RSI spends a lot of time and energy studying the conditions under which court-based alternative dispute resolution (ADR) can best improve access to justice. In recent years, that has often meant using new technologies and/or assessing their impact.
As is often the case with innovations, ADR options that employ new technology are sometimes hailed as the solution to longstanding challenges. For example, online dispute resolution (ODR) is celebrated for its potential to increase access to justice by allowing parties to engage on their own schedules, in their own spaces. Unfortunately, however, technological innovations can also bring challenges and create their own barriers to justice.
RSI’s 2022 annual report asks the question: Does ADR + Tech = Better Access to Justice? Our staff spent much of last year examining that premise. We published two landmark evaluations of court programs that used ODR-specific platforms; completed an in-depth report on the potential for ODR to serve thinly resourced parents, courts and communities; and used video mediation to serve hundreds of clients in northern Illinois. We also evaluated how those programs were operating and how participants viewed them.
Our annual report outlines these efforts and summarizes some of our findings. Not surprisingly, we found both promising signs and causes for concern when it came to technology’s impact on access to justice. We also discovered a lot more questions that need to be answered and problems that need to be addressed.
We hope you will take the time to read the Resolution Systems Institute 2022 Annual Report and review what we have learned so far. The role of technology is, of course, just one of many aspects of court-based ADR that RSI is examining. Please join us as we continue exploring what technology can and can’t solve, as well as other keys to providing cost-effective, timely and fair conflict resolution.
Text-based online dispute resolution (ODR) programs are often touted as a way to increase access to justice. They are seen as more convenient, less costly to parties, and less intimidating, and thus as having the potential to reduce the default rate, particularly for debt cases. Yet early evaluations of ODR programs have found that they suffer from low participation. An information gap, worsened by the prevalence of low literacy, contributes to this low participation.
Through a generous grant from the AAA-ICDR Foundation, RSI’s ODR Party Engagement (OPEN) Project hopes to address this problem by gaining insights from impacted populations and using those insights to develop guidance on communication materials for small claims courts that use ODR.
Through a generous grant from the AAA-ICDR Foundation, RSI’s ODR Party Engagement (OPEN) Project hopes to address this problem by gaining insights from impacted populations and using those insights to develop guidance on communication materials for small claims courts that use ODR.
The Information Gap
RSI’s ODR evaluations found that parties were often unaware of their court’s ODR program or did not understand what ODR was and how it worked. We identified deficiencies in the language the courts used to inform and educate parties, and in how the information was provided. In Utah, a usability study found that parties did not always understand the information provided and wanted more information than was offered.
These evaluations point to a need for better information to apprise parties that an ODR program exists and educate them about the program. Then they could knowledgeably decide whether the program might benefit them, understand what the risks may be, and learn how to use the ODR platform.
Need for Digital Hand-holding
Informing parties properly has become more important with the increase in self-represented litigants. According to the Program for the International Assessment of Adult Competencies, 48% of US adults struggle to perform tasks with text-based information, such as reading directions, with 19% only capable of performing short tasks.
Some courts have changed their approach to helping parties, with varying success. But even those that recognize the need to serve their constituents better may not realize they have a communication problem. Recently, the Colorado Supreme Court conducted a listening tour throughout the state to find out how it might better serve the state courts’ constituents. The main takeaway was that people with low literacy could not understand the courts’ communications to them.
Some courts have instituted alternative dispute resolution (ADR) programs, such as RSI’s virtual eviction mediation programs, that involve access to a program administrator to help parties navigate the program. Small claims ODR programs are different. These programs require parties to use ODR before their first hearing, and they often do not have a designated staff person to help those who have the wherewithal to reach out to the court on their own. Without a person to “hold their hand” through the process, parties need digital hand-holding.
RSI’s Project Goals
To engage and educate parties, courts should offer ODR participants materials that are easy to understand and to access via multiple methods (e.g., mailed notices, videos, text guides). A recent readability study of court forms found that simplifying the text used in the forms increased participants’ understanding of the purpose of a subpoena from 29% to 70%.
Courts generally do not have the knowledge or capacity to develop materials that can be readily understood by people with low literacy. For the OPEN Project, RSI will conduct a series of focus groups and apply their findings, along with best practices developed from prior research, to develop guidance on communication materials for small claims courts using ODR. Cases such as debt, landlord-tenant, eviction and consumer-merchant cases are likely to benefit.
OPEN aims to make access to justice more equitable for self-represented, diverse populations who are either required or offered the opportunity to use text-based court ODR for debt and small claims cases.
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.
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:
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.
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.
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.
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.
RSI conducts three virtual mediation programs in northern Illinois. The programs are supervised by Eviction Mediation Programs Manager Chris Riehlmann. In this role, Chris oversees the administration, data collection and reporting, and ongoing development of the programs. He recently took some time to answer some of Court ADR Connection’s questions about the programs and his experience.
Chris, can you start by sharing a little about your background prior to joining RSI?
Chris Riehlmann
Education-wise, I received my B.A. and J.D. from Loyola University Chicago. During law school, I focused mainly on learning all aspects of litigation and criminal law. Following law school, I pursued my interest in civil rights by working with the Greater New Orleans Fair Housing Action Center, the Orleans Parish Public Defenders Office, and private civil rights attorneys in the Chicago area. My first real attorney job was for a high-volume personal injury law firm representing plaintiffs injured by car accidents, medical malpractice, slip and falls, defective products and more. This position gave me real experience handling cases from beginning to end while interacting with judges, opposing counsel and clients.
