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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 »

Persistence in the Face of Resistance: Maintaining Landlord Participation in Mediation

Eric Slepak Cherney, May 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.

Multiple court administrators I have spoken with over the past two years have encountered resistance from plaintiffs’ bar in eviction cases. Even if an eviction diversion program mandates the participation of landlords and tenants, your program will achieve better outcomes and run smoother when you continually cultivate buy-in from landlords and their attorneys. In this post, I will highlight some things that I have found to work.

An ideal first step is to include the voices of landlords and their attorneys during your dispute system design stage. In our Kane County, Illinois program, we included a locally renown attorney who often represented landlords in our program partner working group since its inception; this individual’s contributions at monthly meetings have given us invaluable insight that have helped us proactively address many landlord concerns. As in the mediation process itself, giving parties a voice at the program level is a critical step for them to feel engaged in the process. 

Even with representation in the program development process, unforeseen issues are bound to arise. As with any problem, research is critical. Why are landlords and their attorneys objecting to mediation in the first place? Many of the responses I hear come down to efficiency – these parties think mediation is a waste of time, that it adds an unnecessary burden to litigation, or that they can achieve the same outcomes through two-party negotiation with the tenant. Others believe mediation is an inherently pro-tenant process and therefore unfair to them and/or their clients.

In my role as a mediation program developer and administrator, it is my job to seek to understand these frustrations and address them when possible.  Landlords and their lawyers have a strong interest in administrative efficiency and resolving these cases expeditiously, and no one wants to participate in a process that they perceive to be unfair. 

Therefore, I think it’s important to review the data you have available, and try to assess the merits of these claims. With regards to efficiency concerns, you can look at your program’s resolution rate. If your program is resolving only a small percentage of cases, figure out why that is. (But beware that resolution rate can vary widely among programs and provides only a blunt measurement.) If you have information about the time to disposition, analyze whether cases that go through mediation are in fact slower. In terms of fairness, if you collect survey data regarding that metric, as we do for both parties and attorneys in our programs, your results should give you some insight at a macro level about the perception of fairness among all participants. This is all a good reminder that program procedures are not set in stone, and that you should regularly be monitoring your processes and outcomes to see where there is room for improvement.

Regardless of whether the data refutes these objections to the mediation process, or you do note some deficiencies (which, hopefully, you are able to correct), it is important to be transparent and proactive in communicating to landlords and their attorneys. In other programs we have operated, we have held forums for plaintiffs and their attorneys to openly discuss issues they have with the program. (This is something we hope to do with our eviction programs in the near future now that we have had time to get established.)

In addition to hearing from landlords and their lawyers, it is also important to highlight successes achieved in mediation as a way of inspiring confidence in the process. On a quarterly basis, we have been publishing evaluations of the surveys we collect in our programs, which usually feature some great quotes from landlords and their attorneys, as well as tenants. “We have had a good success rate using mediation. Plus, it diffuses the tendency for the parties to take cheap shots at one another and stay focused on the issues at hand,” wrote one landlord attorney.  Another noted that their “mediator did a good job of reality testing with a difficult tenant.” Publicizing these benefits of mediation is another strategy for making in-roads with resistant parties.

Ultimately, having successful mediation programs often comes down to having a dedicated champion in your corner. Just as having a judge who truly believes in ADR can be the difference between success and failure for a program as a whole, getting a landlord or attorney respected among their community on board can be a gamechanger. On a Zoom court call early on in one of our programs, a lawyer for one of the larger property management companies in that particular jurisdiction shared with the call their positive experience in a recent mediation. Though it is difficult to quantify the impact that event had, anecdotally, our program recognized that impromptu remark brought our program a tremendous amount of credibility among the landlords.

Finally, I wanted to provide a word of caution on the use of good faith clauses: these are not a panacea to participation issues, and may not even be an effective stick whatsoever. Asserting a party is in violation of a good faith clause based on their conduct during a mediation session will invite an inquiry into what took place at the mediation session. Such inquiry will quickly come up against the mediation’s confidentiality: how do you determine whether a party acted in good faith during mediation without knowing what was said or what happened? I strongly believe, and I think others would agree, that confidentiality is paramount to mediation being a forum that gives participants true voice.  As such, I would urge other program administrators to not rely too heavily on good faith clauses to get parties involved.

Instead, I hope the foregoing suggestions and anecdotes have given you some good food for thought about building real buy-in with landlords and their attorneys. Mediation is ultimately a process that needs real consent and good faith to thrive, and that is something that needs to be built and maintained over time. What strategies have you found to be successful? I’m always curious to learn about other’s experiences in operating these programs, so please drop me a line or leave a comment below.

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Posted in Eviction Mediation, Program Design | No Comments »

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.

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Posted in Evaluation, Eviction Mediation, Program Design | No Comments »

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