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Just Court ADR

The blog of Resolution Systems Institute

Happy Holidays from RSI!

Nicole Wilmet, December 23rd, 2020

From all of us here at RSI, we wish you and yours a happy and healthy upcoming holiday season! Please note that this year, RSI’s offices will be closed on Christmas Eve, Christmas Day, New Year’s Eve and New Year’s Day. We look forward to continuing to serve communities and courts in 2021! 

Support RSI this Holiday Season

Susan M. Yates, December 22nd, 2020

Dear friend of RSI,

What can I say about 2020 that hasn’t been said? From a global pandemic to economic instability, from political division to the fight for social justice, this year has seen more than its fair share of turbulence.

Amidst these storms of conflict, RSI continues to work to increase access to justice through enhanced court ADR by:

  • conducting mediations for foreclosure and child protection cases via video connections
  • evaluating court online dispute resolution (ODR) programs remotely
  • convening national experts on family ODR to explore how ODR can best serve thinly-resourced parents, courts and communities
  • designing a remote foreclosure mediation program in preparation for an expected flood of eviction cases 

Courts look to RSI for innovation and guidance. And RSI responds, providing mediation services, designing cutting-edge systems to serve families during crises, conducting incisive evaluations and offering reliable court ADR resources. RSI focuses on the issues that most effect individuals and families, such as, foreclosure, eviction, child protection and divorce. 

As we all weather the storms that are buffeting us, RSI needs your support more than ever. Please make a contribution to help RSI serve the parties, courts and communities that look to us for innovation and guidance to deal with the massive disruption caused by COVID-19. You can go online to contribute or mail your contribution to RSI, 11 East Adams St., Suite 500, Chicago, Illinois 60603. 

On behalf of everyone RSI will help, I thank you.

Sincerely,

Susan M. Yates

Executive Director

New Resources Added to RSI’s Resource Center!

Nicole Wilmet, December 21st, 2020

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 reviews and adds new resources to the Research Library. The following list highlights a few of the resources that have been added recently. 

We hope these resources are valuable in your work!

Research Year in Review

Jennifer Shack, December 18th, 2020

The past year we focused on research that related to the times we’ve been experiencing. With courts going online and an expected surge in evictions on the horizon, I turned my attention to those topics, summarizing research on online dispute resolution (ODR) and presenting outcomes from housing mediation programs. 

Online Dispute Resolution

In March, I rounded up the research to date on ODR. A study in the Netherlands found that participants in ODR for divorcing couples perceived the process to be fair, with procedural fairness, interpersonal justice and informational justice all given high marks. On a scale of 1 to 5, they had averages of 4.27, 4.5 and 4.19, respectively. The participants’ perception of the outcome was also positive, though to a lesser extent than for the procedure. They gave an average of 3.91 for distributive justice, 3.37 for restorative justice, 3.18 for functionality and 3.0 for transparency.

A small study of a pilot small claims ODR program had less positive results. It found that 47% of cases reached agreement. The 18 parties who responded to a survey had some issues with the technology, with only 47% saying the technology was easy to use. In addition, only 53% were satisfied with their experience and only 23% felt the outcome was fair.

In the round up, I also summarized research about the potential advantages and disadvantages of using video-based and text-based ODR in cases with a history of intimate partner violence or abuse (IPV/A). The researchers suggest that mediators on IPV/A cases must carefully consider a variety of potential issues including the parties’ suspicion of mediator bias, confidentiality concerns, and victim-perpetrator power dynamics. 

While others in 2020 wrote about the possibilities for ODR, Jean Sternlight examined some of its weaknesses. Her article explored online dispute resolution (ODR) through the lens of the psychology of dispute resolution, focusing on four different areas: the psychology of perception and memory, the psychology of human wants, the psychology of communication, and judgment and decision making. She concluded that ODR may not be the best tool to assist individuals in creatively working things out with a fellow disputant and may be better employed for small and predictable disputes, like small online purchases.

An RSI survey found that the COVID pandemic has led most states to adopt video mediation for family cases. Others are moving forward with formal ODR platforms. Despite the increased availability of online services, almost half of the states that responded to the survey said there was an unmet need for family ODR and that funding was the main requirement for meeting that need. 

