Resources / Study / Innovation for Court ADR

Just Court ADR

The blog of Resolution Systems Institute

Author Archive

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!

Eviction Mediation Program Development in The Midst of Uncertainty

Eric Slepak-Cherney, December 9th, 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.
 

Over the past year and some change, RSI has been involved in developing three new eviction mediation efforts in northern Illinois. We have also had numerous conversations with court administrators and other court ADR practitioners across the country about how they were planning to deal with a possibly enormous spike in case volumes once eviction filings resumed. An underlying theme in all these efforts has been the tremendous level of uncertainty involved: When would this spike come? How big would it be? What could we do to mitigate its impact?

In the majority of jurisdictions, evictions can now be filed in most instances. But even where filings have resumed, the picture is not totally clear. For one, the prevalence of rental relief might be staving off some potential cases. While that is a great outcome, rental relief is not a permanent solution to maintaining affordable housing. The assistance can help renters and landlords get current and stave off eviction for a certain period of time, but many tenants are still faced with unemployment or underemployment that threatens to put them at risk for eviction again later. 

Advocates also noted that some defaulting renters chose to ‘self-evict’, leaving their homes without waiting for a judicial eviction order. Anecdotally, we have heard about some landlords intimidating their tenants into leaving. Similarly, some landlords and their lawyers complain about tenants not paying rent when they were able to do so during the moratoria. With regards to all of these phenomena, good data is not available, which leaves the view of the real eviction landscape quite unclear.

It is in this uncertain climate that we, and other court ADR professionals across the country, have been developing diversion programs. The closest analog we have had to rely upon in this program development phase was the mortgage foreclosure crisis over a decade ago. While the foreclosure mediation programs provided helpful guideposts about developing eviction mediation programs, those programs were developed in response to the foreclosure crisis, not in anticipation of it, as is the case with eviction mediation. In the previous crisis, we had quite a bit more reliable data. 

Of course, the upside here is that in this current situation, as these programs have mobilized much more rapidly in response to an expected crisis, they can hopefully mitigate far more of the damage. But as program developers and administrators, we have had to operate in the dark and make our best guesses in a lot of situations. 

For instance, without knowing the volume of cases, we have had to make lots of conjectures about hiring program staff, how many mediators we would need, how many mediation sessions we should schedule in a day, and for how long we should schedule each session. We have followed the introduction and renewal of the various moratoria, constantly revising our programmatic timetables. RSI, and many others, went through learning pains in developing programs that meet the needs of their local communities. Now, one program operates primarily online, but can also serve parties physically appearing in court, while others operate entirely online. We do all this in the midst of continuing uncertainty about whether court operations will remain online, go back to in-person, or follow a hybrid approach.

These examples are just some of the critical details that must be navigated when making a successful eviction mediation program. While the outcomes achieved at the mediation table (or mediation Zoom room) are ultimately the difference between a party being evicted or not, it is worth appreciating everything it takes to actually get the parties to the table. Throughout the pandemic, the obstacles to that have been great, and even now, there still remains a thick curtain of fog that we will continue navigating in order to do so.

New Eviction Mediation Special Topic Offers Courts Guidance in Midst of Housing Crisis

Eric Slepak-Cherney, June 25th, 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.

Those of you familiar with Resolution Systems Institute will know that over the past year, we have been heavily focused on the rise in eviction cases in the aftermath of COVID-19. This evolving eviction crisis has begun to, and will continue to, test the capacity of our court systems in a way likely not seen since the foreclosure wave of the last decade.  RSI’s mission is to strengthen access to justice through court ADR, and with many courts looking at diversion efforts to address a surge in eviction cases, we see both significant opportunities and challenges ahead to ensure that participants receive due process.

We are thus very proud to share with you our new Eviction Mediation Special Topic. In the past, we have shared with you our Special Topics collections on subjects such as Child Protection Mediation, Community Mediation and Online Dispute Resolution, to name a few. These resources provide background on how court ADR programs address these cases, share insight into how to evaluate such programs and share relevant resources such as articles, evaluations and sample materials.

The Eviction Mediation Special Topic contains all of this information, with a slight twist. Due to the topical nature of this subject, we have prepared this resource in the context of the current crisis. Background information and certain resources are therefore presented with current events in mind, and we also have a section about key considerations we have learned thus far into the eviction crisis. Additionally, we have done our best to collect information on active court ADR eviction programs, captured in our Eviction ADR Across the Country database. We plan to update the Special Topic regularly as developments unfold, and new collective knowledge becomes available to the field.

We are sincerely grateful to the American Arbitration Association-International Centre for Dispute Resolution Foundation, whose generous funding has enabled us to create and share this resource.

Announcing RSI’s National Eviction ADR Project

Eric Slepak-Cherney, May 27th, 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.

