, and inspiring others with an example of patience, persistence, and realistic belief in what is achievable. key lesson is to recognize that courts are similar to the prospective mediation clients that courts seek to serve: they are all different and there is desire to exercise constructive self-determination with varying degrees of information, experience and expertise, local practice and culture, and know how. At the same time, there are statewide issues, such as how minimum standards for quality assurance are maintained. challenge is to balance these interests. The Commissions next steps, as described in the preceeding Post-Comments Initiatives, reflect this on-going balancing effort. As with mediation, the process requires constant monitoring and adjustment to support the opportunity for variety of court interests to be served by enhanced court-connected ADR. The top9

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down and bottom up pressures must be acknowledged and addressed to resolve the dispute of how to move state forward. The NCSC report has been turning point for New Mexico. The report created vision. The Supreme Court created mandate to go forward. The diversity of the state created multiple challenges as to how to proceed. solid beginning has taken place. However, every step requires renewal of commitment, time, and energy. Every journey of growth has stages that work and stages which are problematic. The Supreme Court created ADR Commission has continued to demonstrate persistence and adaptability to meet the challenges. The authors of this article forward look to reporting in the future what happens next. 17 RESOURCES: Advancing Alternative Dispute Resolution in the New Mexico Judiciary: Key Strategies to Save Time and Money. National Center for State Courts, Final Report April 15, 2011, funded by the State Judicial Institute. www.nmcourts.gov/pdf/NCSC_New_Mexico_ADR_Final_ReportWithAppendices0419-2011.pdf Summit 2012 Website. www.nmadr.org/index.php?p=1_7_ 2012 Annual Report of the Statewide Alternative Dispute Resolution Commision. www.nmadr.org/web_documents/2012_statewide_adr_commission_annual_report.pdf Report of the Pilot Program Sub Committee. www.nmadr.org/web_documents/final_report_of_the_pilot_project_subcommittee_aug_ 15.pdf Proposed Rule Governing Court Connected Mediation Services as published. www.nmadr.org/web_documents/proposed_rule_governing_court_connected_mediation_ services_as_published.pdf New Mexico Judiciary Strategic Plan 2008-2013 http://www.nmcourts.com/admin/2009_nmj_strategic_plan.pdf AUTHOR CONTACTS

17 The 2012 Annual Report of the Statewide Alternative Dispute Resolution Commission is found that www.nmadr.org.

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Cynthia Savage, ADR Expert, NCSC (303) 596-4304, cidsavage@aol.com David Levin, Co-Chair New Mexico Statewide ADR Commission (505) 463-1354, davidlevin@mindspring.com

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The New Mexico Experience: Change Challenges Early Established Programs


(Clinical Observations by one Attorney-Mediator-Court Administrator) By David Levin THE ABBREVIATED SAGA New Mexico has a long tradition of dispute resolution. Native American, Hispanic, and other diverse cultures predate the contemporary emergence of the Anglo-American legal system. Therefore, to consider the discovery of alternative methods of dispute resolution by the AngloAmerican legal system as recent is ironic, although that is the subject matter of this essay. New Mexico is a large geographic, lightly populated, economically poor state. Albuquerque, the largest population center, and Santa Fe, the state capital, have an advantageous concentration of resources. Many ADR initiatives were born in these locations, which were both resented and duplicated by outlying districts. However, the other more isolated areas were also the sites of innovative implementation of ADR. In all fairness, this is a personal saga by a non-historian, Second Judicial District (Albuquerque) centric, Anglo male who emigrated to New Mexico during the early 1970's, joined the legal community, and participated in the transition of ADR being viewed as from the realm of the flakey fringe to become a standard of care practice for the legal profession. I was fortunate to be involved in the formative events and initiatives. By the 1980's, the New Mexico Mediation Association and several community mediation centers had formed. Court connected ADR included (1) family custody mediation; (2) non-binding advisory arbitration; (3) civil settlement facilitation (settlement week and year round); (4) family settlement facilitation (settlement week and year round); and (5) Metropolitan and Magistrate Court small claims mediation. And the innovations kept coming, such as the Childrens Court Abuse and Neglect Mediation Program, and the Court of Appeals Appellate Mediation Program. New Mexico has studied progress in the state and sought recommendations for the future, beginning with the 1993 ADR Report commissioned by the New Mexico Supreme Court, and the 1993 Metro Court Project Report on ethnic and gender in mediated cases. These studies were followed by many additional reports, many of which are found at http://www.nmbar.org/Content/NavigationMenu/ Divisions_Sections_Committees/Committees/ADR/ADR.htm. Thus, when New Mexicans traveled across the nation, we found inspiration from the work of others, and we also discovered that New Mexicos innovations were often in the forefront of ADR.

SETTLEMENT FACILITATION AS MEDIATION On November 6, 1989, The New Mexico Lawyer newspaper reported, Settlement Week Wins High Praise. The late 1980's was a radically different era from today, and settlement facilitation was unknown. For a litigant to discuss settlement was seen as a sign of weakness. Cases were not settling because attorneys were afraid to talk. By local rule, the Second Judicial District Court
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established settlement week and year round settlement facilitation. Participation became mandatory, and people began to learn settlement facilitation worked. Eventually, judges began to require that civil and family cases go to mediation before trial. As settlement facilitation became more popular, the court established a Court Alternatives Division to administer the programs. In the legal community, a private industry of mediators sprung up to serve an increasing demand for settlement facilitation. The term mediation was applied to the process, although the format of a facilitated settlement conference was used. Typically, beginning with a joint opening session, lawyers made opening statements. Shuttle diplomacy followed, with the facilitator being often highly evaluative - an effective, kinder and gentler legal procedure. Thus, a culture and a practice called mediation was institutionalized, and remains virtually unchanged today. Included in the program materials is a file, Settlement Facilitation Training Materials, which further describes settlement facilitation. In particular, see sections: What is Settlement Facilitation?, Is It Mediation or What?, and Anatomy of Settlement Facilitation.

SO WHERE IS THE RUB? In the decades since New Mexicos court connected programs were created, learning has advanced regarding dispute resolution, quality assurance, program administration, and skill sets. The rub is whether the habits formed in the late 1980's need to be updated, or whether settlement facilitation is just fine as is. There are many dimensions from which to view the issues. Here are three which illustrate major, inter-related themes. For reference, the perspectives may be labeled: How to Resolve Disputes; Who Resolves Disputes; and A Different World. Note that there are no bright lines of distinction between the discussions. Any form of dispute resolution, any model of mediation, is complex and non-linear, such is the marvel of human interactions. How to Resolve Disputes? During the spring and summer of 2006, we held a series of workshops, focus groups, and discussions. The purpose was to bring together the mediation and the legal communities. We were interested in how the two different cultures would interact. The methodology was ad hoc and informal. Thus, the results are subjective and anecdotal. By legal community, we are referring to veteran lawyers who provide settlement facilitation services. By mediation community, we are referring to non-attorney mediators who generally practice a more facilitative model of dispute resolution.
The New Mexico Experience, David Levin, April 2007, page 2

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In two workshops for attorneys, veteran facilitators explained that shuttle diplomacy between the two sides was safer. If people meet face to face, it might get out of hand. While there was a confidence to handle negotiations, some felt ill-equipped to work with the anger. In the next two workshops for attorneys, veteran non-attorney mediators attended. The benefits and techniques from working with both sides together were presented, demonstrated, and discussed. While attorneys appreciated the skill set, the pure mediation communication format frustrated many - it was inefficient, off-point, and a waste of time. There is truth in both perspectives. Some situations are aided by evaluative feedback from the neutrals; some by facilitative support for working together. Both are forms of dispute resolution; both may be called mediation. The real challenge is how to match a case, or a moment in a case, with the most appropriate process. For a program administrator, the implications are contradictory. One on hand, each approach implies a different programmatic paradigm. On the other, disputes between humans do not come neatly packaged where the application of a defined, single approach will always be a perfect fit. Who Resolves Disputes? The issue is more than best practices. The pool of facilitators is another friction point. In the 1980s, we were just delighted to have facilitators. Now, in Albuquerque, we have over 150 family court facilitators, and we have even more in civil court, over 360 facilitators. In addition, success has spawned a thriving practice of settlement facilitation which is independent and separate from the court connected programs. One question is who gets cases? In the court connected program, work during Settlement Week is a pro bono public service. When the demand for settlement facilitation out grew Settlement Week, a Year Round program was established. In the Year Round program, facilitators may be paid a flat fee or an hourly rate. Every facilitator is asked to participate for free in Settlement Week. In civil court, facilitoators are primarily picked by the parties (a popularity method). The inequality is that not every facilitator is selected by the parties for Year Round: only approximately 60 facilitators are chosen, approximately 300 are not. In family court, the cases are more frequently assigned on a rotating basis (a random method), which causes a more even the distribution of paid cases. However, a different numbers problem exists: who gets in the pool? Everyone, regardless of experience or expertise, wants to build a dispute resolution career. This question raises the issue, What Does a Settlement Facilitator Need to Know? The context of settlement facilitation indicates that a settlement facilitator, or pair of co-facilitators, should have awareness of knowledge and skill in at least the following areas:

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The New Mexico Experience, David Levin, April 2007, page 3

Process Awareness: Settlement facilitators should have an orientation to dispute resolution techniques in general, and the context of court annexed settlement facilitation in particular. Court Awareness: Settlement facilitation takes place in the context of litigation. Therefore, settlement facilitators should have an orientation to the procedure and substance of the legal system. Subject Matter Awareness: Settlement facilitation offers an evaluative component. Therefore, settlement facilitators should have an orientation to the subject matter of the case. Consumer Awareness: Settlement facilitation is a service for people. Consumers approach settlement facilitation from all stages of life and from an infinite variety of backgrounds and experiences. This diversity applies to parties, attorneys, and facilitators. Therefore, settlement facilitators should have the ability to perceive and to work the uniqueness of each person who participates in the process, including a self awareness of the influence of the settlement facilitators own background on the process. Civil/Family Court Awareness: Settlement facilitation thrives in both the Civil Court and the Family Court. Therefore, settlement facilitators should be aware of the differences and similarities between these two distinct environments. Attorney or non-attorney facilitator is also a hot topic: In the Second Judicial District, civil cases commonly have a single attorney facilitator. In family cases, particularly during Settlement Week, an attorney is often paired with an accountant or counselor. Assigning a single, non-attorney mediator is uncommon in both areas.

For a program administrator, particularly where the large pool of neutrals grew on an ad hoc basis, who gets to facilitate is problematic. In the Second Judicial District, we have frozen the pools and we are working to ask and to solve the hard questions. A Different World Since the late 1980's, the landscape has changed: Self-represented litigants are flooding the courts; Low income disputants without access to legal resources are increasing; Case loads are growing; Judicial budgets are more constrained; Numbers of actual trials are declining.

For program administrators everywhere, these are common issues. In a poor, geographically spread out, culturally diverse state like New Mexico, there are additional constraints.

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The New Mexico Experience, David Levin, April 2007, page 4

BUILD AROUND SUCCESS Settlement facilitation works. The process is a New Mexico hybrid of facilitated settlement conferences and mediation. There is a tradition, a popular and effective practice, and a niche expertise. Therefore, the mission is to strengthen, update, and supplement more than two decades of dispute resolution history. Settlement facilitation is more fully detailed in the attached file, Court Workshop 1, Levin, Settlement Facilitation Training Materials.PDF. Three judicial districts - the First (Santa Fe), the Second (Albuquerque), and the Thirteenth (counties in close proximity) have collaborated in program design. The initiatives of other districts are developing. State wide entities such as the Administrative Office of the Courts and the State Bar ADR Committee are contributing. Court connected ADR, once found in only some districts, is spreading. Innovations are blossoming. What is interesting is overcoming constraints. Resources are scarce and spread out. Too much tinkering with settlement facilitation could be ruinous. New dispute resolution techniques are often counterintuitive to the adversarial system. Further, some districts have long established programs (Second), and some are more or less starting from scratch (First and Thirteenth). For program administrators, the transition to the next generation of dispute resolution is exciting. However, care must be given to what is done, because todays innovations may become tomorrows habits. New Mexico does not appear alone. Our travels find other states working hard to establish ADR programs, facing the same constraints, and looking at how to update their systems.