During the past year, we also learned about how to design ODR platforms from a study of Utah’s small claims platform, and were given tips on researching the impact of ODR on access to justice. 

Eviction Mediation

Two articles published in this year discussed programs in Minnesota and Missouri to help landlords and tenants avoid eviction. The results of these programs indicate that they help keep evictions off tenant credit histories and reduce forcible evictions. 

In St. Paul, Minnesota, the court instituted multiple changes to its housing court, including expanding access to mediation and making it, along with financial and legal resources, available at the court during eviction hearings. After a year and a half, the court’s numbers appear 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 10 minutes on average.

In St. Louis, in a voluntary program for cases in which neither landlord nor tenant is represented, 71% of mediated cases resulted in a settlement in 2018. 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.

Family ADR

Studies of family ADR programs continue to demonstrate the benefits of helping parents to resolve their issues outside of court. 

In Anchorage, Alaska, an Early Resolution Program (ERP) for family cases reduced time to resolution, reduced staff time spent on cases and had no impact on the number of post-disposition motions to modify, according to a recently completed evaluation. The study found that 80% of the parties who participated in ERP reached agreement in a three-hour hearing. Unsurprisingly, ERP cases reached disposition more quickly, with a median of 42 days as compared to a median of 104 for cases in the control group. The program also led to significant time savings for staff. For cases undergoing ERP, there were 28 to 30 processing steps, taking a total of 240 minutes (4 hours). The number of steps for the average non-ERP case was 49, taking a total of 1,047 minutes (17.45 hours).

study of parenting time mediation in Massachusetts found multiple benefits for parents and families. In surveys, parents said that conflict between them and the other parent was diminished in about 2/3 of the mediations. This benefit appeared to last for weeks after mediation for many parents, as 53% of those who were interviewed said that conflict continued to be reduced. Similarly, more than 2/3 of surveyed parents reported greater civility between them and the other parent. Again, this benefit remained over time, with 50% saying that they and the other parent treated each other with greater civility. Most parents also said that their communication had improved, with 72% of those surveyed saying so and 54% of those interviewed weeks later agreeing.  

Litigant Perception Research

Litigant attendance at a dispute resolution process impacts their assessment of the fairness of that process, according to research conducted by Donna Shestowsky. Shestowsky found that when litigants attended a settlement procedure used to resolve their case, they rated that procedure as fairer than those litigants who attended an adjudicative procedure. However, when litigants did not attend the procedure used to resolve their case, they saw settlement and adjudicative procedures as similarly fair. When comparing attendance within procedures, she found that attendance did not affect fairness ratings for settlement procedures, but that those who attended an adjudicative procedure rated the procedure as less fair than those who did not attend the procedure.

I wish you all a happy, safe and healthy holiday season!

Illinois’ Cook County Launches New Legal Aid Program for Housing and Debt Cases

Nicole Wilmet, December 17th, 2020

Illinois’ Cook County has launched a new initiative aimed at helping resolve eviction, foreclosure, debt, and tax deed issues. The initiative, entitled Cook County Legal Aid for Housing and Debt (“CCLAHD”), provides Cook County residents and landlords access to legal assistance, counseling, case management and mediation services. The CCLAHD initiative comes as a result of a partnership between the County, Cook County Circuit Court, the Chicago Bar Foundation and a variety of community partners including Coordinated Advice & Referral Program for Legal Services (“CARPLS”), the Center for Conflict Resolution, Center for Disability and Elder Law, Chicago Volunteer Legal Services, Greater Chicago Legal Clinic, Lawyers’ Committee for Better Housing, Legal Aid Chicago and Legal Aid Society. 

The new CCLAHD initiative is currently operating its first program, the Early Resolution Program (“ERP”) and expects to start several more. Under the ERP, pro bono services will be offered to Cook County residents without legal representation including (1) tenants facing eviction, (2) landlords dealing with an eviction, (3) debtors being sued for unpaid debts, (4) creditors suing on the basis of unpaid debts and (5) residents who have defaulted on property tax payments or mortgage foreclosure payments. News outlets report that Cook County Board President Toni Preckwinkle has indicated that there will also be a tax deed specific program that will launch sometime in 2021. Those interested in learning more about the ERP or volunteering may visit the CCLAHD website.