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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.


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