Thursday, October 9, 2014

A Tightrope Over Both Your Houses

S14 Newsletter - Heather KulpHNMCP Clinical Instructor Heather Scheiwe Kulp has been published in the most recent issue of the Pepperdine Dispute Resolution Law Journal with her cleverly titled article, “A Tightrope Over Both Your Houses: Ensuring Party Participation and Preserving Mediation’s Core Values in Foreclosure Mediation.”

Kulp outlines why mediation is an attractive and powerful option for large scale crises, such as the foreclosure crisis that has gripped the U.S. since 2007. Mediation supports resolving disputes in mutually satisfactory ways, helps to balance power dynamics, allows for emotions to be addressed, and promotes equitable, open, and direct communication. In addition, mediation encourages parties to make their own agreements rather than accept the outcome (foreclosure) should no alternative agreement be made. Self-determination ensures greater compliance and satisfaction with the dispute resolution process, even if the outcome is foreclosure.

“Trust, clear communication, and the ability to brainstorm many options are at the heart of a dispute resolution process,” explains Kulp. However, for all the strengths of mediation, a strong and well-designed system is necessary to balance competing goals. “In this article, I wanted to explore some of the tensions among the goals of foreclosure mediation programs, primarily, the tension between holding parties accountable for unhelpful behavior and promoting creative option generation through a confidential process. Importantly, I wanted to offer some dispute systems design suggestions for how entities starting foreclosure mediation programs might build program components that balance these tensions.”

In her research of over twenty-five states, counties, or municipalities that have adopted a form of foreclosure mediation, Kulp found tensions between program goals and traditional mediation values and sometimes, even, mediation laws. Examples include programs citing explicit goals that reflect a non-neutral stance, such as keeping borrowers in their homes or holding servicers (rather than all parties) accountable for bad practices. The focus of holding parties accountable for undesirable behavior can be in direct tension with mediation’s core values of confidentiality and self-determination. In addition several levels of accountability (attendance, exchange of documentation, and participation in good faith) can be in contrast with priorities and rules under which court-connected mediation has historically operated.  Kulp stresses that it is vital for mediation to remain a neutral process, while balancing the need for protective measures to keep sophisticated servicers from using this process to further confuse pro se litigants and to keep borrowers from using mediation to draw out the foreclosure process.

Kulp proposes ways to use the aforementioned accountability elements to construct a fair and self-determined process that does not negatively alter the role of the mediator. She elaborates with specific and thorough recommendations for program design. She writes, “Mediation program developers perform a balancing act. They must determine the goals of the program and the public policies governing it, weigh the interests of its stakeholders, and comply with various statutory, administrative, and professional standards. . . . Once begun, programs must also subject themselves to rigorous evaluation. Only by involving interested parties at all stages of program development will foreclosure mediation programs ensure the core values of the mediation process serve to relieve the foreclosure crisis.”[1]

[1] Heather Scheiwe Kulp, A Tightrope Over Both Your Houses: Ensuring Party Participation and Preserving Mediation’s Core Values in Foreclosure Mediation, 14 PEPPERDINE DISPUTE RESOLUTION LAW JOURNAL 2, 243–44 (2014).