EMERGING INITIATIVES Efforts are being made on many levels: attitudes, professional culture, procedures and forms, training requirements, methods of court connected dispute resolution, program design and implementation, technology, needs based resources, quality assurance, pool membership and maintenance, and compensation for neutrals. Across the spectrum, several themes emerge. Mediation Communication Skills. Lawyers, who are trained in negotiation and advocacy, would benefit from the package of communication skills which are typically found in a 40 hour mediation training. Active listening and related skills open the possibilities for fuller self-determination for participants in dispute resolution. For example, mediation communication techniques often redefine face-to-face discussions from risky propositions to productive opportunities. These tools, as many program administrators are aware, inherently transform the culture of working with conflict. For settlement facilitation, a legalistic and evaluative process, the issue is how to introduce this skill set.

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The New Mexico Experience, David Levin, April 2007, page 5

In new programs, such as Alternative Dispute Resolution Program Pilot Project in the First Judicial District, a 40 hour mediation training has become a pre-requisite. For new lawyers, their law school experience frequently includes a 40 hour mediation training. A harder undertaking is how to bring these supplementary skills to the present practitioners. There are at least two critical thresholds to cross. First, motivation: the legal community needs to see concrete benefits for expanding their style of resolution. Second, learning: how will existing legal education formats be adapted to long term learning and to attract practitioners. In New Mexico, we have had very mixed results in social marketing and in various training formats. Technology. The Alternative Dispute Resolution Program Pilot Project in the First Judicial District has developed an inexpensive software package for managing their new settlement facilitation program. Recognizing that existing court staff is already working to capacity, and that funds for new employees are scarce, the software reduces the administrative overhead for operating the program. Several other districts are investigating adapting the software for their needs. Screen shots are included in the attached file, Court Workshop 1, doc5c, Levin, Excerpts from First Judicial District.PDF. Mediation Programs. The Thirteenth Judicial District set up companion mediation and settlement facilitation programs, as follows: The Civil ADR program may apply to all civil lawsuits by request of the parties or the Court. ADR services include traditional problem-solving mediation or settlement facilitation, a more evaluative process. Mediation and settlement facilitation is conducted by attorneys and other ADR professionals as agreed upon by the parties or ordered by the Court. The Court maintains a list of mediators and settlement facilitators with specific subject area knowledge who are compensated by a flexible party-pay system. Court Workshop 1, doc5c, Levin, Excerpts from Thirteenth Judicial District.PDF. In the Second Judicial District, a staff mediator is being hired to work with low income Family Court litigants. The scope of mediation supplements the custody mediation available with the Family Court Clinic, and will include all aspects of a case. The vision is to expand the number of staff mediators, create a pool of outside mediators, and bring mediation to Civil Court as well. These mediation initiatives are designed to complement settlement facilitation. The programs are works in progress, to be monitored, continually assessed, and subject to on-going development. While providing a needed public service, the goal is to perfect our multi-door court house. Self-Represented Litigants. Settlement facilitation has primarily been used when both parties have been represented by counsel. The Second Judicial District has a Pro Se Division, which assists selfrepresented litigants mainly with the necessary forms to initiate judicial proceedings. An initiative is underway to make ADR in general, and settlement facilitation in particular, more accessible and effective for the self-represented.

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The New Mexico Experience, David Levin, April 2007, page 6

Family Court is experiencing an ever-increasing number of self-represented litigants. The dynamics of settlement facilitation are impacted if there is one self-represented party and one attorney represented party, or if both parties are self-represented. The Court is working to develop both internal and external ways to make ADR available to all litigants. Our facilitators can expect an increased presence of self-represented parties. The Court often sets the settlement facilitation fee in Family Court cases. We have primarily utilized a fixed flat fee for the past number of years and plan to revisit this issue. There are several factors to balance, including (1) the fee should match the economic standing of the parties; (2) the fee should support the facilitators need to make a living; and (3) facilitators receiving paid cases should also have pro bono cases. While some initiatives will particularly benefit the self-represented, each item may benefit every case. We will be working on (1) orientation of self-represented parties prior to settlement facilitation; (2) guidelines for facilitators for what information to provide self represented parties; (3) forms, particularly memorandums of agreement for specific subject matter areas for use during a settlement facilitation with self-represented litigants; (4) court initiated follow-up hearings after a facilitation to finalize the agreement or address future process; (5) facilitator training for working with the selfrepresented; and (6) other innovations, including how to distribute self-represented cases. Pools. See discussion in the Who Resolves Disputes? above.

SUMMARY For program administrators in New Mexico, there is the legacy of early and successful ADR programs. However, there are also new demands and pressures on the courts. In addition, there is increased knowledge and experience regarding dispute resolution since the days of the pioneers. In New Mexico, and likely in other states as well, there is the opportunity to address the next generation of interests and needs. This essay with the attachments offers a survey of what New Mexico is facing. We have come forward to exchange ideas. Our belief is that New Mexico is not unique. There are others who are balancing legacy and reform. We have approached this panel discussion like a mediation, where in return for candor and open mindedness, a space will open for creative collaboration regarding common problems. This is why we have brought our story to the table. We hope you will join us to work together to find solutions for the challenges faced by many ADR program administrators. Thank you.

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The New Mexico Experience, David Levin, April 2007, page 7

FORECLOSURE MEDIATION: RESPONDING TO THE CURRENT CRISIS JACQUELINE C. HAGEROTT I. INTRODUCTION

When the foreclosure crisis hit Ohio, both the executive and judicial branches of government took action to counter the crisis. The governors response to the crisis was to form a task force to study the crisis and make recommendations on how Ohio might stem it. The recommendations of the task force led to the creation of the Save the Dream Ohio initiative. While the executive branch turned to task forces and initiatives, the judicial branch opted to develop foreclosure mediation programs to manage an increased caseload due to the increasing number of foreclosures. Chief Justice Thomas J. Moyer proposed that mediation be used to manage the increased caseload; the Supreme Court of Ohio then set about to create a model for the lower courts to follow when designing a local foreclosure mediation program. Several months later, the Chief Justice announced the Foreclosure Mediation Program Model (the Model); the Model is the first of its kind in the United States. The Model developed in Ohio provides a model not only for Ohio courts but also for other states wishing to implement mediation in foreclosure cases. The Model consists of eleven steps and provides an efficient and thorough approach to designing a foreclosure mediation program. The Model considers who the stakeholders will be in the mediation, state laws and local rules, and provides a suggested timeline for the mediation program from pre- to post-mediation steps. Nearly every county in Ohio now offers foreclosure mediation based on the Model developed by the Supreme Court of Ohio. As the counties
Copyright 2012, Jacqueline C. Hagerott. Manager, Dispute Resolution Section, Supreme Court of Ohio. J.D./LL.M., Capital University Law School; B.S., The Ohio State University; A.A.S., Bismarck State College. This article is based on the authors experience and represents the views of the author, not those of the Supreme Court of Ohio. The author is grateful for the contributions and invaluable assistance of C. Eileen Pruett, Manager, Small Claims Division and Dispute Resolution Department, Franklin County Municipal Court, Columbus, Ohio; Thomas Wang, Case Mediator, Dispute Resolution Section, Supreme Court of Ohio; Jennifer Herman, student at the Moritz College of Law, The Ohio State University; and Alyssa Phillips, student at Capital University Law School.

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implemented the Model, the Models designers and implementers learned which aspects of the eleven-step Model and which general mediation concepts to emphasize in future implementations. Over time, the Models designers developed a checklist to implement it successfully. Section II of this article provides an in-depth look at the history behind the Models creation. Section III discusses process and procedure of a mediation program. This section illustrates how local needs and state laws may affect foreclosure mediation processes; Ohio provides an example of these effects. After Section III discusses how local conditions may affect a foreclosure mediation process, Section IV discusses the need for a local court to standardize its own documents and forms. Though local conditions may affect not only the program design but also which documents and forms a program uses, the documents and forms should not vary from mediation to mediation within a local program. Section V then tackles the issue of training and ongoing professional development for the mediators in a foreclosure mediation program. Section VI details the eleven steps of the Model. Section VII thoroughly discusses the aspects of the Model and general mediation concepts that implementers should emphasize, as well as the implementation checklist. Section VIII briefly discusses projected trends in measures designed to counter the foreclosure crisis. II. HISTORY OF FORECLOSURE MEDIATION IN OHIO Former Governor Ted Strickland established the Foreclosure Prevention Task Force (Task Force) in March 2007 to provide a unified and coordinated statewide response to the dramatic increase in foreclosures in Ohio.1 The Task Force issued its report in September 2007 with twentyseven recommendations on how Ohio could stem the foreclosure crisis.2 The number one recommendation of the Task Force was to create and conduct a public awareness campaign and conduct borrower outreach events to encourage borrowers to contact their lender if they are facing an [adjustable rate mortgage] reset or if they are having trouble making their mortgage payment.3 In March 2008, this recommendation led to Save
OHIO FORECLOSURE PREVENTION TASK FORCE, FINAL REPORT 1, 6 (2007), available at http://www.com.ohio.gov/admn/docs/FPTFFinalReport.pdf ($1 trillion in adjustable rate mortgages are expected to reset nationally, including an estimated $14 billion in Ohio from 20072012). 2 Id. at 1. 3 Id. at 4.
1

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the Dream Ohio (SDO), a multi-media foreclosure prevention initiative that aims to help Ohioans save their homeownership dreams.4 In addition to the Task Force organized by the former governor, Chief Justice Thomas J. Moyer proposed in late 2007 that Ohio courts develop foreclosure mediation programs to manage the increasing number of foreclosure filings. Mediators in these foreclosure mediation programs use a facilitative approach, meaning that the mediator is a neutral third party rather than an advocate for either and serves as a guide to the parties. The mediator leads the parties through a party self-determination process to explore possible resolutions to the foreclosure and to see if the parties can reach a mutually acceptable agreement to resolve the foreclosure.5 Then, in February 2008, Chief Justice Moyer announced an innovative new model called the Foreclosure Mediation Program Modelthe first of its kind nationally.6 The Model contains eleven steps (outlined below) that were designed by a workgroup made up of stakeholders listed in Step One of the Model and led by the Dispute Resolution Section of the Supreme Court of Ohio.7 The Model follows the rules of civil procedure, consistent with all other civil cases, while giving borrowers the same access to mediation that has been regularly available for other case types for more than a decade. Ohio has learned that mutually beneficial agreements do not always result in keeping people in their homes. In some cases, an agreement that is both commercially reasonable and sustainable over time cannot be achieved. However,
See SAVE THE DREAM OHIO, SAVE THE DREAM 2009 ANNUAL REPORT, available at http://savethedream.ohio.gov/docs/SVTDAnnualReport.pdf. 5 Foreclosure Mediation Program Model Overview, THE SUP. CT. OF OHIO, http://www. supremecourt.ohio.gov/JCS/disputeResolution/foreclosure/overview.asp (last visited Feb. 20, 2011) [hereinafter Model Overview]. 6 Id. 7 Id. Step One of the Model describes a meeting with stakeholders such as: judges; magistrates; lenders; attorneys for borrowers and lenders; community organizations; mediators; legal aid organization; clerk of courts; county auditor, treasurer and/or commissioners; local social service agencies; community organizations such as churches, homeowners and bank associations, etc. to discuss foreclosure mediation. Foreclosure Mediation Resources, Foreclosure Mediation Program Model, THE SUP. CT. OF OHIO, http://www.supremecourt.ohio.gov/JCS/disputeResolution/foreclosure/ (lasted updated Oct. 2009) [hereinafter Foreclosure Mediation Resources].
4

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CAPITAL UNIVERSITY LAW REVIEW mediation has proven successful in resolving cases by creating a transition for borrowers to find alternate housing and avail themselves of other resources to manage a difficult situation . . . . [S]ome foreclosure cases[, however,] need to be resolved through litigation.8

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One successful factor used includes housing counseling agencies approved by the U.S. Department of Housing and Urban Development (HUD) because they help borrowers compile and provide the lender9 with the financial information necessaryprior to the mediationto reach an agreement.10 The result is an efficient and effective use of state allocated resources because all parties are fully prepared for the mediation session, thereby minimizing the requirement for an additional session due to a lack of information. . . .11 In addition to all parties being fully prepared for the mediation, the mediators training also contributes to the potential success of the mediation program; the Supreme Court of Ohio recommends the mediator have a minimum of eighteen hours of training before mediating a foreclosure case. Because prior exchange of all necessary information is so critical to the mediations success, some local courts may choose to conduct premediation conference calls to confirm not only that the parties have exchanged all necessary information but also attendance on the scheduled date. In addition, to minimize the costs potentially charged to the borrower, some courts allow the lender to participate by telephone by designating an individual with authority to settle (or having an individual with the required authority available for the duration of the mediation session), especially when the lender is located in a different state or country.12 III. PROCESS AND PROCEDURE Successful programs start with a foundation that includes organized processes and procedures, as well as documents and forms for each aspect. The Model provides local courts with the tools necessary to build foreclosure mediation programs. These tools include a step-by-step

8 9

Model Overview, supra note 5. For purposes of this article, the term lender includes lenders and servicers. 10 Model Overview, supra note 5. 11 Id. 12 Id.

