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Archive for the ‘Eviction Mediation’ Category

Persistence in the Face of Resistance: Maintaining Landlord Participation in Mediation

Eric Slepak-Cherney, May 19th, 2022

This article is part of a series of perspectives on eviction mediation program development that is being supported by the American Arbitration Association-International Centre for Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.

Multiple court administrators I have spoken with over the past two years have encountered resistance from plaintiffs’ bar in eviction cases. Even if an eviction diversion program mandates the participation of landlords and tenants, your program will achieve better outcomes and run smoother when you continually cultivate buy-in from landlords and their attorneys. In this post, I will highlight some things that I have found to work.

An ideal first step is to include the voices of landlords and their attorneys during your dispute system design stage. In our Kane County, Illinois program, we included a locally renown attorney who often represented landlords in our program partner working group since its inception; this individual’s contributions at monthly meetings have given us invaluable insight that have helped us proactively address many landlord concerns. As in the mediation process itself, giving parties a voice at the program level is a critical step for them to feel engaged in the process. 

Even with representation in the program development process, unforeseen issues are bound to arise. As with any problem, research is critical. Why are landlords and their attorneys objecting to mediation in the first place? Many of the responses I hear come down to efficiency – these parties think mediation is a waste of time, that it adds an unnecessary burden to litigation, or that they can achieve the same outcomes through two-party negotiation with the tenant. Others believe mediation is an inherently pro-tenant process and therefore unfair to them and/or their clients.

In my role as a mediation program developer and administrator, it is my job to seek to understand these frustrations and address them when possible.  Landlords and their lawyers have a strong interest in administrative efficiency and resolving these cases expeditiously, and no one wants to participate in a process that they perceive to be unfair. 

Therefore, I think it’s important to review the data you have available, and try to assess the merits of these claims. With regards to efficiency concerns, you can look at your program’s resolution rate. If your program is resolving only a small percentage of cases, figure out why that is. (But beware that resolution rate can vary widely among programs and provides only a blunt measurement.) If you have information about the time to disposition, analyze whether cases that go through mediation are in fact slower. In terms of fairness, if you collect survey data regarding that metric, as we do for both parties and attorneys in our programs, your results should give you some insight at a macro level about the perception of fairness among all participants. This is all a good reminder that program procedures are not set in stone, and that you should regularly be monitoring your processes and outcomes to see where there is room for improvement.

Regardless of whether the data refutes these objections to the mediation process, or you do note some deficiencies (which, hopefully, you are able to correct), it is important to be transparent and proactive in communicating to landlords and their attorneys. In other programs we have operated, we have held forums for plaintiffs and their attorneys to openly discuss issues they have with the program. (This is something we hope to do with our eviction programs in the near future now that we have had time to get established.)

In addition to hearing from landlords and their lawyers, it is also important to highlight successes achieved in mediation as a way of inspiring confidence in the process. On a quarterly basis, we have been publishing evaluations of the surveys we collect in our programs, which usually feature some great quotes from landlords and their attorneys, as well as tenants. “We have had a good success rate using mediation. Plus, it diffuses the tendency for the parties to take cheap shots at one another and stay focused on the issues at hand,” wrote one landlord attorney.  Another noted that their “mediator did a good job of reality testing with a difficult tenant.” Publicizing these benefits of mediation is another strategy for making in-roads with resistant parties.

Ultimately, having successful mediation programs often comes down to having a dedicated champion in your corner. Just as having a judge who truly believes in ADR can be the difference between success and failure for a program as a whole, getting a landlord or attorney respected among their community on board can be a gamechanger. On a Zoom court call early on in one of our programs, a lawyer for one of the larger property management companies in that particular jurisdiction shared with the call their positive experience in a recent mediation. Though it is difficult to quantify the impact that event had, anecdotally, our program recognized that impromptu remark brought our program a tremendous amount of credibility among the landlords.

Finally, I wanted to provide a word of caution on the use of good faith clauses: these are not a panacea to participation issues, and may not even be an effective stick whatsoever. Asserting a party is in violation of a good faith clause based on their conduct during a mediation session will invite an inquiry into what took place at the mediation session. Such inquiry will quickly come up against the mediation’s confidentiality: how do you determine whether a party acted in good faith during mediation without knowing what was said or what happened? I strongly believe, and I think others would agree, that confidentiality is paramount to mediation being a forum that gives participants true voice.  As such, I would urge other program administrators to not rely too heavily on good faith clauses to get parties involved.

