As a Florida Supreme Court Circuit Civil-Certified Mediator operating a pre-foreclosure mediation program in compliance with Administrative Order SC09-54 as amended by SC10-57, I am frustrated every time I read articles or hear stories about how the Florida “mediation program is neither helping homeowners nor clearing caseloads.” Mediation, at the appropriate time, does work; the current system is broken and only the Florida Supreme Court can fix it. I know first hand that there is more that can be done to help struggling Borrowers who want to re-right their lives and more that can be done to help Lenders more efficiently turn non-performing liabilities into productive assets. It is possible to achieve both while accomplishing the Court’s stated objective of reducing caseloads in currently over-burdened courthouses across the State.
Unlike the meek post-filing statistics presented in the article “Foreclosure mediation helps few in South Florida, according to first statewide report”, in our statewide pre-suit mediation practice, we are able to achieve nearly a 40% voluntary participation rate. After we diligently insure that both Borrowers and Lenders are fully complying with the Order, the end result is that participants in 53% of the files mediated agree to some type of settlement agreement thereby averting a foreclosure action. Our pre-suit program keeps 21% of the files out of the Court system as compared to post-filing mediation which has a meager 4% success rate.
It is unfortunate that the Order’s implementation has yielded a system where, perhaps unknowingly, the Court has provided blind protectionism for less-than-perfect local Program Managers. The Court had it right when they began requiring post-filing mediation and encouraged pre suit mediation; but they got it wrong in neglecting to spell out definitively how each Circuit was to universally implement and recognize pre-suit efforts. With a vague Order and independent local interpretation, Program Managers and local Circuits, to varying degrees, have made it extremely difficult for there to be universally accepted pre-suit rules and therefore, very few alternative competitive and productive options have evolved.
As the article implied, the Court-managed system with designated Program Managers is not working as it was intended. The article failed to discuss the simple business reasons that post-filing mediations are a failure; a) post-filing mediation happens too late in the foreclosure process when late fees, court costs and attorney fees have ballooned to levels that Borrowers are unable to repay; b) after months of grueling collection efforts, Borrowers and Lenders simply do not trust or respect each other; c) mass market Program Managers cannot provide the individualized hand-holding that Borrowers need during such a stressful period as when one is faced with losing their home; d) Program Managers are unable to insure that full financial disclosure has been made, thereby insuring a non productive mediation session where all options to avoid foreclosure cannot be considered; and most importantly, e) mediations are always more productive when the parties are participating voluntarily which is always the case in pre-suit mediation.
It would suit Floridians if the Florida Supreme Court revised its Order to provide a less vague, more delineated path that detailed acceptable procedures for pre-suit mediation. With some subtle changes and mandatory compliance at the Circuit level, Lenders and their attorneys would likely be more inclined to follow the more productive pre-suit route. Consequently, Borrowers, Lenders and the Court System as a whole could see immediate, productive benefits…the now unrealized benefits that seemingly were the desired result of the unrequited initial Order. At such time, hopefully your paper will publish positive articles such as “Statewide Pre-Suit Mediation Program has a 21% success rate!”
Bernard Danzansky is the manager at Foreclosure Mediation Solutions, LLC, a firm which provides pre-foreclosure mediation program management throughout Florida.
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