Real Estate Law Title

With the Supreme Court of Florida’s Order mandating mediation in residential foreclosure cases, everyone’s interested in either finding or becoming a mediator. But, what determines a “good” mediator and what criteria should you consider when hiring a mediator?

Florida’s mandatory mediation programs will be managed independently by Circuit. Mediation is to be completed within 120 days of filing and after the Borrower has participated in a credit counseling program. The Order requires these mediators to be Supreme Court Circuit Certified, as well as to have had specialized training in the areas of mortgage modification and foreclosure law. In Florida, although mediators may or may not be licensed attorneys, they are prohibited from giving legal advice or opinions. By definition, a mediator is a neutral and unbiased third party. Their role is to facilitate negotiations by assisting in the evaluation and analysis of the parties’ positions and needs, as well as the issues involved, in order to foster better communication and joint problem-solving.

Each Circuit maintains a roster of qualified, certified mediators and the managed mediation programs will also have a rotating list of available mediators. However, in addition to the required training in foreclosure law and mortgage modification, good mediators should possess other skills and talents to conduct a successful mediation.

Good communication skills, it goes without saying, are essential for any mediator. And, sometimes one of the best communication skills is simply to be a good listener or an “active listener”. Parties frequently need to vent or just have their side heard. Without agreeing or disagreeing, it’s important that the mediator be empathetic to each side’s position and willing to learn about their interests, beliefs and needs.

After listening, being able to paraphrase or restate a party’s position is another valuable tool of the mediator to communicate his or her understanding of the issues and each party’s point of view. Posing appropriate, yet challenging and creative questions will open up the discussion and force the parties to address the strength of the evidence or the validity of a belief system. While sometimes uncomfortable, a good mediator should have a balance of tenacity to ask the tough questions and yet the level-handedness and compassion to relay the difficult answers that one side or the other may not be prepared to face.

Foreclosure lawsuits, like any other lawsuit or dispute, are unfortunate and uncomfortable for everyone involved. A lender or servicer doesn’t want to take a hit on its loan or compromise its value to investors. Borrowers don’t want to lose their home or destroy credit. With a lot at stake for all parties, a good mediator will be able to take emotions out of the equation and focus on a realistic solution. With a moderate, yet firm tone, a good mediator can effectively and efficiently open the lines of communication with the parties in order to find a mutually acceptable resolution that will be workable in the long run.