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Grant-Funded Research Adds to Evidence on How to Make Eviction Mediation Effective

Eric Slepak Cherney, November 21st, 2022

Last month, RSI reached the end of an 18-month grant from the American Arbitration Association-International Centre for Dispute Resolution (AAA-ICDR) Foundation. A primary goal of the grant was to provide guidance to courts nationwide about addressing the eviction crisis arising from the COVID-19 pandemic. As that project has come to a close, we at RSI would like to look back at what we accomplished, and learned, from the experience.

Our Eviction Mediation Program and Special Topic

The first focus of the grant was to help us establish a local court mediation program, serving Kane County, Illinois. While it may seem counterintuitive that a project with a focus on national guidance invest in a local program, our approach at RSI is to utilize our mediation programs as “laboratories” for the research and evaluation that is core to our mission. We have a long history of designing and administering programs, and as part of that work, we implement established best practices, set up robust monitoring and evaluation systems, and carefully and thoughtfully test out different approaches to help us achieve the goals we set for our programs. The Kane County Eviction Mediation program is no exception (See related article above), and it served as the basis for many exciting accomplishments of the project, detailed further below.

Our next big milestone was developing the Eviction Mediation Special Topic. Special Topics are collections of resources RSI curates around court alternative dispute resolution (ADR) as it relates to different subject matter (e.g., child protection mediation and restorative justice) or interested parties (e.g., judges and lawyers). For eviction, we sought to develop a Special Topic collection that was both topical to the present crisis and also highlighted the best research, guidance and tools for those invested in the development and administration of effective eviction diversion programs.

Blogs and Evaluation Projects

Throughout the 18 months of the grant, the RSI team was regularly blogging about our experiences developing and administering our programs, and what we were learning from others across the country. A few highlights from our blogging include glimpses into innovative program models in Hawaii and Philadelphia, and program design considerations such as working with rental assistance programs and cultivating buy-in from landlords. Additionally, a pair of Q&As with our Programs Manager Chris Riehlmann and our Kane County Program Coordinator Christina Wright provide a great look into what it really takes to make these program work day in and day out.

Finally, and most significantly, the grant supported several evaluative projects we embarked on over this past year and a half. We analyzed the results of our post-mediation surveys to assess whether our programs were providing procedural justice to participants. After reflecting on the steps we’d taken to develop programs and conducting interviews with key program personnel and partners, RSI published program implementation guides to give others nationwide a manual of sorts for building and tweaking their own programs. The project culminated in an evaluation of the Kane County program’s first 13 months (summarized in the article above by RSI Director of Research Jennifer Shack), assessing program use, services provided, mediation outcomes and participant experience.

A Few Key Findings

The amount of information we have learned and done our best to share during the course of this project has been staggering. While any summation is sure to be incomplete, we’d like to leave you with a few key findings from the project:

  1. Integrated and holistic service delivery approaches truly made for better outcomes. Programs that took a comprehensive and progressive approach to combatting eviction saw more agreements and fewer evictions. Similarly, programs that brought more partners to the table, including social service agencies, advocacy groups, state and municipal representatives, and others, saw greater success. While eviction cases are ultimately resolved by courts, the underlying issues are economic and social in nature, and collaboration with entities that address those causes is highly valuable.
     
  2. Good eviction mediations take time. Prior to the pandemic, mediation in housing disputes, in many jurisdictions, was typically an event that took place on the day of the first court appearance and lasted no more than half an hour. Unsurprisingly, agreement rates in this context were generally low. A number of programs we worked with noted that utilizing a model where mediation was done outside of court (and the time constraints that usually entails) resulted in greater agreement. Allotting more time for the session gave greater opportunity to work through impasse, and scheduling mediation for an advance date gave parties the time to better prepare for mediation, including taking stock of finances, asking for support, applying for rental assistance, and consulting attorneys.
     
  3. Remote mediation, which is the norm for RSI’s programs and many others still, continues to offer mixed blessings for participants. The flexibility afforded parties by doing remote mediation meant many more parties could participate without taking a day off work, critical for parties trying desperately to pay back past due rent. On the other hand, our data noted that about 1 in 6 needed to borrow a device or leave home to participate virtually, and 1 in 5 experienced some sort of technical difficulty. Making sure that in-person accommodations could be offered to those who could not or would prefer not to participate virtually ought to be a priority to ensure access, and RSI did so with our Kane County program.

