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.
As readers may remember, the 16th Judicial Circuit in Kane County, Illinois, launched its eviction mediation program in May 2021, with RSI as the program administrator. The program approaches the resolution of eviction cases holistically, with referrals to financial counseling and legal services as well as mediation. Mediations are conducted primarily via Zoom, with some in-person mediation permitted. As part of the AAA-ICDR Foundation grant, RSI Research Associate Dee Williams and I evaluated the program’s performance during its first year. The evaluation included program use, services provided, mediation outcomes and participant experience. The evaluation revealed a program that is succeeding on all metrics.
We found that the program had a high rate of referral, with 578 (42%) of the 1,392 eligible tenants making contact with the program coordinator after being referred by the judge. Almost two-thirds of tenants who accessed the program were referred to housing counseling, rental assistance and legal assistance. Not all cases required mediation, and some cases scheduled for mediation did not take place; thus, 388 (28%) of eligible cases were mediated. Of these, 74% resulted in an agreement that avoided eviction, which translated into eviction being avoided through mediation in 20% of all cases filed.
Overall Positive Experiences
In post-mediation surveys, both landlords and tenants in general indicated they had a good experience in mediation: 61% said they were highly likely to recommend mediation to a friend. They also indicated they experienced procedural justice, with 73% indicating the mediator treated them extremely fairly and 80% indicating they were treated with very much respect. Their perception of whether they were able to talk about what was important to them was lower, however, with 54% rating this highly. Attorneys were more likely to rate their experience highly overall: 71% were highly likely to recommend mediation to a colleague.
The one area of concern is that 19% of parties who responded to the survey wrote comments indicating they believed the mediator was biased or not active enough in helping them resolve their dispute, which equaled the percentage who wrote positive comments about the mediators’ fairness and helpfulness. RSI is investigating this further, with the hopes of identifying whether certain mediators may need further training.
Access, Tech Use Examined
We also asked survey respondents how they accessed the video mediation, whether they needed to borrow a mobile phone or computer from someone, whether they had to leave their home to attend the mediation, and whether they had any technical difficulties. Approximately 6 in 10 tenants used a mobile phone to participate, and almost everyone else used a personal computer. Our sample is very likely biased, as those who have ready access to the internet would be more likely to respond to the survey; nevertheless, we found that only 2 of 49 respondents borrowed a device and three went to someone else’s home. Five attended from work. Ten of 56 respondents indicated there were technical issues during their mediation. These included problems connecting, bad connections, people getting disconnected and someone’s microphone not working.
Support Breeds Success
When I interviewed the judge and program staff for an implementation report on the program, I found the judge was very supportive of the program and that both he and program staff believed landlord and attorney buy-in was essential to the success of the program. The evaluation indicates that the judge’s support was instrumental to the program’s high rate of referral and that landlords and attorneys who completed surveys generally had favorable opinions of the program. These both support the general belief that both judicial support and party buy-in are necessary characteristics of successful programs.
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.
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.
A newly published study conducted by RSI Director of Research Jennifer Shack and University of California, Davis, Professor Donna Shestowsky highlights both the potential of online dispute resolution (ODR) and the importance of appropriate outreach and education on ODR to maximize participation and, thus, program impact.
Jen and Donna evaluated a pilot program in Collin County, Texas, that used a text-based ODR platform to resolve debt and small claims cases in a single court. By adopting ODR, the court sought to reduce the burden of a growing caseload while providing access to justice through a process that did not require the parties to travel or miss work to resolve their case.
The evaluation produced evidence that ODR can be an effective method of dispute resolution, especially for debt cases. In 73% of cases where both parties used the ODR platform, participants resolved their dispute and avoided trial. The rate is similar to that of cases that had the opportunity to use in-person mediation. Unfortunately, however, the program’s goals were not met, because both sides used ODR in only 24% of cases uploaded to the platform. Findings and recommendations related to these outcomes are discussed later in this summary.
The Pilot Program
The pilot ran from September 2019 through August 2020; thus it was concurrent with the COVID-19 pandemic from March to August 2020. Additionally, because ODR is a rather new practice in this context, some details of the program and the platform’s application were being worked out even as the evaluation took place.
The Modria ODR platform allowed parties to communicate by text one-on-one or with the help of a mediator. Parties were ostensibly required to use the platform before their first hearing. If parties reached agreement, their case was dismissed without a trial. During the 12-month pilot period, 1,874 debt and 274 small claims cases were filed, for a total of 2,148 cases.
