Moses or Solomon?

A federal judge ordered mediation with a magistrate judge in a lawsuit about whether the Ten Commandments can be displayed at a Virginia high school. U.S. District Judge Urbanski of Roanoke ordered the school board and the unnamed student and parent into mediation to see if a compromise can be reached over the biblical display. It's been reported that the judge suggested a deal could be made where the first four of the Ten Commandments are left off the display. This is unusual in cases of this type, which are typically all or nothing. For instance, in a pending Florida case, the Eleventh Circuit Court of Appeals recently heard arguments regarding Dixie County's Ten Commandments, where litigants are fighting over whether or not a six-ton model of the Ten Commandments in front of the county courthouse is unconstitutional and whether an anonymous plaintiff has standing in that matter. In the VA case, the judge issued a protective order allowing the parent and student involved in the case to remain anonymous during the suit which apparently came to fruition by a mutual agreement due to the threat of hostility by the community. The case involves a four-foot tall display of the Ten Commandments first hung on school walls following the Columbine school shooting in 1999. The display was taken down over a decade later by school officials, after receiving complaints, and replaced with a copy of the Declaration of Independence. In 2011, the Ten Commandments display was replaced following a backlash from parents and pastors. The display was then removed again after a month by school officials for no stated reason, prompting students to walk out of classrooms in protest. Will the tablets be split down to six, remain at ten or will there be none at all? See stories http://bit.ly/IYrWcx and http://bit.ly/JlIsaa

Why did things go better out West?

Just as Florida ended its mandatory foreclosure mediation program, the Justice Department praised Nevada's foreclosure mediation program in a recent report saying it provides a road map for other states to follow in addressing the continuing fallout from the housing crisis. Nevada, much like Florida, has some of the highest numbers of foreclosure filings in the country. In the report, data recorded by program staffers shows that since that program started, 13,813 Nevada homeowners participated. Of those, nearly 3,900 homeowners obtained loan modifications that allowed them to stay in their homes. More than 2,000 others agreed to foreclosure alternatives, such as short sales. Much like Florida, remaining participants of failed mediations blamed lender required documents or representatives without authority to take action. A drop-off in filings following robo-signing scandals may have skewed success, as well. However, the Justice Department apparently evaluated how states addressed the foreclosure crisis and singled out Nevada's program for developing policies and procedures other states could implement. See article - http://bit.ly/wg9N7O

Starting tomorrow in Seminole: 300 Foreclosures in 3 days

Tuesday, Seminole County's Chief Circuit Judge says he'll hear three days of foreclosures at 30 seconds a case, though last year Judge Dickey processed about 125 foreclosure cases an hour, many of which were dismissed or continued. For a time last year, the State of Florida paid retired senior judges to hear foreclosure cases to clear dockets. Since the program's demise, dockets are clogged again, especially with the Supreme Court of Florida also dropping its mandate last month for foreclosure mediation after reports that it was ineffective. Unfortunately, according to the Office of the State Court Administrator, almost seventy percent of cases mediated from March 2010 to March 2011 did not result in any agreement between the borrower and the lender. However, a U.S. Justice Department report recently concluded that mediation can resolve more cases-- if the programs are structured effectively. Without a government driven program for banks and homeowners to mediate foreclosures, it's now up to individual judicial circuits to decide about foreclosure mediations. Some circuits, such as Volusia, have no plans to ensure that banks offer mediation. Others, such as Seminole and likely Orange, will continue mandatory mediation. See article: http://thesent.nl/zQcPz6

Jurist tough on settling parties in mortgage crisis litigation

Last month, the Securities and Exchange Commission had to defend their proposed settlements to U.S. District Judge Jed S. Rakoff, who according to the Wall St. Journal is "No Mr. Nice Guy." The SEC apparently considers factors including losses suffered by investors as a result of the alleged wrongdoing in weighing how much the company benefited from the behavior and whether they will be hurt by a penalty. Judge Rakoff was skeptical why Citigroup's penalty is less than one-fifth the penalty paid by Goldman Sachs Group Inc. in its $550 million settlement with the SEC last year over a different mortgage-bond deal. Likewise, Judge Rakoff forced Bank of America and the SEC to come back with a 50-page statement and a higher penalty. He reluctantly approved the revised deal, quoting "the great American philosopher Yogi Berra" in a ruling. The judge says he saw in private practice how delays and gamesmanship made the American legal system too slow and expensive for the average person. See related stories at: http://on.wsj.com/sBSoL0 and http://on.wsj.com/u7f9FE