We are tremendously grateful to the AAA-ICDR Foundation for its support of this project.

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.

Announcing RSI’s National Eviction ADR Project

Eric Slepak Cherney, May 27th, 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.

Last year, the COVID-19 pandemic profoundly impacted American society in ways that are still playing out. The fallout from a public health standpoint was tremendous and its consequences rippled into almost every aspect of society. Chief among the impacts was significant economic contraction, as  a staggering number of individuals suffered reduced or lost income as a consequence of layoffs, reduced hours, contracting the virus, or caring for loved ones who had.

Unable to afford their monthly rent, tens of millions of Americans have found themselves at risk of eviction. The United States Department of Housing and Urban Development and Centers for Disease Control instituted moratoriums on eviction, though each had some gaps. (The CDC moratorium has been vacated by a federal ruling. As of the writing of this blog post, that decision is being appealed and the moratorium remains in place for now).

Along with these federal protections, many states and localities enacted their own, generally more comprehensive, moratoriums. Approximately one-third of states still have an eviction moratorium on the books. However, for other jurisdictions, eviction proceedings not precluded by federal moratorium have resumed, and courts in jurisdictions where there are state or local moratoriums are expecting a significant surge of cases when those are lifted.

To address this uptick in cases, many courts are turning to mediation and other forms of alternative dispute resolution. Subscribers to our monthly newsletter, The Court ADR Connection, are no doubt aware of various programs that have arisen in recent months. We have been diligently trying to capture and report on these efforts in an attempt to provide our core audience of court ADR professionals with information about how others are navigating this unprecedented situation.

To that end, we are excited to announce our new eviction ADR resource sharing project. Thanks to the generous funding of the American Arbitration Association-International Centre for Dispute Resolution Foundation, RSI will be able to share resources, guidance and our expertise with a national audience. In the coming weeks and months, we will be rolling out a series of resources we hope will help inform and mobilize the field to more effectively serve disputants and hopefully assist landlords and tenants in avoiding eviction.

These resources include our Eviction Mediation Special Topic, which will share program development insights; house sample documents like court rules, surveys and mediation notices; and even include a living database in which we have been collecting data on known eviction ADR programs nationwide. We also will be publishing a monthly blog series on our experiences developing a new mediation program based in Kane County, Illinois and collaborating with others across the country on eviction ADR. Finally, we will also conduct a comprehensive evaluation of the Kane County program’s first year, and publish it on our site, alongside smaller reports about the program’s implementation and quarterly progress, to contribute to the existing body of knowledge regarding ADR’s efficacy in resolving these disputes.

The COVID-19 crisis was unexpected, but now many courts are expecting or already experiencing eviction crises. To help court ADR programs meet these challenges, RSI is providing a robust mix of expertise, data, analysis and research, as well as sample forms, rules, videos and websites.We are grateful to the AAA-ICDR Foundation for enabling us to do this work. 

To stay up to date with all these efforts, and the other work RSI is doing, please make sure you are subscribed to our newsletter. We also welcome our court ADR colleagues to reach out to us with information about your eviction ADR programs.

Research Year in Review

Jennifer Shack, December 18th, 2020

The past year we focused on research that related to the times we’ve been experiencing. With courts going online and an expected surge in evictions on the horizon, I turned my attention to those topics, summarizing research on online dispute resolution (ODR) and presenting outcomes from housing mediation programs. 

Online Dispute Resolution

In March, I rounded up the research to date on ODR. A study in the Netherlands found that participants in ODR for divorcing couples perceived the process to be fair, with procedural fairness, interpersonal justice and informational justice all given high marks. On a scale of 1 to 5, they had averages of 4.27, 4.5 and 4.19, respectively. The participants’ perception of the outcome was also positive, though to a lesser extent than for the procedure. They gave an average of 3.91 for distributive justice, 3.37 for restorative justice, 3.18 for functionality and 3.0 for transparency.

