This is the story of how RSI is working with courts to confront two crises: the COVID-19 pandemic and the economic downturn. Much of the story will be very familiar to anyone running court mediation programs: having to respond to rapidly changing circumstances and figuring out how to operate in remote processes. Some of it may be less familiar to those whose programs don’t deal with housing issues. I hope this story provides some nuggets of insight or at least a feeling of support for the efforts being taken to maintain programs throughout these crises. Although the story is split into three phases, the phases bleed into one another. So although I end the story in Phase III: Planning for the Future, aspects of Phase I: Dealing with the Unknown and Phase II: The Crisis New Normal (to steal a phrase from John Lande) still remain.
RSI runs three programs for two courts in Illinois. In Kane County, Program Manager Kevin Malone administers both the court’s foreclosure mediation and child protection mediation programs. In Lake County, Program Coordinator Olga Ivari is in charge of the court’s foreclosure mediation program. The other two staff involved in this story are RSI Executive Director Susan Yates and Associate Director Eric Slepak-Cherney. Together, I’ll be referring to them as “the team.”
The story will focus on the foreclosure mediation programs, for reasons that will become clear. These programs have a two-step process. The homeowners contact Kevin or Olga to enroll and learn about how the program can help them. In the first step in Kevin’s program, the homeowners can then opt to work with a housing counselor to learn about the options for avoiding foreclosure and to get help pulling together the documents they need to send to their lender with their request for a loan modification. In Olga’s program, homeowners are required to meet with a housing counselor as their first step. They then work with their housing counselor to submit the required documentation to request a loan modification. In both programs, the most time-consuming and difficult part of the process is facilitating the exchange of these documents between the homeowners and their lenders. The second step in both programs is mediation.
Phase I: Dealing with the Unknown
During this first phase, the team was not only facing something they had never faced before, but were reacting to a constantly changing landscape. It seemed that every day brought new information and changes to how they needed to work. During this phase, flexibility, teamwork and, above all, communication were key.
Susan’s main concern at this time was to keep Olga and Kevin safe, and to be sure they had the support they needed. For her, it was important that she and the rest of the team remain flexible in order to respond to the changing landscape. This required constant communication. Eric saw his role as making sure that the programs could maintain continuity and to support Olga and Kevin in their efforts to do this. As the situation was rapidly evolving, this required daily calls among the three of them. The calls were meant to be sure that the team was thinking of everything that needed to be addressed as their programs were shifting to remote services.
At the same time, Kevin, Olga and Eric needed to communicate with the courts. As the courts were issuing new orders changing how they provided services, the team was discussing how these orders would affect their programs and program timelines, and how to ensure these were addressed by the court. Eric noted, “Judges have the big picture of the programs. We have the day-to-day perspective.” So they worked with the judges to make sure that mediation was included in orders extending deadlines and that specific issues were considered in the order. For example, if the parties were given a 35-day continuance in the foreclosure mediation program, how does that change impact when and how the borrowers file paperwork with the lender?
Based on the court’s new orders, the team began making decisions about whether to reschedule mediations or have the mediators conduct distance mediations. In Kane County, Kevin discussed the options with the judges and together they decided to postpone all child protection mediations, in which parents whose children have been taken into protective custody following a substantiated allegation of abuse and/or neglect can discuss issues with others involved in their children’s case. This was done due to a concern that the mediators wouldn’t have the same control over the process as they would if everyone was in the same room. This is especially problematic if one participant had coercive control over another. If the parties weren’t in the same room with the mediator, there was no way to know, for example, whether that participant was texting threats to the other one.
For foreclosure mediation, the situation was different. There was no question of participant safety. Instead, the mediations were postponed so that the team could have the time to figure out the best way to conduct the mediations and to think of all the details that would need to be figured out before mediations took place. It also gave time to mediators, who much prefer in-person mediations, to think about how they would deal with remote mediations.
There was another reason to postpone mediations, as well. In response to the economic repercussions of COVID-19, banks began to offer three-month forbearances to homeowners who were in danger of foreclosure. In Lake County, the court has relatively short and strict deadlines, so Olga wanted to be sure that those homeowners who received a forbearance would be able to stay in the program once the forbearance ends in order to obtain a more permanent agreement, rather than having to withdraw because they had reached the court’s deadline for being in the program.
