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Author Archive

Resources for Courts Considering and Developing ODR Programs

Jennifer Shack, August 31st, 2020

Back in March, as courts put a hold on in-person activities, I provided Court ADR Connection readers with a list of resources on online dispute resolution with an idea that courts were beginning to think about how to provide remote services. Now, six months later, with courts continuing these remote services, I thought it might be time to share the list again in hopes that the resources might provide guidance.

Considerations and Concerns in ODR Program Design

Online Dispute Resolution Special Topic

Resolution Systems Institute, 2019

RSI has written a guide for courts who are considering, have started developing or already have ODR programs. It discusses important considerations for ODR implementation, from goal setting to costs to ethical concerns.

Read RSI’s advice about ODR on our website.

Considerations in Implementing Court ODR Systems

Doug Van Epps and Michelle Hilliker. Michigan Supreme Court State Court Administrators Office of Dispute Resolution. Jan. 6, 2020

Van Epps and Hilliker share their insights and the knowledge gained from their development and implementation of ODR in the Michigan courts in this guide. Based on both the issues they encountered and their discussions with others involved in implementing ODR systems, their considerations are meant to assist courts to determine how to design, implement and evaluate an online dispute resolution (ODR) system.

The considerations span a variety of topics including leadership and court staff; prospective users and stakeholders; goals; implementing authority and legal implications administration; platform attributes and functions; mediators; non-court dispute resolution service staff; costs, fees and funding sources; confidentiality; protections; vendor selection; data collection and evaluation; and marketing plans. The guide also includes a list of recent ODR publications and resources.

Access the Considerations document on Michigan’s Supreme Court State Court Administrator’s Office website.

Case Studies in ODR for Courts

Joint Technology Committee, 2020

This paper presents seven case studies of ODR implementation in the courts. The case studies are short, but include key takeaways about what worked and what didn’t. The ODR programs include two outside the US, and deal with small claims, family, tax and traffic cases.

Read the case studies.

Online Dispute Resolution: A Digital Door to Justice or Pandora’s Box? Parts I-III

Doug McQuiston and Sharon Sturges, Colorado Lawyer, February and March, 2020

McQuiston and Sturges are in the midst of publishing a three-part series on ODR in the courts that examines the use of videoconferenced mediation. They note that videoconferencing may be appropriate for family cases and those involving intimate partner violence. The main obstacle to providing this service is limited or poor internet connectivity.

Part II focuses on the use of artificial intelligence in ODR. McQuiston and Sturges cite the many benefits of AI-assisted ODR for small claims and family cases, such as the ability to negotiate asynchronously, which eliminates the need to coordinate schedules. Self-represented litigants who may be reluctant to attend mediation without an attorney may be more inclined to use this technology. Further, in doing so, they can save money. McQuiston and Sturges note some drawbacks, however. These include AI’s inability to understand and address human emotions and its tendency to deviate to the mean, without reference to shades of gray in disputes or situational fairness. To help readers understand how AI in ODR would work, they end by describing systems already in place around the world.

In Part III, McQuiston and Sturgis explore ethical considerations of ODR from the attorney perspective. They also discuss relevant standards, including those of the International Counsel for ODR – that ODR programs be accessible, accountable, competent, confidential, equal, fair, legal, secure and transparent. To courts that plan to implement ODR, McQuiston and Sturgis advise that they establish an ethical framework that “incorporates the underlying purposes of mediator standards.”  

Read Part I, Part II and Part III of the series.

Designing and Implementing a State Court ODR System: From Disappointment to Celebration

David Allen Larson, Journal of Dispute Resolution, Vol. 2019, No. 2, Jun. 5, 2019

This article chronicles the author’s work to develop an online dispute resolution (ODR) system to handle credit card debt collection in New York State courts. The author worked with the New York State Unified Court system for a little over two years to design and implement their ODR platform. The article discusses the issues related to dispute system design in this setting, explains how the project was derailed and ends with lessons learned. The four lessons discussed are (1) anticipate conflicts and resistance, (2) obtain support from judges and court staff at the beginning, (3) figure out the technology while also ensuring a fair vendor bidding process and (4) pick your case type carefully.

The article also touches on some issues specific to ODR such as how ODR relates to a court system that is not fully digitized and how long to retain records of online communications. It also offers general advice, such as recommending that ODR processes should “balance efficiencies, neutrality and self-determination.”

Read the full article on SSRN.

