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Mediation Offers Lifeline for Communities Being Inundated by Flood of Evictions

Eric Slepak-Cherney, June 20th, 2022

More than two years since COVID-19 first broke out stateside, the U.S. housing sector remains in a state of flux. Various moratoria and relief funds at the federal, state, and local levels notwithstanding, courts throughout the country have been awash in eviction filings for some time now. For many communities, while there might be some ebb and flow from month to month, it’s increasingly looking like the new normal is a sustained level of increased activity. 

When we last saw a comparable crisis in the 2008 mortgage foreclosure crisis, inundated courts turned to alternative dispute resolution (ADR) as a means to better triage and more expeditiously resolve cases. Many of these mediation programs were able to leverage pro bono legal assistance and housing counseling services to provide holistic support to parties and increase the odds of finding a resolution. Looking at courts across the country, we can see an analogous process unfolding in real time as a response to this present-day eviction crisis. A critical distinction is that where the typical judicial foreclosure process is one that operates in months and sometimes years, eviction is a process that can conclude within a few weeks—and sometimes less. 

That context underscores the urgency with which courts have had to address this issue. At Resolution Systems Institute (RSI), a nonprofit that has spent the last 25-plus years helping courts better utilize ADR, we have taken a two-prong approach to the eviction crisis. First, we have established a number of eviction mediation programs in northern Illinois to serve the communities there and to act as models that can be replicated by other jurisdictions. Second, we are studying these model programs and providing guidance to other courts looking to implement or improve their own eviction mediation efforts. 

On the Front Lines

Operating programs in three Illinois jurisdictions—which, combined, serve nearly a million residents across Kane, Kankakee, and Winnebago Counties—has provided RSI an opportunity to apply our evolving knowledge of best practices to better serve communities in distress. Lessons learned from other programs regarding housing disputes, the integrated role of support services in these cases, and how to administer all of these in an increasingly online world were all critical to us in finding our footing for this program. 

In most instances, services in our programs are accessed remotely. Court calls still take place over Zoom, though the courts do offer physical access at the courthouse for those parties who need or prefer it. Our staff and other program partners attend these court calls to educate parties about mediation at their first appearance and obtain contact information. Program staff then connects with them individually via email or telephone after court to give each party the time they require to feel heard and for our staff to properly collect all vital information. 

During intake, our staff assesses what services parties might benefit from, whether that entails legal assistance, information about rental relief funds, or help finding alternative housing, among others. Our mediation program refers people to appropriate service providers, scheduling mediation a few weeks later to provide time to take advantage of the other services. The goal is to ensure, to the greatest extent possible, that parties are fully informed by the time they sit down to have their dispute mediated. Avoiding eviction is the top goal whenever possible, but sometimes that’s just not workable. What we can ensure, however, is that both parties experience a process in which their concerns were heard and they were treated fairly.

Participation in the program is mandatory for landlords if the tenant wishes to participate, and the judges may (and often do) order parties to participate. Judicial buy-in is key to almost any successful court ADR program, and eviction mediation is no exception. We cultivate that buy-in from the program’s outset, collaborating with eviction judges and court administration. We also include other program partners in the development of program procedures and local court rules. At the same time, we work to secure funding and staff up. Experience has taught us again and again that proper program management requires adequate resources to keep operations running effectively. 

Another component of successful administration is regular program partner meetings to provide updates on program processes and troubleshoot any potential issues. Such meetings are exceptionally critical in the cross-disciplinary context of evictions. The court and the mediation program are two big parts of the eviction process, but having housing counselors/advocates, legal aid, representatives for landlords and their attorneys, and sometimes municipal representatives speak to their perspectives has been instrumental to us in designing a process that works for all. 

We have been highly encouraged by the results of these efforts to date. Since Illinois lifted its moratorium on residential evictions on October 3, 2021, our programs have enrolled over 600 cases. Our programs have mediated 420 disputes, with 269 (64 percent) reaching partial or full agreement. These agreements span a wide array of outcomes, from allowing a tenant to keep his or her apartment, to negotiating a mutually agreeable move-out date, to working out payment plans for back rent owed. 

