MEDIATE: AVOID COURT BATTLE

Lee Jay Berman, a mediator, president of the American Institute of Mediation and host of the syndicated weekly radio talk show “Talk It Over,” will be the keynote speaker at a daylong conference in Bakersfield that will highlight the benefits of mediation.

The conference, which will be held on Wednesday, March 17, in the Kern County Superintendent of Schools Building, is being presented by the Kern County Superior Court and Kern County Bar Association, in conjunction with the American Institute of Mediation.

The event is part of Mediation Week, which was established by the California Judicial Council to be held annually the third week of March.

“Mediation programs offer the public an important alternative to resolving disputes outside the traditional adjudication system,” explained Chief Justice Ronald M. George, chairman of the Judicial Council, when the observation was established last year. “Mediation Week is an opportune occasion to educate the public about the availability and benefits of mediation programs, and to recognize the people who make those programs successful.”

California courts operate and collaborate with mediation programs to help resolve many types of cases, including family law, juvenile dependency and delinquency, criminal, and small claims and general civil cases.

The cost of attending the seminar is free, with the exception of attorneys, who are requesting educational credits. The charge for credit attendees is $35.

The program will begin with Berman’s discussion of the role and benefits of mediation at 9 a.m. Santa Barbara Superior Court Judge Frank Ochoa will speak at lunch about the myths and misconceptions about court annexed mediation programs. Judge Ochoa has been acclaimed for his use of alternative dispute resolution in the courts.

Panel discussions will include:

What’s going on in with mediation in Kern County – William Palmer, Kern County Superior Court judge; Kelly Lazerson, alternative dispute resolution (ADR) administrator, Kern County Superior Court; attorney Richard Owen; and Liz Gavin, director, Better Business Bureau.

Update on the Kern County Bar Association ADR Section – mediator Joe Ferra, section president, and attorney Ken Byrum, past president.

Selecting the right mediator – attorneys Jack Draper, Steven Porter and Susan Salvucci.

Non-monetary solutions – attorneys Brent Rosenbaum and Robert Fairman, and mediator Laurelyn Irving.

Mediator secrets, tips and closing the deal – attorneys Ken Byrum, Alan Saler and Craig McCollum.

The daylong seminar will conclude with a panel discussion led by attorney Douglas E. Noll on the topics of confidentiality and ethics in mediation. Noll is a full-time peacemaker and mediator, who specializes in difficult, complex and intractable conflicts. He is a recognized author and has been named one of the Best Lawyers in America since 2005 by bestlawyers.com. He will be joined on the panel by local mediators Joe Ferra, Jeannie Gillen and John “Jack” Hardisty.

To register for the seminar, e-mail cwilson@kernbar.org.

Kelly Lazerson is the author of this article and Kern County Superior Court coordinator for alternative dispute resolution. She can be reached for general information about the seminar at Kelly.Lazerson@Kern.Courts.CA.gov or call 868-4940.

MEDIATE WEDDINGS FROM HELL

A "dream" wedding can turn into a "nightmare" that marches its way down the aisle, straight into a courtroom.

Local small claims judges and court mediators have unsnarled disputes over things ranging from broken promises to rancid potato salad.

The messages from these cases:

* Many problems can be avoided in the first place with foresight.

* Most of these disputes are better resolved through negotiation rather than lawsuits.

As one of several mediators working in small claims court, I have been caught in the crossfire of warring brides, grooms, mothers-of-the-bride, caterers, wedding planners, you name it.

Two cases mediated in California demonstrate how some problems can be headed off. Because mediations are confidential, identities and details are omitted.

Idyllic setting not 'ideal'

For her special day, the bride planned her spring wedding to be held on a gently rolling, oak-studded hillside about an hour's drive east of San Diego.

The caterer advised that the site posed logistical problems. He also warned the weather would be sunny and hot and urged umbrellas or tents be provided for the guests and to help preserve the food. But the bride insisted the wedding party and guests would celebrate in the magnificent outdoor setting without restrictions. No umbrellas. No tents.

The big day came. Wedding guests and support staff got lost, arriving at the location later than expected. The ceremony was delayed. And, yes, it was hot.
For some, the "reception" began before the wedding took place. Thirsty, early arrivers started drinking. By the time the "I do's" were recited, some were already toasted and the cold cuts weren't cold.

Weeks later, the bride, mother-of-the bride and wedding planner faced off with the caterer in a mediation session. The angriest was the wedding planner, whose reputation was on the line. The mother complained that for all of her family's expense, she had few memorable photographs. The most memorable was of her underaged daughter face-down drunk in her plate of food.

The food was spoiled, the trio argued. They refused to pay the caterer, who noted they had refused to heed his warnings. He also pointed out that all the alcohol he provided was consumed, even if most of the food was not eaten.

Resolved: The family paid for the alcohol and other beverages. The caterer "ate" his bill for the food.

Lessons: Be realistic when planning a wedding. Head off problems by listening to professionals' advice.

Groom backs out three times

The bride and groom were in their early 20s. They had a rocky relationship, with the groom backing out of a planned wedding a year earlier. But he talked his way back into the young woman's heart and a wedding again was scheduled.