Last year, the COVID-19 pandemic profoundly impacted American society in ways that are still playing out. The fallout from a public health standpoint was tremendous and its consequences rippled into almost every aspect of society. Chief among the impacts was significant economic contraction, as  a staggering number of individuals suffered reduced or lost income as a consequence of layoffs, reduced hours, contracting the virus, or caring for loved ones who had.

Unable to afford their monthly rent, tens of millions of Americans have found themselves at risk of eviction. The United States Department of Housing and Urban Development and Centers for Disease Control instituted moratoriums on eviction, though each had some gaps. (The CDC moratorium has been vacated by a federal ruling. As of the writing of this blog post, that decision is being appealed and the moratorium remains in place for now).

Along with these federal protections, many states and localities enacted their own, generally more comprehensive, moratoriums. Approximately one-third of states still have an eviction moratorium on the books. However, for other jurisdictions, eviction proceedings not precluded by federal moratorium have resumed, and courts in jurisdictions where there are state or local moratoriums are expecting a significant surge of cases when those are lifted.

To address this uptick in cases, many courts are turning to mediation and other forms of alternative dispute resolution. Subscribers to our monthly newsletter, The Court ADR Connection, are no doubt aware of various programs that have arisen in recent months. We have been diligently trying to capture and report on these efforts in an attempt to provide our core audience of court ADR professionals with information about how others are navigating this unprecedented situation.

To that end, we are excited to announce our new eviction ADR resource sharing project. Thanks to the generous funding of the American Arbitration Association-International Centre for Dispute Resolution Foundation, RSI will be able to share resources, guidance and our expertise with a national audience. In the coming weeks and months, we will be rolling out a series of resources we hope will help inform and mobilize the field to more effectively serve disputants and hopefully assist landlords and tenants in avoiding eviction.

These resources include our Eviction Mediation Special Topic, which will share program development insights; house sample documents like court rules, surveys and mediation notices; and even include a living database in which we have been collecting data on known eviction ADR programs nationwide. We also will be publishing a monthly blog series on our experiences developing a new mediation program based in Kane County, Illinois and collaborating with others across the country on eviction ADR. Finally, we will also conduct a comprehensive evaluation of the Kane County program’s first year, and publish it on our site, alongside smaller reports about the program’s implementation and quarterly progress, to contribute to the existing body of knowledge regarding ADR’s efficacy in resolving these disputes.

The Covid-19 crisis was unexpected, but now many courts are expecting or already experiencing eviction crises. To help court ADR programs meet these challenges, RSI is providing a robust mix of expertise, data, analysis and research, as well as sample forms, rules, videos and websites.We are grateful to the AAA-ICDR Foundation for enabling us to do this work. 

Last year, the COVID-19 pandemic profoundly impacted American society in ways that are still playing out. The fallout from a public health standpoint was tremendous and its consequences rippled into almost every aspect of society. Chief among the impacts was significant economic contraction, as  a staggering number of individuals suffered reduced or lost income as a consequence of layoffs, reduced hours, contracting the virus, or caring for loved ones who had.

Unable to afford their monthly rent, tens of millions of Americans have found themselves at risk of eviction. The United States Department of Housing and Urban Development and Centers for Disease Control instituted moratoriums on eviction, though each had some gaps. (The CDC moratorium has been vacated by a federal ruling. As of the writing of this blog post, that decision is being appealed and the moratorium remains in place for now).

Along with these federal protections, many states and localities enacted their own, generally more comprehensive, moratoriums. Approximately one-third of states still have an eviction moratorium on the books. However, for other jurisdictions, eviction proceedings not precluded by federal moratorium have resumed, and courts in jurisdictions where there are state or local moratoriums are expecting a significant surge of cases when those are lifted.

To address this uptick in cases, many courts are turning to mediation and other forms of alternative dispute resolution. Subscribers to our monthly newsletter, The Court ADR Connection, are no doubt aware of various programs that have arisen in recent months. We have been diligently trying to capture and report on these efforts in an attempt to provide our core audience of court ADR professionals with information about how others are navigating this unprecedented situation.

To that end, we are excited to announce our new eviction ADR resource sharing project. Thanks to the generous funding of the American Arbitration Association-International Centre for Dispute Resolution Foundation, RSI will be able to share resources, guidance and our expertise with a national audience. In the coming weeks and months, we will be rolling out a series of resources we hope will help inform and mobilize the field to more effectively serve disputants and hopefully assist landlords and tenants in avoiding eviction.

