june 2016
 

THIS MONTH AT RSI

New Article by RSI Staff Examines Lessons Learned from Mediation in the Foreclosure Crisis

 
This month’s issue of Dispute Resolution Magazine, published by the American Bar Association Section of Dispute Resolution, features an article written by RSI Director of Research Jennifer Shack and Director of ADR Programs Hanna Kaufman. The article, titled “Promoting Access to Justice: Applying Lessons Learned from Foreclosure Mediation,” examines findings from the foreclosure mediation programs RSI administers and evaluates, and extrapolates from them to describe principles that can be adapted for programs addressing future crises, such as the growing student debt problem. 

Confidentiality Takes Center Stage during Staff Foreclosure Day


Last month, the entire RSI staff got together in Chicago for a day devoted to improving the operation of our mortgage foreclosure mediation programs. Though our staff, which is situated across a central office in Chicago, a home office in Maine and three court offices across northern Illinois, checks in frequently via telephone and email, getting together in person is a much bigger deal. At this gathering, our goal was to share our knowledge and ideas about how to make our foreclosure mediation programs better serve their communities.


We spent the day digging into the confidentiality of our programs. While we all know confidentiality is a critical pillar of the mediation process, it is not always clear how to scale this idea up into the actual running of a mediation program. This leads to questions such as whether it is it ever appropriate for program staff to notify the court if they see a pattern of behavior, e.g., a bank not notifying the program when it has served notice on homeowners.
 
This conversation resulted in us reexamining our own policies, asking some of the following questions, which we encourage all of you to consider as well in your programs: Who in your program is bound by confidentiality? When does confidentiality apply – does it exist throughout the time a case is in the program or only apply to an actual mediation session? Do you have exceptions related to program development, such as sharing information among mediators for training purposes?  There are no perfect answers, and certainly no one-size-fits-all model that will work for every program, but as guidance, you may want to look to examples from New York or Georgia.
 
We greatly enjoyed the opportunity to come together and work through some of these issues. If you have had experience addressing some of these issues in your programs, or want to chat about your particular experience, we’d love to hear from you!



 

RESEARCH

Is the Decline in Joint Opening Sessions Real?
Some Preliminary Data
Suggests it May Be

by Jennifer Shack, Director of Research

Have rumors of the joint session’s demise been greatly exaggerated? Two recent surveys of mediators exploring the use of joint sessions show that the joint opening session is not quite dead, and may be used regularly by about half of mediators. The first survey, of JAMS mediators throughout the US, found that fewer than half of those mediators regularly use joint opening sessions. The second survey, of International Academy of Mediators (IAM) members, similarly found that a minority of surveyed mediators start mediation with a joint session.
 
As Jay Folberg reports in “The Shrinking Joint Session: Survey Results” (Dispute Resolution Magazine, Winter 2016), 205 mediators responded to the JAMS survey, which was a 76% response rate. The survey showed an intriguing, though unsurprising, decline in individual use of joint opening session.  Fully 80% of the mediators reported that they used joint opening sessions regularly when they first started mediating, while only 45% reported using it regularly now. Of those who said they did not use a joint opening session, 20% said they regularly or often convened a joint session later in the mediation.
 
The top three reasons surveyed mediators cited for using joint opening session are: 1) introducing all the participants, discussing the mediation process, and other pro forma matters; 2) discussing confidentiality; and 3) allowing parties to be heard by the other side. A third of mediators looked to attorney preference when deciding whether to use joint opening session, while another third based it on their own general policy and one quarter decided what was best given the nature of the case.
 
The survey of IAM mediators, as described by Tom Stipanowich in “Insights on Mediator Practice and Perceptions” (Dispute Resolution Magazine, Winter 2016), found a greater portion of mediators likely to start with a joint session. The survey asked whether the mediators “begin the mediation with all parties in caucus.” Of the 130 mediators who responded to the survey, 40% said they usually or always started with caucus, while 57% said they never or sometimes did. The assumption was that those 57% who did not generally start with a caucus therefore started with a joint opening session.
 
The differences in responses to the two surveys may be due to how the questions and response options on the two surveys were worded. The JAMS survey asked mediators two questions. The first asked respondents to check Yes or No to the question, “When you began your practice, did you regularly start mediation with a joint session?” The response options to the question, “Do you now use a joint initial session?” were quite different. The mediators were asked to check one of the following: “Regularly, Often, Sometimes, Rarely, Almost Never.” It is also possible that the differences have to do with the sample for each. The response rate for the IAM survey was not reported, so the responses may not be representative of the IAM membership as a whole.
 
The IAM survey asked about starting with all parties in caucus, and then provided the response options: “Always, Usually, About ½ the Time, Sometimes, Never.” It’s possible that these questions and response options were interpreted differently from those in the JAMS survey. In any case, the surveys are providing some initial insight into the question whether use of the joint opening session is declining. Next we will want answers to questions such as why some mediators are using it less frequently, in what types of cases it is and isn’t being used, and what impact joint opening sessions have on participant satisfaction.

RSI Board Of Directors

Terry Moritz, President
Prof. James J. Alfini
Marc Becker
Hon. Morton Denlow (ret.)
Hon. Allen S. Goldberg (ret.)
Mitchell Marinello
Raven Moore
Hon. Stephen Pacey (ret.)
Brian Roche
Hon. James Sullivan (ret.)

RSI Staff

Susan M. Yates, Exec. Director
Bridget Crawford
Matthew Flores
Mariah Heinz
Hanna Kaufman
Olga Kordonskaya
Kevin Malone
Jennifer Shack
Eric Slepak, Editor

NEWS & UPDATES


Lights, Camera, Action!


A television PSA recently hit the airwaves in Lake County, IL to educate residents about our mortgage foreclosure program in that county. The video stars RSI’s own Lake County Program Coordinator Olga Kordonskaya and Circuit Judge Hon. Mitchell Hoffman, and can be watched here:
RSI's Mortgage Foreclosure Mediation PSA

Latest Quarterly Foreclosure Mediation Statistical Report Now Available
 

Data on Illinois’ foreclosure mediation programs, current through March 30, 2016, is now available. Click here to see updated statistics on the performance of the six programs.

Welcome to Our New Interns, Lindsey Blum and Alex Avtgis!
 

RSI is delighted to welcome two interns to our staff this summer. Ms. Blum recently finished her first year at the Northwestern Pritzker School of Law, and will be helping us update and develop items in our Resource Center. Mr. Avtgis just completed his third year in a four year combined JD-MPA program at Indiana University, and will be researching issues related to student debt and ADR

FUN FACTS


According to our web traffic data, the three most visited states in our Court ADR Across The US database over this past quarter were California, Alabama and Texas.
 

HOW CAN WE HELP?


How Can We Help You? RSI offers a clearinghouse of information on CourtADR.org and also responds to requests for information. Do you have a question about court ADR?
 
How Can We Help You? RSI offers a clearinghouse of information on CourtADR.org and also responds to requests for information. Do you have a question about court ADR?
 
 RSI Site
 CourtADR.org
 LinkedIn
 Facebook

RSI thanks JAMS and the JAMS Foundation for their support of this publication.

Copyright © 2016 Resolution Systems Institute, All rights reserved.
 
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