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Archive for the ‘Court Mediation Program’ Category

Bernalillo County Launching Landlord – Tenant Mediation Program in Response to COVID-19

Nicole Wilmet, June 2nd, 2020

In March, in response to COVID-19, the New Mexico Supreme Court issued a temporary halt on orders to forcibly remove tenants. This month, in response to the state’s supreme court order, Bernalillo County announced its plan to launch a free mediation program for landlord-tenant disputes. The program is intended to assist landlords and tenants that are struggling to pay rent as a result of the pandemic to create workable rent payment arrangements.  

Judge Frank Sedillo, who is spearheading the program, clarified that tenants eligible to participate in the program must prove that they are unable to pay rent as a result of the pandemic. In a recent interview about the program, Judge Sedillo said, “What we’re hoping to do is help landlords and tenants resolve their disputes so that after the emergency is over the tenants will be able to stay on the property longer and the landlords will hopefully be able to work out some payment arrangements.”

The program launched May 11th and has about a dozen mediators, who are either former judges or attorneys, that are assisting with the program. Individuals who are interested in either participating in the Landlord-Tenant Settlement Program or serving as a volunteer settlement facilitator should contact the court’s Mediation Division at 505-841-8167. 

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. 

An Inside Look at Launching a Court Online Dispute Resolution Program

Nicole Wilmet, May 1st, 2020

Due to COVID-19, courts across the country have suspended in-person operations. In response, courts are in the process of transitioning their in-person court ADR programs to video or telephonic services. Courts that are currently working on implementing online dispute resolution (ODR) programs may find that Michigan’s experience with ODR can provide helpful insight for their own state’s programs.

In August 2019, I reported that the Michigan Supreme Court had launched MI-Resolve, a free ODR tool, in 17 Michigan counties. In January 2020, the Michigan Supreme Court Administrators Office of Dispute Resolution released Considerations in Implementing Court ODR Systems. Written by Doug Van Epps, Director of the Michigan Supreme Court’s Office of Dispute Resolution, and Michelle Hilliker, the Office’s Financial and Statistical Management Analyst, this guide focuses on a variety of considerations that may assist courts when assessing how to design, implement and evaluate an ODR system. All the considerations identified are either issues the Michigan Supreme Court Office of Dispute Resolution encountered when implementing MI-Resolve or lessons the Office learned from discussions with court administrators and ADR professionals across the country. Curious to learn more about what the process of launching an ODR program is like, this month I reached out to Doug Van Epps and Michelle Hilliker with a few questions. 

NW: For those unfamiliar with MI-Resolve, can you explain how it works? What is the user experience like?

DVE & MH: MI-Resolve is a mirror image, with refinements, of the experience a person involved in a conflict would have in contacting a dispute resolution center (DRC). Traditionally, a person calls a DRC, shares their story and the DRC contacts the other party to see if they would like to mediate. Sometimes the parties resolve the matter without a mediator, but more often, the case is assigned to a mediator, and the parties meet face-to-face. The matter is resolved about 75 percent of the time.

In MI-Resolve, after the parties have written a few sentences outlining their conflict, they directly negotiate with each other.  If the matter is the subject of a pending court case or if there have been no communications for a number of days, a mediator is automatically assigned. The parties communicate through email-style messages on the platform, and the system alerts the parties when a new message is available to read. At any point, the parties and mediator can elect to have a Zoom videoconference off the platform, or meet face-to-face. During negotiation and mediation, documents and photographs can be exchanged on the platform as well as offers and counter-offers. Caucus is as easy as one party or the mediator sending a message that is seen only by that party and the mediator. Upon reaching an agreement, parties sign electronically, and the mediator uses the system to prepare the appropriate court forms for the court in which the dispute is pending.  

NW: What types of cases are using MI-Resolve and how did you decide which cases to start with?

DVE & MH: More than anything, we consider MI-Resolve to be a response to the burgeoning Access to Justice crisis in the United States, where a significant portion of the population simply cannot afford lawyers and are terrified of courts and the legal system. So we began with the cases in which lawyers are rarely present, e.g., small claims, landlord/tenant, minor general civil, and neighborhood disputes. Importantly, MI-Resolve is accessible without having to file a case in court. We are hoping that the system will help people resolve their issues “upstream” before conflicts get to the flashpoint of parties having to file in court.

NW: Overall, how long did it take for MI-Resolve to launch?

DVE & MH: We started with a vendor’s platform that served a different purpose than our intended use. It included only two parties: a defendant having received a traffic citation, and court staff that would negotiate plea bargain proposals. Extensive modification of the platform was necessary to create a system that allowed for a plaintiff and defendant in other court actions, and a mediator. The modification process took approximately one year, however after that, new sites have come online in less than one month.

NW: Are you finding that using ODR is increasing or decreasing court costs?