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process, including procedures, forms, and other available resources.13 One of the first goals for administrators is to define mediation so that participants know what to expect from the process. The Ohio Uniform Mediation Act (UMA) defines mediation as any process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.14 States process real estate foreclosures differently using judicial and non-judicial foreclosure processes.15 The terms and time frames used within each system vary from state to state.16 Ohio is a judicial foreclosure state. In other words, foreclosures take place through the courts in a judicial foreclosure process.17 From a legal perspective, there are variations between judicial and non-judicial foreclosure processes used to finalize a case. However, once parties attend mediation, there are few variations. As noted above, the Model is consistent with the Ohio Rules of Civil Procedure and the UMA, which governs mediation in Ohio. The UMA provides that mediation communications are privileged, yet also allows the mediator to disclose particular information.18 Rule 16 of the Supreme Court of Ohio Rules of Superintendence also governs mediation processes and procedures in local courts in Ohio.19 This rule governs local court rules providing for mediation including mediator qualifications.20 Courts

See THE SUPREME COURT OF OHIO, FORECLOSURE MEDIATION PROGRAM MODEL (2008), available at http://www.supremecourt.ohio.gov/JCS/disputeResolution/foreclosure/ foreclosureMediation.pdf [hereinafter MODEL]. 14 OHIO REV. CODE ANN. 2710.01(A) (West 2006). 15 See MORTG. BANKERS ASSN, JUDICIAL VERSUS NON-JUDICIAL FORECLOSURE, available at http://www.mbaa.org/files/ResourceCenter/ForeclosureProcess/JudicialVersus Non-JudicialForeclosure.pdf (last visited Sept. 28, 2011). 16 Id. See also Foreclosure Laws and Procedures by State, REALTYTRAC, http://www.realtytrac.com/foreclosure-laws/foreclosure-laws-comparison.asp (last visited Sept. 28, 2011); State by State Foreclosure Procedures, ALL FORECLOSURE, http://www.allforeclosure.com/procedures.htm (last visited Sept. 28, 2011). 17 See MORTG. BANKERS ASSN, supra note 15. 18 OHIO REV. CODE ANN. 2710.032710.07 (West 2006). 19 OHIO SUP. R. 16, available at http://www.supremecourt.ohio.gov/LegalResources/ Rules/superintendence/Superintendence.pdf. 20 Id.

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will provide additional requirements using court orders and local rules of court.21 The design of the Model allows courts [or other organizations] to modify the [process], documents and forms based on their local needs, resources and community, while balancing the needs of all stakeholders . . . .22 As a result, foreclosure mediation programs vary by county.23 Local courts determine who is required to participate and by what means (i.e., telephone).24 For example, a large county with full-time staff to manage the program might implement a formal process with standardized documents and forms; a small county might provide a contact person to provide an explanation of the process for that county. In fact, successful mediation programs are due, in large part, to the intentional consistency between the Ohio Revised Code [(ORC)], court rules, and [court policies] and procedure[s that] ensure[] the efficient and effective operation of mediation programs throughout [the state].25 IV. DOCUMENTS AND FORMS Standardized documents and forms promote consistency and quality delivery of mediation services. Program administrators should determine what documents and forms are necessary to meet the goals and objectives of the program pursuant to policies, procedures, court rules, and statutory law. Local courts modify documents and forms, found on the Supreme Court of Ohio Dispute Resolution Section website, to meet various program requirements and available resources.26

See, e.g., Foreclosure Mediation in Ohio: What You Need to Know, THE SUP. CT. OF OHIO, http://www.sconet.state.oh.us/jcs/disputeresolution/foreclosure/faq.asp (last visited Feb. 18, 2012) [hereinafter Foreclosure FAQ]. 22 Model Overview, supra note 5. 23 See Foreclosure FAQ, supra note 21. 24 See generally id. 25 Jacqueline C. Hagerott, Manager, The Supreme Court of Ohio Dispute Resolution Section, Testimony Before the Senate Finance and Financial Institutions Committee on the Topic of Foreclosure Mediation 2 (Feb. 2, 2010) (testimony available at http://www.cohhio.org/pdf/Advocacy/Testimony%20Before%20the%20Seante%20Finance %20and%20Financial%20Institutions%20Committee%20020210.pdf). 26 Foreclosure Mediation Program Model Documents, Resources and Training, THE SUP. CT. OF OHIO, http://www.sconet.state.oh.us/JCS/disputeResolution/foreclosure/ documents.asp (last visited Sept. 29, 2011) [hereinafter Model Documents].

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Foreclosure mediation uses a unique terminology that is not common knowledge to individuals who have not worked in the field. In addition to learning the mediation process, it is important for mediators to understand the players, terminology, workout options, and federal and state policy considerations specific to foreclosure cases. Therefore, although local courts ultimately determine the training requirements, the Supreme Court of Ohio recommends and provides the following minimum training courses: Basic Mediation (minimum of twelve hours); Foreclosure Mediation (offered or approved by the Supreme Court of Ohio); and The Uniform Mediation Act (minimum of two hours).27 The Supreme Court of Ohio provides both virtual and face-to-face professional development opportunities that allow mediators to discuss current issues, new legislation, best practices, mediation strategies, creative workout options,

Foreclosure FAQ, supra note 21. The Supreme Court of Ohio provides the following description for the Foreclosure Mediation course: During this training course, participants will discuss the recent history and institutional changes that led to the foreclosure crisis, the importance and scope of the task at hand, learn the relevant terminology, players and the inter/intra party dynamics of the foreclosure servicing industry that will inform and limit settlement possibilities in home foreclosure and loan default situations. They will demonstrate thorough knowledge of the range of settlement options, limitations, advantages and disadvantages for the parties in foreclosure cases and the information required from the parties to come to an agreement under each option. They also will analyze the possibilities and limitations of mediation between pro se homeowners and lenders in foreclosure cases while also identifying when and how to terminate the mediation. Finally, participants will review relevant statutes and rules in order to recognize the legal framework applying to foreclosure cases and learn how to apply the local court foreclosure mediation program processes and procedures, if applicable, and be familiar with the Supreme Court [of Ohio] Foreclosure Mediation Program Model. Foreclosure Mediation Trainings and Roundtables, THE SUP. CT. OF OHIO, http://www.sconet.state.oh.us/JCS/disputeResolution/foreclosure/Training.pdf (last updated July 17, 2009).

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and other issues that allow them to improve their skills mediating and managing foreclosure mediation programs.28 VI. THE SUPREME COURT OF OHIO FORECLOSURE MEDIATION ELEVENSTEP PROGRAM MODEL The Model includes eleven steps. The first step of the Model discusses the foundational requirements necessary to build a program, including a meeting for stakeholders, available resources, training requirements, marketing, and relevant statutes and rules.29 Step Two outlines the initial step of the processthe filing of the complaint.30 It also outlines the required and recommended components.31 Step Three highlights the next step of the foreclosure processthe summons.32 Step Three also provides additional documents that may be included with the summons and the complaint, such as a Request for Foreclosure Mediation and a motion for extension of time.33 The fourth step includes marketing of the program with tools such as a brochure or postcard. The marketing material should provide information to educate the parties about the option of mediation in a foreclosure case as well as the mediation process itself.34 Step Five of the Model outlines the requirement that the borrower file a responsive pleading to the foreclosure complaint and describes the various types of responsive pleadings.35 Step Six is the point in the process where parties exchange critical information, such as questionnaires that include demographic and financial information from both the lender and the borrower, as well as process, procedure, and timeframes for which to submit the information.36 The mediation program contacts both the plaintiffs attorney and the borrower by mail.37 The plaintiffs attorney receives a Plaintiff/Lenders Mediation Questionnaire

28 29

Hagerott, supra note 25, at 3. MODEL, supra note 13, at 1517. 30 Id. at 17. 31 Id. 32 Id. 33 Id. 34 Id. at 18. 35 Id. 36 Id. 37 Id.

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for Foreclosure Cases.38 The borrower receives a detailed Request for Foreclosure Mediation form.39 The responses to the Questionnaire and the Request for Foreclosure Mediation provide information that the mediation program can review in the seventh step to determine if mediation is appropriate. The mediation program may also send[] a status report to the court and the parties as to whether or not mediation will occur.40 Step Eight provides details regarding the actual scheduling of the mediation, including process and procedure.41 Courts may issue an order requiring parties to attend mediation with authority to settle.42 The mediation takes place in Step Nine in compliance with relevant state and local rules.43 Step Nine also discusses the process and procedure that occurs if the parties reach an agreement. This process and procedure helps to maintain confidentiality and privilege, and to memorialize the agreement.44 An outcome report is filed in Step Ten.45 Finally, Step Eleven provides for both qualitative and quantitative quality assessment using surveys and questionnaire forms.46 Additional sample forms and best practice processes and procedures may be necessary depending on the size of the program. VII. A. Overview Through building programs throughout the eighty-eight counties in Ohio and assisting other states to do the same, a checklist of factors to consider when building a foreclosure mediation program applicable to both
Id. See also Plaintiff/Lenders Mediation Questionnaire for Foreclosure Cases, THE SUP. CT. OF OHIO, http://www.sconet.state.oh.us/JCS/disputeResolution/foreclosure/ PlaintiffLenderQuestionnaire.doc (last visited Feb. 20, 2012). 39 MODEL, supra note 13, at 18; Request for Foreclosure Mediation, THE SUP. CT. OF OHIO, http://www.sconet.state.oh.us/JCS/disputeResolution/foreclosure/Foreclosure MediationReq.doc (last visited Feb. 20, 2012). 40 Id. at 1718 41 Id. at 1819. 42 Id. 43 Id. at 19. 44 Id. 45 Id. at 20. 46 Id.
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judicial and non-judicial foreclosure states evolved over the last four years. Some factors may seem intuitive, but the key to a successful program is careful consideration by stakeholders that each factor, as obvious as it may seem, is not left to chance. Careful planning increases the probability of an efficient and effective program. 1. Checklist for the Design and Implementation of a Foreclosure Mediation Program for Judicial and Non-judicial Foreclosure States a. Identify Current Rules, Statutes, and Any Other Regulations that Will Control or Affect the Program These regulations might include court rules, rules of civil procedure, statutes, and other legislation. The Model should be consistent with respect to all current rules and statutes so that it will stand the test of time. b. Define Mediation Although the meaning behind each definition of mediation tends to be the same, mediation program staff should use the same definition. Ohio has adopted the UMA and follows the UMAs definition of mediation. Foreclosure mediation cases are no different from any other mediation case. Mediators must remember to keep the core values of mediation at the forefront of their minds throughout the process. This includes, but is not limited to confidentiality, party self-determination, mediator neutrality, and do no harm (parties should be no worse off than they were before mediation),47 at the forefront of their minds throughout the process. c. Define Goals and Objectives The goal in Ohio is to create mutually acceptable agreements that are commercially reasonable and sustainable.48 Commercially reasonable has no formal definition because it varies based on the context in which it is

See Jacqueline Hagerott, Manager, The Supreme Court of Ohio Dispute Resolution Section, Foreclosure Mediation: An Overview 6 (2011) (presentation on file with the Capital University Law Review). 48 See Foreclosure FAQ, supra note 21 (A successful mediation means a mutually acceptable agreement has been reached that is both commercial reasonable and sustainable over time.).