My most meaningful foray into the housing legal realm was working for Open Communities, a fair housing non-profit in Evanston, IL. While at O.C., I led a team that investigated allegations of housing discrimination, took legal action against bad actors and educated the public on their housing rights. I also learned how eviction litigation worked and defended individuals who couldn’t afford an attorney. It was eye opening how quick evictions worked, with tenants showing up in court for their first appearance and leaving with an eviction order that same day. There was no chance for tenants to meaningfully participate in the process that was removing them from their homes.
After fighting for housing justice in the northern suburbs of Chicago with Open Communities for four years, I decided to expand my understanding of dispute resolution methods and joined RSI’s eviction mediation team.
In general, what do you see as the benefits of mediating eviction cases?
There are plenty of benefits for everyone involved with the program, such as improving access to justice, legal cost reduction, promotion of judicial efficiency and more. However, the greatest benefit for mediating evictions is that the parties get a chance to breathe and discuss the issues that brought them to the point of legal action on a level field.
In my experience with eviction litigation pre-COVID, cases were decided incredibly quickly, with tenants either being evicted on their first appearance or agreeing to settlements under duress with no clue of the ramifications of their actions. On the other hand, if a tenant knew how the process worked, and had an attorney or faced a landlord who was unrepresented, evictions could potentially take months! Landlords could wait forever and a day for a judgment only to wait even longer for an overbooked sheriff to effectuate the order of possession.
Overall, mediation positively affects the timeline of an eviction by giving both parties an opportunity to efficiently have their needs met. Tenants can slow the warp speed nature of some cases so they can have a voice in the process and potentially avoid the most traumatic aspects of eviction. Landlords can speed up some cases to get a resolution in a few weeks instead of a few months.
Can you give us a broad overview of how the programs operate?
RSI has an eviction mediation program in three counties in northern Illinois: Kane, Winnebago and Kankakee. Each county works in its own nuanced way, but each program starts when the judge presiding over evictions refers a case into the program.
Once the program coordinator is assigned a case, they make contact with both parties to schedule a mediation. Before the mediation occurs, the tenant is connected to resources to help them in the eviction, including rental assistance, housing counseling and legal representation. The idea is to set the tenants up in the best position possible going into the mediation.
On mediation day, the tenant, the landlord and any attorneys sit down with a trained third-party mediator via Zoom to present their case. The mediator gives both parties an opportunity to voice their needs, to discuss what brought them to this point and to discover avenues of resolution. Any agreements reached are memorialized in the appropriate court order form and submitted to the judge for approval. Depending on the terms of the agreement, the case is dismissed or a compliance date is set in the future.
Can you tell us how the programs operate in a hybrid space? Which aspects still occur in the courthouse, and which are conducted online? Has any of that evolved in the nine months you’ve been with RSI?
The majority of all program activities take place virtually. The program coordinators in all three counties attend the court calls remotely, and the vast majority of cases are mediated remotely. The only physical presence we have is in the Kane County courthouse so we can interact with those parties face-to-face if necessary. In Kankakee and Winnebago counties, we are entirely remote, handling referrals and conducting mediations over Zoom. These programs were developed with this level of remote participation in mind, but we still have backup methods to interact with people who need more support.
What challenges do you see when it comes to participating virtually? What benefits?
At the risk of sounding incredibly contradictory, virtual participation both increases and decreases party participation. Holding mediations over Zoom offers flexibility for the majority of parties. People can hop on to a Zoom call while on break at work or any time that is convenient. In a situation where making money to pay off a debt is vital, this flexibility helps keep people on track with payment plans.
On the other hand, some individuals are not very tech savvy and have trouble accessing Zoom through their phone. These are often some of the most vulnerable populations. To address this, we try to have a physical attendance option available. When we don’t have a physical presence at the courthouse, we rely on our social service partners to help people in person access the mediation either over the phone or Zoom.
What have been some of the biggest successes you and your team have had operating these programs? Conversely, what sorts of challenges have you faced, and what have you learned from them?
The programs have had an impressively high agreement rate. Through all three programs, we are reliably assisting around 65% of cases come to a resolution. When the stakes are as high as losing your home or not getting months of rent, consistently setting parties on the path toward mutual success makes us proud.
It seems like contradiction is becoming a theme here, but challenge-wise we’ve seen both the high and low ends of caseloads depending on the county served. In Kane County, we have impressive judicial buy-in and nearly every eviction case is referred into the program. While we are happy about the enthusiasm and know we are helping many residents of Kane County, the constant high volume can be challenging for staff. Once you complete one demanding week of mediations, there is little rest as the next week’s cases are ready to be handled. To address this high volume, we have supplemented staffing to support this program and are exploring adding further personnel.
Conversely, the two other programs are less active and receive fewer referrals. This is due to a variety of issues including getting new judges up to speed, local rental assistance programs being highly effective (thus obviating some of the need for mediation), and different philosophies regarding when mediation is appropriate. We have learned that maintaining good communication with the presiding judge and court administrative staff is integral to promoting program buy-in.
As these programs have now been established for about a year, and the broader eviction landscape continues to evolve, are you anticipating any changes to the programs?
The approaching unknown in the eviction field is the end of rental assistance programs. Since the mediation programs’ inceptions, there have been federal, state and local programs that provide financial support to tenants who are behind on rent. Some of these smaller programs are wrapping up, and the large state program will end in July 2023. Once these resources are no longer available to tenants, the terms of agreements will likely change. We will most likely see less “pay and stay” agreements and more “graceful exits” with an agreed move-out date. I also anticipate providing training to our mediators on how to handle that new state of affairs.
