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Archive for the ‘Court ADR Across the U.S.’ Category

Delaware Begins Using ODR to Work Through Backlog of Landlord/Tenant Cases

Nicole Wilmet, November 24th, 2020

As a result of COVID-19 and various moratoriums on evictions, Delaware’s Justice of the Peace Court is facing a backlog of landlord/tenant cases. In an effort to address this backlog, the Court recently announced that on November 2, 2020, all landlord/tenant cases filed on or after July 1, 2020, would be automatically referred to a new online dispute resolution (ODR) program. Delaware’s new ODR program operates on the Matterhorn platform and is free for parties. Participation in the ODR program is mandatory, provided the parties have an active email address, have access to the internet and are at least 18 years old. 

Through the ODR platform, parties will be able to review and respond to messages from the other party at their own convenience. The goal is for parties to utilize the ODR platform and find ways to resolve their disputes on their own. However, parties will have the option to access a mediator in the event that either (1) the parties are unable to reach an agreement on their own or (2) the parties do reach an agreement on their own but prefer to have a mediator prepare their agreement. In a Frequently Asked Questions resource from the Court, the Court notes that the mediators for the program are either specially trained Justice of the Peace Court Judges or members of the Delaware Bar Alternative Dispute Resolution section. 

In an effort to further assist parties, the Court has created ODR “How to” registration videos for landlords and for tenants. Those interested in additional information on the program may visit the Court’s website

Eviction Mediation in St. Louis Significantly Reduces Evictions

Jennifer Shack, November 23rd, 2020

As the eviction crisis looms, a number of courts around the country are implementing mediation programs. Data collected from a decade-old program in St. Louis County provide more evidence that these new programs are likely going to be effective. Mediation there was found to have a positive effect on outcomes and compliance, helping both landlords and tenants to maintain stability in income and housing. 

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

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

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

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

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

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

Recently Added Resources to RSI’s Research Library

Nicole Wilmet, November 4th, 2020

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

Each month I review and add new resources to the Research Library. The following list highlights a few of the resources that have recently been added.

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

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!

Survey of States Points to Widespread Unmet Need for Family ADR and ODR

Jennifer Shack, November 2nd, 2020

Resolution Systems Institute recently surveyed state court and alternative dispute resolution (ADR) administrators to gather information about the status of family mediation and family online dispute resolution in their states. The survey was part of a larger project, funded by the JAMS Foundation, we are doing that explores the potential for online dispute resolution (ODR) to help thinly-resourced parents to resolve their disputes, particularly in courts and communities that also have limited resources. The purpose of the survey was to understand the landscape of family ADR and ODR in the states, to learn about their efforts to provide ODR and, for those who had implemented ODR, to gain insights from their experience. 

The survey responses tell the story of the haves and have-nots. Some states have everything in hand when it comes to ADR, but about half of those who responded see an unmet need for both in-person and online services. They lack the funding and resources to make this happen. Their responses, too, indicate that they are interested in providing greater access to services.

Background

To prepare to distribute the survey, we conducted an exhaustive search for a contact person within the state court administrative office in each state. For those states for which we couldn’t find a contact person, we attempted to locate someone else within the state who would have knowledge of the statewide status of ADR and ODR. In the end, we sent surveys to 36 states and Washington, DC, of which 33 were to statewide court or ADR administrators. People from 24 states and Washington, DC, completed the survey. The responses are skewed toward those with statewide ADR offices, as 14 of the 23 states represented in the survey, as well as DC, have statewide ADR offices. This is 62% of the respondents. In contrast, of the total possible sample of states (and DC), only 39% (20 of 51) have ADR offices. 

For the survey, we defined ODR broadly as both video-conference mediation like Zoom and formal ODR platforms like Modria or Matterhorn. We also asked the respondents to concentrate on family dispute resolution for parents and courts with limited resources. That is, for parents who are not able to pay for dispute resolution services and courts that lack the resources to provide these services at no cost. 

Findings

All but two of the responding states have at least one staff person dedicated to ADR part-time. However, having an ADR office makes it more likely that the state court administrative office has full-time staff dedicated to ADR. Ten of the 15 states with an ADR office have at least one full-time person dedicated to ADR; only three of the ten states without an ADR office have full-time staff dedicated to ADR.

In the majority of represented states, the state provides some form of funding. However, these states range from minimally supporting to fully supporting ADR for court users. As with staffing, those states with ADR offices are more likely to provide some support for ADR programs. All but one of these fund ADR in some way, with ten providing ongoing funding. In contrast, only six of the ten states without ADR offices provide any funding for ADR in the courts. Of these, two provide ongoing support.

Face-to-face (or in-person) mediation is available in all states represented in the survey, although it is available statewide in only 63% of them. With the need to adjust to COVID-19, states have made the switch to video-conference mediation, with almost half providing this statewide. Text-based platforms are much less widely used. Only seven states have such a service, and none has made it available statewide. 

While face-to-face mediation is available in all states, more than half of the respondents said there was an unmet need for mediation in their state for parents with limited resources. Most of these said they lacked the funding and mediators necessary to meet that need. More than half said they required stakeholder buy-in and about half said leadership was needed. 

Almost all states have either implemented ODR statewide (in the form of video-conference mediation like Zoom) or are in the process of implementing it. The two most common reasons for pursuing ODR are to increase access to justice and to respond to the restrictions placed on in-person services due to the COVID-19 pandemic. Funding appears to be the tricky spot for them, with eight respondents saying either they have yet to figure out funding for long-term maintenance or that individual courts were going to have to figure it out. 

Despite the increased availability of online services, almost half of the respondents said there was an unmet need for family ODR, with another third saying that they weren’t sure about the need for ODR in their state. Those who said there was an unmet need said that to meet that need their state needed funding, staff time and technical support, followed closely by leadership, stakeholder buy-in and mediators.  

Conclusion

While both in-person and video mediation are widely available in the responding states, more than half of the respondents see a need for greater resources to provide access to dispute resolution services to parents with limited resources. In all, most of the respondents held a positive view of ODR and its role in providing dispute resolution to parents and areas that are not well served by mediation. This is evident in the relatively widespread adoption of video-conference mediation.