Foreclosure mediation.

The Supreme Court created the Task Force on Residential Mortgage Foreclosure Cases in 2009 to recommend a method of implementing a residential mortgage foreclosure mediation program to deal with the mounting backlog of foreclosure filings in Florida.

In the final report, the lack of communication between lenders and borrowers was noted to be the most significant issue impeding early resolution of foreclosure cases, and that case management and mediation were the best techniques for resolving cases. The court then ordered that all residential mortgage foreclosure cases involving homestead property be mediated before trial.

Among the requirements of the program was the creation of a web-enabled information platform, where the borrower was required to provide certain financial information to the lender, which could be accessed through the Internet. Foreclosure counselors were provided by the circuits to meet with borrowers before mediation. Informal discovery was likewise allowed from either party.

The program managers for each circuit were required to establish a panel of Supreme Court certified civil circuit mediators, specially trained in residential foreclosure mediation matters. Sylvia Stripling and I served on the panels managed by the American Arbitration Association in the Eighth, 17th, and 18th circuits. After mediating approximately 100 cases between us, we were encouraged by the results. We found a common thread running through many of the cases. The borrowers almost uniformly complained they had not been able to communicate with the lending institution in an effective way toward resolution. On the other hand, the lenders would often point out deficiencies in submissions by borrowers, and referenced that some of the financial material was outdated before the case got to mediation. Inasmuch as borrowers were required to bring all of their documentation with them to mediation, we were often able to solve these communication problems during the mediation. The conscientious mediators would try to make the mediation process successful by the instantaneous exchange and review of materials while everyone was present and able to deal with the problem face-to-face.

As in all mediations, the court required the presence of parties at mediation who have the authority to settle. However, in this special type of mediation, there were practical problems prohibiting the personal attendance of banking representatives, who were often located in...