A small study of a pilot small claims ODR program had less positive results. It found that 47% of cases reached agreement. The 18 parties who responded to a survey had some issues with the technology, with only 47% saying the technology was easy to use. In addition, only 53% were satisfied with their experience and only 23% felt the outcome was fair.

In the round up, I also summarized research about the potential advantages and disadvantages of using video-based and text-based ODR in cases with a history of intimate partner violence or abuse (IPV/A). The researchers suggest that mediators on IPV/A cases must carefully consider a variety of potential issues including the parties’ suspicion of mediator bias, confidentiality concerns, and victim-perpetrator power dynamics. 

While others in 2020 wrote about the possibilities for ODR, Jean Sternlight examined some of its weaknesses. Her article explored online dispute resolution (ODR) through the lens of the psychology of dispute resolution, focusing on four different areas: the psychology of perception and memory, the psychology of human wants, the psychology of communication, and judgment and decision making. She concluded that ODR may not be the best tool to assist individuals in creatively working things out with a fellow disputant and may be better employed for small and predictable disputes, like small online purchases.

An RSI survey found that the COVID pandemic has led most states to adopt video mediation for family cases. Others are moving forward with formal ODR platforms. Despite the increased availability of online services, almost half of the states that responded to the survey said there was an unmet need for family ODR and that funding was the main requirement for meeting that need. 

During the past year, we also learned about how to design ODR platforms from a study of Utah’s small claims platform, and were given tips on researching the impact of ODR on access to justice. 

Eviction Mediation

Two articles published in this year discussed programs in Minnesota and Missouri to help landlords and tenants avoid eviction. The results of these programs indicate that they help keep evictions off tenant credit histories and reduce forcible evictions. 

In St. Paul, Minnesota, the court instituted multiple changes to its housing court, including expanding access to mediation and making it, along with financial and legal resources, available at the court during eviction hearings. After a year and a half, the court’s numbers appear 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 10 minutes on average.

In St. Louis, in a voluntary program for cases in which neither landlord nor tenant is represented, 71% of mediated cases resulted in a settlement in 2018. 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.

Family ADR

Studies of family ADR programs continue to demonstrate the benefits of helping parents to resolve their issues outside of court. 

In Anchorage, Alaska, an Early Resolution Program (ERP) for family cases reduced time to resolution, reduced staff time spent on cases and had no impact on the number of post-disposition motions to modify, according to a recently completed evaluation. The study found that 80% of the parties who participated in ERP reached agreement in a three-hour hearing. Unsurprisingly, ERP cases reached disposition more quickly, with a median of 42 days as compared to a median of 104 for cases in the control group. The program also led to significant time savings for staff. For cases undergoing ERP, there were 28 to 30 processing steps, taking a total of 240 minutes (4 hours). The number of steps for the average non-ERP case was 49, taking a total of 1,047 minutes (17.45 hours).

study of parenting time mediation in Massachusetts found multiple benefits for parents and families. In surveys, parents said that conflict between them and the other parent was diminished in about 2/3 of the mediations. This benefit appeared to last for weeks after mediation for many parents, as 53% of those who were interviewed said that conflict continued to be reduced. Similarly, more than 2/3 of surveyed parents reported greater civility between them and the other parent. Again, this benefit remained over time, with 50% saying that they and the other parent treated each other with greater civility. Most parents also said that their communication had improved, with 72% of those surveyed saying so and 54% of those interviewed weeks later agreeing.  

Litigant Perception Research

Litigant attendance at a dispute resolution process impacts their assessment of the fairness of that process, according to research conducted by Donna Shestowsky. Shestowsky found that when litigants attended a settlement procedure used to resolve their case, they rated that procedure as fairer than those litigants who attended an adjudicative procedure. However, when litigants did not attend the procedure used to resolve their case, they saw settlement and adjudicative procedures as similarly fair. When comparing attendance within procedures, she found that attendance did not affect fairness ratings for settlement procedures, but that those who attended an adjudicative procedure rated the procedure as less fair than those who did not attend the procedure.

I wish you all a happy, safe and healthy holiday season!

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