Pouring a Little Psychological Cold Water on ODR

Jean Sternlight, Journal of Dispute Resolution, 2020

This article explores online dispute resolution (ODR) from a psychological lens to examine the strengths and weakness of ODR. The article examines the psychology of dispute resolution by 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. Sternlight’s article suggests 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. The article also posits that computers may not be the best forum for communication and argues that human mediators, lawyers or friends are more effective than computers in helping humans deal with their emotions and other judgement and decision-making issues. Sternlight ends by calling for empirical research for both online and in-person dispute resolution.

Read the full article on SSRN.

Studies of Online Dispute Resolution Programs

So far, there have been few published studies of online dispute resolution programs in the courts. Below are two conducted a while back.

Getting Divorced Online: Procedural and Outcome Justice in Online Divorce Mediation

Martin Gramatikov and Laura Klaming, Journal of Law & Family Studies, Jan. 1, 2012

This study of a Dutch experiment with ODR for divorcing couples found that the participants 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. The ratings were similar for both men and women. Other findings included men reporting higher out of pocket costs and time spent in mediation than women, and women reporting higher levels of frustration and anger than men.

The participants were referred to ODR, which was provided free of charge, if both parties had an email account and the issues were not complex. Once referred, the parties completed an intake questionnaire to provide the mediator with some details about the dispute. The parties could communicate with the mediator and each other via text message or email. The mediator moderated all communications. Each party was required to respond to the other within 48 hours as a condition of the agreement to mediate. Once all issues in dispute were finalized, the parties completed an evaluation of the procedure before the agreement could be finalized.

Read the complete abstract and access the full study in RSI’s Research Library.

Evaluation of the Small Claims Online Dispute Resolution Pilot

Marc Mason, Avrom Sherr. Sep. 1, 2008

Two courts in England tested online mediation to resolve 25 small claims cases. Those parties who were willing to try mediation were given the option of mediating face-to-face, by telephone, or online. Two mediators were responsible for all online mediations, which were conducted using TheMediationRoom.com.

The online mediations resulted in settlement in 48% of the cases, which was similar to the settlement rate for the face-to-face and telephone mediations, but lower than other small claims mediation programs have reported. Mediators and parties were surveyed post-mediation about their experiences with the process. Mediators reported using more than one method of communication outside TheMediationRoom.com platform – generally email or telephone – to complete the mediation in most cases, and as many settlements were completed outside the platform as within it. The mediators attributed this to difficulties in getting responses from the defendants, as well as to technical difficulties. Because of this and because they lacked the ability to judge non-verbal cues, the mediators said they would have preferred using telephone or email in all but four cases.

The 18 parties who responded to the questionnaire were less frustrated with their experience than the mediators. They expressed fewer issues with the technology, with 47% saying the technology was easy to use. However, they were not overwhelmingly satisfied with the process or the fairness of the outcome. Only 53% were satisfied with their experience and only 23% felt the outcome was fair. Responses to both satisfaction and fairness of outcome were more positive for those who settled their case. The small number of responses limits the reliability of these findings.

Read the full study on SSRN.

Studies Regarding Particular Issues Related to ODR

Shuttle and Online Mediation: A Review of Available Research and Implications for Separating Couples Reporting Intimate Partner Violence or Abuse

Fernanda S. Rossi, Amy Holtzworth-Munroe, Amy G. Applegate, Connie J. Beck, Jeannie M. Adams, Darrell F. Hale. Family Court Review (Association of Family and Conciliation Courts), Aug. 17, 2017

This article examines the published research on shuttle mediation, online audio-visual mediation, and online text-based mediation to discuss the applicability of these mediation methods to family law cases with a history of intimate partner violence and/or abuse (IPV/A). It first presents potential advantages and disadvantages of each mediation method in cases with IPV/A history. The authors 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. The authors also note the need for more empirical research comparing different effects of various mediation methods.

This article is behind a paywall on the Wiley Online Library.

Building Trust Online: The Realities of Telepresence for Mediators Engaged in Online Dispute Resolution

Susan Nauss Exon and Soomi Lee. Stetson Law Review, Vol 49, No. 1, 2019

Nauss Exon and Lee found that trust in an experienced mediator is the same whether a mediation participant interacts with that mediator via video or face-to-face. In their experiment, a single experienced mediator conducted 31 simulated mediations with one party in the room with him and the other interacting via telepresence. Telepresence is sophisticated video conferencing, in which sensitive microphones and special cameras that pan and zoom are used to help participants follow the flow of the conversation.

