Just Court ADR

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.

More than two years since COVID-19 first broke out stateside, the U.S. housing sector remains in a state of flux. Various moratoria and relief funds at the federal, state, and local levels notwithstanding, courts throughout the country have been awash in eviction filings for some time now. For many communities, while there might be some ebb and flow from month to month, it’s increasingly looking like the new normal is a sustained level of increased activity. 

When we last saw a comparable crisis in the 2008 mortgage foreclosure crisis, inundated courts turned to alternative dispute resolution (ADR) as a means to better triage and more expeditiously resolve cases. Many of these mediation programs were able to leverage pro bono legal assistance and housing counseling services to provide holistic support to parties and increase the odds of finding a resolution. Looking at courts across the country, we can see an analogous process unfolding in real time as a response to this present-day eviction crisis. A critical distinction is that where the typical judicial foreclosure process is one that operates in months and sometimes years, eviction is a process that can conclude within a few weeks—and sometimes less. 

That context underscores the urgency with which courts have had to address this issue. At Resolution Systems Institute (RSI), a nonprofit that has spent the last 25-plus years helping courts better utilize ADR, we have taken a two-prong approach to the eviction crisis. First, we have established a number of eviction mediation programs in northern Illinois to serve the communities there and to act as models that can be replicated by other jurisdictions. Second, we are studying these model programs and providing guidance to other courts looking to implement or improve their own eviction mediation efforts. 

On the Front Lines

Operating programs in three Illinois jurisdictions—which, combined, serve nearly a million residents across Kane, Kankakee, and Winnebago Counties—has provided RSI an opportunity to apply our evolving knowledge of best practices to better serve communities in distress. Lessons learned from other programs regarding housing disputes, the integrated role of support services in these cases, and how to administer all of these in an increasingly online world were all critical to us in finding our footing for this program. 

In most instances, services in our programs are accessed remotely. Court calls still take place over Zoom, though the courts do offer physical access at the courthouse for those parties who need or prefer it. Our staff and other program partners attend these court calls to educate parties about mediation at their first appearance and obtain contact information. Program staff then connects with them individually via email or telephone after court to give each party the time they require to feel heard and for our staff to properly collect all vital information. 

During intake, our staff assesses what services parties might benefit from, whether that entails legal assistance, information about rental relief funds, or help finding alternative housing, among others. Our mediation program refers people to appropriate service providers, scheduling mediation a few weeks later to provide time to take advantage of the other services. The goal is to ensure, to the greatest extent possible, that parties are fully informed by the time they sit down to have their dispute mediated. Avoiding eviction is the top goal whenever possible, but sometimes that’s just not workable. What we can ensure, however, is that both parties experience a process in which their concerns were heard and they were treated fairly.

Participation in the program is mandatory for landlords if the tenant wishes to participate, and the judges may (and often do) order parties to participate. Judicial buy-in is key to almost any successful court ADR program, and eviction mediation is no exception. We cultivate that buy-in from the program’s outset, collaborating with eviction judges and court administration. We also include other program partners in the development of program procedures and local court rules. At the same time, we work to secure funding and staff up. Experience has taught us again and again that proper program management requires adequate resources to keep operations running effectively. 

Another component of successful administration is regular program partner meetings to provide updates on program processes and troubleshoot any potential issues. Such meetings are exceptionally critical in the cross-disciplinary context of evictions. The court and the mediation program are two big parts of the eviction process, but having housing counselors/advocates, legal aid, representatives for landlords and their attorneys, and sometimes municipal representatives speak to their perspectives has been instrumental to us in designing a process that works for all. 

We have been highly encouraged by the results of these efforts to date. Since Illinois lifted its moratorium on residential evictions on October 3, 2021, our programs have enrolled over 600 cases. Our programs have mediated 420 disputes, with 269 (64 percent) reaching partial or full agreement. These agreements span a wide array of outcomes, from allowing a tenant to keep his or her apartment, to negotiating a mutually agreeable move-out date, to working out payment plans for back rent owed. 

After each mediation session, parties are invited to complete a survey about their experience in mediation. Eighty-three percent of respondents believe mediation is a fair process; 78 percent of respondents strongly agree with the statement “I was able to express what was important to me.” One tenant commented that they were able to “leave [mediation] with some peace of mind.” An attorney representing a landlord commented, “Mediation has the ability to resolve the case with limited expense to the parties and resolve it more expeditiously.” In all, 70 percent of respondents would highly recommend mediation to a friend or colleague. (For those interested in reading further, we publish the stats on our surveys quarterly.)

Viewed together, the data about both the outcomes we achieve and the participant experience in mediation indicate we are on the right track, while also giving us some targeted data about where we have room for improvement. Resolution Systems Institute is grateful to the Illinois Equal Justice Foundation for funding that supports our mediation services in northern Illinois. 

Empowering Courts Nationwide

Our experience operating programs in Illinois, combined with years of experience monitoring and evaluating court ADR programs, has provided tremendous insight into how to successfully operate such programs. Now we are taking what we are learning and sharing it with others through our publications, website, blog, newsletter, and social media. RSI is grateful to the American Arbitration Association–International Centre for Dispute Resolution Foundation for underwriting our efforts to develop and share these resources with a nationwide audience. 

For example, our Eviction Mediation Special Topic was developed as a one-stop shop for courts seeking information on the subject. This Special Topic resource contains practical guidance about designing eviction mediation programs and setting up data collection systems. We have also provided sample court rules, forms, party surveys, and other materials. Individuals can also find a reading list of what we believe to be the best resources on eviction mediation.

With regard to evaluation, we recently published a program implementation report, Eviction Mediation Design and Implementation in Illinois’ 16th Judicial Circuit: Challenges and Keys to Success (Apr. 2022), that examined the design and development process in our Kane County program. This unique resource provides courts a detailed overview of how a real court ADR program was developed, including the steps and time frames involved. The report’s key findings identify five critical factors:

• Court interest in the project
• Judge support
• Landlord/landlord attorney buy-in
• Good communication among involved organizations
• Good administration

These findings are supported by hours of interviews among key personnel involved in the program’s development. In future months, we will be publishing an implementation report concerning our other two programs, which will focus on the challenges and successes in developing a mediation program that is staffed fully by remote employees.

Conclusion

We hope that the resources RSI has provided thus far and those that are forthcoming can empower courts to design stronger alternatives to the traditional eviction process. Renters and landlords alike have navigated tremendous uncertainty over the last couple years. As evictions remain high, courts and communities can turn to RSI’s experience and guidance to assist in meeting the demand for fair, prompt services. We would also like to recognize the American Bar Association COVID-19 Task Force’s Eviction Committee and the ABA Dispute Resolution Section’s Task Force on Evictions for their work in addressing these issues. 

This article was originally published, under the title “Mediation Offers Lifeline for Communities Awash in Evictions,” in the American Bar Association Litigation Section Alternative Dispute Resolution Committee newsletter, Spring 2022 edition, Volume 26, Issue 3. Copyright © 2022, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).