These resources include our Eviction Mediation Special Topic, which will share program development insights; house sample documents like court rules, surveys and mediation notices; and even include a living database in which we have been collecting data on known eviction ADR programs nationwide. We also will be publishing a monthly blog series on our experiences developing a new mediation program based in Kane County, Illinois and collaborating with others across the country on eviction ADR. Finally, we will also conduct a comprehensive evaluation of the Kane County program’s first year, and publish it on our site, alongside smaller reports about the program’s implementation and quarterly progress, to contribute to the existing body of knowledge regarding ADR’s efficacy in resolving these disputes.

The Covid-19 crisis was unexpected, but now many courts are expecting or already experiencing eviction crises. To help court ADR programs meet these challenges, RSI is providing a robust mix of expertise, data, analysis and research, as well as sample forms, rules, videos and websites.We are grateful to the AAA-ICDR Foundation for enabling us to do this work. 

To stay up to date with all these efforts, and the other work RSI is doing, please make sure you are subscribed to our newsletter. We also welcome our court ADR colleagues to reach out to us with information about your eviction ADR programs.

RSI Convenes Experts to Explore Access to Justice in Family ODR

Eric Slepak-Cherney, November 3rd, 2020

RSI recently held a series of online gatherings to explore the use of online dispute resolution (“ODR”) to serve thinly-resourced families, courts and communities with regards to developing parenting plans (or revising them in post-decree cases) for divorcing or separating never-married parents. These events were the culmination of a National Convening of Experts on Family ODR underwritten by the JAMS Foundation. As part of this project, we brought together experts from across the country and across multiple disciplines, conducted surveys of both these experts and court administrators nationwide, and facilitated discussion on a myriad of issues during the course of the Convening. Our findings will serve as the basis of a forthcoming report, which RSI expects to publish in by the end of 2020.

Our first step in this process was to collect existing research and data about family ODR. ODR is still relatively in its infancy and its application in resolving disputes around parental responsibilities even more nascent. At the time of writing this, there were five such family court programs operating nationwide and no data on outcomes as of yet has been made available.

We saw this as an opportunity to investigate the level of need and barriers to developing these programs nationwide. RSI sent out surveys to court ADR administrators across the country, and in all, received responses from individuals in 23 states and Washington, D.C. For more about our findings from this research, see this recent blog post from Director of Research Jennifer Shack.

A priority for this project was to facilitate dialogue among key stakeholders and thought leaders. We assembled a coalition of nearly 40 experts, comprising family lawyers, ADR practitioners, judges, court administrators, legal technology and ODR experts, legal aid attorneys, academics and funders. These experts provided us thoughtful insight into the benefits and concerns they have regarding the use of ODR in this field and for this underserved population.

Based on the expert responses and guidance from other research, particularly the International Council on Online Dispute Resolution Standards, we developed a framework for how we would explore the topic during the Convening and in our report. To ensure that courts are providing family ODR that serves stakeholders who are thinly-resourced (a term that acknowledges not just financial poverty, but lack of access to education, technology, infrastructure and other resources), a program must possess five essential characteristics: accessibility, ethicality, effectiveness, feasibility and sustainability. If a family ODR program – which entails not just the technological component, but also the dispute system design, human resources and interaction with the court – misses out on these characteristics, it runs the risk of either failing entirely, or perhaps even worse, widening the disparity in outcomes between thinly-resourced litigants and those with means.

Over the course of three 90-minute sessions we explored how family ODR programs could embody these characteristics, including identifying essential features that would need to be built into the programs. The experts were broken into new groups of four or five for each characteristic, maximizing the cross-pollination among professionals from different backgrounds. Each group explored the characteristic, prompted by a different guiding question for each group, and a facilitator captured the thinking of the group. For example, when the groups explored ethics (which we defined very broadly), they considered confidentiality, data security, fairness, procedural justice, information and education, informed consent, neutrality and impartiality, safety and transparency. 

A number of themes emerged throughout the course of the event. Access to a device with which to participate in ODR and access to the internet were significant concerns, as were concerns about potential barriers caused by disabilities or limited English proficiency. One big focus was on the risk posed to survivors of intimate partner violence; on the one hand, the remote nature of ODR might empower some, but the threat of coercion when participating in an ODR process that relies on self-determination could pose a huge risk. Another theme to emerge was the decision of whether to make programs opt-in or opt-out, and gaining clarity about what that really means. ODR programs nationwide have reported struggles with participation and volume, and the balance of getting people to try the platform and respecting their self-determination weighed heavy for the experts. The gatherings also tackled how family ODR for thinly-resourced parents, courts and communities could be supported financially and where it might be hosted.        

Reaction to the Convening was overwhelmingly positive. The experts appreciated the opportunity to collaborate with one another, particularly with individuals they might not have met otherwise, and dive into nuanced, detail-oriented discussions about particular features of family ODR. We at RSI are immensely grateful to the JAMS Foundation for enabling us to have this opportunity to move the ball on an issue we find very near and dear to our hearts and mission!