During the experiment, the participants were asked to complete a questionnaire before the mediation began that measured their level of interpersonal trust. They then completed a second questionnaire after mediation that asked them about their interactions with the mediator and their perceptions of him in order to determine how much they trusted him and found him to be trustworthy. In all, 59 participants provided usable data.

Nauss Exon and Lee found that although the participants’ questionnaire responses before mediation indicated they were on average more likely to distrust others than trust them, all participants agreed mildly or strongly that they could trust the mediator and that the mediator was trustworthy. Further, they found no difference in the level of response (mild or strong) between those who were in the same room as the mediator and those who participated via telepresence, with one exception. They found that those who had a lower predisposition to trust were more likely to see the mediator as trustworthy.

Read the full study on SSRN.

Studies Regarding Topics Related to ODR

ADR Empirical Research Studies

James Coben and Donna Steinstra. Mitchell Hamline Dispute Resolution Institute, Jun. 1, 2018

This compilation of abstracted studies includes a number on topics that are related to the use of ODR. These include:

  • A study of compliance with emailed requests
  • Team decision-making in a virtual environment
  • A qualitative analysis of email negotiation
  • Honesty in face-to-face communication as compared to through an intermediary

Find the abstracted studies on the Mitchell Hamline website.

Call for Research on ODR and Access to Justice

Measuring “Access to Justice” in the Rush to Digitize

Amy Schmitz, Fordham Law Review, 2020 

As online dispute resolution (ODR) gains rapidly in popularity among courts in the US, Amy Schmitz provides the field with a rationale and guide for researching its provision of access to justice, or A2J. In this article, she outlines ODR’s promise for increasing A2J for those who are involved in the court system and reviews the current status of research regarding A2J before discussing in detail what research should be done and how it can be undertaken. Schmitz calls for research about how people deal with their legal disputes, with comparisons over time among differing social groups and demographics. In sum, research should look into who can access the courts, how they do it and what resolutions they obtain.

Access the article on SSRN.

A Possible Way Forward to Addressing the Coming Eviction Crisis

Jennifer Shack, August 5th, 2020

A few changes to a housing court in St. Paul, Minnesota, appear to have reaped dividends in term of fewer evictions and more settlements. The housing court instituted a housing clinic, bringing together financial services, legal services and mediation at the same place to help those 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 only one component to the changes to housing court was to increase access to mediation, the overall concept is instructive to anyone involved in ADR and housing courts.

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, turned to 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, 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 allowed 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 all partners with 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 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.

Anecdotally, the response has been positive. Judges report that tenants are more prepared for trial, with a better understanding of the process and when and how to raise their legal defenses. Landlords, too, see benefits from the changes. They have said they appreciate having financial services at the courthouse. Financial assistance staff will spend time with landlords and landlord attorneys, developing relationships with them that, Ebinger and Clysdale note, bear 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 outline 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 one taken by many foreclosure courts in response to the housing crisis, in which homeowners are offered an array of services (albeit 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. Evaluation of those programs demonstrated their effectiveness. 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.

The Effect of Attendance on Litigant Perceptions of Fairness

Jennifer Shack, June 30th, 2020

Litigant attendance at a dispute resolution process impacts their assessment of the fairness of that process, according to research conducted by Donna Shestowsky. The impact of litigant attendance differs for settlement and adjudicative procedures. As she notes in her article, “Great Expectations? Comparing Litigants’ Attitudes Before and After Using Legal Procedures” (Law and Human Behavior, June 2020) [sub. req.], this has implications for how lawyers shape their clients’ perceptions of individual procedures. 

This is the fifth in a series of articles presenting different aspects of her research into the decision-making of litigants in civil cases. Previous articles reported that litigants prefer mediation, looked at what they wanted from a dispute resolution process, discussed their lack of awareness of what options were available to them and noted that litigants were most likely to select a process based on their lawyer’s advice. The research is based on surveys of litigants in three jurisdictions (in California, Oregon and Utah), that offered both mediation and arbitration options to the surveyed litigants. 

For this aspect of the research, 335 litigants completed surveys soon after their case was filed and were interviewed within three weeks after their case ended. Among the questions asked at the outset of their case was how attractive different procedures were to them. These included all the options available to them for their case, which Shestowsky divided into settlement procedures (mediation and negotiation) and adjudicative procedures (trial and arbitration) when analyzing the results. After their case ended, they were asked how fair they thought the procedure was and whether they attended that procedure. 

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.

