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Just Court ADR

The blog of Resolution Systems Institute

New to RSI’s Resource Center

Nicole Wilmet, May 7th, 2021

Did you know that RSI’s Resource Center is the most comprehensive and respected source of information on court ADR anywhere? Housed within the Resource Center is the Research Library which has an extensive annotated collection of court ADR resources such as articles, studies, court rules, statutes and court forms.

RSI’s Resource Center Director Nicole Wilmet regularly adds new resources to the Research Library. The following list highlights a few of the resources that have recently been added.

We hope these resources are helpful to you in your work!

RSI’s Board Member Alyson Carrel Co-Authors New Negotiation Textbook

Just Court ADR, May 6th, 2021

Congratulations to RSI’s Board Member Alyson Carrel for co-authoring a new negotiation textbook entitled Negotiation and Lawyers. Joining Alyson as co-authors are Art Hinshaw, Leonard L. Riskin, Chris P. Guthrie, Richard C. Reuben, Jennifer K. Robbennolt and Nancy Welsh. The textbook is responsive to the increased role technology plays in the negotiation practice and presents the core concepts, skills and strategies lawyers need to be successful in negotiation both online and offline. In particular, Alyson crafted a chapter on technology and negotiation.

Congratulations to Alyson and the entire team of authors on this terrific new resource!

Eviction Mediation Insights from Two Successful Programs

Jennifer Shack, May 5th, 2021

As efforts ramp up to address the impending eviction crisis, I thought I’d revisit studies of two existing eviction mediation programs (in Minnesota and St. Louis) that were published last year. These two very different programs were found to be effective in reducing evictions and provide insight into program design successes and challenges.

Study 1: St. Paul, Minnesota Housing Court

The first study explores the impact of changes made in 2018 to housing court in St. Paul, Minnesota. The changes appeared to reap dividends in term of fewer evictions and more settlements. The housing court changes included instituting a housing clinic to bring together financial services, legal services and mediation at the same place to help parties coming to their eviction hearings. Along with changes to court rules and forms, the clinic has had a number of positive outcomes for both landlords and tenants. Although increasing access to mediation was only one component of the changes to housing court, the overall concept employed by the St. Paul housing court is instructive to anyone currently involved in ADR and housing courts seeking ideas on how to address the upcoming wave of evictions due to COVID-19.

In “Justice Served, Housing Preserved: The Ramsey County Housing Court” (Mitchell Hamline Law Journal of Public Policy and Practice, 2020), Colleen Ebinger and Elizabeth Clysdale discuss the impetus for reform, the process for identifying and instituting needed changes and the results of those changes. The Chief Judge saw a need to make changes that would improve access to justice and bring together resources for tenants that would address the root causes of eviction. To that end, he sought the assistance of the McKnight Foundation and Family Housing Fund. They, in turn, asked the National Center for State Courts to facilitate the planning process. Other stakeholders who were included in the planning process included legal services, the local dispute resolution center, a lawyer who represented landlords, the county’s financial assistance program and the city’s housing department, as well as judges and court administrators.

The group agreed on three areas of action: implement a number of procedural changes, improve coordination among government entities, and expand access to mediation and legal services. Procedural changes included changes to forms, such as including information in the summons tenants receive about the eviction hearing that details the financial, legal and dispute resolution services available to them. In addition, the settlement form allows the parties to check that they had agreed to an expungement, which keeps the eviction from showing up in their credit history, and the court order was changed to include the possibility of immediate expungement. Further, if expungement was contingent on the tenant making payments, both parties were now allowed to file a notice of compliance with the payments, rather than just the landlord. This meant that the tenant had more control over whether the expungement was carried through.

Coordination among government entities was improved by providing office space in the courthouse for financial assistance workers representing two different funding agencies. This allowed them to work together and allowed tenants to apply to both at the same time rather than having to wait to be denied from one to apply to the other. In addition, the court began providing partner organizations information on all litigants on the calendar, which allows them to be more prepared to assist the litigants when they come to court.

To expand access to legal services and mediation, the court and partners agreed to have attorneys available for consultation at all hearings, as well as mediators, who would be particularly helpful in dealing with disputes that were not legal in nature. Further, the judge began promoting these services from the bench to ensure that all litigants knew about their right to access these resources.