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used.49 Therefore, the parties determine what commercially reasonable means to them. If the program goal is to keep people in their homes, a major factor to consider should be whether that goal is truly neutral and equally beneficial to both sides. This goal could place the mediator in a biased position because it may not be the goal of the lender to keep borrowers in their homes if borrowers are unable to make reasonable payments on the mortgage. The mediator would thus breach neutrality if the mediator focused on the interest of the borrower (keeping the home), which may not be commercially reasonable for the lender based on the income of that borrower. d. Define Desired Outcomes Defining success is imperative for the program. In Ohio, success means the parties have reached a mutually acceptable, sustainable agreement.50 These agreements often include keeping people in their homes and transition strategies, also known as graceful exits.51 For borrowers that do not want to keep their homes, providing mediation as an option to foreclosure helps them by creating a way for them to exit their homes gracefully. Creating a plan that is unsustainable over time is not in either partys best interest. If the borrower is facing foreclosure in the future, everyone loses. e. Develop Qualitative and Quantitative Program Assessment Tools As with any program, qualitative and quantitative assessments are important to measure achievement of the program goals. Implementation of the following forms and surveys is recommended: Foreclosure Mediation Participant Survey, Contract Mediator Questionnaire (if

Commercially Reasonable Efforts Law & Legal Definition, USLEGAL.COM, http://definitions.uslegal.com/c/commercially-reasonable-efforts/ (last visited Feb. 20, 2012). 50 See Foreclosure FAQ, supra note 21. 51 See Alon Cohen, Clearing the Foreclosure Crisis: Foreclosure Mediation Can Reduce Uncertainty, CENTER FOR AM. PROGRESS (Oct. 25, 2010), http://www. americanprogress.org/issues/2010/10/foreclosure_crisis.html (noting that examples of graceful exists include a deed in lieu of foreclosure, a short sale, cash for keys, or a negotiated departure date instead of eviction).

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applicable), and Case Management Data and Quality Assessment Information Form.52 f. Identify and Engage Stakeholders A successful program will involve all stakeholders who are necessary for the implementation and sustainability of the program. Examples of possible stakeholders include judges, magistrates, attorneys for borrowers, community organizations, bank associations, mediators, legal aid organizations, clerks of courts, county auditors, county treasurers, commissioners, local social service agencies, borrowers associations, and community organizations such as churches and the local bar. g. Develop the Structure of the Program Marketing It is important that the parties know that mediation is an option in foreclosure cases. Information may be available at local court websites, local bar associations, law libraries, clerks of courts, local social service agencies, organizations such as churches and legal aid associations, bank associations, and the offices of county auditors, treasurers, and commissioners. Methods to notify parties and potential parties about the mediation option include a statewide hotline, local task forces, language in the summons, postcards, flyers, brochures, word of mouth, radio, and television. The Foreclosure Mediation FAQ formForeclosure Mediation in Ohio: What You Need to Knowalso provides commonly asked questions and answers for borrowers.53 Funding The best option for a sustainable program is funding at a local level. Proposed legislation in Ohio would establish a residential foreclosure filing fee up to five hundred dollars paid by the filing party (in addition to any other filing fees or court costs that would otherwise apply).54 Other options may include costs charged directly to the lender or the borrower. Programs should consider a fee reduction or fee waiver for parties who
See Model Documents, supra note 26. See Foreclosure FAQ, supra note 21. 54 See S.B. 197, 128th Gen. Assemb., Reg. Sess. (Ohio 2009). Although not passed, the legislations proposal remains a viable funding option and includes processes and procedures that programs could implement by local rule or otherwise.
53 52

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demonstrate a financial hardship. Another option may include mandating a fee paid by the lender prior to mediation, and requiring the borrower to reimburse the lender for half of the fee upon reaching a resolution. Parties may not necessarily share costs equally. Courts also may impose penalties on parties who do not abide by court and program rules and guidelines. Staffing The number of cases that the program will mediate is the controlling variable to determine staffing needs. Mediation sessions can last from thirty minutes to two hours.55 The length of time and the number of sessions varies depending on the level of preparation completed before the mediation and the level of emotions involved in a case. Borrowers may need the opportunity to share their story and perhaps process the realization that they may need to let go of their home. A questionnaire completed by parties before the mediation and premediation conference calls is one resource to help determine how many times the parties will need to meet and for how long.56 Mediations that take longer generally involve processing new information.57 Some programs have mediators who do all of their own administrative work in addition to mediation.58 Others have mediators and support staff.59 Talking to similar existing programs can be a wonderful resource to know where to start with regard to staffing.60

See Foreclosure FAQ, supra note 21 (Most foreclosure mediations take between one and two hours.). 56 See Model Documents, supra note 26. 57 See Foreclosure FAQ, supra note 21 ([Preparation] minimizes the requirement for an additional session due to a lack of information.). 58 See, e.g., BEVERLY DRAINE FOWLER ET AL., PLANNING MEDIATION PROGRAMS: A DESKBOOK FOR COMMON PLEAS JUDGES 6-7 (2000), available at http://www.sconet.state.oh.us/Publications/pmd.pdf [hereinafter DESKBOOK] (noting that Montgomery County and Clinton County, two of the three Ohio counties that took part in a pilot mediation program, utilized existing staff to support a mediator). Furthermore, the author is personally aware of a mediator who completes all of the administrative work for the foreclosure mediations he works on. For additional information, please contact the author. 59 Id. (noting that Stark County hired an administrative assistant to help the mediator). 60 E.g., Telephone Interview with Eileen Pruett, Manager, Small Claims Div. & Dispute Resolution Dept, Franklin Cnty. Mun. Court, Columbus, Ohio (Sept. 13, 2010).

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Program administrators, courts, attorneys, parties, or housing counselors should refer a dispute to mediation as soon as possible to increase the likelihood of a resolution. In some cases, an automatic referral is triggered by a specific event. For example, a responsive pleading may be the trigger. When a responsive pleading (such as an answer to the complaint) is filed, then the case is automatically referred to mediation.61 In Ohio, the borrower or the lender may request mediation by completing a Request for Foreclosure Mediation form.62 Program guidelines should also include a process to address the situation where one party requests mediation and the other party objects. The probability of a successful outcome may decrease the longer the foreclosure process goes on because the amount in arrears continues to increase, making it more difficult for the borrower to become current on the loan. However, even if the sheriffs sale has been scheduled, or even after the sale has taken place, a successful mediation is possible.63 If there is a willing buyer and seller, the possibility of a successful outcome should not be a foregone conclusion. There may be times when parties do not fully realize the true value of the property until late in the process. A program should nevertheless have flexibility to allow the parties to negotiate at any stage in the foreclosure process. Grace Period Programs administrators should consider instituting a grace period after a referral to mediation regarding the status of the home (such as sale of the home), which covers time the case is in the mediation process. A court in a judicial foreclosure state may stay the case until the conclusion of the mediation. Proposed legislation in Ohio provided that all further proceedings would be stayed pending the filing of the mediation report with the court.64 If the borrower did not attend a scheduled mediation, the mediator would be required to immediately report this to the court, and the foreclosure would proceed.65 If the filing party did not attend the mediation, the court would dismiss the foreclosure action, subject to a
See DESKBOOK, supra note 58, at 7-11. See Model Documents, supra note 26. 63 Foreclosure FAQ, supra note 21. 64 S.B. 197, 128th Gen. Assemb., Reg. Sess. (Ohio 2009). This proposed legislation was not enacted. 65 Id.
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showing of good cause.66 Factors to consider to determine the length of time for a grace period include the amount of time it takes to schedule mediation, time for the borrower to work with a housing counselor to gather the necessary financial information, how many mediation sessions are necessary for a final resolution, state and federal program guidelines, and any other obstacles that would delay the final outcome of the mediation. Court Order Due to a lack of communication, the biggest challenge for parties in these cases is coming to the table. Therefore, a court order referring the parties to mediation provides an opportunity for the parties to begin discussing options. Mediators and program administrators confirm that once the parties are negotiating, the probability of reaching an agreement is very high, even when ordered into mediation by the court.67 However, without a court order requiring them to attend mediation (where reaching an agreement is not mandatory), it is not likely that parties will communicate with each other to discuss options. Borrowers attempt, to no avail, to reach lenders, who have tried, to no avail, to reach the borrowers.68 It is common that both are interested in trying to work out an agreement but, historically, have not been able to overcome the hurdle of finding a way to reach each other.69 Court orders referring cases to mediation solve this problem. The court will order the parties to mediation and may include other items in the court order such as authority to settle, participation in person (or via telephone with court approval), and documents and information necessary to have negotiations.70 Some observers may argue that mediation is a voluntary process, and therefore, court-ordered mediation is inconsistent with the philosophy of mediation.71 However, pursuant to the UMA, it is
Id. See DESKBOOK, supra note 58, at 7-29. 68 See, e.g., Kimberly Miller, Mediation Lets Lenders, Borrowers Negotiate, PALM BEACH POST (July 7, 2010), http://www.palmbeachpost.com/money/real-estate/mediationlets-lenders-borrowers-negotiate-790387.html (Judges often hear from borrowers that they have been unable to reach bank representatives . . . . Lenders complain borrowers ignore them . . . .). 69 See, e.g., id. 70 See Model Documents, supra note 26. 71 See DESKBOOK, supra note 58, at 7-33.
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the agreements in mediation that are voluntary, not the process.72 Orders that mandate parties to the table do not interfere with voluntary settlement. The mediator controls the process.73 Therefore, parties may attend, listen to the introduction of the mediator, and leave without being in contempt of court. However, once parties attend the mediation, it is likely that they will reach an agreement or, at a minimum, gain a better understanding of the case. Both outcomes are valuable. In non-judicial foreclosure process states where court orders are not an option, statutes can create authority to order parties to mediation.74 Nevada is an example of one such state.75 Screening The amount of resources (such as staff) available to manage a program has a direct effect on the types of cases eligible for mediation.76 When states have limited resources, criteria affecting the referral decision may include whether the borrower is currently in the home, whether the borrower wants to remain in the home, whether the home is the primary residence, and whether the borrower is employed. Programs may consider referring all types of foreclosure cases into mediation,77 including investment properties and other types of foreclosures, such as foreclosures due to unpaid taxes or condominium or homeowner association fees. There is great value in mediating cases for people who need a graceful exit from their home because they are no longer able to make payments due to job loss, medical catastrophes, change in family circumstances such as divorce or death of a spouse, or otherwise. These cases are ideal for mediation because of the range of available workout options.78
See OHIO REV. CODE ANN. 2710.01 (West 2006). See MODEL, supra note 13, at 109. 74 See MORTG. BANKERS ASSN, supra note 15. 75 See Nevada Foreclosure Law Summary: Stop Nevada Foreclosure, U.S. FORECLOSURE LAWS, http://www.foreclosurelaw.org/Nevada_Foreclosure_Law.htm (last visited Feb. 16, 2012); FORECLOSURE MEDIATION RULES APPROVED BY THE SUPREME COURT OF NEVADA, effective June 30, 2009, and including amendments through July 21, 2010, http://www.nevadajudiciary.us/images/foreclosure/adkt435_amendedrules.pdf (last visited Feb. 16, 2012). 76 See DESKBOOK, supra note 58, at 8-5. 77 See id. at 8-3, 8-5. 78 See generally id. at 3-13.
73 72

