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Archive for the ‘Court Mediation Program’ Category

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

Nicole Wilmet, December 17th, 2020

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

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

Delaware Begins Using ODR to Work Through a 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. 

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.  

Ohio Launches Mortgage Modification Mediation Program

Nicole Wilmet, October 30th, 2020

At the start of October, the United States Bankruptcy Court for the Southern District of Ohio adopted the Mortgage Modification Mediation Program (“the MMM Program”) for all bankruptcy cases. The MMM Program is optional but is available for debtors and creditors to use when a debtor’s property is at risk of foreclosure or other adverse action. The goal of the program is to facilitate communication and exchange of information between the parties with the hope that they will be able to create a beneficial agreement. 

The debtor must request participation in the MMM Program and if ordered by the court, then deadlines are set for both parties to provide documents, information, and reports through the program’s online portal. The program uses the Default Mitigation Management LLC (“DMM”) DMMPortal which specializes in loan modifications and online loss mitigation services. Upon the order directing mediation, the parties will have 150 days to work with a facilitator and attempt to reach an agreement. The MMM Program’s website provides extensive information on the program’s procedures, the mandatory forms, and general timeline for the program. The website also features an application for facilitators as well as a registry of certified program facilitators. To be eligible as a facilitator for the program, an applicant must be an Ohio attorney who has been admitted to practice for at least five years and has received at least eight hours of training specific to mortgage modification mediation.