Instead, I hope the foregoing suggestions and anecdotes have given you some good food for thought about building real buy-in with landlords and their attorneys. Mediation is ultimately a process that needs real consent and good faith to thrive, and that is something that needs to be built and maintained over time. What strategies have you found to be successful? I’m always curious to learn about other’s experiences in operating these programs, so please drop me a line or leave a comment below.

Spring 2022: How RSI’s Work Has Expanded and Evolved During the COVID-19 Pandemic

Just Court ADR, May 18th, 2022

As the COVID-19 pandemic has strained finances, families and the social fabric in general, the need for and potential of well-designed alternative dispute resolution (ADR) to stitch together solutions has become increasingly apparent. Throughout this challenging time, Resolution Systems Institute (RSI) has continued to monitor and evaluate new dispute resolution initiatives and developed new court mediation programs of our own. Below is a description of some of our work during the pandemic.

In 2020, as a potential pandemic-driven eviction wave loomed, RSI began to design our first eviction mediation program. In the course of about nine months, we developed the court rules, procedures and forms the program would need to operate. We also recruited a cadre of mediators and provided them with specialized eviction mediation training through our friends at the Center for Conflict Resolution. The Kane County (Illinois) Eviction Mediation Program launched in spring 2021. Later that fall, RSI launched similar programs in Illinois’ Kankakee and Winnebago counties. Overall, our programs operate in judicial districts that serve over 920,000 Illinois residents.

To learn more about RSI’s work over the last two years in the eviction arena, we recommend you check out our blog entries on the topic, as well as our Eviction Mediation Special Topics resource. RSI is now working with Kane and Winnebago counties to bolster their longstanding foreclosure mediation programs as homeowners now begin to feel the squeeze that renters started experiencing last year.

While RSI is spearheading these new program development and administration initiatives, evaluation remains the central pillar of upholding RSI’s mission of improving access to justice. RSI Director of Research Jennifer Shack recently published two reports evaluating the program development experience in Kane County: Eviction Mediation Design and Implementation in Illinois’ 16th Judicial Circuit: Challenges and Keys to Success and Participant Experience in Eviction Mediation: Summary Of Early Survey Responses in the 16th Judicial Circuit of Illinois’ Video Mediation Program.

In partnership with the University of California, Davis, RSI has also evaluated online dispute resolution (ODR) pilot programs in Texas and Michigan. The pandemic generated greater interest among courts for ADR processes that parties could access remotely. The evaluations, which will be released soon, will provide courts with a better understanding of what ODR adoption requires and what possible benefits it can provide.

The last two years have provided many of us, RSI included, with a complex mix of setbacks and new opportunities. RSI is committed to innovating and adapting to meet the challenges that courts, and the litigants they serve, encounter in this ever-changing world. We are grateful to our program partners, our funders and each of you who come to RSI in search of expertise and guidance. We hope you will continue to take this journey with us as we work towards our mission of expanding access to justice through court alternative dispute resolution.

Lessons Learned from the Implementation of a Video Eviction Mediation Program in Uncertain Times

Jennifer Shack, May 12th, 2022

This article is part of a series of perspectives on eviction mediation program development that is being supported by the American Arbitration Association-International Centre for Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.

I recently had the pleasure of writing a report on the development and implementation of the eviction mediation program in Kane County, Illinois. While the State of Illinois had an eviction moratorium in place, and in anticipation of a surge of cases when the moratorium was lifted, the court asked RSI to develop and administer the program. By all accounts, the program had a successful rollout. During the program’s first six months, referred parties and attorneys displayed an openness to mediation, the vast majority of parties and lawyers who took the post-mediation survey indicated they had a positive experience, and 54 of 81 mediations (67%) resulted in an agreement.

For the report, I interviewed individuals who played a large role in the development and implementation of the program, including the judge, the program partners and the program coordinator. We discussed their aspirations for the program, the steps taken to develop and implement the program, the program process, and program challenges and keys to success.

