REPOST: Mediation can help keep debtors out of the courtroom

Patrick McNamara elaborates on the Arizona Daily Star the important role of mediation in helping debtors avoid lawsuits, maintain control of their decision-making, and prevent them from receiving negative marks on credit reports. Read his full article below. 

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The country’s consumption-centric culture fuels much of our economic engine.

But that drive to buy, on full display on days like Black Friday, also causes the accumulation of mountains of consumer debt, which if unpaid starts a cycle that often ends up in a courtroom somewhere.

It happens often enough that one Pima County judge has sought a less litigious way to resolve debt-collection issues that benefits both debtor and creditors and helps minimize the backlog of cases in the court.

 Creditors have to find ways to collect on those back bills. It might start with calls from collection agencies, but very often creditors resort to the courts to get their due.

“Mediation allows people to maintain control of the decision making,” said Anne Fisher Segal, a Pima County Justice Court judge.

Segal has been promoting mediation as an alternative to lawsuits in all the debt-related cases in her courtroom.

She said the process allows creditors and debtors to come together in a neutral setting to discuss possible solutions to outstanding debts.

Since 2012, about 60 cases on Segal’s calendar have been resolved through mediation.

To get the process started, Segal said the first thing a person should do when served with a legal complaint notifying them of a lawsuit is to answer the complaint.

Any form of answer will do — from a formal document written in appropriate legalese to a hand-written letter, Segal said.

This lets the court know a person has received notification of the lawsuit. Justice court, which hears cases where $10,000 or less is at stake, has form documents online and at the court to help defendants file answers. They can be found at www.jp.pima.gov/home.htm

More importantly, for debtors at least, filing an answer stops the clock from ticking before a creditor can request a default judgment.

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A creditor can seek the default judgment if a complaint goes unanswered for 20 days. After that, the debtor receives notification of the request and gets 10 more days to answer before a judge can award the judgment.

“It’s a tool that’s used a lot by lawyers, and it may not be as understandable to the nonrepresented litigant,” Segal said of such requests for judgments.

For the debtor, however, default judgment signifies the start of an aggressive collection process that can result in wage garnishment and seizure of all but $300 of the debtor’s bank accounts.

Mediation as alternative to lawsuits also can prevent a consumer from receiving negative marks on credit reports.

For a debtor who requests mediation, the benefits of mediation can be substantial. Consider credit-card debt, for instance, a debt category that accounts for much of the caseload in justice court.

With these debts, many times the holder of the debt isn’t the original creditor. Federal regulations require banking institutions to get outstanding credit-card debt off their books after 180 days of delinquency.

The banks often resort to selling that debt to companies that seek to collect. That debt often changes hand numerous times before the final holder ever moves to collect.

 “They generally have some negotiation room,” Suzanne Matthews said. Matthews is a retired lawyer from Texas now living in Tucson who volunteers as a mediator in Segal’s courtroom.

She said the creditors often show a willingness to work with debtors in collections cases, particularly in credit-card debt cases, because the debt usually was purchased for a fraction of the face value.

In addition, the mediation takes place in a confidential, impartial forum. Discussions held during mediation remain private between the two parties and do not become part of the court record.

As a mediator, Matthews said she’s not there to hand out legal advice. Instead, a mediator facilitates the negotiations with the goal of reaching an agreement.

Through the mediation process, creditors might agree to scheduled payment plans and in some cases agree to reduce settlement amounts.

Of course, agreements made through mediation do carry the force of law.

Just as with any contract, if a participant doesn’t meet the agreed-upon obligations, legal action can result.

Charles Whitehill, a retired lawyer who represented creditors in debt collections, said he always tried to help debtors find amicable agreements, often through mediation, to solve debt issues.

“I never had a debtor walk out of my office mad at me,” Whitehill said.

Whitehill practiced law in Tucson for decades starting in the 1950s. He worked in bankruptcies and business law and represented creditors like department stores and other retailers.

“People like to be treated like people, not like numbers,” he said.

That’s the whole point — treating people with fairness and attempting to make the legal system less intimidating, Segal said.

“Don’t be afraid of the legal system,” she said. “We don’t have debtors prisons.”

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Amero Partners is a team of financial experts that provides mediation and financial advice to diverse clients. Follow this Twitter account for the latest news and updates in the financial industry.