While other details of this case were disputed, everyone agreed that the bride's mother took charge of the wedding plans. It was going to be a large, elegant affair. Invitations were ordered. The bridal gown and dresses for the bridesmaids and the mother-of-the-bride were bought. The reception was booked. Money was being spent.

But as he had done a year earlier, the groom backed out. The bride's family sued, demanding the reluctant young man repay them for the thousands of dollars they had spent. Before a judge heard the case, the parties were sent off to mediation in hopes they would reach a settlement.

The groom argued that a big wedding was the bride's mother's idea. He wanted something smaller. The mother countered that the groom's unacceptable idea of a smaller wedding was a keg of beer in his backyard.

The groom also said he did not want to marry into the bride's family. He reasoned if his desires were pushed aside in wedding planning, likely that would be his experience in other family matters.

After hours of negotiating, a tentative settlement was reached, with the groom agreeing to pay a small portion of what had been spent. But before the parties could return to court to have the agreement blessed by the judge, the groom again backed out. He declared he would not pay one dime.

Resolved: After hearing the case, the judge decided the young man owed nothing.

Lessons: The size and scope of a wedding should be decided by the bride and groom, not just the bride's family. A wedding begins a marriage that should be an equal partnership. And when someone has a history of broken promises, it also is likely to be his or her future.

To find a mediator to help resolve a dispute, go to your local court's website, where you likely will find a court-approved mediator panel list, or to the website of a Better Business Bureau in your area, where you will find information about its mediation services.

A version of this article written by JOHN HARDISTY, a Bakersfield mediator, appeared first in The Bakersfield Californian on Jan. 7, 2010.

MEDIATE FORECLOSURE PROCESS

Confusion and frustration were etched across the face of the man as he awaited his appearance before a Kern County Superior Court judge. In one hand he held letters from his bank documenting ongoing negotiations to restructure his home loan. In the other hand, he held papers documenting the bank's efforts to evict his family.

How could the same bank seem to be working with him and against him at the same time? Simple -- refinancing and foreclosing, followed by eviction, were being handled by two different units of the same bank.

By the time the man ended up in court, there was little left to discuss. The judge confirmed that the bank could take possession of the Bakersfield house the man had built himself, for his own family.

The Recorder's Office reports that there were 6,530 foreclosures this year in Kern County as of October. Some cash-strapped homeowners simply move out. But many are being hauled before local judges as part of an eviction process.

As the nation, state and county struggle with the worst recession since the Great Depression and the jobless rate climbs, economists predict more Americans will be unable to make their mortgage payments. Foreclosures, evictions and blighted neighborhoods will result.

The Mortgage Bankers Association reports 14 percent of homeowners with mortgages were either behind on payments or in foreclosure at the end of September. The Congressional Oversight Panel, which monitors the Treasury Department's bailout program, concludes foreclosures now threaten families who bought within their means to pay, and who took out conventional, fixed-rate loans, with down payments of 10 percent to 20 percent.

The Obama administration's Making Home Affordable program was supposed to bring relief by giving lenders incentives to work with borrowers to "modify" their mortgages, lower payments and stem foreclosures.

This $75 billion foreclosure-prevention plan is not working as expected. While more than 650,000 borrowers have been given "trial mortgage modifications" under the plan, relatively few have received permanent modifications. To receive a permanent modification, borrowers must make three payments during the trial period and provide proof of hardship.

Borrowers complain they have been denied permanent modifications even after making trial payments and producing the necessary paperwork. The prolonged, unsuccessful process has put some homeowners into deeper financial holes.

Acknowledging the program's disappointing results, Treasury officials recently increased pressure on lenders to help troubled borrowers. Instead of paying lenders $1,000 up front just to begin the loan modification process, lenders now will be given the cash incentive only if the modifications are finalized. Treasury officials also will identify lenders that balk at permanently modifying loans.

California Assemblyman Pedro Nava and Assembly Speaker Karen Bass are asking the Legislature to take an additional step. They want California to join more than a dozen other states that require borrowers and lenders to enter into mediation before property is foreclosed.

During a recent hearing on California's foreclosure crisis, Nevada Assembly speaker Barbara Buckley testified that the No. 1 complaint in her state from homeowners is their inability to reach someone at their bank to talk to. Since Nevada implemented a mediation program in July, 3,400 homeowners have requested mediation.

The proposal to begin a mediation program in California, AB 1588, will be considered when the Legislature reconvenes in January. Who operates the program, who conducts the mediations and who pays for the program are questions that need to be resolved.

But with California having the third-highest foreclosure rate in the nation, clearly more must be done to bring lenders and borrowers together, to keep more people in their homes, and to keep the foreclosure crisis from devastating communities.

"Voluntary approaches that rely on the beneficent decisions of lenders are no longer acceptable," Nava wrote in a recent opinion article, explaining the need for mediation. "All of the programs that exist today fail to create an atmosphere of accountability, trust and transparency in the loan modification process."

This article by John Hardisty (Jack) first appeared in The Bakersfield Californian's Opinion Section on Dec. 9, 2009.