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Significant Participation, Agreement Levels Highlight Potential of ODR for Family Cases

Jennifer Shack, August 31st, 2022

University of California, Davis, Professor Donna Shestowsky and I recently had the pleasure of conducting the first neutral evaluation of any family law court online dispute resolution (ODR) program in the United States. The program was launched by the 20th Circuit of Michigan’s Friend of the Court (FOC) in August 2020 with the goal of providing parties with post-judgment family law disputes a simpler, more convenient and cost-effective way to reach agreements related to child custody, parenting time and child support. It also aimed to increase efficiency in the disposition of these matters. By and large, we found that the program was providing the benefits the FOC hoped it would.

What We Studied

The FOC used Matterhorn’s text-based ODR platform, which allows participants to communicate with each other and their caseworker via asynchronous text messages and document exchanges. We used case data, ODR data, pre- and post-process party surveys, and staff interviews to gain insight into:

  • Parties’ expectations for the ODR process at the time it was offered to them, and their views on a video mediation alternative
  • ODR access, including the percentage of parties who participated and opted out, information about ODR available to parties, and parties’ capacity to use ODR
  • Participants’ evaluation of their experience of ODR in terms of procedural justice, satisfaction, fairness of the process, and ability to control the outcome of their matter
  • Parties’ impressions of the FOC and the other party
  • The agreement rates, hearing rates, and efficiency (time to disposition, caseworker time spent on matters) associated with ODR use
  • Direct costs and the FOC’s staff members’ perceptions of the effect of ODR on their work

Excitement and Anxiety

We found that before ODR, parties tended to be confident they could reach agreement, but the majority did not believe the other party would be truthful. They expressed high levels of excitement about using ODR, but also high levels of anxiety. Those who were planning on using it were twice as likely to report a high level of fear of the other party as those who weren’t sure they would, or who were not going to, use ODR.

Because of the platform’s technological limitations, caseworkers did not offer ODR to parties who had attorneys, those who had limited English proficiency, or to those who were blind or visually impaired. In addition, the FOC had decided that those who had a history of a high level of conflict would not benefit from ODR, and they were therefore not offered the opportunity.

Uptake Higher than for Other ODR

Almost half of the parties who were offered the chance to use ODR did so, which was high compared with other early ODR programs, which have had participation rates of 21% to 36%. In half the cases in which ODR was offered but not used, at least one of the parties simply did not register to use it despite the FOC’s intent to require its use. We noted that the emails sent to the parties informing them to register for ODR used language that could have confused the parties both about what the program was and their requirement to participate.  We also found that parties lacked an understanding of the main features of the program. This, too could have reduced program use.

A surprising finding was that almost all parties who used ODR accessed the platform with their mobile phone at least part of the time. Only 8% exclusively accessed the platform with a computer, while 71% only used their mobile phone. This indicates that the platform and any auxiliary activities, such as communications to the parties and agreement forms, must be optimized for phones.

When parties used ODR, they were four times as likely to give high ratings for fairness of the process as those who did not use ODR (50% vs. 12.5%), and twice as likely to give high ratings for satisfaction (50% vs. 25%). They were also much more likely to reach agreement than those who were offered ODR but didn’t use it (59% vs. 11%). In cases involving child support, parties using the online platform reached resolution nearly twice as fast as those who did not.

Positive, with Room for Improvement

Our evaluation indicates that the FOC’s ODR program has provided parties with a positive experience, improves agreement rates and reduces time to resolution for some cases. Program use is high in comparison with other programs.

However, our analysis suggests that the FOC could do more to educate parties about the program, direct parties to use it, and increase access to parties with disabilities as well as those who need an interpreter’s assistance to use the platform. The FOC should also explore ways to reduce access barriers for those identified by caseworkers as less likely to use or benefit from the program because they have lawyer representation or have high-conflict relationships. Attempts to reduce access barriers should also be directed at those who lack digital literacy and those who would use their mobile phone to access the platform. Our evaluation was limited by a small survey and case data sample size, which may have obscured statistical significance of some findings and did not allow us to conduct more detailed analyses of participant experience. We are looking forward to seeing more evaluations of ODR programs conducted, to build on our findings.  