DVE & MH: As has been historically the case with evaluating the cost savings of ADR systems and processes, it will likely be difficult to calculate cost savings of ODR systems. Court ODR operates in an environment where there are tremendous fixed costs: salaries of judges, magistrates, referees, administrators, clerks, are all fixed, as are utilities and many other costs.  Unless ODR is used to the point that staff reductions result, direct savings to courts may be difficult to calculate. That said, in the online traffic citation systems, if a significant number of citations are plea-bargained, direct savings may result from funding units’ paying fewer police officer overtime costs to attend hearings.  

NW: What would you say is the greatest savings from ODR? 

DVE & MH: The greatest savings may be to the public in avoiding taking time from work to go to court, pay for parking and possibly childcare, and transportation, among other costs. We do hope to gauge these savings in a future evaluation of the system.    

NW: What resources were most helpful to you all when working on MI-Resolve?

DVE & MH: Our very best resource was having one highly enthusiastic DRC executive director who spent countless hours with us discussing, implementing, and then testing the new configurations, helping to evaluate how the system managed disputes online. No less important, however, was our having a Deputy State Court Administrator who tirelessly worked to secure funds for the program through the legislature. It didn’t hurt at all to also have a State Court Administrator who, as a sitting judge, had previously referred hundreds of cases to his local DRC.

NW: Is there a court rule for ODR yet? If not, is one in the works?

DVE & MH: Michigan didn’t need any additional court rules to implement MI-Resolve.  Our 30-year old Community Dispute Resolution Program provided a substantial time-tested framework on which to build the system, and Michigan Court Rules authorized judges to have case referral relationships with our 17 centers. Our initial vision was that litigants could voluntarily use the system. As a result of the COVID-19 crisis and the expected backlog of cases and likely influx of new cases, it’s likely we’ll be piloting the system to accommodate mandatory use by the courts.

NW: What was it like to train mediators to use ODR? Have there been any difficulties you have encountered?

DVE & MH: After the DRC administrative staff select their mediators, training is conducted online using Zoom. Three classes are provided. The first two were created for the DRC system administrators: a one-hour session that includes an overview of the platform, and a two-hour session focused on recruiting qualified mediators, the administrative functions of the system, and assigning mediators to cases. The final three-hour session is for the mediators and covers how to use the system and considerations for writing agreements.

The mediators mediating on the platform must be comfortable with technology and have excellent writing and grammar skills. We have found that individuals that have the most confidence using technology have an easier time on the platform. We have had just a few mediators who, after going through the training, decided that they are not comfortable mediating online and prefer to continue their work as an in-person mediator.

NW: If you could go back, what do you know now that you wish you had known before you started working on MI-Resolve?

DVE & MH: We by far underestimated the amount of time we would be spending designing, implementing, and testing the system. This was likely due to the fact that Michigan was the first statewide project using a network of dispute resolution centers the vendor developed. Court Innovations was very amenable to building the system to our specifications, so our significant investment of time and resources in the design, testing, and implementation phases resulted in a product we believe will provide a great service to Michigan residents.  

NWWhat were the biggest obstacles you faced when launching MI-Resolve?

DVE & MH: We have not had any significant obstacles. The challenge going forward lies chiefly in marketing the system to courts and the public, just as we encountered three decades ago in launching face-to-face mediation services. We have not yet moved to piloting mandatory ODR as some states are doing, but that is also a likely option for us, particularly as we quickly move to expand the service to all our DRCs to manage what may be a backlog of pending cases, and an influx of new cases as a result of the COVID-19 pandemic. Our vendor is working hard to bring all of our DRCs up months earlier than originally expected.

NW: What surprised you the most when working on MI-Resolve?

DVE & MH: We didn’t encounter any particular surprises. We weren’t quite sure how mediators trained in the traditional face-to-face facilitative mediation model might take to the system, but so far, the mediators participating in the training sessions have expressed a high degree of enthusiasm.

NW: The two of you have created a terrific resource, Considerations in Implementing Court ODR Systems. Of all the considerations you identify, which would you consider to be the most important?

DVE & MH: Undoubtedly, like every other publication of the last 35 years suggesting how ADR programs are best begun, the notion of having a high level “cheerleader” is important.  Michigan’s Chief Justice Bridget McCormack and former State Court Administrator Milton Mack, Jr. have been exceptionally strong supporters of online dispute resolution as a means of addressing Access to Justice considerations. Their support has been key to our moving forward and creating enthusiasm among the local trial courts, online legal services providers (MichiganLegalHelp.org) and others.

Second, courts need to determine whether they just want to dispose of cases, or actually help people resolve disputes. While the experience of e-commerce is often cited as a touchstone for courts to draw on in building online systems, e-commerce systems are focused on disposition, not necessarily case resolution. Most, if not all, have binding arbitration as the final step in their processes. Anyone who has ever stepped a foot into a courtroom knows that just because a case is disposed or closed does not mean that a dispute is resolved.  MI-Resolve breaks with the e-commerce systems in that it aims to actually help people communicate and develop a resolution they can live with and move on with their lives.

