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Off the Mainland, Out of the Box: Hawaii’s Innovative Eviction Mediation Program

Eric Slepak-Cherney, September 20th, 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.

Earlier this summer, I had the opportunity to learn about a successful and innovative eviction mediation program on the island of Oahu in Hawaii. Mediation Center of the Pacific (MCP) Executive Director Tracey Wiltgen generously shared some of her time with me to explain how the program works.

Photo by Jess Loiterton via Pexels

Prior to the pandemic, MCP conducted landlord-tenant mediations on-site in Oahu’s courtrooms. Not atypical of many in-court eviction mediation programs pre-pandemic, parties and mediators were often limited to 20 minutes to mediate their cases. MCP was able to help parties reach agreement in about half of cases, and in about one-fifth of those agreements, the tenant would be able to stay in their home. All things considered, those statistics were pretty impressive.

But in the wake of Hawaii’s eviction moratorium being lifted in August 2021, MCP’s eviction mediation program accomplished some truly remarkable things. In less than a year, it mediated over 1,300 cases and reached agreement in 87% of those. Underlying those successes was a strong foundation upon which MCP built its program.

Making the Most of the Moratorium

The program was developed with the input of many interested parties taken into consideration. Housing advocates and other nonprofit organizations, landlord representatives, Realtors and property managers, legislators and academics all had seats at the table when designing this program. The program was codified into legislation as Act 57, which set forth the procedure and requirements for participation.

Hawaii’s moratorium was lifted in an unconventional tiered system, whereby landlords were allowed to file their cases on a schedule according to how many months of back rent was owed. While landlords were in this holding pattern, they were required to file a notice with MCP of their intent to file their case in court, so that MCP could reach out to tenants and inform them about the process. If the tenant wanted mediation, the landlord would be required to participate. The ability to engage in mediation before the court case was formally filed gave parties more time to explore options, and it helped reduce strain on the court.

Funding Extends Reach

With funding from Act 57, MCP was able to shift from using volunteer mediators to paid ones. The organization recruited 30 mediators from 15 states to mediate these cases remotely. Treating mediators as independent contractors, MCP required that mediators have proficiency in Zoom and generally high levels of digital literacy. This meant that MCP did not have to dedicate staff resources to providing technical support during mediations, or accommodate time-intensive scheduling requests (scheduling was mostly automated through the YouCanBookMe tool). Instead, their case managers were freed up to focus on reaching out to as many parties as they could.

MCP also astutely used the funding from Act 57 to invest in its own internal processes. This included setting up an online portal enabling the landlords to provide the required notice to MCP. The form the landlords filled out fed directly into MCP’s case management system, saving staff lots of time and effort.

Having shifted away from the on-site mediation model, parties were now free to have longer sessions, typically 90 minutes. This no doubt played a role in increasing the agreement rate, allowing parties the space to work through impasses that could not be ironed out in a rapid-fire, 20-minute session.

The joint efforts among mediation programs, alongside rental assistance and legal aid efforts, are central to many eviction diversion initiatives, and the MCP program was no exception. MCP staff and mediators shared a Microsoft Teams workspace with the local rental assistance partner, which enabled them to get real-time updates on the status of an application during a mediation. Legal aid and other service providers worked closely with the mediation program, and referrals between one another were standard procedure.

Unfortunately, Act 57 was a temporary initiative and was not renewed when it expired in August 2022. MCP nonetheless is continuing to offer mediation on a voluntary, prefiling basis to interested parties. MCP’s model provides excellent guidance to courts looking to develop and improve upon their eviction mediation efforts. While moratoria in most places have been lifted, the need for comprehensive eviction solutions has failed to abate as recession, inflation and the ongoing impacts of COVID-19 continue to exacerbate housing issues.

New Reports Describe Successes, Challenges in Launch of Eviction Mediation Programs in Illinois’ Kankakee, Winnebago Counties

Jennifer Shack, September 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.

In late 2021, the 17th Circuit and 21st Circuit courts of Illinois launched eviction mediation programs with RSI assistance. RSI now administers the programs remotely. I had the pleasure of interviewing the judges and program administrators involved in the planning and implementation of the programs. The purpose was to help other courts interested in starting eviction mediation programs by better understanding how the programs work and the challenges and successes they experienced during the planning phase and post-launch. The resulting reports for the 17th Circuit and 21st Circuit are now available.

