There's an App for that-- Mediation

According to its developer, the PictureItSettled App helps negotiators map successful negotiation strategies, calculate moves, and graph paths to optimum settlements. The app-based software, just launched this year, is designed so litigants analyze their positions. This may not necessarily help the neutral facilitator (who may make actually better use of this as a quick reference record of negotiations). Midpoints are over-emphasized by litigants in my experience, as is bracketing as a tool, though admittedly there are times when looking at these are appropriate. By entering moves, users plot successful negotiation strategies using proprietary algorithms in the app. Currently available on the Apple iOS and Android market in a free application, the "Lite" version tracks the dollar moves in negotiations and time intervals between offers. The app then analyzes the offer history and graphs the effects of such moves on the likelihood of reaching a settlement by testing the patterns on each side. It apparently projects the expected results in measures of dollars and time commitment, which it is claimed assists parties in negotiation visualize if and when they should settle for "optimum outcome." See site: http://bit.ly/wDrU16

Six Month Mediation?

A friend of mine flies for Air Canada. He has been posting about the intense labor dispute between pilots and the airline this past week. Apparently, the airline will continue operating while a six month mediation ensues. Air Canada and its pilots' union agreed to submit to a an extended mediation process while they negotiate so there will be no disruptions in service. The positions of the parties have been characterized publicly as "really far apart." While acquiescing to a lengthy mediation, it does not mean either side is surrendering its right to give notice of a strike or lockout during the six months. But the sides state that prospect is highly unlikely in the short term as the mediation process gets underway. Typical issues of pay, pensions and a new low-cost carrier plan, will be discussed. Reportedly, Air Canada has dedicated about 60 staff and nearly 30 consultants and lawyers to devise a plan for a low-cost airline and is seeking a foreign airline as a minority partner. It just seems like an awful long time (without typical external pressures like losing the season such as in the recent sports league mediations) to get a deal struck. See article - http://reut.rs/AupLlK

$25B Settlement on Foreclosure Abuses

Today, federal officials announced a $25 billion settlement with the five largest mortgage lenders over foreclosure abuses. The deal requires the banks to reduce some loans, send out small checks to foreclosed folks, and refinance mortgages for underwater borrowers. Its being billed as the largest settlement involving a single industry since big tobacco in the late '90s. Under the agreement, which was reportedly negotiated for 16 months, B of A, Chase, Wells Fargo, Citigroup, and Ally will reduce loans for nearly a million households. They will also send checks for two grand to about 750,000 Americans who were improperly foreclosed upon. All but one state agreed to the deal-- Oklahoma, whose AG opposed the deal. Lenders that violate the deal could face $1 million penalties per violation and up to $5 million for repeat violators. Interestingly, homeowners can still sue lenders in civil court on their own, and federal and state authorities can pursue criminal charges. The settlement only applies to privately held mortgages issued from 2008 through 2011. Loans owned by Fannie Mae or Freddie Mac are not impacted by this settlement. See news item from Fox here-- http://fxn.ws/yN8oVo and website for the public here-- http://www.nationalmortgagesettlement.com/

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

5th DCA sanctions for failure to appear at appellate mediation

Under Florida Rule of Appellate Procedure 9.720, an appellate court may impose sanctions for failure to appear without good cause. Neither the individual appellant nor a representative of the corporate appellant attended the mediation ordered in this matter. The insurance company representative and attorney were the only ones who appeared. The 5th DCA stated the law is clear: absent being excused by the court, a party must appear at mediation and a representative of the insurance company cannot take the party’s place (citing Carbino v. Ward, 801 So. 2d 1028 (Fla. 5th DCA 2001)). The court further explained the fact that Carbino involved a trial mediation, rather than an appellate mediation was of no relevance because the language in the applicable rule of civil procedure is identical; Fla. R. Civ. P. 1.720(b). Thus, the appellants were ordered to pay sanctions within 30 days, including all fees charged by the mediator in connection with the appellate mediation and appellee’s reasonable costs and attorneys’ fees incurred in preparing for and attending the appellate mediation, as well as for filing the motion for sanctions. See decision http://www.5dca.org/Opinions/Opin2012/010212/5D11-2960.op.pdf

Has the Fat Lady Sung @ NYC Opera?

The New York City Opera locked out its union performers following a long Federal Mediation & Conciliation Service mediation. Much like the recent sports disputes, but on a much smaller scale, compensation is the sticking point. Until last year, the company was based at Lincoln Center for the Performing Arts, next door to the Metropolitan Opera. Founded in 1943, it has presented greats like Placido Domingo and Beverly Sills. But the company's budget this season is down 57 percent from two years earlier and the sides are apparently entrenched. Dealing with arts disputes can be emotional and tricky, but to see another storied company go under in this economy is sad, even if you aren't a fan. See Bloomberg story: http://bit.ly/A5CaU9