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Just Court ADR

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Posts Tagged ‘Eviction Mediation’

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.

Nevada Passes Legislation to Address the Upcoming Wave of Expected Evictions

Nicole Wilmet, August 26th, 2020

In response to COVID-19, Nevada’s Governor Steve Sisolak issued a Declaration of Emergency in March to temporarily halt residential evictions and foreclosures across the state. This initial moratorium was set to expire on June 30, 2020. Before the end of June, Governor Sisolak issued a follow-up Declaration of Emergency to extend the moratorium on evictions through the end of August. This month, the Nevada Legislature passed a bill to provide landlords and tenants facing eviction with options once the state’s eviction moratorium is lifted on September 1, 2020.

It’s reported that in 2019, Nevada courts processed more than 45,000 eviction cases. Recently, news outlets are reporting that after September 1st the number of households facing eviction could vary between 135,000-270,000. Under the recently passed bill, if a court establishes a rule to utilize alternative dispute resolution (“ADR”) to address evictions, then the eviction proceedings may be stayed for 30 days to allow parties the opportunity to participate in ADR. Although the bill doesn’t specify the type of ADR to be used, when presenting the proposed legislation to lawmakers, Nevada Supreme Court Justice James W. Hardesty noted that the program would be modeled after the state’s foreclosure mediation program. Moreover, during his presentation Judge Hardesty also told legislatures that, “this is a short bill for a big problem.” Governor Sisolak signed the bill into law on August 7, 2020.