Photo by eskay lim via Unsplash

Both programs started with the same program design and initially relied on the same program coordinator, who administered the programs remotely with the help of an assistant. For both programs, the program coordinator or the program assistant attended court calls remotely so that when the judge referred cases to the program, they could obtain party contact information and other case details that would help them to administer the program. Parties had access to rental assistance, and mediation was held via Zoom by paid mediators. The programs got off to a slow start but have begun to see more referrals.

17th Circuit Program

The 17th Circuit program, serving Winnebago County, launched in September 2021, but started seeing regular referrals in January. The mediation program was conceived as a partner service to rental assistance.[1] Winnebago County had the benefit of two agencies that could process rental assistance applications quickly and that could have representatives present at the court call. Because rental assistance was readily available to most tenants, the judge decided to refer cases to rental assistance first, then authorize mediation for cases in which the assistance was denied. 

Initially, the program coordinator did not have an easy way to follow up with the tenants to see if they had been approved for rental assistance and whether they wanted to mediate. Seeing an opportunity for the program to do more, the court and RSI decided to have the program coordinator help move tenants through the rental assistance application process. She now follows up with tenants to be sure they have applied for rental assistance and helps get them in contact with a rental assistance agency if not. This helps her to identify cases that need mediation and to schedule them for mediation if the tenants agree to participate.

Lessons Learned

Coordination with program partners may improve buy-in

RSI did not have the staff capacity to take on the role of coordinating program partner communications and needs during program development. According to RSI’s associate director, this resulted in more landlord resistance to the program than in another circuit whose eviction mediation program RSI helped develop. In that program, there was ongoing communication among the program partners, and their perspectives were incorporated into the program rules and process. There, attorneys for landlords and tenants, as well as representatives from the rental assistance agencies and court staff, met regularly before program launch to discuss program development and after the program launched to discuss any issues with the program and its processes.

Communication is essential

The program coordinator and the program assistant both indicated that the open communication with both rental assistance agencies is essential to the smooth running of the program and to ensuring that those who need mediation are offered the opportunity. Communication with the judge is also necessary. The judge initially referred cases to mediation based on a narrow set of criteria. The program coordinator and the program manager have been discussing with the judge the benefits of mediation in other circumstances.

Judge support is key

The judge promotes use of the program both by informing the parties of the resources available to them and strongly encouraging parties to attend mediation.

Tenants need help obtaining rental assistance

Not all tenants are capable of navigating the process of obtaining rental assistance, particularly in the short time frame required by the court’s eviction process. The program coordinator has found that she often needs to explain to tenants what they must do to apply and to follow up to be sure they do so in a timely manner. In addition, she often must explain to tenants what the status of their application is, because they do not always understand their situation.

Good program administration is important

The judge indicated that the program coordinator’s follow-up with tenants about their efforts to obtain rental assistance has helped to move parties through the application process. The program coordinator indicated that this case management has allowed her to identify cases suitable for mediation and has led to more cases being mediated.

It’s helpful to meet with landlords before program launch

The judge noted that outreach to landlords helped to assuage landlords’ fears about the program, reducing resistance to it.

The mediation program may need to evolve

The program may not work the way originally planned, or the original plan may not lead to the most effective provision of services. In this case, the judge’s desire to wait to mediate cases until after rental assistance was denied led to a need to reconfigure the program coordinator’s role.

21st Circuit Program

The 21st Circuit program, serving Kankakee County, launched in December 2021 but saw its first referrals in March 2022. In the 21st Circuit, the reasons for the slow start were complicated. The judge, who was assigned to hear evictions after the program planning phase, was supportive of mediation but had a narrow view of which cases were appropriate. Further, there was no funding for the program during the planning phase, so RSI did not have the staff to engage with stakeholders to get their input and their buy-in. This may have played a role in resistance to mediation among the plaintiff’s bar.

The mediation program was conceived as a partner service to rental assistance,[2] with parties having access to both at the same time. The judge was given the authority by local court rule to order cases to mediation, which she uses when she believes referral to mediation is warranted. Though the court and its partners did not integrate rental assistance with mediation, in practice, the judge refers cases to mediation when she determines the tenants do not know about the resources available to them. The program coordinator has thus taken on the role of helping self-represented tenants, who make up the vast majority of defendants, navigate the rental assistance process. The rental assistance agency has been less involved in the program than the agencies in the 17th Circuit, and has determined that it cannot inform the program coordinator of the status of rental assistance applications due to privacy concerns. This has made it more difficult to help tenants, and mediations often take place without knowledge of whether the tenants have been approved for rental assistance. 

