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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.

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.

Eviction Mediation Updates, December 2021

Eric Slepak-Cherney, December 17th, 2021

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 of Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to other court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.

As the state of eviction mediation continues to evolve, we wanted to share some notable developments from across the country.

State of Moratoria

According to Nolo, the vast majority of jurisdictions have lifted moratoria on eviction filings. With the overturning of the Centers for Disease Control’s moratorium at the federal level earlier this summer, that means in most places in the country, eviction proceedings are permitted. Diversion efforts such as mediation and rental assistance programs are two common responses local governments have implemented to mitigate the impact of a large increase in filings.

ODR in Miami-Dade

Miami-Dade County, Florida joins a small cohort of other jurisdictions, such as Delaware and Akron, Ohio, in piloting an eviction ODR program. The program utilizes Court Innovation’s Matterhorn platform to allow tenants and landlords to exchange messages and documents, set up a payment plan and explore other options to reach resolution. Parties can either negotiate directly or request the involvement of a mediator while using the platform.  

New Hampshire Expands Pre-Filing Programs

The New Hampshire Judicial Branch recently expanded upon its pre-filing diversion program statewide after promising results in pilot programs in two locations. This effort concentrates on resolving as many cases as possible before a court case is initiated, and either party can request a remote mediation session through the state Office of Mediation and Arbitration. Post-filing mediation is only available in a limited number of circuits, so parties are heavily encouraged to act before that stage is reached, especially in light of the fact that the pilot program boasted a 70% agreement and 91% satisfaction rate.

Keeping Up with Developments Nationwide

To stay up to date with the latest court eviction mediation developments, make sure you bookmark our National Program Database. And if you have any information for us that you see missing, please be sure to drop us a line!

Eviction Mediation Program Development in The Midst of Uncertainty

Eric Slepak-Cherney, December 9th, 2021

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 of Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to other court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.
 

Over the past year and some change, RSI has been involved in developing three new eviction mediation efforts in northern Illinois. We have also had numerous conversations with court administrators and other court ADR practitioners across the country about how they were planning to deal with a possibly enormous spike in case volumes once eviction filings resumed. An underlying theme in all these efforts has been the tremendous level of uncertainty involved: When would this spike come? How big would it be? What could we do to mitigate its impact?

In the majority of jurisdictions, evictions can now be filed in most instances. But even where filings have resumed, the picture is not totally clear. For one, the prevalence of rental relief might be staving off some potential cases. While that is a great outcome, rental relief is not a permanent solution to maintaining affordable housing. The assistance can help renters and landlords get current and stave off eviction for a certain period of time, but many tenants are still faced with unemployment or underemployment that threatens to put them at risk for eviction again later. 

Advocates also noted that some defaulting renters chose to ‘self-evict’, leaving their homes without waiting for a judicial eviction order. Anecdotally, we have heard about some landlords intimidating their tenants into leaving. Similarly, some landlords and their lawyers complain about tenants not paying rent when they were able to do so during the moratoria. With regards to all of these phenomena, good data is not available, which leaves the view of the real eviction landscape quite unclear.

It is in this uncertain climate that we, and other court ADR professionals across the country, have been developing diversion programs. The closest analog we have had to rely upon in this program development phase was the mortgage foreclosure crisis over a decade ago. While the foreclosure mediation programs provided helpful guideposts about developing eviction mediation programs, those programs were developed in response to the foreclosure crisis, not in anticipation of it, as is the case with eviction mediation. In the previous crisis, we had quite a bit more reliable data. 

Of course, the upside here is that in this current situation, as these programs have mobilized much more rapidly in response to an expected crisis, they can hopefully mitigate far more of the damage. But as program developers and administrators, we have had to operate in the dark and make our best guesses in a lot of situations. 

For instance, without knowing the volume of cases, we have had to make lots of conjectures about hiring program staff, how many mediators we would need, how many mediation sessions we should schedule in a day, and for how long we should schedule each session. We have followed the introduction and renewal of the various moratoria, constantly revising our programmatic timetables. RSI, and many others, went through learning pains in developing programs that meet the needs of their local communities. Now, one program operates primarily online, but can also serve parties physically appearing in court, while others operate entirely online. We do all this in the midst of continuing uncertainty about whether court operations will remain online, go back to in-person, or follow a hybrid approach.

These examples are just some of the critical details that must be navigated when making a successful eviction mediation program. While the outcomes achieved at the mediation table (or mediation Zoom room) are ultimately the difference between a party being evicted or not, it is worth appreciating everything it takes to actually get the parties to the table. Throughout the pandemic, the obstacles to that have been great, and even now, there still remains a thick curtain of fog that we will continue navigating in order to do so.

RSI’s Complete “Guide to Program Success” Now Available!

Susan M. Yates, September 15th, 2020

As the pandemic wears on, courts have been transitioning services online and exploring how ADR and ODR can aid their communities in new ways. Given the challenging nature of the situation, I am pleased to share a newly completed resource from RSI that can help.

RSI’s entire Guide to Program Success is now available both online and for individual download. Together, RSI’s Director of Research Jennifer Shack and I wrote this step-by-step guide on how to design, manage and evaluate a court ADR program. Each chapter of the guide contains an in-depth examination of an element of program success. Topics include:

  • Why a court ADR program may be beneficial
  • How to gather a planning team
  • Exploring the legal and ADR environment
  • Articulating program goals
  • Figuring out budgets and funding
  • Applying standards for court ADR
  • Deciding which ADR process to use
  • Designing mechanics of an ADR program
  • Selecting and managing neutrals
  • Writing court rules
  • Designing systems to track the program
  • Creating court program forms
  • Launching a court ADR program
  • Managing a court ADR program
  • Evaluating a court ADR Program

This guide can be used for any type of court ADR process and may be used at any stage of a court ADR program. If you are responsible for a court ADR program or are looking to design a new court ADR program, this is the guide you need.

We hope that this resource is valuable in your work. If you are able to support Resolution Systems Institute, please make a donation. As we all struggle to do our best in challenging times, your support is deeply appreciated.

Susan M. Yates

Executive Director

Resolution Systems Institute