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Another screening factor involves bankruptcy filings. In a judicial foreclosure state, if the party has filed bankruptcy they may still end up in mediation, but there must be a stay from the bankruptcy court in place before doing so.79 Finally, some programs may further screen for situations where the homeowner did not abide by the terms of previous loan modifications and conclude that the borrower is ineligible for mediation, unless good cause is shown for the previous default.80 When deciding which screening factors to use, programs should be aware that creating eligibility criteria connected to income or the loan amount may omit borrowers who are truly in need of help. More than one in seven [borrowers] with loans in excess of a million dollars are seriously delinquent, according to data compiled for The New York Times by the real estate analytics firm CoreLogic.81 If programs have resources that allow for referral of all types of foreclosure cases, it may be more efficient to start with select cases, such as those where the borrower is in the home and would like to stay in the home. This would allow time to test the program process, procedure, and forms, and it would allow time for the staff of the program to develop the skills necessary to manage multiple case types. Notice and Timeline for Mediation The Model includes a sample summons (served with the complaint) that provides the borrower with notice that mediation is an option.82 Proposed legislation in Ohio would have given the borrower twenty-eight days to answer or respond, which is consistent with current law.83 If the borrower answered or responded, mediation would be mandatory.84 There would be no mandatory mediation if the borrower failed to respond within

See, e.g., FORECLOSURE MEDIATION RULES APPROVED BY THE SUPREME COURT OF NEVADA, supra note 75, at R. 8. 80 See, e.g., Help with Mortgage Foreclosures, IND. JUDICIARY, http://www.in.gov/ judiciary/selfservice/2359.htm (last visited Feb. 20, 2012). 81 David Streitfeld, Biggest Defaulters on Mortgages Are the Rich, N.Y. TIMES, July 8, 2010, at A1. 82 See Model Documents, supra note 26. 83 See S.B. 197, 128th Gen. Assemb., Reg. Sess. (Ohio 2009). This proposed legislation was not enacted. 84 Id.

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twenty-eight days from the date of service, and the filing party could seek default judgment.85 The total time for mediation to occur is a necessary component for a successful program. Parties need to know what to expect so the case can proceed in timely manner for failure to meet program guidelines. Factors to consider when establishing a timeline include service, whether housing counselors are involved, involvement of legal assistance, and processing of federal and state program resources. Develop a Feedback and Grievance Process Receiving feedback from parties regarding the outcome of the mediation, process and procedure, or any other aspect of the mediation is important to develop long-term success. Creating a tool for reporting feedback anonymously is ideal. Ohio has an online feedback form that serves this purpose.86 Parties have the option to submit this form anonymously or to include their name in addition to requesting a return call or email.87 In many cases, issues can be resolved by coaching the mediator. For example, one phone call that the author received indicated that a mediator was not being neutral. When contacted, the mediator expressed that the mediators intent was to be neutral. Mediation programs should develop a feedback process to receive grievances and encourage people to report when things are working well. In other words, all feedback is good feedback. Confidentiality and Privilege In Ohio, the UMA defines mediation communications, some of which are privileged by law.88 Mediation communications are confidential to the extent the parties agree.89 Maintaining the confidentiality of the parties through an Agreement to Mediate is of great importance, especially the

Id. See Dispute Resolution Section Online Inquiry & Feedback Form, THE SUP. CT. OF OHIO, http://www.sconet.state.oh.us/JCS/disputeResolution/feedback/ (last visited Feb. 19, 2012). 87 Id. 88 OHIO REV. CODE ANN. 2710.03 (West 2006). 89 OHIO REV. CODE ANN. 2710.07 (West 2006).
86

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personal financial information of the borrower, of offer(s) made by the borrower and lender, and of the parties discussions.90 h. Determine the Role of the Parties and the Court Mediator Before implementation, the program must determine which type of mediation model it will follow. The Supreme Court of Ohio trains mediators to use the facilitative model of mediation for mediating foreclosure cases because it has worked for Ohio courts for almost two decades.91 Therefore, the role of the mediator is to facilitate the process. If one party is represented and the other is not, this can be very challenging for the mediator. One of the most important roles of the mediatorif not the most important roleis to be neutral.92 Adhering strictly to neutrality is not as easy as one might think. The appearance of neutrality is the most important factor and can be extremely challenging, particularly when working with pro se litigants.93 Mediators should receive additional training to work with this scenario. The mediator should not be assessing whether the agreement is fair. Mediators need to keep in mind that what may seem fair or unfair to them is irrelevant. The agreement belongs to the parties; the role of the mediator is to assess whether the parties understand the terms of the agreement.94 For those programs that promote evaluative mediation, where the mediator has subject matter expertise, the mediators role is to provide an evaluation of the alternative resolutions.95 In either case, the final decision is that of the parties.

See Foreclosure Mediation Resources, supra note 7. See Foreclosure FAQ, supra note 21. 92 See generally DESKBOOK, supra note 58, at 3-13. 93 See id. at 8-21. 94 See Peter N. Thompson, Enforcing Rights Generated in Court-Connected MediationTension Between the Aspirations of a Private Facilitative Process and the Reality of Public Adversarial Justice, 19 OHIO ST. J. ON DISP. RESOL. 509, 559 (2004). 95 See Murray S. Levin, The Propriety of Evaluative Mediation: Concerns About the Nature and Quality of an Evaluative Opinion, 16 OHIO ST. J. ON DISP. RESOL. 267, 26970 (2001).
91

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Housing counselors are a major contributor to successful outcomes in foreclosure mediation cases. In many cases, the long-term success of any agreement requires adjustments to other aspects of the borrowers budget, not just the mortgage.96 Under the federal programs, housing counseling may be a requirement, depending on the results of the debt-to-income calculations.97 Based on reports the author has received, the Franklin County Foreclosure Mediation Program requires borrowers to meet with housing counselors prior to the mediation so that the housing counselors can help them prepare all the documents that are necessary to reach an agreement.98 Foreclosure cases are about numbers. Trained housing counselors work with borrowers to assess their financial situation.99 Housing counselors assist borrowers in gathering documentation to support the financial information they are submitting to the lender.100 If the counselor attends the mediation, the counselor should attend not to assess whether the borrower should accept the offer, but rather to assist the borrower in analyzing how that offer works or does not work with the borrowers financial situation. Ideally, borrowers should work with an attorney as well as a housing counselor. Attorneys Due to the complexity of foreclosure cases, it is beneficial for borrowers to have an attorney represent their interests. The role of the attorney is the same as it is in any other case. Ohio adopted a rule of
See Speak with a Housing Expert, MAKINGHOMEAFFORDABLE.GOV, http://www.makinghomeaffordable.gov/get-started/housing-expert/Pages/default.aspx (last visited Feb. 19, 2012). 97 See HASPThe Home Affordability & Stability Plan (aka Making Home Affordable), MONEY NATION GOOD NEWS FOR OUR CHANGING TIMES, http://moneynation.wordpress. com/the-bank-of-you-university-real-estate/hasp-the-home-affordability-stability-plan-akathe-obama-mortgage-stimulus-plan/ (last visited Mar. 19, 2012). 98 See Model Overview, supra note 5; FRANKLIN CNTY. FORECLOSURE MEDIATION PROJECT, REQUEST FOR FORECLOSURE MEDIATION AND EXTENSION OF TIME TO ANSWER, available at http://www.franklincountyohio.gov/commissioners/homeowner-helpline/assets/ pdf/request-for-mediation.pdf (last visited Apr. 8, 2012). For additional information relating to these reports and her experience, please contact the author. 99 See Speak with a Housing Expert, supra note 96. 100 Id.
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professional conduct that allows attorneys to represent borrowers for the limited purpose of mediation.101 During this process, the attorneys may also work in collaboration with the housing counselors. The Court The role of the court is to provide for the efficient resolution of disputes.102 Special issues specific to foreclosure cases require courts to review standard process and procedure that may affect how courts manage these cases to fulfill this role. One issue raised in foreclosure cases in Ohio is whether the filing party is the real party in interest.103 Under the Federal Rules of Civil Procedure (FRCP), Rule 17(a) provides that every action [shall] be prosecuted in the name of the real party in interest.104 Thus, the named plaintiff must have, under the governing substantive law, the right sought to be enforced. The real party in interest is not necessarily the person who ultimately will benefit from the successful prosecution of the action.105 Another question raised relates to whether the courts or the defendant should ensure that the filing party is the real party in interest before filing the foreclosure action. If the courts decide to make this determination sua sponte, are they truly being fair and impartial, or have they become an advocate for the defendant? In Ohio, defendants need to raise this issue with the court through a motion, at which time the court will make a determination.106

See OHIO R. PROFL CONDUCT 1.2; CHIEF JUSTICE THOMAS J. MOYER, SUPREME COURT OF OHIO, OHIO OFFERS COMPREHENSIVE RESPONSIVE TO FORECLOSURE PROBLEM 2 (2008), available at http://www.ncsconline.org/WC/Publications/Trends/2008/ ForeClProblemTrends2008.pdf. 102 Judicial System Structure, THE SUP. CT. OF OHIO, http://www.supremecourt. ohio.gov/JudSystem/ (last visited Feb. 20, 2012). 103 See STEPHEN R. BUCHENROTH & GRETCHEN D. JEFFRIES, UPDATE: OHIO FORECLOSURE CASES: LENDERS BEWARE 12, available at http://www.msfraud.org/law/ lounge/UPDATE_OHIO%20FORECLOSURE%20CASES_LENDERS%20BEWARE.pdf (last visited Apr. 8, 2012). 104 FED. R. CIV. P. 17(a). 105 Real Party in Interest Law & Legal Definition, USLEGAL.COM, http://definitions.uslegal.com/r/real-party-in-interest/ (last visited Feb. 20, 2012). 106 See, e.g., BUCHENROTH & JEFFRIES, supra note 103.

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Standardized documents and forms increase the efficiency and effectiveness of a program.107 Common forms include: Agreement to Mediate, Request for Foreclosure Mediation, Questionnaires for Mediation Parties, court orders, and outcome reports.108 Party Expectations Parties must know what to expect during the mediation process. Common factors used by mediators to achieve this goal include specific processes and procedures such as an introduction, a description of the problem, and summaries where necessary. An introduction, either in mediation or through brochures, would explain the entire process and differentiate it from litigation.109 Parties obtain an inherent desire to shorten the process,110 so it is valuable to include the underlying reasons for the mediation process so they can be patient and allow the process to work. Further, a description of the problem would help with the parties expectations. Parties need sufficient time to tell their stories. During this process, it is the mediators responsibility to manage the emotions.111 If a home has been in the family for generations and is now at risk of being lost, there will inevitably be strong emotions that need to be recognized.

