Here's another situation.

I have waiver from one party and none from the other. I did send a reminder and another copy of the waiver form (Estera and Roger helped me work through that in this discussion here).

So being quite happy with the clear language of the statute, I won’t schedule the mediation yet: "Prior to scheduling a mediation session, the mediator shall require that both parties sign a waiver ... ." Section 7(4)(b).

Let's say the 45 days runs to September 26. Counting back 15 days for the notice period, Section 7(5)(b), a mediation set for the 26th would have to be scheduled by September 11. The window of opportunity for the mediation is quickly closing.

The parties can agree to extend the 45-day period, Section 7(4)(a). So in theory, if the one party sends in a waiver even after the 8th, and convinces the other party to agree in writing to extend the 45-day period, we could still schedule a mediation. It could happen.

So one option is to send a last-ditch letter a few days before the window closes.

The other option is let the 45 days run and file the certification.

Just spoke with someone who, having no waivers, schedules the mediation anyway, figuring they’ll come in time or have the parties sign them at the mediation session if they don’t.

Anyone else finding this situation? Got scheduling windows closing on you, too? What do you do? How many reminders do you send? How many calls do you make? Or are people regularly getting waivers from both parties?

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I had one where the window closed on September 17th.  The parties both asked for an extension to the first week in October. 

 

Sherman

I have been assigned 4 mediations. Upon receipt of the referral letter, I sent out a special letter about the need for waiver form and followed up with calls and emails if the contact information is available.  I have contacted the trustee in all cases for contact information for the beneficiary and servicer and used that if available.  So far in only 1 case has the borrower sent in the waiver form.  There has been resounding lack of response from the beneficiaries and most borrowers.  I intend to follow up.  Is the rationale for scheduling a mediation without the waiver that the mandatory language of the statute "Prior to scheduling a medition session, the mediator shall require that both parties sign a waiver stating that neither party may call the mediator as a live witness in any litigation pertaining to a forecosure action between the parties" be interpreted to mean only that the mediator has to announce the requirement of signing but not actually require it?  I'd like to slide on the waiver requirement so things can get scheduled and would be happy to make people sign up when they are there in front of me. I believe the key to success is getting people actually to the mediation session.  Yet,  I am hesitant to ignore what seems to be a plain mandate of the statute, even if it seems ill conceived.What are other people doing? 

There was some conversation on this question in another discussion that I can't find right now.

To me, the statute is clear and unambiguous that the mediator shall require the waivers prior to scheduling. So being an old statutory-interpretation appeal attorney, I gravitate that way. I also am very wary of the fact that we don't have any privilege for what we do here, the statute having exempted these mediations from the UMA.

There are those that nonetheless will schedule without waivers, figuring they'll get signatures before they start. It's probably likely to work and I don't know that anyone would challenge them for ignoring the statute and scheduling without waivers.

It does appear that the requirement of waivers before scheduling could be one of those hoops that is designed to give lenders every opportunity to fail and to be found to not have timely participated in a mediation, giving the borrower a defense to the foreclosure. But again, the statute is clear and unambiguous, and here I am, now interpreting legislative intent!

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