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.
I also advise the participants that room for negotiation will often be limited by a lack of bargaining authority to do more than offer loan modifications or other loan workouts within pre-set criteria and terms established by a loan servicing agreement, or any "pooling service agreement" into which the particular mortgage might have been collateralized.
I also advise the participants that room for negotiation will often be limited by a lack of bargaining authority to do more than offer loan modifications or other loan workouts within pre-set criteria and terms established by a loan servicing agreement, or any "pooling service agreement" into which the particular mortgage might have been collateralized.
Some mediators get antsy or even outraged that foreclosure mediation is not amenable to full and free-wheeling negotiation and "expanding of the pie." It challeges their notions of what authentic and proper mediation must necessarily look like. I tend to be more prosaic, so I found Yates and Kulp's take to be refreshingly modern and realistic. They aptly state "[w]e need to recognize, however, that mediation as we define it is not always the dispute resolution mechanism best positioned to assist in a crisis," and add "[t]here is no clearer recent example than the development of foreclosure dispute resolution."
Yates and Kulp echo my points about the limited ability to expand the pie. They also emphasize that "the representative at the table may not be the one who determines what options are allowed," and that any "representative on the phone may have authority to sign only one type of agreement (a short sale, for instance) and not be authorized to sign a loan modification agreement."
I really appreciated and agree with their ultimate conclusion: "We stand at the edge of a great opportunity. Instead of arguments among ourselves about what is and is not mediation, why not explore our own assumptions about dispute resolution more generally? Why not explore how and what dispute resolution processes may be appropriate and beneficial for resolving the foreclosure crisis? While many of these programs should not be called medaition, we can use the opportunity to educate the public about what mediation is, and more importantly, what ADR variations might be used to help address the crisis."
If
you are interested in mediation services for a foreclosure matter (residential
or commercial), please contact Pilar
Vaile, P.C. at (505)
247-0802 or info@pilarvailepc.com.