After each mediation session, parties are invited to complete a survey about their experience in mediation. Eighty-three percent of respondents believe mediation is a fair process; 78 percent of respondents strongly agree with the statement “I was able to express what was important to me.” One tenant commented that they were able to “leave [mediation] with some peace of mind.” An attorney representing a landlord commented, “Mediation has the ability to resolve the case with limited expense to the parties and resolve it more expeditiously.” In all, 70 percent of respondents would highly recommend mediation to a friend or colleague. (For those interested in reading further, we publish the stats on our surveys quarterly.)

Viewed together, the data about both the outcomes we achieve and the participant experience in mediation indicate we are on the right track, while also giving us some targeted data about where we have room for improvement. Resolution Systems Institute is grateful to the Illinois Equal Justice Foundation for funding that supports our mediation services in northern Illinois. 

Empowering Courts Nationwide

Our experience operating programs in Illinois, combined with years of experience monitoring and evaluating court ADR programs, has provided tremendous insight into how to successfully operate such programs. Now we are taking what we are learning and sharing it with others through our publications, website, blog, newsletter, and social media. RSI is grateful to the American Arbitration Association–International Centre for Dispute Resolution Foundation for underwriting our efforts to develop and share these resources with a nationwide audience. 

For example, our Eviction Mediation Special Topic was developed as a one-stop shop for courts seeking information on the subject. This Special Topic resource contains practical guidance about designing eviction mediation programs and setting up data collection systems. We have also provided sample court rules, forms, party surveys, and other materials. Individuals can also find a reading list of what we believe to be the best resources on eviction mediation.

With regard to evaluation, we recently published a program implementation report, Eviction Mediation Design and Implementation in Illinois’ 16th Judicial Circuit: Challenges and Keys to Success (Apr. 2022), that examined the design and development process in our Kane County program. This unique resource provides courts a detailed overview of how a real court ADR program was developed, including the steps and time frames involved. The report’s key findings identify five critical factors:

  • Court interest in the project
  • Judge support
  • Landlord/landlord attorney buy-in
  • Good communication among involved organizations
  • Good administration

These findings are supported by hours of interviews among key personnel involved in the program’s development. In future months, we will be publishing an implementation report concerning our other two programs, which will focus on the challenges and successes in developing a mediation program that is staffed fully by remote employees.

Conclusion

We hope that the resources RSI has provided thus far and those that are forthcoming can empower courts to design stronger alternatives to the traditional eviction process. Renters and landlords alike have navigated tremendous uncertainty over the last couple years. As evictions remain high, courts and communities can turn to RSI’s experience and guidance to assist in meeting the demand for fair, prompt services. We would also like to recognize the American Bar Association COVID-19 Task Force’s Eviction Committee and the ABA Dispute Resolution Section’s Task Force on Evictions for their work in addressing these issues. 

This article was originally published, under the title “Mediation Offers Lifeline for Communities Awash in Evictions,” in the American Bar Association Litigation Section Alternative Dispute Resolution Committee newsletter, Spring 2022 edition, Volume 26, Issue 3. Copyright © 2022, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).

Persistence in the Face of Resistance: Maintaining Landlord Participation in Mediation

Eric Slepak-Cherney, May 19th, 2022

This article is part of a series of perspectives on eviction mediation program development that is being supported by the American Arbitration Association-International Centre for Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.

Multiple court administrators I have spoken with over the past two years have encountered resistance from plaintiffs’ bar in eviction cases. Even if an eviction diversion program mandates the participation of landlords and tenants, your program will achieve better outcomes and run smoother when you continually cultivate buy-in from landlords and their attorneys. In this post, I will highlight some things that I have found to work.

An ideal first step is to include the voices of landlords and their attorneys during your dispute system design stage. In our Kane County, Illinois program, we included a locally renown attorney who often represented landlords in our program partner working group since its inception; this individual’s contributions at monthly meetings have given us invaluable insight that have helped us proactively address many landlord concerns. As in the mediation process itself, giving parties a voice at the program level is a critical step for them to feel engaged in the process. 