After a year and a half, the court’s numbers appeared to show an improvement in outcomes. The court has a goal of reducing evictions by 50% in five years. In the first 18 months, evictions declined by 8%, to the lowest eviction rate in 10 years. Settlements increased by 5%, to the highest rate in five years. The impact was highest on expungements, which doubled. On the other end, fears of increased trial numbers and longer court calls didn’t come true. The number of trials as a proportion of cases declined and court call length increased by just 10 minutes on average.

Anecdotally, the response to the changes to housing court has been positive. Judges reported that tenants were more prepared for trial, with a better understanding of the process and when and how to raise their legal defenses. Landlords, too, saw benefits from the changes. They said they appreciated having financial services at the courthouse. Financial assistance staff spent time with landlords and landlord attorneys, developing relationships with them that, Ebinger and Clysdale noted, bore fruit outside of the courthouse as well. For example, one of the services reported an increase in inquiries from landlords before they file an eviction, wanting to know if their tenants are eligible for emergency assistance.

Ebinger and Clysdale outlined six lessons learned from the program:

  • a collaborative attitude between partners is critical to success
  • small changes, such as a new check box on a settlement form, can provide big dividends
  • state law matters and can have its own impact regardless of changes made at the court level
  • financial service providers are better situated to solving emergencies than individuals left on their own to navigate social services
  • different circumstances require different interventions – some litigants will need legal assistance, some mediation and some financial assistance, thus each partner is necessary for the success of the program
  • as settlements increased, so did settlement failures (e.g., tenants failing to pay arrearages as agreed to in the settlement) – along with a higher rate of settlement agreements was a greater number of affidavits of non-compliance

This approach to eviction cases is similar to the successful approaches taken by many foreclosure courts in response to the housing crisis that began in 2008. In these programs, homeowners are offered an array of services (albeit usually not at the same time and not all at the courthouse) to help guide them through the court process and stave off foreclosure if possible.

While the data looks promising for this program, it is still early and more can be learned. It would be wonderful to know more from the tenants about their experience with the process and whether they feel they are being well-served.

Study 2: Eviction Mediation in St. Louis

The second study examines a decade-old eviction program in St. Louis County. Recent data collected from the program provides more evidence that mediation is an effective tool for eviction cases. The study found that mediation had a positive effect on outcomes and compliance, helping both landlords and tenants to maintain stability in income and housing.

In “Addressing the Housing Crisis Through Mediation” (Washington University Journal of Law and Policy, 2020), Karen Tokarz, et al, discuss how the program works and the benefits that have accrued to participants. The Washington University School of Law Civil Rights & Mediation Clinic developed the program in partnership with Metropolitan St. Louis Equal Housing and Opportunity Council more than a decade ago. In 2012, mediators affiliated with United States Arbitration & Mediation joined clinic students in providing free mediation services for landlord-tenant cases in which neither side has a lawyer. Originally opt-in, the program was made opt-out in 2018.

The mediators for the program – lawyers and students alike – attend a training that includes an overview of housing law in St. Louis County, mediator ethics, mediation strategies and agreement drafting. The mediators must observe at least two mediations, co-mediate at least two mediations, and be shadowed for at least two mediations before they begin mediating independently. Mediations are conducted on the first court date for the case, which is generally the trial date.

The program uses two agreement forms that are completed as a part of each mediation agreement. The first, the conditional continuance, lays out the settlement terms. This document continues the case while the parties comply with the terms and notes that if the terms are satisfied, the case will be dismissed. It also notes that if a party breaches the terms of the agreement, the other party may file a consent judgment. The consent judgment is the second form that is completed during the mediation.  It typically grants possession and the full rent owed to the landlord. Should the case come back before the judge to sign the consent judgment, the judge uses both documents to determine whether to do so. The judge may decline to sign if, for example, the landlord has not made repairs agreed to in the conditional continuance.

