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Can Foreclosure Mediation Help Me?

Q: What is foreclosure mediation? 
A: Mediation is any process in which a neutral third party, the mediator, facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute. When the mediation process is applied to foreclosure issues, a mediator works with the parties to a mortgage, with or without attorneys, to resolve the mortgage problem by mutual agreement before it reaches court, default judgment, or foreclosure sale. The mediator has no authority to decide the case. 

Q: Why should I mediate my mortgage problem? 
A: Mediation allows you to make decisions directly and determine what solution is best for you. Many mortgage problems, whether caused by a sudden change in the terms of the mortgage, like a rate adjustment, or a change in your financial situation, can be resolved through good communication. An experienced mediator can help you create solutions. Lenders are generally willing to discuss reasonable solutions, and mediation provides a more controlled, diplomatic environment in which to have discussions that, without a mediator, might be tense or difficult.

Q: How does using foreclosure mediation differ from using a “debt relief” service? 
A: While some mediators volunteer their time and others charge limited fees for hours actually worked, there are no hidden or ongoing fees or costs associated with mediation and, in most cases, it only takes a few hours of time.  “Debt relief” services, however, may charge excessive fees for modest results, and some are actual scams.  

Q: What is pre-suit mediation? 
A: Pre-suit mediation is a conference that is held before a lawsuit is filed. Once a suit is filed, it becomes a public record and anyone can get information about the parties. Credit reporting services monitor court records and note the filing of a foreclosure as a black mark on a person’s credit rating. Pre-suit mediation avoids a public record, saves expenses, and solves problems (such as non-payment) before they become worse.    

Q: Will the mediator make a recommendation to the court about my case? 
A: No. A mediator makes no decisions, assessments or recommendations to the court. In fact, the mediator can only tell the court (assuming the case is already pending) whether the mediation occurred or has been terminated, whether a settlement was reached, and which parties attended the mediation.  Mediation communications are privileged in Ohio and cannot be used at trial. 

Q: Should I bring witnesses and exhibits to the mediation? 
A: No. Mediation is not a trial. There are no witnesses, no exhibits, no objections, no cross examination, and no arguments. You may, however, bring relevant documents to help you further explain, clarify or update the factual information related to your mortgage and financial circumstances. 

Q: Will I testify? 
A: No. In mediation, all parties come together and are there to listen, participate, negotiate and decide whether or not to settle.

Q: Can the mediator help me with my case? 
A: No. The mediator may assist parties to identify certain problems for each side, and to discuss the drawbacks of foreclosure versus the benefits of settlement. However, the mediator is not there as a judge, jury, or arbitrator of the case, nor as an advocate or advisor for either side. The mediator (even a mediator who is also an attorney) cannot give legal or financial advice. You must evaluate your finances and the benefits of possible new mortgage terms.

Q: Will the other side be there? 
A: Generally, yes. A lender representative with authority to settle and the current property owner(s) should be present and prepared to negotiate. The mediator usually will meet separately with each side for private, more candid discussions.

Q: Can I bring my attorney? 
A: Yes. Under Ohio law, a party can bring an attorney or another support person to the mediation.  

Q: What if I just want to give up the house and walk away? 
A: If, after careful consideration, you decide to give up your house, you can return your mortgaged property to the lender through “a deed in lieu of foreclosure.” You can still mediate such issues as the date of turn over, when to move out and any other obligations you may have.

Q: I want a trial. Why should I settle? 
A: You have the right to a fair court hearing, but foreclosure cases hardly ever, go to trial. The judge usually decides foreclosures based on motions the lender files with the court. Each side should thoroughly discuss every factor before choosing to settle with new terms or go forward with foreclosure. Mediation allows you to explore settlement without risk, and with a trained mediator’s help.

Q: What happens if we can’t settle? 
A: If parties do not believe they will be able to reach a mutually acceptable resolution through mediation, everyone may agree to negotiate further at a later time or the case could ultimately go forward in court. There is no penalty or extra cost for using mediation, beyond the mediator’s fee, if applicable. One of the strengths of mediation is that parties do not lose any rights or access to other means of dispute resolution if they try mediation first.

Q: What are Ohio courts doing about foreclosure mediation?
A: The Supreme Court of Ohio, under the leadership of former Chief Justice Thomas Moyer, created a model program to help local courts start their own foreclosure mediation programs. Information about this model is available at www.supremecourt.ohio.gov/JCS/disputeResolution/foreclosure/default.asp​ov/JCS/disputeResolution/foreclosure/default.asp. To find out if the common pleas court in your county has adopted such a program, contact the court administrator, the local bar association, or the clerk of courts. Remember that asking for mediation of a foreclosure case pending against you does not automatically prevent a default judgment. You should contact an attorney to make sure you file an answer to the foreclosure complaint.        

1/8/2014

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was originally prepared by Harold Paddock, a mediator with the Clermont County Court of Common Pleas. It was updated by Marcie Patzak-Vendetti, director of Court Mediation Services for the Mahoning County Court of Common Pleas. 

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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