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.

Survey Data Indicates Eviction Mediation Program Offers Procedural Justice

Jennifer Shack, March 9th, 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.

Last year, RSI and the 16th Judicial Circuit Court in Kane County, Illinois, launched a new mediation program to address eviction cases. In this program, parties are informed of the program when they receive their summons and are invited to participate when they arrive for their initial hearing. If they decide to participate, they meet with the program coordinator, who informs them of their options, including meeting with a financial counselor and/or a legal services representative. The coordinator then schedules the mediation on a date prior to the next hearing. Mediation takes place via Zoom. Between June 2021 and early January 2022, the program mediated 81 disputes.

After each mediation, parties and attorneys are invited by email to complete a survey online about their experience. From the first 81 cases, 28 participants responded, including 6 tenants, 2 landlords and 20 attorneys. While this is a small sample size from which to draw definitive conclusions, their responses indicate the program is offering participants a positive experience in mediation.

The tenants, landlords and attorneys all gave favorable ratings to their experience in mediation. 89% indicated they would recommend mediation to a friend or colleague. 93% rated fairness of the process highly. All but one said they could express what was important to them during the mediation. When commenting about what they liked about the mediation, they most often said something positive about the mediator. A few also commented on the convenience of the process.

RSI has published these findings in a brief report available on our website. We are grateful to the American Arbitration Association-International Centre for Dispute Resolution Foundation’s support for our ongoing evaluation of the program and the dissemination of the findings, and to the Illinois Equal Justice Foundation, whose support has enabled us to operate this mediation program. We look forward to sharing more information with you as the program evolves.

What You Need to Know in Order to Know More About Your Program

Jennifer Shack, June 1st, 2021

I thought I’d do something a little different this month and point out a few resources to those of you who are interested in either starting to examine your ADR programs or are thinking about how to expand or improve current efforts to evaluate program effectiveness. 

Demographics

There has been a push lately to have courts collect demographic information from parties, particularly race and ethnicity, so that courts can better understand and address inequities in service provision. In that vein, the National Center for State Courts has published “Collecting Race and Ethnicity Data.” This is a short report that provides helpful information on the standards for collecting such information, things to think about when planning to collect it and how you may want to customize race and ethnicity categories to best fit the community you serve. 

Model Surveys

Demographics are also included in the Model Surveys created by RSI and the American Bar Association Section of Dispute Resolution. But that’s only one part of what you’ll find in our packet. The Model Surveys include questions you should ask on any mediation program survey, as well as instructions about how to customize the surveys for your particular program.

Guide to Program Success

If you’re looking for more extensive information on how to monitor and evaluate your program, RSI has included two chapters in our Guide to Program Success that step you through tracking your program and conducting evaluations. In Chapter 11, “Design a System to Track Your Program,” you’ll learn how to decide what to track, what data will be needed from what sources in order to do so, and more.  Chapter 15, “Evaluate Your Program,” dives into everything you need to know about how to do a full program evaluation.

Eviction Mediation Insights from Two Successful Programs

Jennifer Shack, May 5th, 2021

As efforts ramp up to address the impending eviction crisis, I thought I’d revisit studies of two existing eviction mediation programs (in Minnesota and St. Louis) that were published last year. These two very different programs were found to be effective in reducing evictions and provide insight into program design successes and challenges.

Study 1: St. Paul, Minnesota Housing Court

The first study explores the impact of changes made in 2018 to housing court in St. Paul, Minnesota. The changes appeared to reap dividends in term of fewer evictions and more settlements. The housing court changes included instituting a housing clinic to bring together financial services, legal services and mediation at the same place to help parties coming to their eviction hearings. Along with changes to court rules and forms, the clinic has had a number of positive outcomes for both landlords and tenants. Although increasing access to mediation was only one component of the changes to housing court, the overall concept employed by the St. Paul housing court is instructive to anyone currently involved in ADR and housing courts seeking ideas on how to address the upcoming wave of evictions due to COVID-19.

