This year (2011) the legislature passed and Governor Gregoire signed into law the Foreclosure Fairness Act (FFA). It establishes a mediation program as a significant part of the relief it provides to alleviate the effects of foreclosure on homeowners.

If you're interested in being a mediator under the program, see the information on our Foreclosure Mediation Training Events Page.

We as a section have the opportunity to have a positive effect and input on the implementation of the FFA and the mediation program that the Commerce Department administers.

ADR Issues in the FFA. Here's a synopsis of some of the questions and concerns that we've identified with the FFA. We'll of course be learning a lot as the program gets going. So over time expect this list to be revised and refined:

  • The exclusion of the Uniform Mediation Act from applying to mediations convened under the FFA.
  • The confidentiality protections for mediation participants.
  • The confidentiality, disclosure requirements and testimonial protections for mediators.
  • The exercise of the mediator's statutory fact-finding responsibilities.
  • Mediator qualifications, competencies and evaluations; that lawyers be able, within reasonable qualification limits, to serve as mediators.

Here's a summary of some of our involvement to date.

WSBA Support. Commerce is seeking WSBA's support for the initial development and on-going administration of the Fairness Foreclosure Act. We're working with WSBA Staff and other WSBA sections (RPPT/RP Council) to coordinate that support.

Mediator Qualifications. Early discussions with Commerce addressed the very immediate concern of what qualifications might be imposed beyond the statutory qualifications on the mediators it chooses to have on its panel. At first it appeared that Commerce was heading toward a statement of qualifications based on a training requirement which few lawyers have taken and would have made it very difficult for most lawyers to serve as a mediators. On suggestion, instead Commerce has adopted a two different experience requirements, one allows more training to offset less experience. So this is now pretty much done, unless Commerce decides to revisit it later, possibly in issuing agency guidance (see below).

Training Development. Commerce is developing a training program for mediators to qualify to mediate cases under FFA. We're monitoring the content of the first two days of the training which are mainly subject matter specific. We are also now connected now with the people who are taking the lead on developing the "Third Day" of training which will be focused more on mediation practice skills with role-play exercises and case studies. So we'll have the opportunity to have input on the training's development and help where we can.

Training Promotion. We're well on our way promoting the training to the ADR Section through our website, our Events Page, a broadcast email message to the website members, and an email blast to the ADR Section members. An email message will be sent by WSBA Communications to all current WSBA members (~30,000).

CLE Accreditation. We're helping Commerce work with WSBA MCLE staff to get CLE accreditation for the training.

Mediator Evaluations. In the course of discussing training requirements it was suggested that, to ensure mediator competence, Commerce should evaluate the service provided afterward instead of imposing unrealistic training requirements going-in. We'll be providing Commerce with contacts and information to mediation convening organizations that have mediation evaluation programs.

Legislative Interim. WSBA Legislative Staff will be working with us to get the ADR Section's input in any discussions during the interim that relate to potential revisions to the FFA during the next legislative session.

Agency Guidance. Commerce may be issuing agency guidance to implement the FFA. They want to  avoid rule-making, which is understandable. Commerce knows now that we'd like an opportunity for input with them as they develop that guidance.

Interested in any of these issues? In helping out and getting involved? Chime-in with your thoughts below, or contact Jeff Bean, Section Chair, or Paul McVicker, Legislative Committee Chair.

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Replies to This Discussion

There will be a public forum about the FFA Wednesday, June 8, 7:45 am, in Tacoma. Details here.
For those who are looking to markup langauge, here's an MS Word copy of the SSHB 1362, as enrolled.

As previously mentioned, what winds-up being important for the section will be revised from my earlier guess above. So here's my take on what's now shaping up as the important potential legislative issues for the section:

  • The exclusion of the Uniform Mediation Act from applying to mediations convened under the FFA.
  • Immunity from liability for mediators.
  • The privilege, disclosure requirements and testimonial protections for mediators.
  • The exercise of the mediator's statutory fact-finding responsibilities: the discretion to find or not find "good faith."

I don't think anyone's really concerned about confidentiality - in fact, the bill's proponents were very clear that they want what comes out of the mediation to be able to be used, and I'm not hearing anyone from the ADR/mediator community suggesting otherwise. And I'm not hearing anyone suggest there's a value in participants having the UMA's privilege - the energy is in the mediators having the privilege. And the questions of mediator qualifications, competencies and evaluations are all important, but not really suggesting any legislative solutions, at least not at this early date.

Don't know why I'm feeling inspired to write statutory language, but here's a shot at providing mediator immunity, which is shaping-up as the most important issue to fix. I still haven't heard of this being codified, so I'm using the language of SHB 1362, the enrolled act/session law, which is also posted above:

(b) Prior to scheduling a mediation 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 foreclosure action between the parties and that the mediator is immune from suit in any civil action based on any proceedings or other official acts performed in his or her capacity as a mediator under this section, except in cases of wilful or wanton misconduct. However, the mediator's certification may be deemed admissible evidence, subject to court rules, in any litigation pertaining to a foreclosure action between the parties.

I cobbled the language directly from RCW 7.75.100 which provides immunity to DRCs. Pretty simple, huh?  Whaddya think?



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