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How we resolve our disputes

Entries in cost (2)


Mediation - the Justice of our Times

In an article about statute of limitations reform for child sex abuse victims, the author notes that Cardinal Timothy Dolan of the New York Archdiocese offered mediation and compensation as a means of resolving the claims against Catholic priests. The article states “Mediation is the justice of our times in the vast majority of cases,” and praises the resolution to the extent that it provides a “more efficient and private path for those survivors who would not choose the legal system.” I haven’t seen any statistics verifying that mediation is used in the “vast majority” of cases but, in my opinion, it should be. 

As an attorney, I have had cases that settled literally on the courthouse steps, sometimes with a jury in the box waiting to hear the case. In retrospect, I believe many of those cases could have been settled long before the trial date with the help of a mediator. Unfortunately, some parties prefer not to think about settling until they have fully prepared for trial. A good mediator should be able to help the parties prepare their cases, or at least to think about what it will take to prepare their cases for trial, and then focus on possible resolutions long before trial. 

As a mediator, I have seen parties come to a realization of the true value of their cases and the true costs and risks of fully preparing for trial well before the court’s trial date. Even if the parties are not fully satisfied with the settlement, at least they are relieved to be done with the costs and risks of going to trial. Sometimes, they are happy to have gotten something they could not have gotten in court, like confidentiality. 

The New York Archdiocese offered mediation as a means to awarding compensation to victims of clergy sexual abuse while at the same time keeping each complaint and award confidential and out of court. The mediation was offered before any pleadings were filed in court, without having to go through lengthy and costly motions and discovery. In my experience, such pre-filing mediation is rare. If it works to the satisfaction of both victims and the church, perhaps this will set a precedent for other potential litigants. Then, mediation will truly become the justice for our times. 


Mediating foreclosures -- a Tale of Two States

The current recession has affected the various states in different ways, but almost all states are reeling from an increase of foreclosure lawsuits.  In Florida, one of the most populous states where the real estate bubble hit spectacular highs and now is hitting incredible lows, a state Supreme Court task force has recommended that courts mandate mediation in any residential mortgage foreclosure action where the homeowner is still in the home and wants to stay there.  Some counties and judicial circuits in the state are already doing just that.  If the homeowner enters any kind of answer or appearance in the lawsuit, judges in those circuits are requiring mediation before scheduling a hearing in the case.  Some of those circuits are requiring the mortgage lender to pay all of the mediation fees. 

Meanwhile, in Wisconsin, a medium size state where the real estate bubble was never quite so large, a bill has been proposed that would require mediation in all foreclosure cases where the homeowner wants to stay in the home.  In the meantime, Marquette Law School is providing free mediation services for homeowners who want to save their homes from foreclosure in Milwaukee County. 

A recurring complaint by homeowners facing foreclosure is that they have tried to renegotiate their mortgage but have been unable to contact anyone to talk to at the bank.  A foreclosure lawsuit is the lender’s way of getting the delinquent mortgagor’s attention, as well as the first step toward an eviction.  The states and courts now seem to be giving the mortgagor the means to get the lender’s attention, and to start the ball rolling toward renegotiation of the mortgage.  No matter how large the state or how severe the backlog of foreclosure cases, mediation is rapidly becoming the tool of choice for states and courts.  Paying for the mediators’ time is a continuing problem, but the cost of foreclosure to homeowners, lenders and the states is undoubtedly greater than mediation fees.  If  homeowners can stay in their homes, they save the stigma of a foreclosure, the lender saves the expense and loss of a forced sale, the state keeps a paying property taxpayer in the home so there is less likelihood of vandalism, and the courts reduce their foreclosure case backlog.  Given those benefits, coming up with the cost of mediation should not be too difficult.