When a defendant filed an answer, the civil clerk determined whether the case was eligible for ODR. It was ineligible if one side had multiple parties, if a party was not equipped to use ODR, or (until the second quarter of 2020) if the court did not have email addresses for both parties or their attorneys. If the case was eligible, the clerk uploaded it to the ODR platform, which in turn rejected any cases that contained errors, such as missing information, and sent an error report to the IT department so the errors could be fixed. When email addresses and phone numbers were available, the platform sent an automated email (and after April 2020, also a text) to the parties, instructing them to use ODR. The clerk also set the case for trial and mailed the parties, or their attorneys, a notice of their trial date and informed them they were required to use ODR prior to that date. The notice included a link to the platform.
Once a case was uploaded to ODR, participants had 45 days to negotiate one-on-one via the platform’s chat function. At any time during this window, either side could ask for a mediator. Mediation cost each party $40 and had to be completed within 30 days.
If participants reached agreement on the platform, they were given the opportunity to sign an online agreed judgment form, which was automatically sent to the case management system, and the trial was cancelled. If the participants did not reach agreement, the parties continued to trial unless they otherwise reached agreement before the trial date.
Key Findings
Below are some of Jen and Donna’s main findings and top recommendations from their evaluation. For more details and complete recommendations, read the full report here.
Litigant Use of ODR
49% of cases with answers filed were uploaded to ODR. During the pilot period, answers were filed in 698 cases. These 698 cases form the subset that could potentially have been uploaded to ODR. Of these, 341 cases (49%) were eligible and did not contain errors that barred their upload. These were ultimately offered ODR. According to court staff, the most common reason that cases with answers filed were not uploaded to ODR appears to be that the court lacked email addresses for at least one side of the case.
One party completed at least one activity online in 50% of cases uploaded to ODR. In 170 of 341 cases (50%), at least one case participant performed at least one activity on the ODR platform, such as asserting a claim, uploading a file, or using the chat function to communicate with the other side.
Both sides completed at least one activity on the ODR platform in about one-fourth of eligible cases. In 81 cases (24%) uploaded to ODR, both sides used the platform. Parties in small claims cases were more likely to use ODR (76%) than parties in debt claim cases (45%).
Litigants appeared to be unaware of the ODR program. Litigant survey responses suggested that parties were generally not aware of the ODR program, despite participation being required. Only one survey respondent out of ten indicated having received information about the program. When asked what would make them more likely to use ODR for a similar case in the future, half said more information.
Litigants had limited access to information about the ODR program. According to court staff, the only ways litigants received information from the court about the ODR program was through the notice the court mailed to them (or their lawyers) about their court date and through an email or text from the platform when the court uploaded their case, if their side had an email address or cellphone number on file with the court. Both of these events occurred only after the defendant filed an answer.
Litigants appear open to online options. Among survey respondents, none of whom had participated in ODR, two out of three indicated that the option to use it in future similar cases was attractive. Similarly, when asked to consider using video mediation to resolve future similar cases, 60% responded favorably.
Outcomes and Time to Disposition
73% of cases in which both parties used ODR resolved before trial. The percentage of ODR cases that resolved before trial was similar to that of cases that did not use ODR, both before and during the ODR program.
Debt claim cases were significantly more likely than small claims cases to resolve before trial. Additionally, debt claim cases in which defendants were represented were significantly more likely to resolve before trial than debt claim cases in which defendants were unrepresented.
Time to resolution was, on average, 4.6 months for cases that used ODR. This figure includes cases delayed either because of the court’s closure amid the COVID-19 pandemic or because of an upload error on a court server.
Program Costs
It is important to note that workload and cost conclusions are derived from self-reports made during interviews and are inherently subjective.
Direct costs to the court to implement ODR were covered by a filing fee. Litigants covered the costs through an extra $5 filing fee the court instituted for all civil cases filed in Collin County except eviction and mental health cases.
There were significant indirect costs to the court. Court personnel indicated that they devoted a significant amount of time to ODR prior to its launch. The project manager estimated that the cost in staff time approached six figures and was largely due, in his opinion, to the numerous meetings that involved many court personnel as well as the high percentage of time that he and the responsible IT staff member spent on the project in this phase. Some of this effort laid the groundwork for an anticipated county-wide rollout of ODR.
Costs to administer ODR were minimal. After the program’s launch, the time that personnel spent on ODR appeared to drop considerably. No one interviewed reported spending more than a couple of hours per week on the project.
ODR did not appreciably change administrative workload. The court administrator and the civil clerk did not perceive an appreciable increase or decrease in their workload. However, it is hard to determine what their workload may have been in the absence of the COVID-19 pandemic, or how much it would have been had greater effort been expended on promoting litigants’ awareness of the program and otherwise attempting to increase ODR use.
Recommendations
Based on the findings of this evaluation, the following recommendations may be relevant for any court considering implementing ODR:
Expect to spend significant time and resources to get the program up and running.
Notify parties and lawyers about the ODR program early in the process.
Educate litigants and lawyers more fully about the program.
Conduct outreach to raise awareness of, and promote interest in, the ODR program.
Explore video mediation as a dispute resolution option.