See generally Model Overview, supra note 5. See Model Documents, supra note 26. 109 See Case Mediation Section FAQs, THE SUP. CT. OF OHIO, http://www.supremecourt. ohio.gov/Clerk/mediation/faq.asp (last visited Mar. 19, 2012). 110 Hagerott, supra note 47. See generally Michael Kasperzak, Jr., Using Mediation to Reduce Litigation Costs, DISP. RESOL. SPECIALISTS, http://www.mediates.com/ drsusingmed.html (last visited Mar. 19, 2012) (noting that mediation can help parties avoid expensive, protracted litigation). 111 Hagerott, supra note 47. See also Heather Scheiwe Kulp, Foreclosure Mediation, Saving Homes, and Appropriate Dispute Resolution, JUST COURT ADR (Jan. 23, 2012), http://blog.aboutrsi.org/2012/program-management/foreclosure-mediation-saving-homesand-appropriate-dispute-resolution/.
108

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As with any other mediation, summarizing when necessary is important.112 Strategies used by mediators may include clarification of questions, alternatives, and statements made by the parties. Party Preparation for Mediation Foreclosure mediation has one distinct feature that sets it apart from other types of mediation: party preparation. The amount of preparation completed by the parties, particularly the borrower, before the mediation takes place will affect the quality of the mediation outcomes.113 Parties should exchange information before the mediation session to have adequate information, authority for settlement, and options for resolution to settle a case. For example, each lender requires specific information to proceed to settlement, such as bank statements, tax returns, and a hardship letter.114 If the lender does not have the proper documentation, it is not able to proceed with final settlement authority, which will cause a delay in the settlement of the case.115 A best practice shared by programs is the requirement that borrowers work with HUDapproved counseling agencies that assist the borrower in gathering the appropriate financial information and supporting documentation.116 Ideally, the programs then send financial information to the lender at least fourteen days (some prefer thirty days) prior to the mediation so that the lender can determine workout options that fit within the pooling and servicing agreement for that particular loan. Frequently requested documents may include questionnaire forms providing basic demographic information from both parties, financial information worksheets including income and expenses, hardship letters, pay stubs, bank statements, and tax returns.117 Under the Federal
Hagerott, supra note 47. See also Jackie Omana & Norman R. Page, Summarizing: An Under-Appreciated Mediator Skill, MEDIATE.COM (Apr. 2006), http://www. mediate.com/articles/pageOmana.cfm. 113 See Shana H. Khader, Mediating Mediations: Protecting the Homeowners Right to Self-Determination in Foreclosure Mediation Programs, 44 COLUM. J.L. & SOC. PROBS. 109, 139 (2010); Foreclosure FAQ, supra note 21. 114 See Foreclosure FAQ, supra note 21. 115 See id.; Jacqueline Hagerott, Foreclosure Mediation in Ohio, ABA (Feb. 2009), http://apps.americanbar.org/dch/committee.cfm?com=DR020500. 116 See, e.g., Foreclosure FAQ, supra note 21. 117 See, e.g., Foreclosure FAQ, supra note 21; FRANKLIN CNTY. FORECLOSURE MEDIATION PROJECT, PRE-FILING REQUEST FOR FORECLOSURE MEDIATION, available at (continued)
112

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Government Home Affordable Modification Program (HAMP), there is a specific list of necessary documents. If the mediation is continued, new documents may need to be submitted.118 Two additional strategies to consider include authorizing the housing counselor to work directly with the lender with regard to the financial information of the borrower and authorizing the lender to pull the borrowers credit report. These actions can greatly increase the efficiency of the process. A pre-mediation conference call is also an effective strategy to ensure that all parties have the information, documents, and forms necessary for the mediation to take place. This information can be as basic as questions regarding parking on the day of the mediation.119 Prior Negotiations Some programs may want to consider requiring evidence of prior negotiations, such as mediation, before allowing a foreclosure case to proceed. For example, Assembly Bill 149, passed by the Nevada legislature, requires non-judicial mediation before foreclosure.120 Party Appearance and Participation Foreclosure mediations can take place when the borrower is present and the lender has local counsel with authority to settle present in the

http://www.supremecourt.ohio.gov/JCS/disputeResolution/foreclosure/medRequestpreFore closure.pdf (last visited Apr. 8, 2012); COURT OF COMMON PLEAS, ASHTABULA CNTY., OHIO, REQUEST FOR FORECLOSURE MEDIATION, available at http://courts.co.ashtabula.oh.us/ Forms/CP/RFMQ.pdf (last revised May, 2010). 118 See Request a Home Affordable Modification, MAKINGHOMEAFFORDABLE.GOV, http://www.makinghomeaffordable.gov/get-assistance/request-modification/Pages/default. aspx (last visited Feb. 18, 2012). The required documents include a Request for Modification and Affidavit; either IRS Form 4506T-EZ or 4506-T; a verification of income; and a Dodd-Frank Certification Form. Id. 119 See Foreclosure FAQ, supra note 21. 120 NEV. REV. STAT. ANN. 107.086 (LexisNexis 2009).

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mediation while the lender participates via telephone.121 Follow-up mediations may have some or both parties participate by phone as well.122 This practice has evolved over time. When foreclosure mediations first began, the stakeholders who worked on the Model were of the opinion that the probability of the parties reaching an agreement would be higher if everyone participated in person. These mediations, however, were not about relationships, but rather purely about the numbers. Allowing the lender to participate by telephone with counsel present in the mediation decreases the costs to the borrower by reducing hourly legal fees and travel costs of the lender.123 Telephone mediation also provides added value because the lenders are able to access their financial systems to calculate the various workout options for the case.124 Further evolution of this concept has led to mediations where all parties are on the telephone. These mediations have resulted in the same rate of successful outcomes.125 Therefore, this kind of telephonic mediation significantly reduces the cost to all parties and facilitates settlements.126 The parties and their counsel seem to appreciate the option because most are not from the county where the foreclosure action is
See MODEL, supra note 13, at 19 (establishing a presumption that the lender should attend in person with authority to settle unless granted permission to participate via phone). 122 SUPREME COURT OF OHIO, FORECLOSURE MEDIATION STANDING ORDER, available at http://www.supremecourt.ohio.gov/JCS/disputeResolution/foreclosure/ForeclosureMedOrd er.doc (last visited Apr. 8, 2012) (noting that follow-up sessions will be conducted in the same manner as the original mediation session). 123 Model Overview, supra note 5. 124 See Hagerott, supra note 115. 125 Telephone Interview with Tom McQuire, Mediator, Athens Cnty., Ohio (July 9, 2010) (notes on file with author). Specific mediation results include: ten cases reached an agreement during mediation; five cases reached agreement prior to mediation but after mediation was ordered by the court; one case where the borrowers did not contact the mediator to schedule the mediation (after mediation was ordered at their request); one case where the borrowers did not call in for the mediation; two cases where an agreement was reached after a mediation session and before the second or subsequent one was scheduled to take place; one case where mediation was ordered by the court but counsel for one of the parties informed the mediator that they were negotiating without mediating; one case removed from state court to federal court; and one case where no agreement was reached during mediation. Id. 126 Id.
121

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filed.127 The travel time and expense is formidable, and attorney fees and costs may increase the amount the borrowers eventually owe. Of twentytwo tracked mediations facilitated with the borrower, borrowers counsel, the lenders representative, and lenders counsel participating, more than a majority reached a resolution.128 Times are changing. Agreement to Mediate Agreements to Mediate are included in many mediation programs. In Ohio, these Agreements are important because they outline the extent of the confidentiality required under the UMA, which is determined by the parties and unenforceable if not in writing.129 Memorializing the Mediation Agreement If the parties reach an Agreement, it is imperative to reduce it to writing.130 In Ohio, if the parties reach a voluntary Agreement, the parties should memorialize their Agreement in compliance with the UMA. Acceptable methods to memorialize the Agreement include reducing it to writing, signed by all parties; reading into the record; or tape recording the Agreement with all parties identifying themselves and indicating their consent to the Agreement.131 Outcome Report After the mediation has concluded, the court or organization managing the program should determine what will be reported and to whom. All mediation communications and disclosures should be accurate and include as much detail as authorized by statute, rule, and the parties. j. Pro Se Litigants There is always risk in working with pro se litigants for both attorney mediators and non-attorney mediators. For attorney mediators, the risk is that of inadvertently establishing an attorney-client relationship by giving pro se litigants advice regarding their case.132 For non-attorney mediators,
Id. Id. 129 See MODEL, supra note 13, at 19. 130 See id. 131 See id. 132 See David A. Hoffman & Natasha A. Affolder, Mediation and UPL: Do Mediators Have a Well-Founded Fear of Prosecution?, GP SOLO, Sept. 2000, at 20, 20.
128 127

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the risk is the unauthorized practice of law.133 In either case, mediator training should cover these topic areas and include strategies for mediators to avoid these pitfalls. k. Mediators Who Are They? Mediators include court staff, contract mediators, and volunteers. Due to limited funding, rural counties may not be able to provide for mediation services without the help of volunteers.134 Their backgrounds vary from having mortgage industry expertise to having no substantive knowledge about foreclosure other than what they received during foreclosure mediation training. 135 Mediators are not required to be attorneys.136 Because the Supreme Court of Ohio trains mediators to use the facilitative model of mediation, mediators are required to have process knowledge, not content knowledge.137 However, mediators receive training regarding the basics of foreclosure law including terminology, players, and workout options so that they may ask appropriate questions that will lead the parties toward a resolution.138 Mediators also receive training regarding which resources to recommend throughout the process, such as housing counseling and legal assistance.139 The . . . Dispute Resolution Section fields requests for mediation and locates qualified mediators who are willing to [donate] their time so local courts are able to provide mediation for foreclosure cases.140 These volunteer mediators include individuals who have more than the minimum recommended training requirements.141 Some have ten or more years of mediation experience, extensive mediation training, academic credentials, and licenses.142 Some volunteer mediators also have both mediation

Id. Hagerott, supra note 25, at 3. 135 See Foreclosure FAQ, supra note 21. 136 See id.; OHIO SUP. R. 16, available at http://www.supremecourt.ohio.gov/ LegalResources/Rules/superintendence/Superintendence.pdf (last visited Apr. 8, 2012). 137 See Foreclosure FAQ, supra note 21. 138 See generally id. 139 See generally id. 140 Hagerott, supra note 25, at 3. 141 Id. 142 Id.
134

133

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training and subject matter expertise in the mortgage industry.143 Volunteer mediators are achieving [same or similar] outcomes [as paid mediators] for parties in foreclosure cases.144 Training and Experience Having basic mediation training is essential. Mediation programs should determine the foreclosure training and experience necessary for mediators to mediate these types of case successfully. Opinions vary regarding whether mediators should have specific training on the topic of foreclosure process and procedure. Ohio has decided that mediators should have training covering the recent history and institutional changes that led to the foreclosure crisis, . . . the relevant terminology, players and the inter/intra party dynamics of the foreclosure servicing industry that will inform and limit settlement possibilities in home foreclosure and loan default situations[,] . . . knowledge of the range of settlement options, limitations, advantages and disadvantages for the parties in foreclosure cases and the information required from the parties to come to an agreement under each option. [Mediators] also analyze the possibilities and limitations of mediation between pro se [borrowers] and lenders in foreclosure cases while also identifying when and how to terminate the mediation. Finally, [mediators] . . . review relevant statutes and rules in order to recognize the legal framework [that] appl[ies] to foreclosure cases and learn how to apply the local court foreclosure mediation program processes and procedures, if applicable, and [are] familiar with the . . . Model.145 Another factor to consider is whether foreclosure mediators should have prior mediation experience. Due to the complexity of foreclosure cases and the inherent power imbalances that the mediator must manage, courts and mediation programs may require that only skilled mediators mediate foreclosure cases.146 Even if a newly trained mediator has
143 144

Id. Id. 145 Foreclosure Mediation Trainings and Roundtables, supra note 27 (emphasis added). 146 See Foreclosure FAQ, supra note 21.

