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Off the Mainland, Out of the Box: Hawaii’s Innovative Eviction Mediation Program

Eric Slepak Cherney, September 20th, 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.

Earlier this summer, I had the opportunity to learn about a successful and innovative eviction mediation program on the island of Oahu in Hawaii. Mediation Center of the Pacific (MCP) Executive Director Tracey Wiltgen generously shared some of her time with me to explain how the program works.

Photo by Jess Loiterton via Pexels

Prior to the pandemic, MCP conducted landlord-tenant mediations on-site in Oahu’s courtrooms. Not atypical of many in-court eviction mediation programs pre-pandemic, parties and mediators were often limited to 20 minutes to mediate their cases. MCP was able to help parties reach agreement in about half of cases, and in about one-fifth of those agreements, the tenant would be able to stay in their home. All things considered, those statistics were pretty impressive.

But in the wake of Hawaii’s eviction moratorium being lifted in August 2021, MCP’s eviction mediation program accomplished some truly remarkable things. In less than a year, it mediated over 1,300 cases and reached agreement in 87% of those. Underlying those successes was a strong foundation upon which MCP built its program.

Making the Most of the Moratorium

The program was developed with the input of many interested parties taken into consideration. Housing advocates and other nonprofit organizations, landlord representatives, Realtors and property managers, legislators and academics all had seats at the table when designing this program. The program was codified into legislation as Act 57, which set forth the procedure and requirements for participation.

Hawaii’s moratorium was lifted in an unconventional tiered system, whereby landlords were allowed to file their cases on a schedule according to how many months of back rent was owed. While landlords were in this holding pattern, they were required to file a notice with MCP of their intent to file their case in court, so that MCP could reach out to tenants and inform them about the process. If the tenant wanted mediation, the landlord would be required to participate. The ability to engage in mediation before the court case was formally filed gave parties more time to explore options, and it helped reduce strain on the court.

Funding Extends Reach

With funding from Act 57, MCP was able to shift from using volunteer mediators to paid ones. The organization recruited 30 mediators from 15 states to mediate these cases remotely. Treating mediators as independent contractors, MCP required that mediators have proficiency in Zoom and generally high levels of digital literacy. This meant that MCP did not have to dedicate staff resources to providing technical support during mediations, or accommodate time-intensive scheduling requests (scheduling was mostly automated through the YouCanBookMe tool). Instead, their case managers were freed up to focus on reaching out to as many parties as they could.

MCP also astutely used the funding from Act 57 to invest in its own internal processes. This included setting up an online portal enabling the landlords to provide the required notice to MCP. The form the landlords filled out fed directly into MCP’s case management system, saving staff lots of time and effort.

Having shifted away from the on-site mediation model, parties were now free to have longer sessions, typically 90 minutes. This no doubt played a role in increasing the agreement rate, allowing parties the space to work through impasses that could not be ironed out in a rapid-fire, 20-minute session.

The joint efforts among mediation programs, alongside rental assistance and legal aid efforts, are central to many eviction diversion initiatives, and the MCP program was no exception. MCP staff and mediators shared a Microsoft Teams workspace with the local rental assistance partner, which enabled them to get real-time updates on the status of an application during a mediation. Legal aid and other service providers worked closely with the mediation program, and referrals between one another were standard procedure.

Unfortunately, Act 57 was a temporary initiative and was not renewed when it expired in August 2022. MCP nonetheless is continuing to offer mediation on a voluntary, prefiling basis to interested parties. MCP’s model provides excellent guidance to courts looking to develop and improve upon their eviction mediation efforts. While moratoria in most places have been lifted, the need for comprehensive eviction solutions has failed to abate as recession, inflation and the ongoing impacts of COVID-19 continue to exacerbate housing issues.

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Posted in Court ADR Across the U.S., Court Mediation Program, COVID-19, Eviction Mediation, Program Design | No Comments »

New Reports Describe Successes, Challenges in Launch of Eviction Mediation Programs in Illinois’ Kankakee, Winnebago Counties

Jennifer Shack, September 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.

In late 2021, the 17th Circuit and 21st Circuit courts of Illinois launched eviction mediation programs with RSI assistance. RSI now administers the programs remotely. I had the pleasure of interviewing the judges and program administrators involved in the planning and implementation of the programs. The purpose was to help other courts interested in starting eviction mediation programs by better understanding how the programs work and the challenges and successes they experienced during the planning phase and post-launch. The resulting reports for the 17th Circuit and 21st Circuit are now available.

Photo by eskay lim via Unsplash

Both programs started with the same program design and initially relied on the same program coordinator, who administered the programs remotely with the help of an assistant. For both programs, the program coordinator or the program assistant attended court calls remotely so that when the judge referred cases to the program, they could obtain party contact information and other case details that would help them to administer the program. Parties had access to rental assistance, and mediation was held via Zoom by paid mediators. The programs got off to a slow start but have begun to see more referrals.