Attendance also interacted with the litigants’ initial perceptions of the dispute resolution processes. Litigants who rated the procedure they used more negatively at the outset of their case saw that procedure as fairer if they attended the procedure than if they did not. On the other hand, Shestowsky found that those who were attracted to a procedure at the outset of their case rated that procedure as less fair if they attended the procedure than if they did not. For litigants who did not attend the procedure, their initial rating of the procedure did not affect their perception of its fairness at the end of the case. 

Shestowsky states that these findings raise questions about the role lawyers play in shaping their clients’ perceptions of individual procedures before they are used, as well as their perceptions after the case ends if their clients do not attend, particularly since litigants said their lawyer’s advice was the most important factor in their selection of the process. She notes that it is possible that some lawyers set up expectations in such a way that litigants who attend a dispute resolution process are let down by the reality of their experience. Alternatively, lawyers who discuss what happened in a procedure that their clients did not attend may paint a picture that is highly satisfactory to those clients. 

What Do We Need To Do To Find Out if ODR Provides A2J?

Jennifer Shack, June 1st, 2020

As online dispute resolution (ODR) rapidly gains in popularity among courts in the US, Amy Schmitz provides the field with a rationale and guide for researching its provision of access to justice, or A2J. In her article, “Measuring “Access to Justice” in the Rush to Digitize” (Fordham Law Review, forthcoming), she outlines ODR’s promise for increasing A2J for those who are involved in the court system and reviews the current status of research regarding A2J before discussing in detail what research should be done and how it can be undertaken. Schmitz calls for research about how people deal with their legal disputes, with comparisons over time among differing social groups and demographics. In sum, research should look into who can access the courts, how they do it and what resolutions they obtain. 

Who 

To answer the question of who can access the courts, Schmitz says courts should collect data on age, race, gender, income, education and representation status for all those who enter the courts. This information should be compared for those who use ODR and those who use in-person processes to see if ODR is opening new doors to the courthouse: Are self-represented litigants and others who weren’t accessing the courts before the implementation of ODR now more likely to do so? How do demographics affect whether a person accesses the court? Schmitz argues that this research should reach beyond court users. She notes that simply looking at those using the courts will not get at the reasons why disputants of different backgrounds and education levels aren’t availing themselves of the option to access the courts when ODR is implemented and how they seek solutions to their problems outside the court system.  

How

Similarly, Schmitz recommends that research be done on how people access the courts by comparing ODR to in-person processes on what happens once disputants access the courts. She proposes the comparisons be made on time to disposition, the number and types of engagements the parties have with the process, dropout rates and whether ODR participants are more likely to engage with the system at off-work hours. Additionally, researchers should conduct focus groups with ODR users to find out whether they understand information provided to assist them to navigate the ODR process, and whether it is helpful to them. Researchers should also look at objective data about whether the information leads to fewer procedural errors and dismissals as compared to those who use in-person processes. 

Research must also examine the effect of ODR on parties’ sense of procedural fairness, as well as whether parties’ experience of procedural fairness varies among users of different demographics. Here again, Schmitz recommends focus groups be conducted in addition to the more common method of surveying ODR and in-person court users. 

Some are concerned that ODR cannot provide the same sense of trust between parties as can be built into in-person processes. Schmitz sees this as another avenue for research. Trust-building can be studied through real-time surveys that explore the emotions those using ODR are experiencing as they move through the process, reflecting their trust in the other party. This will help to understand whether reducing access to in-person processes in favor of ODR diminishes the trust-building attributes of court processes. 

What 

Schmitz says it is essential to know whether ODR affects case outcomes if we are to understand the impact of ODR on A2J. How do outcomes compare between ODR and in-person processes in high power imbalance cases, such as debt collection? It would be helpful to know whether those going through ODR are more or less likely to default or be required to pay the full sum as opposed to paying a lesser amount. What about representation? Do those without representation have outcomes more similar to those without lawyers when they use ODR as compared to those who use in-person processes? How does ODR affect default rates? This information is not only important for understanding the impact of ODR, Schmitz argues, but to provide the transparency needed to “foster fairness and trust” in the process. 

Implicit in Schmitz’s call for research is that courts must partner with researchers by collecting more data than is currently collected about cases and litigants, and by providing access to researchers. For those wanting to know more about what data to collect, American Bar Association Section of Dispute Resolution Advisory Committee on Dispute Resolution Research has written a draft of its recommendations on what data courts should be collecting regarding ADR, which we are currently reviewing to determine what our final recommendations will be. If you would like more information about this project or would like to provide feedback on the recommendations, please email Nancy Welsh, the committee chair, or you can contact me directly.