NW: For courts considering launching ODR due to COVID-19, how might your resource Considerations in Implementing Court ODR Systems be most helpful to them?

DVE & MH: As we write, we are very deeply involved in our office’s efforts to provide guidance on how to provide court services during “stay at home” executive branch orders, and how to prepare for managing the significant backlog of cases and predicted significant influx of new filings when courts “re-open” their doors in the weeks ahead. Courts may be operating with reduced staff, backlogs of paper and e-filed pleadings, and budget holds, among other things. Our best counsel may be to promote ODR systems as part of the solution to addressing both any backlog and influx of cases. The caveat here is that there are many factors to consider in designing, implementing, and testing ODR systems, and that time and financial resources are needed to implement a quality system.  

We can also share that all DRCs, whether having implemented MI-Resolve or not are open for business during the COVID-19 pandemic and are successfully mediating cases online through Zoom. To assist in their efforts to quickly train mediators, our office developed the following resource:  “Using Zoom to Conduct Online Mediation: Considerations and Resources for Community Dispute Resolution Program Centers.”  

Ohio’s Portage County Launches the Nation’s First ODR Program for Foreclosure Mediation

Nicole Wilmet, November 25th, 2019

On November 18, 2019, Ohio’s Portage County launched the country’s first foreclosure mediation online dispute resolution (ODR) program. The program, developed under the guidance of Portage County Common Pleas Court Judge Laurie J. Pittman, uses Court Innovations’ Matterhorn software. A press release for the program indicates that one of the goals of the program is to make the process more accessible to the public by allowing parties to work on their cases remotely. The program’s mediator Benito Antognoli explains that prior to the launch of the online program, the first in-person mediation session between borrowers and lenders often only lasted about 20-30 minutes and required the parties to attend subsequent mediations. Most often, the brevity of this first meeting stemmed from borrowers being unable to fully respond to forms from the lender’s attorney since, due to the nature of the forms, they do not have the required documentation with them. As Antognoli highlights, the difficulty of having to make accommodations and find time to attend additional mediations is often a substantial inconvenience for both parties.

However, with the new ODR program, borrowers and lenders are now able to complete this process remotely. As Antognoli describes, once a borrower has opted-in to the program they will receive an email that invites them to the platform. From there, the lender’s attorney will request various documents from the borrower, which the borrower can now submit online at their convenience. Additionally, the online platform also now allows Antognoli to be involved during the entire process and communicate with the parties regularly. Like the in-person program, the entire online process is intended to take about 90 days from start-to-finish. Ultimately, the press release notes that Judge Pittman’s hope is to expand the use of online mediation and offer ODR programs to parties involved in other types of civil disputes.

Those interested in learning more about the program or accessing the court’s press release, should please contact Antognoli at 330-298-3233.

Victim Youth Conferencing Program in Nebraska Showing Promise

Jennifer Shack, July 22nd, 2019

A statewide victim youth conferencing (VYC) program in Nebraska has proven to be successful at promoting participant satisfaction, attaining reparations agreements and ensuring youth fulfillment of those agreements. The program was launched in March 2015 as a pilot in three jurisdictions covering four counties and was expanded statewide in January 2018. Services are provided by Nebraska Office of Dispute Resolution-approved mediation centers. Referrals to the program came at three stages: pre-court referrals from the County Attorneys’ offices after a school-based incident, court diversion referrals from the County Attorney and Courts pre-adjudication, and referrals from the court post-adjudication.

The evaluation of the VYC program looked at the program’s goals to determine whether they were being met, as well as other aspects of the program, including who was served by the program and how the process was working in each of the centers providing the services. In terms of outcomes, the program had the following goals: 95% of conferences will end with a reparations agreement, 95% of agreements will be fulfilled and 97% of participants will report being satisfied with the process. The program exceeded the first goal and came within a percentage point or two of attaining the other two goals. All conferences held ended with a reparations agreement. Youth completed 94.2% of those agreements and partially completed 5.8% of them. Ninety-five percent of participants were satisfied with the process.

In addition to being satisfied with the process, 89% of participating youth and 70% of participating victims believed that the VYC made the justice system more responsive to their needs. Further, 94% of victims agreed that it was helpful to talk directly with the person who was responsible for the harm, and 77% of victims said that meeting that person reduced any fear that he/she would commit another crime against them. The youth held similar opinions: 88% said it was helpful to talk directly with the victim and 94% said that after the meeting they had a better understanding of the full impact of the crime on others.

The program also had longer-term goals of reducing recidivism, “closing the gap in disproportionate minority contact with courts,” increasing safety in communities and sustaining capacity for VYC statewide. The program’s effect on recidivism proved hard to assess. The evaluator found that the 38 youth who participated in the initial pilot, 16% recidivated in the succeeding 12 months, compared to 24% of the 17 youth who did not. However, the data was insufficient and unreliable, so she did not determine that participation in the program caused the reduction in recidivism. The hope is that later evaluations can address this, as well as the other goals mentioned above.