17th Circuit Program

The 17th Circuit program, serving Winnebago County, launched in September 2021, but started seeing regular referrals in January. The mediation program was conceived as a partner service to rental assistance.[1] Winnebago County had the benefit of two agencies that could process rental assistance applications quickly and that could have representatives present at the court call. Because rental assistance was readily available to most tenants, the judge decided to refer cases to rental assistance first, then authorize mediation for cases in which the assistance was denied. 

Initially, the program coordinator did not have an easy way to follow up with the tenants to see if they had been approved for rental assistance and whether they wanted to mediate. Seeing an opportunity for the program to do more, the court and RSI decided to have the program coordinator help move tenants through the rental assistance application process. She now follows up with tenants to be sure they have applied for rental assistance and helps get them in contact with a rental assistance agency if not. This helps her to identify cases that need mediation and to schedule them for mediation if the tenants agree to participate.

Lessons Learned

Coordination with program partners may improve buy-in

RSI did not have the staff capacity to take on the role of coordinating program partner communications and needs during program development. According to RSI’s associate director, this resulted in more landlord resistance to the program than in another circuit whose eviction mediation program RSI helped develop. In that program, there was ongoing communication among the program partners, and their perspectives were incorporated into the program rules and process. There, attorneys for landlords and tenants, as well as representatives from the rental assistance agencies and court staff, met regularly before program launch to discuss program development and after the program launched to discuss any issues with the program and its processes.

Communication is essential

The program coordinator and the program assistant both indicated that the open communication with both rental assistance agencies is essential to the smooth running of the program and to ensuring that those who need mediation are offered the opportunity. Communication with the judge is also necessary. The judge initially referred cases to mediation based on a narrow set of criteria. The program coordinator and the program manager have been discussing with the judge the benefits of mediation in other circumstances.

Judge support is key

The judge promotes use of the program both by informing the parties of the resources available to them and strongly encouraging parties to attend mediation.

Tenants need help obtaining rental assistance

Not all tenants are capable of navigating the process of obtaining rental assistance, particularly in the short time frame required by the court’s eviction process. The program coordinator has found that she often needs to explain to tenants what they must do to apply and to follow up to be sure they do so in a timely manner. In addition, she often must explain to tenants what the status of their application is, because they do not always understand their situation.

Good program administration is important

The judge indicated that the program coordinator’s follow-up with tenants about their efforts to obtain rental assistance has helped to move parties through the application process. The program coordinator indicated that this case management has allowed her to identify cases suitable for mediation and has led to more cases being mediated.

It’s helpful to meet with landlords before program launch

The judge noted that outreach to landlords helped to assuage landlords’ fears about the program, reducing resistance to it.

The mediation program may need to evolve

The program may not work the way originally planned, or the original plan may not lead to the most effective provision of services. In this case, the judge’s desire to wait to mediate cases until after rental assistance was denied led to a need to reconfigure the program coordinator’s role.

21st Circuit Program

The 21st Circuit program, serving Kankakee County, launched in December 2021 but saw its first referrals in March 2022. In the 21st Circuit, the reasons for the slow start were complicated. The judge, who was assigned to hear evictions after the program planning phase, was supportive of mediation but had a narrow view of which cases were appropriate. Further, there was no funding for the program during the planning phase, so RSI did not have the staff to engage with stakeholders to get their input and their buy-in. This may have played a role in resistance to mediation among the plaintiff’s bar.

The mediation program was conceived as a partner service to rental assistance,[2] with parties having access to both at the same time. The judge was given the authority by local court rule to order cases to mediation, which she uses when she believes referral to mediation is warranted. Though the court and its partners did not integrate rental assistance with mediation, in practice, the judge refers cases to mediation when she determines the tenants do not know about the resources available to them. The program coordinator has thus taken on the role of helping self-represented tenants, who make up the vast majority of defendants, navigate the rental assistance process. The rental assistance agency has been less involved in the program than the agencies in the 17th Circuit, and has determined that it cannot inform the program coordinator of the status of rental assistance applications due to privacy concerns. This has made it more difficult to help tenants, and mediations often take place without knowledge of whether the tenants have been approved for rental assistance. 

Lessons Learned

Many of the lessons learned were similar to those for the 17th Circuit, but for different reasons.

Coordination with program partners may improve buy-in

Because of a lack of funding during program planning, RSI was understaffed and could not take on the role of coordinating program partner communications and needs. According to the associate director, this resulted in more landlord resistance to the program than in another judicial circuit, in which there was ongoing communication among the program partners and the incorporation of program partner perspectives into the program rules and process.

It helps to remain flexible

The mediation program went through some growing pains, and both the court and the program coordinator needed to figure out how to best work together and to best manage cases. This effort is ongoing but appears to be bearing fruit.

