February 2014 Bar Bulletin
 
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February 2014 Bar Bulletin

A Foreclosure Mediator's Musings on Good Faith

By Jeff Bean

 

(First of two parts)

There has been a lot of discussion lately in the foreclosure mediation community about what it means to "mediate in good faith."

I often hear from representatives, while presenting in training seminars and conferences, and certainly in my mediations. Of course, they know exactly what good faith means. Good faith is what they do, and a lack of it is whatever the other side's doing that they don't like.

What I am hearing about good faith is not always as well-founded in the language of the Foreclosure Fairness Act (FFA) as I would like.1 Because I spent some quality time early in my litigation career briefing and arguing appellate cases involving statutory construction, I just really need to ground myself in the actual language of statutes. To figure out what the FFA really means, gravitate toward the language the Legislature used when it enacted the foreclosure mediation program.

Sure, there is plenty of practical guidance and academic literature about what good faith means in other mediation and negotiation contexts. That could be helpful to review and apply to this particular FFA mediation context. It might be another interesting article to write later.

For now, I find plenty of good guidance and direction just in looking within the four corners of the FFA. There's a lot to learn by diving into the language the Legislature used.

The FFA's Duty To Mediate in Good Faith

The FFA provides that parties in foreclosure mediations have a duty "to mediate in good faith."2 At the close of the mediation, the mediator is required to certify whether the parties "participated in the mediation in good faith" or "failed to act in good faith."3 Yet the act provides no definition of the term.


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