Universally, the interviewees pointed to five keys to the program’s success:

  • Strong court interest in the project
  • The support of the eviction judge
  • Good communication among the program partners
  • Good administration
  • Buy-in from landlords and their attorneys

The Program

The mediation program was conceived as a point of contact for multiple services to helptenants and landlords navigate the court process, obtain financial assistance, and address housing issues. It was designed within the following context:

  • The courthouse was closed due to the Covid-19 pandemic
  • The widely held expectation that evictions would surge when the moratorium on evictions ended, with the demand for mediation rising significantly as well
  • Significant rental relief (funds to help tenants pay their back and future rent) was available
  • Tenants and landlords needed to know whether rental relief would be provided to them in order to reach an agreement
  • The eviction process needed to keep moving forward while rental relief and mediation options were being sought
  • Almost all tenants in eviction cases are self-represented, as are some landlords
  • There was the potential for external funding for mediation

This context meant that the program needed to be a remote process, with cases triaged quickly and referred for other services prior to mediation. Anticipating a large number of cases, the program required a large number of mediators. RSI and the court therefore designed the program as a free, multi-step process with a full-time coordinator, legal aid and financial counseling partners, and paid mediators, all of which was possible due to the availability of multiple sources of external funding.

Lessons Learned

The individuals I interviewed outlined the multiple challenges they confronted in developing and implementing the program. The lessons they learned from working through those challenges are outlined below.

Flexibility is required, particularly when confronting uncertainty.

The program was planned while three main factors affecting that planning were very uncertain: the number of cases that would be filed, what level of funding would be available and when the predicted surge in cases would begin. These circumstances required the program partners to remain flexible during the planning phase in terms of when to ramp up their services, and it required RSI to react to the changing landscape of cases after the program launched. The ability to change procedures and to increase capacity have been essential to the continued provision of mediation to all parties interested in participating.

Communication among the stakeholders is essential.

During both the planning phase and after program launch, continued communication allowed program partners to plan and to set up efficient mechanisms for referrals. It essentially helped them to be flexible. It also served as a point of exchange of information regarding other types of services available to tenants and landlords, which helped program partners open more doors for their clients.

Judicial support is key.

The program can only function if the judges support it both by educating the parties about the resources available to them and by either strongly encouraging or requiring the parties to attend mediation. When tenants are educated about the benefits of mediation, they are more likely to want to participate.

Landlord and/or landlord attorney buy-in is required.

It is important to get the perspective of the landlords during the planning phase and to address their concerns. If the landlords and/or their attorneys do not see the value of mediation to them, they will not participate or, if ordered to, will not participate fully. Note that it is also essential to obtain the perspective of the tenants; their concerns and interests were presented by Prairie State Legal Services.

Provision of services is time-intensive.

The program was originally designed with the program coordinator (PC) conducting an intake with each party who came to her during the court hearings, letting them know about the services available and making referrals on the spot. This became untenable when the number of cases per hearing date rose to 40 or 50 and RSI found that information exchange with parties took longer than expected. To provide this kind of service would require more than one or two people. The PC, therefore, shifted to obtaining contact information from each interested party and then following up after court.

RSI’s program partners had similar challenges keeping up with demand. According to the director of program partner the Aurora Financial Empower Center (FEC), the FEC’s three counselors would not be able to assist all tenants who required help if the number of cases surged too high. Legal aid program partner Prairie State Legal Services similarly did not have the staff required to help all eligible tenants seeking their services. All of this suggests that further resources are required to provide the optimal level of service for all those who need it.

Good program administration is important.

The program coordinator’s skillful management of the program has been a key to the program’s success. Her organizational skills and development of efficient processes have made the program run smoothly.


Many thanks to the American Arbitration Association-International Centre for Dispute Resolution Foundation for its support of the evaluation of the eviction mediation program, of which the implementation report is a part. Many thanks as well, to the Illinois Equal Justice Foundation for its support of the eviction mediation program.

Go to RSI’s website to read the full report.

By the Numbers: Kane County Eviction Mediation Program

Eric Slepak-Cherney, March 15th, 2022

This article is part of a series of perspectives on eviction mediation program development that is being supported by the American Arbitration Association-International Centre for Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.

Regular readers of RSI’s Just Court ADR blog will recall that RSI has been operating an eviction mediation program in Kane County, Illinois. This program launched in May 2021. We thought now would be a good time to check in on the outcomes to date, and talk a little bit about our experience running the program thus far.

Background

Kane County is in west suburban Chicago and is home to the second largest city in Illinois. The Kane County Eviction Mediation Program launched after about nine months of development. While the process to mobilize a new program usually takes upward of a year, the looming urgency of an eviction crisis called for an expedited rollout. Within that window, we developed all the court rules, procedures and forms which the program would need to operate. We also recruited a cadre of mediators, and provided them specialized eviction mediation training through our friends at the Center for Conflict Resolution.