With all troubles in EU, Germany backs mediation

German parliament, the Bundestag, voted unanimously this week in favor of a new mediation law to implement a 2008 European Union guideline for the use of mediation in civil and commercial conflict. The move gives new legal weight to mediation by creating a more defined role for mediators acting in tangent to a court proceeding. Just as in the U.S., there is apparently a long wait to get a day in court and, of course, the outcome is unsure, while the risk remains high. Mediators reportedly earn an average 250 euros an hour, but parties to disputes still save substantial court costs. See more on this international development that sounds an awful lot like what we have going on in our own backyard: http://bit.ly/tJTjMz

NBA looking for NFL-type resolution in same Court

In apparent forum shopping, the NBA players refiled their federal antitrust lawsuit in Minnesota, seeking a settlement conference following the very same pattern of the NFL lockout. In the judge-directed mediation conducted by Magistrate Judge Arthur Boylan over several sessions with the NFL, full litigation was avoided and football season was saved. Billy Hunter is now telling NBA fans not to give up and to put pressure on the players and owners, though there has been no contact between the parties since talks broke off upon the NBA players' union dissolving. My earlier entry reported on the impasse that resulted from mediator George Cohen's efforts. See story here: http://nyp.st/tyOiK2

Assessment Workgroup for the Managed Mediation Program for Residential Mortgage Foreclosure Cases Recommends Changes

Though Florida’s mandatory mortgage mediation programs have likely fared better in achieving work-outs than statistics indicate, an Assessment Workgroup for the Managed Mediation Program for Residential Mortgage Foreclosure Cases warns that a new wave of foreclosures will languish if additional resources are not provided to the courts. The group, created by Supreme Court Chief Justice studied results indicating that only 3.6 percent of eligible cases were actually settled in foreclosure mediation since December 2009 for homesteaded properties. Therefore, it is probable under the group's recommendations, that the mandate for a statewide managed mediation program will end, while allowing for circuits to opt in, under a potentially revised administrative order, to resolving cases in their own local programs. However, the group did say it was probably too early to conclude the mortgage mediation program was a failure and noted many difficulties were because lenders were reluctant to participate. “The public comments received provided evidence that servicers on a broad scale resisted providing representatives at mediation with full authority to settle and refused to consider more than a narrow range of settlement options, most of which were of little value to borrowers,” the report said. “Servicers had economic incentives not to settle and to keep foreclosure cases in limbo to avoid the expenses that accompany home ownership.” Apparently, a substantial number of cases apparently settled after an impasse was declared at mediation, probably because of the document exchange and counseling that occurred at mediation. This was evident in the Orange County program-- at least anecdotally-- and some permanent modifications were made after temporary agreements were reached at mediation, which is no longer an option, now that "no agreement" style orders are required. Pre-suit resolutions are also hard to develop data on to show success in lender - homeowner negotiations. Florida Bar News story: http://bit.ly/rUTgII Read full report here: http://www.floridasupremecourt.org/pub_info/documents/Foreclosure/10-21-2011_Workgroup_Final_Report.pdf

Mandatory Federal ADR Program Reduces Case Pendency and Encourages Early Settlement

The U.S. District Court for the Western District of Pennsylvania was once in the bottom of district courts for length of time to resolve civil cases and the amount of time to decide motions. However, that court now places in the top five percent due to the implementation of mandatory alternative dispute resolution (ADR). While the number of civil trials in the has not significantly decreased since mandatory ADR was initiated, what has decreased is time between filing and trial-- now less than a year. The program is judge directed, as opposed to being run out of the clerk's office or a separate staff. Under the procedure, lawyers have a duty to "meet and confer" prior to the initial case-management conference and to choose the form of ADR and a neutral. Litigants and lawyers are encouraged to reasonable, thoughtful and analytical in assessing cases rather than just digging into positions. According to the article below by Karen Engro, designer of the ADR program that was implemented there, cases are settling much earlier, before the deluge of discovery and motion practice. By requiring litigants to enter ADR prior to substantial discovery and the filing of summary judgments motions, the court has shifted the settlement time line substantially earlier in the litigation process. Engro reports mandatory ADR program is changing the settlement culture from settling on the courthouse steps to early resolution. More here, including statistics: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202524627002&A_changing_paradigm&slreturn=1

Low rate of success leaves foreclosure program future in doubt

In a piece by the Palm Beach Post this week, Florida's almost two year-old mandatory foreclosure mediation program is under scrutiny by the state courts administrator because of its limited success. According to results presented to members of the state House Civil Justice subcommittee, there is only a 25 percent success rate statewide. Homeowner advocates and some mediators reportedly complained that banks are sabotaging mediations, so the program will be deemed a failure and removed from the already lengthy judicial process. Attorneys, judges and banks apparently continue to disagree over what the numbers really mean... http://bit.ly/oZ3X5G Meanwhile, according to the Miami Herald, Governor Scott intends to remove the courts from the foreclosure process citing lack of court involvement in other states... http://goo.gl/cgzvD