Communication is essential

Lack of communication with the court led to a slow rollout of the program. This has changed as communication has improved. Lack of communication with the rental assistance agency has made it more difficult to assist tenants and to reach agreements in mediation.

Judge support is key

Although the eviction judge came onto the bench after the program had been planned, and therefore needed some time to acclimate to the mediation program, she believes there is a place for mediation in eviction cases. This has led to a greater number of referrals as time has passed.

Good program administration is important

The judge relies on the program coordinator to help tenants navigate resources and to gain access to rental assistance. This has broadened the scope of the position and has required greater case management skills. 

[1] State and federal funds have been made available that provide eligible tenants up to $25,000 to pay past and future rent. The county disburses the funds, which are sent directly to the landlord.

[2] State and federal funds have been made available that provide eligible tenants up to $25,000 to pay past and future rent. The county disburses the funds, which are sent directly to the landlord.

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Posted in Court ADR Across the U.S., Court Mediation Program, Evaluation, Eviction Mediation, Program Design, Program Evaluation, Program Management, Research | No Comments »

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.  

Posted in Court ADR Across the U.S., Court Mediation Program, Evaluation, Online Dispute Resolution, Program Evaluation, Research | 2 Comments »

Michigan Mental Health Mediation Program Offers Alternative to Court Intervention

Sandy Wiegand, August 11th, 2022

A new statewide mediation program in Michigan – likely the first of its kind in the United States – offers free mediation as an alternative to court intervention in mental health cases involving individuals who qualify for community mental health services. Michigan Behavioral Health Mediation Services realizes part of the longtime vision of State Court Administrator Emeritus Milton Mack, Jr., who recently spoke with RSI about the program.

Judge Milton Mack, Jr., recently was awarded the 2022 Judge Stephen Goss Lifetime Achievement Award from the Judges and Psychiatrists Leadership Initiative of the Council of State Governments, recognizing his leadership in guiding state courts as they address mental illness in the justice system.

“Typically a family member feels someone needs help, and the person is refusing help,” Judge Mack, who also chairs the Michigan Governor’s Mental Health Diversion Council, explained. “So they go to the courthouse and ask the court to schedule a hearing on ordering this person to get help. What this process does is it says, OK, before we get to the point of the judge ordering you to receive treatment, we’re going to send you into mediation and see if you can work this out without a court order.”

Oakland Mediation Center (OMC), in Bloomfield Hills, Michigan, developed the mental health mediation program in partnership with the Michigan Community Mediation Association. It kicked off in September 2021 and is funded by a grant from the Michigan Department of Health and Human Services. OMC connects participants with their local community dispute resolution center for mediation. In addition to the subject of the mediation, the petitioner and the (volunteer) mediator, participants may include the subject’s attorney and community mental health providers. Mediators for the program complete advanced behavioral health-specific mediation training, as well as Michigan’s usual state-required mediation training.

Legislation Facilitated Changes

Changes to Michigan law in 2018 helped make mediation an option, said Judge Mack, who first advocated for mental health mediation in 2004, as a member of the Governor’s Mental Health Commission. Under the prior statute, a judge couldn’t order a person to outpatient treatment until they had been involuntarily hospitalized twice or incarcerated twice, by which point their illness had progressed significantly. Additionally, a trial had to be scheduled within seven days of a petition being filed, which left little time to schedule mediation. Under the new law, a family member can petition the court to order an individual to undergo outpatient treatment, and a hearing must be scheduled within 28 days – a much more realistic timeline for scheduling mediation. Furthermore, Judge Mack said, this earlier intervention makes it more likely that people get treatment in community, and do so while able to function at a higher level than if treatment waited.

“Getting in early is your greatest opportunity,” said Judge Mack. “When you’re in a psychotic state, you’re steadily going downhill … The longer you wait, the harder it is to get back to baseline.”

So far, the program has mediated five mental health cases, with three reaching resolution and a fourth reaching partial resolution. Petitioners cannot request mediation; only the subject of the mediation or their attorney may do so.

New Ground for Courts

Buy-in has been a challenge, Judge Mack said, because the concept of mental health mediation is very unfamiliar territory for courts. As one way to overcome this, he will be leading trainings for attorneys on the program in mid-August, starting in Wayne County, Michigan, where he was previously a probate judge. A longtime proponent of mediation for cases of all types, he said attorneys will be instructed to request mediation in eligible mental health cases as a rule, noting: “When I instruct the lawyers next week, I am going to explain to them: One of your duties is, when you get this assignment, you immediately consider requesting mediation; that is the expectation of the court.”

While acknowledging that for other states to replicate this program they might need to enact legislation, Judge Mack’s advice to courts in the meantime is that they look for situations where the timeframe is not an impediment to mediation. Additionally, he suggested, “I would say watch us here in Michigan prove the concept. Our process of having a system of early intervention and keeping people out of the hospital I think has got promise.”

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Posted in Court ADR Across the U.S., Court Mediation Program, Policy-making | No Comments »

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