Lessons Learned

Many of the lessons learned were similar to those for the 17th Circuit, but for different reasons.

Coordination with program partners may improve buy-in

Because of a lack of funding during program planning, RSI was understaffed and could not take on the role of coordinating program partner communications and needs. According to the associate director, this resulted in more landlord resistance to the program than in another judicial circuit, in which there was ongoing communication among the program partners and the incorporation of program partner perspectives into the program rules and process.

It helps to remain flexible

The mediation program went through some growing pains, and both the court and the program coordinator needed to figure out how to best work together and to best manage cases. This effort is ongoing but appears to be bearing fruit.

Communication is essential

Lack of communication with the court led to a slow rollout of the program. This has changed as communication has improved. Lack of communication with the rental assistance agency has made it more difficult to assist tenants and to reach agreements in mediation.

Judge support is key

Although the eviction judge came onto the bench after the program had been planned, and therefore needed some time to acclimate to the mediation program, she believes there is a place for mediation in eviction cases. This has led to a greater number of referrals as time has passed.

Good program administration is important

The judge relies on the program coordinator to help tenants navigate resources and to gain access to rental assistance. This has broadened the scope of the position and has required greater case management skills. 


[1] State and federal funds have been made available that provide eligible tenants up to $25,000 to pay past and future rent. The county disburses the funds, which are sent directly to the landlord.

[2] State and federal funds have been made available that provide eligible tenants up to $25,000 to pay past and future rent. The county disburses the funds, which are sent directly to the landlord.

Rental Relief and Eviction Mediation Work Hand in Hand to Make Housing More Stable

Eric Slepak-Cherney, August 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.

Photo by Kostiantyn Li, via Unsplash

Rental assistance has been a critical component of eviction mediation programs over the past two years. With tenants unable to work for months on end and moratoria on evictions in place, past due rent amounts soared. Conducting mediations in which tenants could not pay landlords much, if any, accumulated rent would not have been fruitful. While mediation in landlord-tenant cases has a long pre-COVID history of success, the sheer number of impacted households and amount of past-due rent threatened to destabilize housing markets and leave millions without a home in the midst of a global health emergency.

The key was rental assistance: Landlords and tenants applied to government programs, which would then make payments to landlords for past-due rent and, in some instances, for a few months in the future.

Across two separate rounds of relief, Congress appropriated over $46 billion in emergency rental assistance. Through June 30, 2022, some $32 billion of that funding had been expended. The relief was allocated to individual states, under the assumption that each state would be best situated to decide how to distribute its allocated funds most effectively. Generally speaking, the states designed their rental assistance programs along a continuum, with one end being central administration by statewide agencies, and the other being delegation of administration to individual municipalities such as cities and counties. Many fell somewhere along the continuum in a hybrid approach.

Timely Processing of Applications a Challenge

The coordination among federal, state and local governments to deliver these services has been a massive undertaking, and certainly not without challenge. An analogous challenge in coordination has arisen between the executive branches of states that are charged with distributing these funds, and the judiciaries that are charged with adjudicating the eviction cases filed in their courts. The interplay between these two, particularly around the speed at which each operates, often determines the reality of whether a tenant can successfully stay in their home.

Using Illinois, where RSI operates several eviction mediation programs, as an example, we saw early on how gaps in coordination were impacting applicants. As cases began to be filed in the wake of our state’s eviction moratorium being lifted in October 2021, the processing time for rental assistance applications was significant. Anecdotally, we heard stories from tenants, landlords and legal aid providers that it wasn’t unusual for applications to take two or three months to be approved. 

Even with many jurisdictions in Illinois electing to continue their eviction cases, some for up to 28 days, the rental application process simply wasn’t going to move fast enough in many cases to change case outcomes. While judges could potentially continue cases to allow for a decision on rental assistance, they also had to balance the needs of the landlord, some of whom had already gone 18 months or longer without collecting rent.

Expediting the Resolution Process

Commendably, our state agencies responded by developing a dedicated Court-Based Rental Assistance Program (CBRAP). This rental relief program is solely for parties to an active eviction court case, and its resolution process has been expedited to stay within the timelines of most courts in the state. The program has been effective at resolving rental assistance applications in a period of three weeks or sooner, meaning that many parties know whether they’ve been approved by the time their case comes back up for their continuance date.