In “Justice Served, Housing Preserved: The Ramsey County Housing Court” (Mitchell Hamline Law Journal of Public Policy and Practice, 2020), Colleen Ebinger and Elizabeth Clysdale discuss the impetus for reform, the process for identifying and instituting needed changes and the results of those changes. The Chief Judge saw a need to make changes that would improve access to justice and bring together resources for tenants that would address the root causes of eviction. To that end, he sought the assistance of the McKnight Foundation and Family Housing Fund. They, in turn, asked the National Center for State Courts to facilitate the planning process. Other stakeholders who were included in the planning process included legal services, the local dispute resolution center, a lawyer who represented landlords, the county’s financial assistance program and the city’s housing department, as well as judges and court administrators.

The group agreed on three areas of action: implement a number of procedural changes, improve coordination among government entities, and expand access to mediation and legal services. Procedural changes included changes to forms, such as including information in the summons tenants receive about the eviction hearing that details the financial, legal and dispute resolution services available to them. In addition, the settlement form allows the parties to check that they had agreed to an expungement, which keeps the eviction from showing up in their credit history, and the court order was changed to include the possibility of immediate expungement. Further, if expungement was contingent on the tenant making payments, both parties were now allowed to file a notice of compliance with the payments, rather than just the landlord. This meant that the tenant had more control over whether the expungement was carried through.

Coordination among government entities was improved by providing office space in the courthouse for financial assistance workers representing two different funding agencies. This allowed them to work together and allowed tenants to apply to both at the same time rather than having to wait to be denied from one to apply to the other. In addition, the court began providing partner organizations information on all litigants on the calendar, which allows them to be more prepared to assist the litigants when they come to court.

To expand access to legal services and mediation, the court and partners agreed to have attorneys available for consultation at all hearings, as well as mediators, who would be particularly helpful in dealing with disputes that were not legal in nature. Further, the judge began promoting these services from the bench to ensure that all litigants knew about their right to access these resources.

After a year and a half, the court’s numbers appeared to show an improvement in outcomes. The court has a goal of reducing evictions by 50% in five years. In the first 18 months, evictions declined by 8%, to the lowest eviction rate in 10 years. Settlements increased by 5%, to the highest rate in five years. The impact was highest on expungements, which doubled. On the other end, fears of increased trial numbers and longer court calls didn’t come true. The number of trials as a proportion of cases declined and court call length increased by just 10 minutes on average.

Anecdotally, the response to the changes to housing court has been positive. Judges reported that tenants were more prepared for trial, with a better understanding of the process and when and how to raise their legal defenses. Landlords, too, saw benefits from the changes. They said they appreciated having financial services at the courthouse. Financial assistance staff spent time with landlords and landlord attorneys, developing relationships with them that, Ebinger and Clysdale noted, bore fruit outside of the courthouse as well. For example, one of the services reported an increase in inquiries from landlords before they file an eviction, wanting to know if their tenants are eligible for emergency assistance.

Ebinger and Clysdale outlined six lessons learned from the program:

  • a collaborative attitude between partners is critical to success
  • small changes, such as a new check box on a settlement form, can provide big dividends
  • state law matters and can have its own impact regardless of changes made at the court level
  • financial service providers are better situated to solving emergencies than individuals left on their own to navigate social services
  • different circumstances require different interventions – some litigants will need legal assistance, some mediation and some financial assistance, thus each partner is necessary for the success of the program
  • as settlements increased, so did settlement failures (e.g., tenants failing to pay arrearages as agreed to in the settlement) – along with a higher rate of settlement agreements was a greater number of affidavits of non-compliance

This approach to eviction cases is similar to the successful approaches taken by many foreclosure courts in response to the housing crisis that began in 2008. In these programs, homeowners are offered an array of services (albeit usually not at the same time and not all at the courthouse) to help guide them through the court process and stave off foreclosure if possible.

