Disclaimer and Notice


Tuesday, April 23, 2013

Ex Parte Contacts a No-No Even if Done to Keep the Peace

Recently, the New Mexico Supreme Court disciplined a Municipal Court Judge for ex parte contacts held in relation to a criminal property damage claim in a small New Mexico community.  See In re Micheal G. Rael, Sr., Inquiry No. 2011-040.  In a case that is illustrative of "the ethical dilemmas judges in small communities face,"

Thursday, January 31, 2013

Revisiting the "Mutual Gains Framework"

Like any mediator or conflict coach, I sometimes despair over the state of public discourse, and how divided the populace seems to be on just about any substantive issue. 

In 1996, Lawrence Susskind & Patrick Field published Dealing with an Angry Public, in which they first noted "concerns about the distrustful attitudes that citizens have toward government and corporations, and the inability of these institutions to respond to public concerns in a robust, inclusive and effective way."

In response, the authors put forth a number of principles to regain public trust:
1- acknowledge the concerns of the other side;
2- encourage joint fact finding;

Friday, January 11, 2013

Peace Circles & Community Conflict

I've previously written about talking or peace circles while providing a "primer" on ADR terms, theories and concepts.  Talking circles originate in indigenous cultures, and are closely related to theories and techniques seen in restorative justice generally.  Such restorative justice (a.k.a. reparative, reconciliation or integrative justice) techniques have been used with considerable success to bring healing in the face of both wide-spread cultural conflicts, and to parties affected by property damage crimes.   See ADR Terms, Theories and Concepts - A Quick Primer.  

Jack B. Hamlin and Justine Darling describe a 2010 experiment using talking circles to address a socially and emotionally complex community issue: homelessness in Ocean Beach, California.  See ACR Conflict Resolution Quarterly, vol. 29, no. 4, Use of Peach circles in Large-Scale Community Conflict: A Case Study.  The study provides great learning potential.

Sunday, December 23, 2012

Loan Modifacation Gaffes Not Grounds to Set Aside Foreclosure

I have previously written about my work as a foreclosure mediatorSee Foreclosure Mediation - Limitations and Concerns and How a Mediator Can Help in Foreclosure - More Thoughts.  A common defense raised on behalf of homeowners in mediation is that a Bank has breached either HAMP guidelines or the duty to bargain in good faith for certain action taken in processing a loan modification request, or in proceeding with foreclosure while a loan modification application is pending.  As I've noted before, a couple of state court case around the nation have indicated a willingness to entertain claims concerning a duty to try to settle foreclosure cases, or to exercise a duty of care in processing a loan modification request. See Foreclosure Mediation, supra.  However, recently the New Mexico Court of Appeals appears to have rejected this line of foreclosure defense.

Tuesday, November 27, 2012

Judges Weigh in On Value of Pressing for Settlement

The Spring 2012 issue of the ABA Journal of Litigation interviewed two federal Judges, Judge Dan Polster of the Northern District of Ohio and Magistrate Judge Jeremiah J. McCarthy of the Western District of New York, regarding their mediation philosophiesId., Judicial Mediation:  Two Judges' Philosophies.  Ultimately, they both believe--and I think most decision makers would agree--that parties and the judicial system are almost always better off with voluntary settlement, so much so though that "even aggressive judicial settlement efforts" may be warranted, although caution is always required.

Tuesday, October 23, 2012

Foreclosure Mediation More Like Facilitation

As a foreclosure mediator, I've previously written about some of the benefits and limitations of mediation foreclosure.  See  Foreclosure Mediation - Limitations and Concerns and How a Mediator Can Help in Foreclosure - More Thoughts.  Recently, Susan M. Yates and Heather Scheiwe Kulp have written about mediation foreclosure, and note that "foreclosure mediation" often does not look much like "mediation" as we ADR practitioners typically think of it.  I have also noticed this, and frequently discuss it with my foreclosure mediation clients.  

I describe it as more of a "facilitation" process in which I help the homeowner and the right and left hands of the bank speak together about foreclosure and loan modification. 

Wednesday, October 17, 2012

Administrative Standing in NM

In New Energy Economy, Inc. v. Hon. Linda M. Vanzi, 012-NMSC-005, the Supreme Court answered the question, "What level of participation in an administrative rule-making proceeding gives a participant the right to defend that new rule in an appellate court during a subsequent appeal?"  After very fine and comprehensive analysis, discussed below, the Court holds that  "those who have participated in a legally significant manner in administrative rule making ... have the right to participate as parties to an appeal if they express such an intention."