Most critical to the development process, we also utilized this time to collaborate with the Circuit Court of Kane County and a number of partners about how this program would operate once it went live. From studying other successful models, we knew that a holistic approach which connected parties with rental assistance, legal aid, financial counseling and other support services would make a big difference. We convened regular meetings with the Court, legal aid entities, housing counselors and the plaintiffs’ bar to devise a program model that could offer parties access to these services efficiently prior to mediation.

To make this idea a reality, we knew it would take dedicated program staff who could handle intake, triage, scheduling mediations and troubleshooting unforeseen issues as they arose. As we have written about in our Guide to Program Success, programs without day-to-day oversight will be hard-pressed to be successful long-term. In considering the numbers below, recognize that these sort of outcomes are possible because we have been fortunate to have a full-time program coordinator – who is quite exceptional! – along with a support team, amounting to about another full-time staff person.

By the Numbers

The following data is accurate as of February 14, 2022.

  • We’ve enrolled 270 households in the program. The vast majority of these, about 75%, came after Illinois lifted its moratorium on residential evictions at the beginning of October 2021. In the Kane County program, if the tenant wants to participate in mediation, the landlord is required to also participate. The eviction judge also has the authority to order cases into the mediation program.
  • We’ve held about 160 mediation sessions in 130 unique cases. Not all cases will end up going through to mediation. Some parties will be able to access rental assistance or come to an alternative agreement in between the time they enroll in the program (usually at or following their first court appearance) and when mediation would be scheduled (typically about 3-4 weeks, in advance of the 30-day continuance that was offered to many parties by the judge). In other cases, some tenants unfortunately drop off and don’t return our attempts to contact them, at which point their case is closed in the program; a number of these tenants vacate the premises in hopes of avoiding judgment.
  • The program has about a 2/3 agreement rate for cases it has mediated. We’ve helped almost 50 people remain in their homes; we’ve helped nearly 60 additional people reach agreement with their landlord to move out and move on without an eviction on their record. These outcomes highlight that keeping the tenant in the unit is not feasible in every situation, but there are other incentives for tenants to seek out agreement, such as bargaining for more time to find alternative housing, or mitigating some of the arrearages owed.
  • We’ve been able to make at least 116 referrals to rental assistance, 116 to legal aid, and 120 to housing services (some households receive multiple referrals). As we envisioned, the program is acting as a central hub to provide parties access to support services. We are always looking out for ways to expand upon this, such as mental health and wellness services, resources for self-represented landlords and additional housing support, for which demand always seems to exceed supply.

Conclusion

These numbers are a snapshot of how the program is operating, and it is not meant for definitive conclusions to be drawn without more rigorous analysis. But we thought it would be of interest to many of you to share our experience running this program thus far and what we’ve been able to achieve. We will be sharing more data in the months to come, and if you haven’t seen our previously published report on the program’s survey data, we encourage you to check that out as well.

Survey Data Indicates Eviction Mediation Program Offers Procedural Justice

Jennifer Shack, March 9th, 2022

This article is part of a series of perspectives on eviction mediation program development that is being supported by the American Arbitration Association-International Centre for Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.

Last year, RSI and the 16th Judicial Circuit Court in Kane County, Illinois, launched a new mediation program to address eviction cases. In this program, parties are informed of the program when they receive their summons and are invited to participate when they arrive for their initial hearing. If they decide to participate, they meet with the program coordinator, who informs them of their options, including meeting with a financial counselor and/or a legal services representative. The coordinator then schedules the mediation on a date prior to the next hearing. Mediation takes place via Zoom. Between June 2021 and early January 2022, the program mediated 81 disputes.

After each mediation, parties and attorneys are invited by email to complete a survey online about their experience. From the first 81 cases, 28 participants responded, including 6 tenants, 2 landlords and 20 attorneys. While this is a small sample size from which to draw definitive conclusions, their responses indicate the program is offering participants a positive experience in mediation.

The tenants, landlords and attorneys all gave favorable ratings to their experience in mediation. 89% indicated they would recommend mediation to a friend or colleague. 93% rated fairness of the process highly. All but one said they could express what was important to them during the mediation. When commenting about what they liked about the mediation, they most often said something positive about the mediator. A few also commented on the convenience of the process.

RSI has published these findings in a brief report available on our website. We are grateful to the American Arbitration Association-International Centre for Dispute Resolution Foundation’s support for our ongoing evaluation of the program and the dissemination of the findings, and to the Illinois Equal Justice Foundation, whose support has enabled us to operate this mediation program. We look forward to sharing more information with you as the program evolves.