Even with representation in the program development process, unforeseen issues are bound to arise. As with any problem, research is critical. Why are landlords and their attorneys objecting to mediation in the first place? Many of the responses I hear come down to efficiency – these parties think mediation is a waste of time, that it adds an unnecessary burden to litigation, or that they can achieve the same outcomes through two-party negotiation with the tenant. Others believe mediation is an inherently pro-tenant process and therefore unfair to them and/or their clients.

In my role as a mediation program developer and administrator, it is my job to seek to understand these frustrations and address them when possible.  Landlords and their lawyers have a strong interest in administrative efficiency and resolving these cases expeditiously, and no one wants to participate in a process that they perceive to be unfair. 

Therefore, I think it’s important to review the data you have available, and try to assess the merits of these claims. With regards to efficiency concerns, you can look at your program’s resolution rate. If your program is resolving only a small percentage of cases, figure out why that is. (But beware that resolution rate can vary widely among programs and provides only a blunt measurement.) If you have information about the time to disposition, analyze whether cases that go through mediation are in fact slower. In terms of fairness, if you collect survey data regarding that metric, as we do for both parties and attorneys in our programs, your results should give you some insight at a macro level about the perception of fairness among all participants. This is all a good reminder that program procedures are not set in stone, and that you should regularly be monitoring your processes and outcomes to see where there is room for improvement.

Regardless of whether the data refutes these objections to the mediation process, or you do note some deficiencies (which, hopefully, you are able to correct), it is important to be transparent and proactive in communicating to landlords and their attorneys. In other programs we have operated, we have held forums for plaintiffs and their attorneys to openly discuss issues they have with the program. (This is something we hope to do with our eviction programs in the near future now that we have had time to get established.)

In addition to hearing from landlords and their lawyers, it is also important to highlight successes achieved in mediation as a way of inspiring confidence in the process. On a quarterly basis, we have been publishing evaluations of the surveys we collect in our programs, which usually feature some great quotes from landlords and their attorneys, as well as tenants. “We have had a good success rate using mediation. Plus, it diffuses the tendency for the parties to take cheap shots at one another and stay focused on the issues at hand,” wrote one landlord attorney.  Another noted that their “mediator did a good job of reality testing with a difficult tenant.” Publicizing these benefits of mediation is another strategy for making in-roads with resistant parties.

Ultimately, having successful mediation programs often comes down to having a dedicated champion in your corner. Just as having a judge who truly believes in ADR can be the difference between success and failure for a program as a whole, getting a landlord or attorney respected among their community on board can be a gamechanger. On a Zoom court call early on in one of our programs, a lawyer for one of the larger property management companies in that particular jurisdiction shared with the call their positive experience in a recent mediation. Though it is difficult to quantify the impact that event had, anecdotally, our program recognized that impromptu remark brought our program a tremendous amount of credibility among the landlords.

Finally, I wanted to provide a word of caution on the use of good faith clauses: these are not a panacea to participation issues, and may not even be an effective stick whatsoever. Asserting a party is in violation of a good faith clause based on their conduct during a mediation session will invite an inquiry into what took place at the mediation session. Such inquiry will quickly come up against the mediation’s confidentiality: how do you determine whether a party acted in good faith during mediation without knowing what was said or what happened? I strongly believe, and I think others would agree, that confidentiality is paramount to mediation being a forum that gives participants true voice.  As such, I would urge other program administrators to not rely too heavily on good faith clauses to get parties involved.

Instead, I hope the foregoing suggestions and anecdotes have given you some good food for thought about building real buy-in with landlords and their attorneys. Mediation is ultimately a process that needs real consent and good faith to thrive, and that is something that needs to be built and maintained over time. What strategies have you found to be successful? I’m always curious to learn about other’s experiences in operating these programs, so please drop me a line or leave a comment below.

By the Numbers: Kane County Eviction Mediation Program

Eric Slepak-Cherney, March 15th, 2022

This article is part of a series of perspectives on eviction mediation program development that is being supported by the American Arbitration Association-International Centre for Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.

Regular readers of RSI’s Just Court ADR blog will recall that RSI has been operating an eviction mediation program in Kane County, Illinois. This program launched in May 2021. We thought now would be a good time to check in on the outcomes to date, and talk a little bit about our experience running the program thus far.