Managing the Unknown: How RSI Court Programs Are Responding to COVID-19

Jennifer Shack, May 4th, 2020

This is the story of how RSI is working with courts to confront two crises: the COVID-19 pandemic and the economic downturn. Much of the story will be very familiar to anyone running court mediation programs: having to respond to rapidly changing circumstances and figuring out how to operate in remote processes. Some of it may be less familiar to those whose programs don’t deal with housing issues. I hope this story provides some nuggets of insight or at least a feeling of support for the efforts being taken to maintain programs throughout these crises. Although the story is split into three phases, the phases bleed into one another. So although I end the story in Phase III: Planning for the Future, aspects of Phase I: Dealing with the Unknown and Phase II: The Crisis New Normal (to steal a phrase from John Lande) still remain. 

Background

RSI runs three programs for two courts in Illinois. In Kane County, Program Manager Kevin Malone administers both the court’s foreclosure mediation and child protection mediation programs. In Lake County, Program Coordinator Olga Ivari is in charge of the court’s foreclosure mediation program. The other two staff involved in this story are RSI Executive Director Susan Yates and Associate Director Eric Slepak-Cherney. Together, I’ll be referring to them as “the team.”

The story will focus on the foreclosure mediation programs, for reasons that will become clear. These programs have a two-step process. The homeowners contact Kevin or Olga to enroll and learn about how the program can help them. In the first step in Kevin’s program, the homeowners can then opt to work with a housing counselor to learn about the options for avoiding foreclosure and to get help pulling together the documents they need to send to their lender with their request for a loan modification. In Olga’s program, homeowners are required to meet with a housing counselor as their first step. They then work with their housing counselor to submit the required documentation to request a loan modification. In both programs, the most time-consuming and difficult part of the process is facilitating the exchange of these documents between the homeowners and their lenders. The second step in both programs is mediation. 

Phase I: Dealing with the Unknown

During this first phase, the team was not only facing something they had never faced before, but were reacting to a constantly changing landscape. It seemed that every day brought new information and changes to how they needed to work. During this phase, flexibility, teamwork and, above all, communication were key. 

Susan’s main concern at this time was to keep Olga and Kevin safe, and to be sure they had the support they needed. For her, it was important that she and the rest of the team remain flexible in order to respond to the changing landscape. This required constant communication.  Eric saw his role as making sure that the programs could maintain continuity and to support Olga and Kevin in their efforts to do this. As the situation was rapidly evolving, this required daily calls among the three of them. The calls were meant to be sure that the team was thinking of everything that needed to be addressed as their programs were shifting to remote services. 

At the same time, Kevin, Olga and Eric needed to communicate with the courts. As the courts were issuing new orders changing how they provided services, the team was discussing how these orders would affect their programs and program timelines, and how to ensure these were addressed by the court. Eric noted, “Judges have the big picture of the programs. We have the day-to-day perspective.” So they worked with the judges to make sure that mediation was included in orders extending deadlines and that specific issues were considered in the order. For example, if the parties were given a 35-day continuance in the foreclosure mediation program, how does that change impact when and how the borrowers file paperwork with the lender? 

Based on the court’s new orders, the team began making decisions about whether to reschedule mediations or have the mediators conduct distance mediations. In Kane County, Kevin discussed the options with the judges and together they decided to postpone all child protection mediations, in which parents whose children have been taken into protective custody following a substantiated allegation of abuse and/or neglect can discuss issues with others involved in their children’s case. This was done due to a concern that the mediators wouldn’t have the same control over the process as they would if everyone was in the same room. This is especially problematic if one participant had coercive control over another. If the parties weren’t in the same room with the mediator, there was no way to know, for example, whether that participant was texting threats to the other one. 

For foreclosure mediation, the situation was different. There was no question of participant safety. Instead, the mediations were postponed so that the team could have the time to figure out the best way to conduct the mediations and to think of all the details that would need to be figured out before mediations took place. It also gave time to mediators, who much prefer in-person mediations, to think about how they would deal with remote mediations.

There was another reason to postpone mediations, as well. In response to the economic repercussions of COVID-19, banks began to offer three-month forbearances to homeowners who were in danger of foreclosure. In Lake County, the court has relatively short and strict deadlines, so Olga wanted to be sure that those homeowners who received a forbearance would be able to stay in the program once the forbearance ends in order to obtain a more permanent agreement, rather than having to withdraw because they had reached the court’s deadline for being in the program.  