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substantive knowledge of the mortgage industry, one should not assume that the mediator has the skills necessary to maintain the goals of mediation, specifically neutrality and party self-determination. At a minimum, newly trained mediators should observe or co-mediate with more experienced mediators before mediating foreclosure cases. Finally, some programs may consider additional requirements for mediators, such as being a licensed attorney or a housing counselor; having subject matter expertise and knowledge of applicable local, state, and federal resources; or completing continuing education. Ultimately, Ohio maintains a directory of all mediators who meet the minimum requirements recommended by the Supreme Court of Ohio.147 l. Mediation Core Values Discussion of mediation issues was central to the way court-connected mediation developed in Ohio. In 1989, the Supreme Court of Ohio Advisory Committee on Dispute Resolution (Committee) began its work by considering the core or foundational principles of mediation.148 They looked to research in the field149 and the practical experience of mediators on the Committee.150 Several Committee members had received mediation training in Ohio and other states.151 The Committee proposed the following primary core values for court-connected mediation: confidentiality, mediator neutrality, and self-determination for the
See Foreclosure Mediation Resources, supra note 7. See DESKBOOK, supra note 58, at 10-4 to 10-6. 149 See, e.g., Eileen P. Friedman, Protection of Confidentiality in the Mediation of Minor Disputes, 11 CAP. U. L. REV. 181 (1981) (Eileen Friedman n Eileen Pruett). 150 William A. Clark of Columbus, Ohio, and David A. Ward of Toledo, Ohio were original members of the Committee. Both held terms as chair of the Committee. Dispute Resolution History, THE SUP. CT. OF OHIO http://www.supremecourt.ohio.gov/JCS/dispute Resolution/resources/history.asp (last visited Feb. 20, 2012). 151 See generally CHRISTOPHER W. MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT (3d ed. 2003); Courses and Training, PROGRAM ON NEGOTIATION HARV. L. SCH., http://www.pon.harvard.edu/category/courses-and-training/ (last visited Feb. 20, 2012). Through her experience and conversations with Eileen Pruett, Franklin County Municipal Court Dispute Resolution Department Manager, the author has learned that the Columbus City Attorney Night Prosecutor Program began in 1978 and offered mediation training to law students and attorneys in Columbus. Members of the Committee had also participated in negotiation training at the Program of Instruction for Lawyers (PIL) at Harvard Law School and with Christopher Moore in Colorado.
148 147

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parties.152 These core values apply to both individual mediators and mediation programs.153 Confidentiality In addition to the discussion of confidentiality in terms of the UMA, the necessity and importance of confidentiality has become a hallmark of best practices in mediation. The standards of practice in the field place great emphasis on this concept.154 Foreclosure mediation program staff and mediators must maintain confidentiality of mediation communications.155 Agreements to Mediate and program policies and procedures can address these requirements. Party Self-determination The Model Standards of Conduct for Mediators (Model Standards) define party self-determination as follows: Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.156 The Model Standards refer to mediation as a voluntary process.157 A voluntary process may seem contradictory to reliance on court orders for mediation, but Ohio courts rely on established practice and research that
See DESKBOOK, supra note 58, at 10-4 to 10-6. See id. 154 See, e.g., ASSN FAM. & CONCILIATION COURTS, MODEL STANDARDS OF PRACTICE FOR FAMILY AND DIVORCE MEDIATION (Aug. 2000), available at http://www.afccnet.org/ resources/resources_model_mediation.asp; MODEL STANDARDS OF CONDUCT FOR MEDIATORS (2005), available at http://moritzlaw.osu.edu/programs/adr/msoc/pdf/standards090805.pdf (adopted by the American Arbitration Association, American Bar Association, and Association for Conflict Resolution) [hereinafter MODEL STANDARDS]; OR. MEDIATION ASSN, CORE STANDARDS OF MEDIATION PRACTICE 4 (2005), available at http://www. omediate.org/docs/2005CoreStandardsFinalP.pdf (giving a detailed description of the mediators duty to maintain confidentiality). 155 See MODEL STANDARDS, supra note 154. 156 Id. 157 Id.
153 152

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treats the appearance at mediation as mandatory and resolutions as voluntary. 158 Each foreclosure mediation program should develop policies that promote self-determination. For example, if a party questions the voluntariness of mediation in the Franklin County Foreclosure Mediation Program, the response might be that the court order requires the party to attend mediation, but does not require that the party participate.159 Impartiality The duty to be impartial applies to both the individual mediator and the program.160 The Model Standards of Conduct for Mediators discusses impartiality as follows: A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice. B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality. 1. A mediator should not act with partiality or prejudice based on any participants personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason. 2. A mediator should neither give nor accept a gift, favor, loan or other item of value that raises a question as to the mediators actual or perceived impartiality. 3. A mediator may accept or give de minimis gifts or incidental items or services that are provided to facilitate a mediation or respect cultural norms so long as such practices do not raise questions as to a mediators actual or perceived impartiality. C. If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.161
158 159

See DESKBOOK, supra note 58, at 7-3 to 7-4. See Foreclosure FAQ, supra note 21. 160 See DESKBOOK, supra note 58, at 10-4 to 10-5. 161 MODEL STANDARDS, supra note 154.

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Mediator impartiality is a particularly troublesome area for foreclosure mediators and foreclosure mediation programs. Unless the parties agree to use of a partial mediator, 162 the impartial role of the mediator should be emphasized in the mediators introduction and included in the Agreement to Mediate. Processes designed to foster the perception that the mediation program operates without bias or favoritism include: When offering one party an opportunity, it is important to offer the same to the other party. For example, if the program allows the borrower to reschedule, the program should also allow the lender the same courtesy. These determinations are most appropriately made on a case-by-case basis, but neutral processes should be in place to let parties know what to expect. For example, if a party requests a continuance for good cause, criteria that define good cause are necessary. Requirements for submission of documents should be the same for all parties. Programs (as well as the parties) should not engage in ex parte communications with the court. Conflicts of Interest Under the UMA, mediators are required to disclose conflicts of interest as soon as they recognize them,163 thereby ensuring the integrity of the process. Different schools of thought exist on this topic, but most experienced mediators will disclose that they have a bank account with the lender who is one of the parties in the mediation before them.164 In doing this, the mediator builds trust in both the mediator and the mediation program where the mediation is taking place. Ethics The American Bar Association Section of Dispute Resolution Web site provides information about mediator ethics.165 Included on the site are
OHIO REV. CODE ANN. 2710.08(G) (West 2006). Id. 2710.08(A)(2). 164 E.g., id. (maintaining a bank account with a party lender could fall within the scope of having a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party). 165 See Dispute Resolution Ethics Resources, ABA, http://www.americanbar.org/groups/ dispute_resolution/resources/Ethics.html (last visited Feb. 20, 2012).
163 162

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links to the ABA/AAA/ACR166 Model Standards for the Conduct of Mediators, the National Clearinghouse for Mediator Ethics Opinions, and Ethics Helps for Neutrals and Advocates.167 m. Mediation Termination Mediators must receive training to know if and when to terminate the mediation.168 Ideally, both parties will have legal representation, but in reality, this is rarely the case.169 Mediation parties can include an unrepresented borrower and a lender with counsel present. Mediators should not assume that the power imbalance lies in favor of the lender. There are many resources available to borrowers, so they may attend mediation very prepared. If the lender sends a new associate to the mediation, the borrower may know more than the new attorney, tipping the power imbalance in favor of the borrower. No magic answer regarding the termination of foreclosure mediation, or any other type of mediation, exists. The skill and experience of the mediator is critical. If the mediator feels that the borrower or the lender does not fully understand the agreement, the mediator should terminate the mediation, refer the parties to appropriate resources, and, if necessary, reschedule the mediation to finalize the agreement. A mediator may schedule a follow-up mediation, which gives a borrower time to have counsel review the terms of an agreement or the lender time to receive the final approval from an investor. n. Other Resources Foreclosure mediation programs require a wide range of resources, preferably local resources since federal resources tend to be short-term.170 Ideally, the individuals, organizations, and government entities that control these resources create programs that result in long-term, sustainable
American Bar Association, American Arbitration Association, and the Association for Conflict Resolution. 167 See id. 168 See Foreclosure Mediation Trainings and Roundtables, supra note 27. 169 See OHIO FORECLOSURE PREVENTION TASK FORCE, supra note 1, at 17 (noting that homeowners are often unable to obtain legal representation in foreclosure cases). 170 See Making Home Affordable, available at https://www.hmpadmin.com/portal/ programs/docs/hamp_servicer/mhahandbook_33.pdf. 171 See, e.g., OHIO RENTAL HOUSING LOCATOR, supra note 170; NO PAWS LEFT BEHIND, supra note 170 (last visited Feb. 11, 2012).
166

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outcomes. These resources include legal aid, housing counselors, and assistance finding rental properties for individuals.171 VIII. WHAT DOES THE FUTURE HOLD? There are four trends projected in the near future: the robo-signing scandal, unemployment, loan resets, and resets under HAMP. The first is a potential increase in the number of foreclosures resulting from the robosigning scandal, because of the failure of lenders to follow procedures relating to the execution of foreclosure affidavits.172 In late 2010, this scandal led some lenders to halt foreclosure filings temporarily.173 As a result, The Office of the Comptroller of the Currency established an Independent Foreclosure Review.174 A second trend relates to households with one or more individuals at risk of job loss due to the economy.175 The third trend will be a result of projected loan resets on prime loans and resets on loans to people with decent credit scores but special circumstances (stated income) are heading straight up through early 2012, which will result in borrowers being unable to afford the new payments.176 Finally, the fourth trend relates to individuals who received loan modifications under HAMP beginning in 2009, who may now or in the future be at risk of re-default because of the increase in the mortgage rate

See, e.g., OHIO RENTAL HOUSING LOCATOR, supra note 170; NO PAWS LEFT BEHIND, supra note 170 (last visited Feb. 11, 2012). 172 See Pallavi Gogoi, Robo-Signing Scandal May Date Back to Late 90s, MSNBC.COM (Sept. 1, 2011, 8:15 PM), http://www.msnbc.msn.com/id/44365184/ns/business-real_estate/ t/robo-signing-scandal-may-date-back-late-s/#.T33OGxxa4zA. 173 Id. 174 See Independent Foreclosure Review Underway, OFFICE OF THE COMPTROLLER OF THE CURRENCY, http://www.occ.treas.gov/news-issuances/news-releases/2011/nr-occ-2011133.html (last visited Feb. 19, 2012). 175 See Brooke Adams, Unemployment, Foreclosures Drive More Utah Families into Poverty, THE SALT LAKE TRIB. (Aug. 16, 2011), http://www.sltrib.com/sltrib/news/ 52390558-78/utah-bonnet-families-foundation.html.csp. 176 See Matthew Padilla, Loan Reset Threat Looms Till 2012, THE ORANGE COUNTY REG. (May 20, 2009), http://mortgage.ocregister.com/2009/05/20/loan-reset-threat-loomsthrough-2012/10791/.

171

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under HAMP after the five-year fixed rate expires.177 The good news is that many states now have processes in place, including mediation, as a resource for borrowers who may be facing foreclosure.178 Professionals representing twenty-two states have joined together, under the leadership of the Dispute Resolution Section of the Supreme Court of Ohio, to continue to work together to find new ways to respond to the ongoing foreclosure crisis.179 The group meets regularly in online forums or via conference calls, using technology provided by the Supreme Court of Ohio. The group members work together to build programs, share best practices, ask questions of each other, receive training on new topics and issues, and brainstorm new ideas.180 Members are able to connect with judges and professionals in other states[,] which include court and non-court organizations.181 IX. CONCLUSION The foreclosure crisis creates terrible situations that need to be resolved as quickly as possible. Successful design and implementation of a foreclosure mediation program, for either a judicial or non-judicial foreclosure process, includes a thorough discussion of the factors discussed by stakeholders, combined with state and local leadership and resources. Ohio created a collaborative process to address the foreclosure crisis among the executive, judicial, and legislative branches of government followed by implementation at the local level. Non-profit agencies and grass roots organizations joined statewide organizations to develop creative and effective programs to address this crisis. These efforts model
See Frequently Asked Questions, MAKINGHOMEAFFORDABLE.GOV, http://www. makinghomeaffordable.gov/faqs/homeowner-faqs/Pages/default.aspx (last visited Feb. 19, 2012). 178 See, e.g., U.S. DEPT OF HOUS. & URBAN DEV. & U.S. DEPT OF JUSTICE ACCESS TO JUSTICE INITIATIVE, EMERGING STRATEGIES FOR EFFECTIVE FORECLOSURE MEDIATION PROGRAMS 1 (2010), available at http://www.justice.gov/atj/effective-mediation-progstrategies.pdf. 179 Model Overview, supra note 5. 180 See Foreclosure Mediation Trainings and Roundtables, supra note 27. 181 Model Overview, supra note 5. To be become a member of this group, for documents that are referenced but not linked within the Model, for answers to questions, or if in need of assistance with implementing foreclosure mediation in your court or state, contact Dispute Resolution Section Manager Jacqueline C. Hagerott, Jacqueline.Hagerott@sc.ohio.gov, 614.387.9420.
177

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mediation by bringing parties together to examine options for mutually beneficial resolutions. By facing this crisis, an unforeseen benefit arose in this cloud of foreclosure in that the mortgage industry is now looking inward at its processes and procedures to improve channels of communication with borrowers.