The decision to postpone the mediations meant Olga and Kevin had to communicate with everyone involved in the programs and in the mediations that were already scheduled. They contacted mediators to let them know what was going on and emailed lawyers and parties about rescheduling mediations to mid- to late-May, after the courts were set to reopen. They also discussed new processes with the housing counselors who help homeowners in their programs and made sure that communications between them remained open.
Phase II: The Crisis New Normal
During Phase II, Kevin and Olga began to settle in to new processes put in place and to run their programs as the situation dictated. They also started thinking about how remote mediations might eventually be conducted. As the initial time of being completely off-balance came to an end, the team began to meet once a week, with ad hoc conversations as issues arose.
The major task for both Kevin and Olga was to continue helping borrowers who had entered the program to continue to move through the beginning steps of the foreclosure mediation process. For Kevin, this means taking phone calls from borrowers who have questions, as well as emailing with them, the lenders and housing counselors as the borrowers provide the lenders with the documents needed in order for the lenders to assess whether borrowers are eligible for a loan modification. Housing counselors have stepped up during this time, taking on a larger role than they had before in facilitating the exchange of documents.
Olga spends much of her time talking with borrowers, enrolling them in the program and scheduling their initial meetings with the housing counselors (now done remotely) and their mediations. For those homeowners with a forbearance, Olga has been trying to schedule housing counseling sessions and mediations as far out as possible so that they can remain in the program once the forbearance ends.
Although both Olga and Kevin had postponed foreclosure mediations, they worked with Eric to decide on how they should be structured once they started. They decided to use Zoom, but only conduct the mediations by phone. This decision was based on their concern that borrowers wouldn’t have the technical ability to use videoconferencing. In addition, mediators would be required to learn all the ins and outs, as well as new best practices for videoconferencing. This latter consideration also led to the decision for Kevin and Olga to host the mediations, which means giving each individual permission to enter the teleconference and to send parties to “breakout rooms” when caucus is requested.
Taking mediations online meant that confidentiality needed to be addressed differently than for in-person mediations. Prior to her first teleconference mediation, Olga and Eric modified the program’s confidentiality agreement to explicitly prohibit recording audio of the mediation. As Olga needed to monitor the mediation for any issues or caucus requests, she signed the confidentiality agreement along with the parties and the mediator. Because it was unusual to listen in on a mediation, she also decided to provide a greater sense of confidentiality to the parties by muting the conversation and responding to mediator requests for help over chat.
Another issue that arose was how to deal with sharing documents during mediation. These documents are generally brought to mediation, but due to the privacy and security issues that were being raised about Zoom, the team decided that the borrowers would submit their documents to Olga prior to mediation, who would then redact them and email them to the mediator.
Phase III: Planning for the Future
Phase III is similar to Phase II, but with the addition of planning for the courts reopening and the expected new foreclosure crisis that will result from the pandemic. The team has also started taking stock of what will be needed if the courts must suspend operations again. Both are also using this time to update forms and revise their informational materials as they prepare for new enrollees.
But planning for the future is what differentiates this phase from the last. As unemployment numbers soared and the banks used forbearances as never before, the team began to suspect that a new foreclosure crisis is looming on the horizon. They have begun speaking with the housing counselors they work with and with housing experts to get a clearer picture of what they might be facing.
The court in Lake County is also thinking ahead and judges have asked RSI to figure out what will be needed when the foreclosure crisis hits. The team is in a good position to do this. Because RSI tracked a lot of data during the height of the last foreclosure crisis, the team knows what percentage of cases will be mediated and thus how many mediators will be needed. They also know what supporting technologies, such as intake portals and case management systems, will be beneficial and what could be improved.
Because they have been through a foreclosure crisis before, collected data and made changes to improve their programs, and most of all have a process in place already, Kevin and Olga are much better positioned to confront the next foreclosure crisis than the last one. But there are still some unknowns. How are the federal and state governments going to respond? Will programs be put in place to help homeowners, as they were last time? And if so, what will those programs look like? Susan points to these questions as the new challenge for the team.
The Next Phase
We’re all still working in a world in which we don’t know what the new normal will be or when it will even come. Indeed, Illinois just extended its stay-at-home order for another month, meaning the team will once again have to respond to changing circumstances. So in part, the team is still in Phase I, dealing with the unknown. This means that for the foreseeable future, they will still be facing the biggest challenge identified by Eric: trying to anticipate new issues and address them before they arise.