Milwaukee Foreclosure Mediation Program: Theory to Practice

Andrea Schneider and Natalie Fleury have a new paper on SSRN that describes the Milwaukee Foreclosure Mediation Program and analyzes the MFMP’s design by reference to dispute resolution theory.  The MFMP responded to the ongoing foreclosure crisis in Milwaukee, emerging from an initiative involving Marquette Law School and several government agencies, elected leaders, and community organizations.  The MFMP creates voluntary mediation opportunities for homeowners and lenders in the hope of renegotiating payment terms such that both sides will benefit.  So far, the results seem impressive, with home-retention agreements reached in more than forty percent of mediations and high levels of satisfaction reported by program participants.

Andrea and Natalie conclude as follows:

The opportunity to put years of writing and work in the field to use to help out the city, state, and court system was an honor and unique opportunity for the law school. Both professors and students witnessed law school teachings put to work and had a rewarding impact in their own backyard.  It also has given us, as designers, far greater insight into the local government and local community than we would have had without this collaboration. Most importantly, mediation has worked in exactly the way that we theorized. The communication between the parties is vastly improved through the program than it would be otherwise. Parties have control over the outcomes, not perfectly, but again, much more so than they would have in the alternatives. And the program provides for efficient solutions as the city continues to struggle with foreclosures. Moving forward, we have to map student availability and interest with the needs and opportunities presented by the program. But we have witnessed the putting of theory into practice in a wonderful way while recognizing that we would have all preferred that this particular need not exist.

Their paper, entitled “There’s No Place Like Home: Applying Dispute System Design Theory to Create a Foreclosure Mediation System,” will appear in the Nevada Law Journal.

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Respecting Others’ Positions

Professor Calboli made an interesting point in her comment to one of my previous posts, where she used the phrase “respecting others’ positions.” This gave me an idea for another post. What does it mean to respect others’ positions? Values-based disputes are often very hard to negotiate and accordingly, mediators are introduced to help bridge the gap. A problem I have witnessed, at least in my work, is that mediation is overly used and valued. Consensus is sought for consensus’ sake and mediation is implemented without any regard to negotiative theory. There are times when people will not, and based on their values, should not agree. If one’s best alternative is preferable to what is offered at the table, one should walk away from the table. If one’s bottom-line cannot or will not be met, it is both self-deceptive and disrespectful to continue to push for “consensus.” Having twenty conversations in order to change the plan of care to something more in-line with what you want is not truly consensus—in some ways, it’s possibly coercive.

This does not mean people should shut down and stop working toward their goals; it merely means that people should seek to achieve their goals away from the table.

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Israel Reflections: Dinner with the Baraks

As followers of the blog know, one of the high points of our trip to Israel was dinner with Justice Aharon Barak and his wife Judge Elika Barak.  We were also joined by their daughter, Tamar, who is a mediator.  Interestingly from the dispute resolution perspective, Justice Barak was the judge who brought mediation to Israel through the Supreme Court, permitting cases to be referred to mediation.  In this post, student Olga Kordonskaya reflects on the evening:

The Baraks were open and willing to discuss various topics, including dispute resolution and their professions. Justice Barak spoke about criticisms made of him and discussed them in various contexts to help us understand what role he saw for himself in the judiciary. Justice Barak, who brought mediation to Israel, shared his opinions on mediation and its role in Israel and as a vehicle of dispute resolution. Judge Barak, with a different perspective as a labor judge, discussed the role of mediation in the labor courts, as well as her experience as a judge there and the challenges that the labor courts face.

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