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Dispute Resolution Section


The Supreme Court of Ohio Advisory Committee on Dispute Resolution was appointed in 1989 by Chief Justice Thomas J. Moyer, who saw the importance of opening Ohio's courts to the use of alternative dispute resolution. Chief Justice Moyer's address to the Joint Convention of the 118th General Assembly stated: There is no system of justice in the world that is more accessible than the American judicial system. Our purpose is to fairly and impartially resolve people's disputes in a peaceful forum. The institution is viable because it enjoys the confidence of the people it serves. But if we ask ourselves whether the system functions as effectively as it can, the answer is no. Too many people are frustrated with the delay and the cost associated with resolving civil disputes. Too many cases are filed that should not be filed; too many cases languish on court dockets only to be settled after considerable delay and expense . . .The time to consider alternative means of dispute resolution is here . . .We have a unique opportunity to say to persons who look to the Ohio legal system for the resolution of their disputes that we have various processes to resolve those disputes fairly and efficiently. In 2012 the Court elevated the Advisory Committee on Dispute Resolution to the Commission on Dispute Resolution with the purpose of advising the Supreme Court and its staff on all of the following:

The promotion of statewide rules and uniform standards concerning the use of dispute resolution in Ohio courts; The development and delivery of dispute resolution education and professional development activities for judges, magistrates, court personnel, attorneys, and courtaffiliated dispute resolution professionals; The development and delivery of dispute resolution services for disputes arising among state, county, and local public officials throughout Ohio; The consideration of any other issues the commission deems necessary to assist the Supreme Court and its staff regarding the development and delivery of dispute resolution programs and services.

The Court created the Dispute Resolution Section in 1992 with the purpose of promoting effective and efficient operations of the judicial system through the facilitation of dispute resolution services throughout all Ohio courts. The Section accomplishes this by assisting courts

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in developing and sustaining high-quality dispute resolution services that are accessible to all citizens; providing technical assistance, training and other opportunities to court-connected dispute resolution staff, judges, magistrates, mediators, parenting coordinators, court personnel, attorneys and other professionals; communicating ongoing research regarding innovative dispute resolution processes and resources; and offering mediation services, for litigants with cases before the Supreme Court, to assist them in resolving their disputes in a non-adversarial forum. The Dispute Resolution Section assists local courts in developing and sustaining high-quality dispute resolution services including, but not limited to: Arbitration Collaborative Law Conciliation Early Neutral Evaluation Facilitation Mediation Negotiation Parenting Coordination

As of November, 2012 there are Supreme Court Rules of Superintendence for the Courts of Ohio governing arbitration and mediation with rules governing parenting coordination pending. The primary dispute resolution method used by Ohio courts is mediation. Mediation saves expenses in terms of finances, time, and energies expended in expensive litigation costs. Although rapid settlements may be a beneficial outcome, just as important may be the preservation of the parties relationship and their ability fashion a mutually agreeable outcome. Resolutions that result from mediation can be customized to the parties needs and generally have a higher rate of compliance than a decision imposed by a Court. Litigation is also a dispute resolution process that will always be necessary. Certainly mediators have an important task in finalizing a significant number of cases for a court. However, mediators are not limited to settling cases. Mediation can narrow issues, resolve discovery and other outstanding issues and settle portions of cases leaving more manageable matters for the judge or magistrate to address. Another benefit is that it appears that parties engaging in mediation are less likely to return to Court. In one study they found that modifications are lowest in cases that mediated and relitigation is 7-8 times more likely in cases that dont mediate initially. This means people are making lasting decisions in mediation or have been able to make any new decisions themselves, without going back to court. http://www.mediateiowa.org/divorce-custody-mediation/learnabout-mediation/mediation-statistics.aspx Thus, at least theoretically, the mediator can have a far-reaching impact on a Courts case load. The importance of a mediator may vary from court to court depending on its jurisdiction but, in virtually every court, mediation should be considered an important tool. At any level, including cases filed at the Supreme Court, there are always certain cases which should be considered for mediation. Even with cases that have been mediated previously,

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mediation at The Supreme Court of Ohio can be a very useful tool. Mediation for family law issues is particularly beneficial because creative solutions and thoughtful communications are an ongoing necessity for parties raising children together. The Court has a continued commitment to assist local courts to provide court-connected dispute resolution services to the citizens of Ohio at no cost to parties. The goal in providing dispute resolution services is to maintain public confidence in the judicial system by handling disputes fairly and with impartiality. Dispute resolution services preserve citizens' rights and offer the opportunity for parties to resolve their disputes quickly and economically. Dispute Resolution Resources: For assistance evaluating a current program/service or developing a new program/service please contact Jacqueline C. Hagerott at jacqueline.hagerott@sc.ohio.gov. Dispute Resolution Sections Web site at: http://www.supremecourt.ohio.gov/JCS/disputeResolution Dispute Resolution Section Events Calendar (education, roundtables, and professional development events): http://www.supremecourt.ohio.gov/JCS/disputeResolution/training/ Frequently Asked Questions: http://www.supremecourt.ohio.gov/JCS/disputeResolution/FAQ/ Local Rule Guide: http://www.supremecourt.ohio.gov/JCS/disputeResolution/rule16/ Mediation Program Resources: http://www.supremecourt.ohio.gov/JCS/disputeResolution/resources/medProgram.asp Sample Mediation Program Model: http://www.supremecourt.ohio.gov/JCS/disputeResolution/resources/medModels/Oregon/

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What you should know aboutCourt Mediation Updated 6/4/2012 What is mediation? Mediation is any process in which a mediator facilitates communication and negotiation between parties to help them reach a voluntary agreement regarding a dispute. Ohios law governing mediation is called the Uniform Mediation Act (Ohio Revised Code Chapter 2710). What does the mediator do? The mediator, a neutral third party, provides a forum that allows parties (and their attorneys or support individuals, if present) to discuss their dispute and any other issues that may concern them. These discussions may include everyone in the same room, or the mediator may speak with each party separately, including the attorneys, without their clients being present. The mediator also will make sure parties provide all documents, forms, or other materials needed to reach an agreement. The mediator does not act as a judge and does not make any decisions in the case. While the mediator facilitates discussions in a facilitative mediation, and may even evaluate the case in an evaluative mediation, it is the attorneys job to give advice and opinions. The goal of mediation is to allow the parties (rather than a judge or a jury) to decide the outcome of the case. The mediator will provide education and refer parties to other sources for support, where appropriate. How should I prepare for mediation? Before the scheduled mediation, contact the courts mediation services to ask how much time the mediation is likely to take and plan accordingly. Also, ask what documents, forms, etc., you need and whether you should provide them in advance. A lack of appropriate information may require you to reschedule your mediation. If you are concerned about possible violence or coercion from another party, it is important to inform the mediator so appropriate safety measures can be taken. You can participate in mediation without even seeing another party. If you are represented, talk with your attorney before the mediation date. Determine (with your support person(s) and/or your attorney, if you have one) your goals, what has kept you from settling the dispute, how you will evaluate offers presented at the mediation, what the other side likely will need to resolve the case, and who you would like to attend the mediation. You should also evaluate the strengths and weaknesses of your case, the costs of going to trial and the potential risks of going to trial. Generally, parties will share information before the mediation session. This may include information contained in financial documents, such as pay stubs and utility bills, child-related documents and other relevant information. Sharing such information beforehand allows you time to review it, and may eliminate the need for another session to consider additional documentation

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necessary for settlement. Some local courts conduct pre-mediation conference calls to ensure that parties are fully prepared, have provided all the necessary financial and other documentation and can attend the mediation on the scheduled date. Who attends mediation? The court may order all parties in the case to attend the mediation session. Assuming the parties are represented, their attorneys may attend, but need not be present unless the court orders it. Insurance company representatives, if any, also may attend, along with any other party necessary to settle the case. You and the other party also may invite individuals who are not necessary to settle the case, but may provide support. You do not need an attorney to attend the mediation, but you can always ask the mediator to stop the mediation so you can call an attorney before you proceed. What happens if we do not settle, or settle only some of the issues? You do not have to settle your entire case, but you should come to the mediation willing to discuss settlement options. You may reach a partial settlement, and then reschedule the mediation to finalize remaining issues. If you do not settle, your case will be returned to the courts regular schedule or docket. If some of the issues are settled, then the court may make a decision on only the unsettled issues. How long will mediation take? Most mediations sessions take between one and two hours. Can the other side reveal in court what we say during mediation? Unlike a trial, mediation is conducted in a non-public setting (usually a private room in the courthouse). Ohio law protects mediation communications from being disclosed in court proceedings except in certain cases (such as when there are threats of harm, admissions of crimes or admissions of abuse). Generally, no one who participates in mediation may reveal mediation communications in any proceeding, including court. Communications may, however, be revealed as long as all of the parties agree. Before waiving confidentiality, it is wise to talk with an attorney. Remember, however, that mediation is only confidential to the extent that all of the parties agree. Therefore, if you do not want your mediation communications to be revealed anywhere outside of any legal proceeding (for example, published in the local newspaper), you should tell your mediator you want to enter into a confidentiality agreement with the other party before the mediation begins. You should put this agreement in writing and include the signatures of any and all people who participate in the mediation, including those participating by phone. If your attorney does not attend the mediation, you should list him/her (and any other outside party you

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may want to talk with about the mediation) as an exception to the confidentiality agreement. Sometimes a confidentiality agreement is included in the courts Agreement to Mediate. Why should I consider mediation? Mediation allows you to have more control of the outcome of your dispute. Mediating a dispute also can help you and the other party to identify solutions and other issues that are not included in the formal case. An agreement created by you and the other party is more likely to meet your needs. If you can settle your case without going to trial, then you eliminate the risk of losing your case or getting a judgment that is less acceptable than a negotiated agreement. Also, you save money and time that a trial would require. You will also learn communication skills that can help you avoid turning to the courts to settle your dispute in an adversarial way. Often, courts provide mediation services at no charge to you. Any fee that may be charged is typically much lower than the cost of a trial. Also, mediation discussions are less formal and generally more relaxed than a trial. Finally, if you go to trial, then you must accept the judge or jurys decision, unless an attorney advises you to appeal. Even if your case is appealed, there are mediation programs in nearly all of the appellate courts including a mediation department at the Supreme Court of Ohio. Where can I learn more about mediation and mediators? Both the Ohio State Bar Association (OSBA) and the Supreme Court of Ohio provide information about mediation and mediator directories through their websites. Visit the OSBAs website at www.ohiobar.org or visit the Supreme Courts website at www.supremecourtofohio.gov/JCS/disputeResolution. You can also contact the Supreme Courts Dispute Resolution Section at (614) 387-9420. 6/4/2012 June 2012 Ohio State Bar Association LawFacts Pamphlet Series Ohio State Bar Association PO Box 16562 Columbus, OH 43216-6562 (800) 282-6556 or (614) 487-2050 www.ohiobar.org Funding from the Ohio State Bar Foundation This is one of a series of LawFacts public information pamphlets. Others may be obtained through your attorneys office, by writing the Ohio State Bar Association or through www.ohiobar.org.

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The information contained in this pamphlet is general and should not be applied to specific legal problems without first consulting your own attorney.

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