Background

Kane County is in west suburban Chicago and is home to the second largest city in Illinois. The Kane County Eviction Mediation Program launched after about nine months of development. While the process to mobilize a new program usually takes upward of a year, the looming urgency of an eviction crisis called for an expedited rollout. Within that window, we developed all the court rules, procedures and forms which the program would need to operate. We also recruited a cadre of mediators, and provided them specialized eviction mediation training through our friends at the Center for Conflict Resolution.

Most critical to the development process, we also utilized this time to collaborate with the Circuit Court of Kane County and a number of partners about how this program would operate once it went live. From studying other successful models, we knew that a holistic approach which connected parties with rental assistance, legal aid, financial counseling and other support services would make a big difference. We convened regular meetings with the Court, legal aid entities, housing counselors and the plaintiffs’ bar to devise a program model that could offer parties access to these services efficiently prior to mediation.

To make this idea a reality, we knew it would take dedicated program staff who could handle intake, triage, scheduling mediations and troubleshooting unforeseen issues as they arose. As we have written about in our Guide to Program Success, programs without day-to-day oversight will be hard-pressed to be successful long-term. In considering the numbers below, recognize that these sort of outcomes are possible because we have been fortunate to have a full-time program coordinator – who is quite exceptional! – along with a support team, amounting to about another full-time staff person.

By the Numbers

The following data is accurate as of February 14, 2022.

  • We’ve enrolled 270 households in the program. The vast majority of these, about 75%, came after Illinois lifted its moratorium on residential evictions at the beginning of October 2021. In the Kane County program, if the tenant wants to participate in mediation, the landlord is required to also participate. The eviction judge also has the authority to order cases into the mediation program.
  • We’ve held about 160 mediation sessions in 130 unique cases. Not all cases will end up going through to mediation. Some parties will be able to access rental assistance or come to an alternative agreement in between the time they enroll in the program (usually at or following their first court appearance) and when mediation would be scheduled (typically about 3-4 weeks, in advance of the 30-day continuance that was offered to many parties by the judge). In other cases, some tenants unfortunately drop off and don’t return our attempts to contact them, at which point their case is closed in the program; a number of these tenants vacate the premises in hopes of avoiding judgment.
  • The program has about a 2/3 agreement rate for cases it has mediated. We’ve helped almost 50 people remain in their homes; we’ve helped nearly 60 additional people reach agreement with their landlord to move out and move on without an eviction on their record. These outcomes highlight that keeping the tenant in the unit is not feasible in every situation, but there are other incentives for tenants to seek out agreement, such as bargaining for more time to find alternative housing, or mitigating some of the arrearages owed.
  • We’ve been able to make at least 116 referrals to rental assistance, 116 to legal aid, and 120 to housing services (some households receive multiple referrals). As we envisioned, the program is acting as a central hub to provide parties access to support services. We are always looking out for ways to expand upon this, such as mental health and wellness services, resources for self-represented landlords and additional housing support, for which demand always seems to exceed supply.

Conclusion

These numbers are a snapshot of how the program is operating, and it is not meant for definitive conclusions to be drawn without more rigorous analysis. But we thought it would be of interest to many of you to share our experience running this program thus far and what we’ve been able to achieve. We will be sharing more data in the months to come, and if you haven’t seen our previously published report on the program’s survey data, we encourage you to check that out as well.

Eviction Mediation Program Spotlight: Philadelphia

Eric Slepak-Cherney, January 31st, 2022

This article is part of a series of perspectives on eviction mediation program development that is being supported by the American Arbitration Association-International Centre for Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.

Launched in August 2020, the Philadelphia Eviction Diversion Program stands out as an exemplary effort in this field.

In a city known for its famous underdog, Philadelphia’s eviction diversion program is trying to give folks a fighting chance. Image Credit: Todd van Hoosear via Flickr.


About the Program

City council legislation requires landlords to inform tenants of their rights and request mediation prior to filing an eviction claim in the Municipal Court of Philadelphia. Additionally, prior to the city’s rental assistance program running out of funds, landlords were also required to apply to that program in an effort to mitigate their claims.