RSI and our fellow mediation centers in Illinois have assisted CBRAP in expediting cases by accepting referrals from the Illinois Housing Development Authority to mediate certain pending rental assistance applications. Typically, these cases are ones in which a rental assistance application has been conditionally approved but the landlord has also secured an eviction order, often from a default judgment. Because the rental assistance terms stipulate that a landlord agrees to not evict for an additional 90 days (the rent is prepaid by the award), the primary focus of these mediations has been to help the parties make sure they both understand the terms of the agreement, including that the landlord will need to vacate the eviction order to receive rental assistance.

Complementary Programs

Our work on CBRAP complements our eviction mediation programs operating in Illinois’ circuit courts. When tenants are evicted and taken to court, our mediation programs are often the first touchpoint for many parties, and thus we make a lot of referrals to rental assistance as part of our intake and triage process.

Illinois’ CBRAP is just one example of many that demonstrate how eviction diversion programs complement and intersect with rental assistance efforts. We’ve previously showcased the Philadelphia eviction diversion program, which innovatively integrated rental assistance directly into the program model itself, and also allowed for pre-filing cases to give parties more time to explore the rental assistance. A recent webinar jointly hosted by the White House and Treasury Department highlighted the significant role eviction diversion programs have played in improving rental assistance delivery. And a forthcoming post on this blog will take a look at the unique and effective approach that was taken in Hawaii on Oahu.

Mediation Offers Lifeline for Communities Being Inundated by Flood of Evictions

Eric Slepak-Cherney, June 20th, 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.

More than two years since COVID-19 first broke out stateside, the U.S. housing sector remains in a state of flux. Various moratoria and relief funds at the federal, state, and local levels notwithstanding, courts throughout the country have been awash in eviction filings for some time now. For many communities, while there might be some ebb and flow from month to month, it’s increasingly looking like the new normal is a sustained level of increased activity. 

When we last saw a comparable crisis in the 2008 mortgage foreclosure crisis, inundated courts turned to alternative dispute resolution (ADR) as a means to better triage and more expeditiously resolve cases. Many of these mediation programs were able to leverage pro bono legal assistance and housing counseling services to provide holistic support to parties and increase the odds of finding a resolution. Looking at courts across the country, we can see an analogous process unfolding in real time as a response to this present-day eviction crisis. A critical distinction is that where the typical judicial foreclosure process is one that operates in months and sometimes years, eviction is a process that can conclude within a few weeks—and sometimes less. 

That context underscores the urgency with which courts have had to address this issue. At Resolution Systems Institute (RSI), a nonprofit that has spent the last 25-plus years helping courts better utilize ADR, we have taken a two-prong approach to the eviction crisis. First, we have established a number of eviction mediation programs in northern Illinois to serve the communities there and to act as models that can be replicated by other jurisdictions. Second, we are studying these model programs and providing guidance to other courts looking to implement or improve their own eviction mediation efforts. 

On the Front Lines

Operating programs in three Illinois jurisdictions—which, combined, serve nearly a million residents across Kane, Kankakee, and Winnebago Counties—has provided RSI an opportunity to apply our evolving knowledge of best practices to better serve communities in distress. Lessons learned from other programs regarding housing disputes, the integrated role of support services in these cases, and how to administer all of these in an increasingly online world were all critical to us in finding our footing for this program. 

In most instances, services in our programs are accessed remotely. Court calls still take place over Zoom, though the courts do offer physical access at the courthouse for those parties who need or prefer it. Our staff and other program partners attend these court calls to educate parties about mediation at their first appearance and obtain contact information. Program staff then connects with them individually via email or telephone after court to give each party the time they require to feel heard and for our staff to properly collect all vital information. 

During intake, our staff assesses what services parties might benefit from, whether that entails legal assistance, information about rental relief funds, or help finding alternative housing, among others. Our mediation program refers people to appropriate service providers, scheduling mediation a few weeks later to provide time to take advantage of the other services. The goal is to ensure, to the greatest extent possible, that parties are fully informed by the time they sit down to have their dispute mediated. Avoiding eviction is the top goal whenever possible, but sometimes that’s just not workable. What we can ensure, however, is that both parties experience a process in which their concerns were heard and they were treated fairly.

