Promoting Informed Use and Best Practices for ADR in Washington
It's a bedrock ethical principle of our work as mediators. The only thing more foundational is the principle of client self-determination and autonomy. They are Standards I and II in the Model Standards of Conduct for Mediators. The way we help parties find their own solutions is by acting impartially.
So much of what we heard over the last two days, in the Foreclosure Mediation Training June 28-29, came from advocates for borrowers. We heard a bit from folks from federal programs. But most of it was from borrower's advocates.
That's okay. It reflects the fact that the Foreclosure Fairness Act was a borrower's solution. It was proposed by the borrower's community as a bill and was advanced through the legislative process by them. Now that it's law they're helping the Commerce Department put together a program - including this training - to make a whole lot happen on very short notice. And Valerie Grigg Devis and the rest of the Commerce team have done an amazing job putting it all together.
I know that Commerce very much wanted to have more involvement from the lender's community in this training. And the next time it's presented I'm sure they'll have that. That didn't happen this first time. For presentations, we heard thirty minutes from someone speaking from the lender's perspective. We heard 10+ hours from the borrower's perspective. And only 30 minutes of one presenter speaking to us mediator-to-mediators.
Now I'm not suggesting we should expect the world to serve itself up to us on a platter of impartiality just because that's how we want to act. We shouldn't expect our information to come to us in some sanitized form of being Fair & Balanced just because that's what we're trying to be. The world isn't fair or balanced or impartial. We shouldn't expect it to be. Whether in a mediation or a training, we take the information as it comes.
For me, as one mediator in a seat being trained, it meant much of what I heard needed to go through my mediator's impartiality filter. Like so many things, I needed to reframe it to make it useful to me as a mediator. I was constantly asking myself the questions like:
I know of others who took a similar approach - hearing what was presented, putting it through their own impartiality filters to integrate what they heard and learned. We do this all the time.
Yet I also know others struggled. They read the language of the statute. They saw that they must certify whether parties acted in good faith. They heard what was being said from the dais - the language of enforcement - and heard themselves as mediators being described as "the stick." This language clashed with their understanding of themselves as mediators. It challenged their understanding of themselves acting impartially. They struggled to integrate it all.
More worrying was that some didn't struggle at all! That they heard the language of enforcement, of borrower's frustrations, and got sucked right into it. These are the ones for whom I am concerned for their future as mediators, both in this program and in any other dispute.
I was so appreciative of Maralise Hood-Quan's comments during the panel discussion at the end of the first day. She recalled us back to the principle of impartiality. She recalibrated our impartiality filters.
There's no question that our ways of thinking about impartiality will be continued to be challenged as foreclosure mediators. The hybrid process created by the FFA gives us responsibilities we're not used to having. We'll need to integrate these responsibilities while still remaining impartial.
We need to continue to hear Maralise. We need to continue to remind each other - first and foremost - that regardless what the statute requires, or what we hear in a training, we must act, appear and be impartial.
What are your thoughts? How can we reinforce our impartiality among ourselves? What else can we do?
Thank you, Jeff, for saying out loud what I was whispering in the back of the room. I really wanted to hear more from "the other side" and enjoyed a conversation with a few fellow mediators about personal accountability and resetting some societal thinking. Very head stuff, I know :)
Similarly, I was insisting that foreclosure mediations be approached with the same willingness to explore that we bring to other cases. To assume that we already know the homeowner is distraught over his victimization by a faceless villain who is taking away the family farm doesn't sit right with me. Perhaps it's my corporate background that helps here because I know that companies, for-profit institutions, and non-profit organizations are made up of individuals and shouldn't so quickly be lumped together as a single brick and mortar bad (or good) guy. Yes, the fish stinks from the head but I bet there are plenty of good people at servicers everywhere trying their best to work with what they have to help.
Jeff, I entirely agree with your comments and was definitely wriggling in my seat when I heard comments about us being "enforcers" of the new law. However, I do want to point out a couple of things about the new law, that you may or may not have already noticed, that may be helpful in figuring out what our role is under this law. In my view, nothing in the law itself indicates that we are enforcers per se (unless you believe that reporting lack of good faith makes us enforcers). Instead, as I understand the law at this early stage, we must do two main things (in addition to remaining impartial as Jeff describes above) : 1) we must require the participants to consider certain issues as listed in Section 7 (7) of the law (borrower's economic circumstances, NPV etc.); and 2) we must determine whether there has been good faith. The law has a fairly extensive list of situations that indicate lack of good faith, although the wording does indicate that additional circumstances could also indicate lack of good faith. (Section 7(8)).
Requiring parties to consider certain factors is probably something most of us facilitative mediators do not normally do in a mediation. Rather we might ask questions of parties that would lead parties to consider certain issues, but we would not require parties to consider anything they don't wish to. In this sense we are in a new role.
Additionally, the ability to report lack of good faith on the part of the beneficiary, which in turn creates a defense for the borrower in a foreclosure action, again puts us in a different role. Does this make us enforcers? Let me know what you think.
I also had some questions about being called the stick and wondered what I was getting into. Here are my thoughts.
This law creates procedural steps that are intended to cause substantively fair outcomes because the right information will be considered at the right times to make sound decisions. Once a foreclosure gets put down the tube called mediation, there will be consequences if the process steps are not followed. We are a process stick because without our signoff on good faith participation, some consequences are triggered. We are in no different position that if mediation for a parenting plan was ordered and one party failed to show and we reported the no-show. As I understand it, we are not a substantive stick - we do not have to influence any particular outcome. Our process checklist is longer than "did s/he attend mediation", but I understand it to still be a process role.
In my view, the mediator enforcement of process role is narrow enough to allow the law to work without compromising neutrality. If I have actually correctly understood the expectations, I think mediators can meet them and still be neutral. I think of it as a procedural due process vs. substantive due process sort of analysis, for you law types out there. Procedural issues can be monitored with neutrality... I think.
I am going to be paying close attention to this issue. It will be interesting to see how it all shakes out as mediations begin.
Vivian, love your reference to a "willingness to explore." That's a great statement of a tool to use to stay in an impartial frame.
Lori, it did seem at times as though we were being "nudged" by the borrower advocates we heard, didn't it? Yet we weren't in fact moved because we were careful to put those images through that impartiality filter. We can hear it and not react to it.
Selden and Victoria, your comments are a great reviews of how to see even the most draconian of the statutory provisions through a neutral's frame. They're not that different and they do have analogs in other work we do. We can take it all in - even the stuff that a borrower's advocate may call the "stick" - and integrate it into our impartial role. Yet it does take awareness and intention!