While the data looks promising for this program, it is still early and more can be learned. It would be wonderful to know more from the tenants about their experience with the process and whether they feel they are being well-served.

Study 2: Eviction Mediation in St. Louis

The second study examines a decade-old eviction program in St. Louis County. Recent data collected from the program provides more evidence that mediation is an effective tool for eviction cases. The study found that mediation had a positive effect on outcomes and compliance, helping both landlords and tenants to maintain stability in income and housing.

In “Addressing the Housing Crisis Through Mediation” (Washington University Journal of Law and Policy, 2020), Karen Tokarz, et al, discuss how the program works and the benefits that have accrued to participants. The Washington University School of Law Civil Rights & Mediation Clinic developed the program in partnership with Metropolitan St. Louis Equal Housing and Opportunity Council more than a decade ago. In 2012, mediators affiliated with United States Arbitration & Mediation joined clinic students in providing free mediation services for landlord-tenant cases in which neither side has a lawyer. Originally opt-in, the program was made opt-out in 2018.

The mediators for the program – lawyers and students alike – attend a training that includes an overview of housing law in St. Louis County, mediator ethics, mediation strategies and agreement drafting. The mediators must observe at least two mediations, co-mediate at least two mediations, and be shadowed for at least two mediations before they begin mediating independently. Mediations are conducted on the first court date for the case, which is generally the trial date.

The program uses two agreement forms that are completed as a part of each mediation agreement. The first, the conditional continuance, lays out the settlement terms. This document continues the case while the parties comply with the terms and notes that if the terms are satisfied, the case will be dismissed. It also notes that if a party breaches the terms of the agreement, the other party may file a consent judgment. The consent judgment is the second form that is completed during the mediation.  It typically grants possession and the full rent owed to the landlord. Should the case come back before the judge to sign the consent judgment, the judge uses both documents to determine whether to do so. The judge may decline to sign if, for example, the landlord has not made repairs agreed to in the conditional continuance.

The program has been successful. In 2018, 71% of mediated cases resulted in a settlement. The terms of more than half of these agreements were completed, resulting in a dismissal. One-third of agreements resulted in a consent judgment for eviction against the tenant and 25% resulted in the sheriff executing the judgment through forcible removal of the tenant. Cases that went to trial, on the other hand, were significantly more likely to end in eviction. Consent judgments were entered against tenants in 92% of these cases and resulted in forcible removal in 40%. The authors extrapolate from that data that 279 families avoided eviction in 2018 by settling in mediation and completing the terms of their agreement rather than going to trial. It must be noted, however, that the two groups of cases – those that mediated and those that did not – are not similar. Mediated cases, as mentioned above, were limited to those in which neither side had an attorney. Those cases that went to trial included those in which at least one party (generally the landlord) had an attorney.

The authors note that the impact of the eviction mediation program is limited due to its focus on cases in which neither party is represented and the day-of-trial mediation format. Further, growth is difficult due to the limited number of mediators available. They point to four directions the program can take to widen its impact. The first direction is to offer mediation prior to the first court date, or even before the eviction is filed. This would require greater outreach to landlords, tenants and government agencies to ensure that landlords are on board, tenants know about the program and agencies can urge its use. The second direction is to fund the program so that it can be sustained at a broader scale. Third, the program could be expanded to Municipal Court, where housing and building code enforcements are handled. Landlords and tenants are often unrepresented in this court and mediation in this context could lead to housing improvements and stability. The fourth direction would be to adopt online dispute resolution, allowing mediations to occur during the pandemic. 

The St. Paul, Minnesota and St. Louis County eviction mediation programs are two of many recent programs that have been implemented around the country. The data indicating their effectiveness adds to the increasing evidence that such programs are successful at reducing evictions, thus providing stability to landlords, tenants and communities.