The decision to postpone the mediations meant Olga and Kevin had to communicate with everyone involved in the programs and in the mediations that were already scheduled. They contacted mediators to let them know what was going on and emailed lawyers and parties about rescheduling mediations to mid- to late-May, after the courts were set to reopen. They also discussed new processes with the housing counselors who help homeowners in their programs and made sure that communications between them remained open. 

Phase II: The Crisis New Normal 

During Phase II, Kevin and Olga began to settle in to new processes put in place and to run their programs as the situation dictated. They also started thinking about how remote mediations might eventually be conducted. As the initial time of being completely off-balance came to an end, the team began to meet once a week, with ad hoc conversations as issues arose. 

The major task for both Kevin and Olga was to continue helping borrowers who had entered the program to continue to move through the beginning steps of the foreclosure mediation process. For Kevin, this means taking phone calls from borrowers who have questions, as well as emailing with them, the lenders and housing counselors as the borrowers provide the lenders with the documents needed in order for the lenders to assess whether borrowers are eligible for a loan modification. Housing counselors have stepped up during this time, taking on a larger role than they had before in facilitating the exchange of documents. 

Olga spends much of her time talking with borrowers, enrolling them in the program and scheduling their initial meetings with the housing counselors (now done remotely) and their mediations. For those homeowners with a forbearance, Olga has been trying to schedule housing counseling sessions and mediations as far out as possible so that they can remain in the program once the forbearance ends. 

Although both Olga and Kevin had postponed foreclosure mediations, they worked with Eric to decide on how they should be structured once they started. They decided to use Zoom, but only conduct the mediations by phone. This decision was based on their concern that borrowers wouldn’t have the technical ability to use videoconferencing. In addition, mediators would be required to learn all the ins and outs, as well as new best practices for videoconferencing. This latter consideration also led to the decision for Kevin and Olga to host the mediations, which means giving each individual permission to enter the teleconference and to send parties to “breakout rooms” when caucus is requested. 

Taking mediations online meant that confidentiality needed to be addressed differently than for in-person mediations. Prior to her first teleconference mediation, Olga and Eric modified the program’s confidentiality agreement to explicitly prohibit recording audio of the mediation. As Olga needed to monitor the mediation for any issues or caucus requests, she signed the confidentiality agreement along with the parties and the mediator. Because it was unusual to listen in on a mediation, she also decided to provide a greater sense of confidentiality to the parties by muting the conversation and responding to mediator requests for help over chat.

Another issue that arose was how to deal with sharing documents during mediation. These documents are generally brought to mediation, but due to the privacy and security issues that were being raised about Zoom, the team decided that the borrowers would submit their documents to Olga prior to mediation, who would then redact them and email them to the mediator. 

Phase III: Planning for the Future

Phase III is similar to Phase II, but with the addition of planning for the courts reopening and the expected new foreclosure crisis that will result from the pandemic. The team has also started taking stock of what will be needed if the courts must suspend operations again. Both are also using this time to update forms and revise their informational materials as they prepare for new enrollees. 

But planning for the future is what differentiates this phase from the last. As unemployment numbers soared and the banks used forbearances as never before, the team began to suspect that a new foreclosure crisis is looming on the horizon. They have begun speaking with the housing counselors they work with and with housing experts to get a clearer picture of what they might be facing.

The court in Lake County is also thinking ahead and judges have asked RSI to figure out what will be needed when the foreclosure crisis hits. The team is in a good position to do this. Because RSI tracked a lot of data during the height of the last foreclosure crisis, the team knows what percentage of cases will be mediated and thus how many mediators will be needed. They also know what supporting technologies, such as intake portals and case management systems, will be beneficial and what could be improved.

Because they have been through a foreclosure crisis before, collected data and made changes to improve their programs, and most of all have a process in place already, Kevin and Olga are much better positioned to confront the next foreclosure crisis than the last one. But there are still some unknowns. How are the federal and state governments going to respond? Will programs be put in place to help homeowners, as they were last time? And if so, what will those programs look like? Susan points to these questions as the new challenge for the team. 

The Next Phase

We’re all still working in a world in which we don’t know what the new normal will be or when it will even come. Indeed, Illinois just extended its stay-at-home order for another month, meaning the team will once again have to respond to changing circumstances. So in part, the team is still in Phase I, dealing with the unknown. This means that for the foreseeable future, they will still be facing the biggest challenge identified by Eric: trying to anticipate new issues and address them before they arise.