The program has been successful. In 2018, 71% of mediated cases resulted in a settlement. The terms of more than half of these agreements were completed, resulting in a dismissal. One-third of agreements resulted in a consent judgment for eviction against the tenant and 25% resulted in the sheriff executing the judgment through forcible removal of the tenant. Cases that went to trial, on the other hand, were significantly more likely to end in eviction. Consent judgments were entered against tenants in 92% of these cases and resulted in forcible removal in 40%. The authors extrapolate from that data that 279 families avoided eviction in 2018 by settling in mediation and completing the terms of their agreement rather than going to trial. It must be noted, however, that the two groups of cases – those that mediated and those that did not – are not similar. Mediated cases, as mentioned above, were limited to those in which neither side had an attorney. Those cases that went to trial included those in which at least one party (generally the landlord) had an attorney.

The authors note that the impact of the eviction mediation program is limited due to its focus on cases in which neither party is represented and the day-of-trial mediation format. Further, growth is difficult due to the limited number of mediators available. They point to four directions the program can take to widen its impact. The first direction is to offer mediation prior to the first court date, or even before the eviction is filed. This would require greater outreach to landlords, tenants and government agencies to ensure that landlords are on board, tenants know about the program and agencies can urge its use. The second direction is to fund the program so that it can be sustained at a broader scale. Third, the program could be expanded to Municipal Court, where housing and building code enforcements are handled. Landlords and tenants are often unrepresented in this court and mediation in this context could lead to housing improvements and stability. The fourth direction would be to adopt online dispute resolution, allowing mediations to occur during the pandemic. 

The St. Paul, Minnesota and St. Louis County eviction mediation programs are two of many recent programs that have been implemented around the country. The data indicating their effectiveness adds to the increasing evidence that such programs are successful at reducing evictions, thus providing stability to landlords, tenants and communities.

Resolution Systems Institute Prepares for Wave of Evictions

Susan M. Yates, May 4th, 2021

A year into the COVID-19 pandemic, a new kind of wave is being predicted – a wave of evictions. So far, a patchwork of federal, state and local eviction moratoria has kept the eviction tsunami from breaking on the shore. But as these moratoria are lifted (as they already have been in some places), millions will be at increased risk of COVID-19 from homelessness or from having to double up housing with friends and family.

RSI is on the front lines of utilizing ADR to address the coming evictions crisis and we are tackling it from several directions. First, we will be launching an Eviction Mediation Program next month in Kane County, Illinois, which encompasses Illinois’ second- and eighth-largest cities, Aurora and Elgin, respectively. Our program will look to connect participants with rental relief and legal assistance before trying to help them come to an agreement using trained third-party mediators. 

Second, we are reaching out to courts in more than 35 counties in central and northern Illinois to offer assistance designing and developing eviction mediation programs. While the moratoria are still in place, this is the time to design mediation programs that meet local needs, leverage local strengths, and bring together all necessary resources. 

Third, to further advance our mission of strengthening access to justice through court ADR, we will in the coming months roll out a series of resources on utilizing ADR to address the national spike in evictions. These resources will include sample forms and documents courts can utilize in their own programs, guidance on setting up these programs, and information on how others have utilized ADR to manage eviction cases.

Now is the window of opportunity to prepare well thought-out mediation programs that provide procedural justice and a chance for landlords and tenants to reach a solution that is workable — and safe — for all parties. Our work in this arena is being generously supported by the American Arbitration Association-International Centre for Dispute Resolution Foundation and the Illinois Equal Justice Foundation. If you would like to support us in guiding courts on the use of ADR in combating evictions, please consider making a donation to RSI.

AAA-ICDR Foundation Diversity Scholarship Fund

Just Court ADR, May 3rd, 2021

The American Arbitration Association – International Centre for Dispute Resolution (AAA-ICDR) has recently launched a Diversity Scholarship which grants diverse law students and professionals with up to $2,000 of financial assistance towards participation in a degree program or fellowship in alternative dispute resolution or attendance at a well-recognized conference. The mission of the Diversity Scholarship Fund is to encourage diversity and inclusion within the field of ADR by supporting the pursuit of knowledge and skill development through training experiences that encourage inclusive leadership growth in the field of ADR. Applications will be accepted on a rolling basis and reviewed quarterly until appropriated funds are expended.