Mediations are administered by a community mediation partner, CORA Good Shepherd Mediation. The mediator roster consists of volunteer neutrals, including a number of mediators from JAMS.

Data from January 2021 indicated that the parties were able to reach an agreement that kept the tenant in the unit in about 70% of mediations. An additional 22% were able to agree on a different outcome, such as moving out, that avoided the tenant receiving an eviction on their record.

Last month, the city council passed legislation to extend the operation of the program through 2022. Additionally, the legislation provided for updating the required notice of diversion rights which tenants must receive, which now will include an updated ledger so the tenant knows the exact amount the landlord is seeking and how that total is derived. The program is also utilizing a web portal to expedite the disputes and give parties another mechanism to interact directly.

Things We Really Like About This Model

  • Rental assistance is the real lynchpin that makes eviction diversion possible. However, many jurisdictions we have heard from have faced challenges in making sure that parties know how to access that fund. By integrating it directly into the eviction dispute resolution process, the Philadelphia program greatly reduced the chance of parties missing that opportunity.
  • The ability/infrastructure to capture parties pre-filing lessens strain on the court system. Additionally, unless the jurisdiction has mechanisms to seal eviction filings in place, the filing itself could be tremendously detrimental to the tenant’s future housing prospects.
  • Requiring ledgers can bring much needed clarity to a dispute. Determining the exact amount owed and how that figure is calculated is a frequent focus in mediation, and making that document a necessity can provide parties a helpful reference to inform the conversation.
  • The new web portal is another nice engagement point that hopefully diverts further cases from eviction. Every dispute is unique, and not all of them will need full-blown mediation to help serve the parties. Giving parties some self-help tools to communicate, exchange information, and negotiate may be sufficient for some disputes.

Sources:

https://www.phila.gov/2020-08-31-philadelphia-launches-eviction-diversion-program/

https://evictioninnovation.org/2020/10/16/philadelphias-eviction-diversion-through-mediation-program/

https://www.axios.com/local/philadelphia/2022/01/11/philadelphia-eviction-diversion-program-changes

https://www.jamsadr.com/news/2021/hon-annette-m-rizzo-ret-and-the-philadelphia-eviction-diversion-program-featured-in-urban-institutes-report

https://www.urban.org/research/publication/eviction-prevention-and-diversion-programs-early-lessons-pandemic

Eviction Mediation Updates, December 2021

Eric Slepak-Cherney, December 17th, 2021

This article is part of a series of perspectives on eviction mediation program development that is being supported by the American Arbitration Association-International Centre of Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to other court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.

As the state of eviction mediation continues to evolve, we wanted to share some notable developments from across the country.

State of Moratoria

According to Nolo, the vast majority of jurisdictions have lifted moratoria on eviction filings. With the overturning of the Centers for Disease Control’s moratorium at the federal level earlier this summer, that means in most places in the country, eviction proceedings are permitted. Diversion efforts such as mediation and rental assistance programs are two common responses local governments have implemented to mitigate the impact of a large increase in filings.

ODR in Miami-Dade

Miami-Dade County, Florida joins a small cohort of other jurisdictions, such as Delaware and Akron, Ohio, in piloting an eviction ODR program. The program utilizes Court Innovation’s Matterhorn platform to allow tenants and landlords to exchange messages and documents, set up a payment plan and explore other options to reach resolution. Parties can either negotiate directly or request the involvement of a mediator while using the platform.  

New Hampshire Expands Pre-Filing Programs

The New Hampshire Judicial Branch recently expanded upon its pre-filing diversion program statewide after promising results in pilot programs in two locations. This effort concentrates on resolving as many cases as possible before a court case is initiated, and either party can request a remote mediation session through the state Office of Mediation and Arbitration. Post-filing mediation is only available in a limited number of circuits, so parties are heavily encouraged to act before that stage is reached, especially in light of the fact that the pilot program boasted a 70% agreement and 91% satisfaction rate.

Keeping Up with Developments Nationwide

To stay up to date with the latest court eviction mediation developments, make sure you bookmark our National Program Database. And if you have any information for us that you see missing, please be sure to drop us a line!