Participation in the program is mandatory for landlords if the tenant wishes to participate, and the judges may (and often do) order parties to participate. Judicial buy-in is key to almost any successful court ADR program, and eviction mediation is no exception. We cultivate that buy-in from the program’s outset, collaborating with eviction judges and court administration. We also include other program partners in the development of program procedures and local court rules. At the same time, we work to secure funding and staff up. Experience has taught us again and again that proper program management requires adequate resources to keep operations running effectively. 

Another component of successful administration is regular program partner meetings to provide updates on program processes and troubleshoot any potential issues. Such meetings are exceptionally critical in the cross-disciplinary context of evictions. The court and the mediation program are two big parts of the eviction process, but having housing counselors/advocates, legal aid, representatives for landlords and their attorneys, and sometimes municipal representatives speak to their perspectives has been instrumental to us in designing a process that works for all. 

We have been highly encouraged by the results of these efforts to date. Since Illinois lifted its moratorium on residential evictions on October 3, 2021, our programs have enrolled over 600 cases. Our programs have mediated 420 disputes, with 269 (64 percent) reaching partial or full agreement. These agreements span a wide array of outcomes, from allowing a tenant to keep his or her apartment, to negotiating a mutually agreeable move-out date, to working out payment plans for back rent owed. 

After each mediation session, parties are invited to complete a survey about their experience in mediation. Eighty-three percent of respondents believe mediation is a fair process; 78 percent of respondents strongly agree with the statement “I was able to express what was important to me.” One tenant commented that they were able to “leave [mediation] with some peace of mind.” An attorney representing a landlord commented, “Mediation has the ability to resolve the case with limited expense to the parties and resolve it more expeditiously.” In all, 70 percent of respondents would highly recommend mediation to a friend or colleague. (For those interested in reading further, we publish the stats on our surveys quarterly.)

Viewed together, the data about both the outcomes we achieve and the participant experience in mediation indicate we are on the right track, while also giving us some targeted data about where we have room for improvement. Resolution Systems Institute is grateful to the Illinois Equal Justice Foundation for funding that supports our mediation services in northern Illinois. 

Empowering Courts Nationwide

Our experience operating programs in Illinois, combined with years of experience monitoring and evaluating court ADR programs, has provided tremendous insight into how to successfully operate such programs. Now we are taking what we are learning and sharing it with others through our publications, website, blog, newsletter, and social media. RSI is grateful to the American Arbitration Association–International Centre for Dispute Resolution Foundation for underwriting our efforts to develop and share these resources with a nationwide audience. 

For example, our Eviction Mediation Special Topic was developed as a one-stop shop for courts seeking information on the subject. This Special Topic resource contains practical guidance about designing eviction mediation programs and setting up data collection systems. We have also provided sample court rules, forms, party surveys, and other materials. Individuals can also find a reading list of what we believe to be the best resources on eviction mediation.

With regard to evaluation, we recently published a program implementation report, Eviction Mediation Design and Implementation in Illinois’ 16th Judicial Circuit: Challenges and Keys to Success (Apr. 2022), that examined the design and development process in our Kane County program. This unique resource provides courts a detailed overview of how a real court ADR program was developed, including the steps and time frames involved. The report’s key findings identify five critical factors:

  • Court interest in the project
  • Judge support
  • Landlord/landlord attorney buy-in
  • Good communication among involved organizations
  • Good administration

These findings are supported by hours of interviews among key personnel involved in the program’s development. In future months, we will be publishing an implementation report concerning our other two programs, which will focus on the challenges and successes in developing a mediation program that is staffed fully by remote employees.

Conclusion

We hope that the resources RSI has provided thus far and those that are forthcoming can empower courts to design stronger alternatives to the traditional eviction process. Renters and landlords alike have navigated tremendous uncertainty over the last couple years. As evictions remain high, courts and communities can turn to RSI’s experience and guidance to assist in meeting the demand for fair, prompt services. We would also like to recognize the American Bar Association COVID-19 Task Force’s Eviction Committee and the ABA Dispute Resolution Section’s Task Force on Evictions for their work in addressing these issues. 

This article was originally published, under the title “Mediation Offers Lifeline for Communities Awash in Evictions,” in the American Bar Association Litigation Section Alternative Dispute Resolution Committee newsletter, Spring 2022 edition, Volume 26, Issue 3. Copyright © 2022, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).

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.