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Posts Tagged ‘mediation’

Better Forms Can Help Reduce Fear and Confusion for Self-Represented Parties

Christina Wright, February 21st, 2024

In an eviction courtroom filled mostly with self-represented defendants, the confusion and fear can be palpable: fear over what the future holds, and confusion about the process and the parties’ options.

But some of this anxiety can be mitigated. Represented or not, parties should always have access to the information they need to understand what is happening in their court case. One way to help reduce the confusion and fear is to provide easily accessible court forms with instructions in plain language.

A small group of individuals is working toward precisely this goal, and recently I began volunteering with them.

Hands hold a pen and a nondescript form.

When forms are understood and completed correctly, the court process is smoother, time is used more efficiently, and there is less risk of legal errors that might compromise a case on behalf of self-represented litigants.

In 2012, the Illinois Supreme Court created the Illinois Supreme Court Commission on Access to Justice (Commission) to “promote, facilitate and enhance equal access to justice with an emphasis on access to the Illinois civil courts and administrative agencies for all people, particularly the poor and vulnerable.” The same year, the court adopted an administrative order spelling out how the Commission and the Administrative Office of the Illinois Courts (AOIC) would be tasked with developing, reviewing and approving standardized court forms for the entire state. 

The Forms Committee currently has 13 drafting subcommittees, which consist of judges, attorneys, clerks and other court stakeholders — such as RSI and me — who help create new forms when needed and update existing forms in an annual process, according to Lillie Schneyer, Forms Program Coordinator with the AOIC.

“Annual review is an important process to ensure that the forms are up to date with the latest court processes, are as user-friendly and effective as possible, and remain legally sufficient,” Schneyer explains.

Over the past few months, I have been working with the Eviction Subcommittee to revamp the forms provided to people involved in eviction cases. We are reviewing current documents, such as the Eviction Order, Appearance and Agreed Order forms, that have received comments and suggestions from members of the public or that members of the subcommittee have comments or questions about. (Draft forms are posted for public comment on this page of the Illinois courts site.)

We work together as a small group to adjust language, instructions, spacing, and any other minute detail that has been brought to our attention. Our overarching goal is to make the forms as simple and accessible as possible, with the hope that any self-represented party can maneuver them, while also ensuring that the language used is legally responsible and applicable.

We work together as a small group to adjust language, instructions, spacing, and any other minute detail that has been brought to our attention as in need of revamping. We analyze the law in reference to the language to be used on the forms and the implications of the changes we are making. Our overarching goal is to make the forms as simple and accessible as possible, with the hope that any self-represented party can maneuver them, while also ensuring that the language used is legally responsible and applicable.

The process can be tedious, but having seen eviction cases play out in my role with RSI, I recognize how important it is for all parties to fully grasp what they can expect from the court, what is expected of them, and the options in front of them so they can make informed choices. The forms guide and educate litigants in their options and legal responsibilities. When forms are understood and completed correctly, the court process is smoother, time is used more efficiently, and there is less risk of legal errors that might compromise a case on behalf of self-represented litigants. All in all, having accessible Supreme Court forms benefits both the self-represented litigants and the court itself.

When our work is complete, the revised forms will be published in the Court Forms Hub of the Illinois Courts website.

Most Give High Ratings for Mediator Fairness, Trust in Mediator in Recent Surveys of RSI’s Kane County Eviction Mediation Program

Jasmine Henry, January 10th, 2024

RSI administers an eviction mediation program in Kane County, Illinois. Every quarter, we provide a report to the court on the participants’ experience in mediation based on their responses to a post-mediation survey.

Between July 1, 2023, and September 30, 2023, 174 eviction mediations were held in the 16th Judicial Circuit of Illinois (Kane County). After every mediation, participants were invited via email or text to complete an online survey about their experience; not all of the participants completed surveys. In our latest survey report, we examined participant responses from those three months. Specifically, we focused on participant opinions regarding fairness, trust and satisfaction. In all, 21 tenants, one landlord and 11 attorneys responded. The participants responded to the questions according to a seven-point scale, which we consolidated into three categories: low (1–2), medium (3–5), and high (6–7). Participants were invited to add comments to some of their responses. Their responses are summarized below.

Trust in Mediator, Perceived Fairness

We asked respondents about their perception of the mediator. Specifically, we asked: “How fairly did the mediator treat you?” And, “How much did you trust the mediator?” Almost two-thirds of participants gave high ratings for mediator fairness and trust. However, respondents tended to rate mediator fairness higher than mediator trust. For example, fewer than 3% of respondents thought the mediator did not treat them fairly, while 15% of respondents had low trust in the mediator. There was a parallel, albeit smaller, difference observed in the positive ratings, with 63% of respondents rating the mediator as very fair, compared with 58% who had high trust in the mediator.

Turning more broadly to respondents’ perception of the mediation process as a whole, we asked: “Overall, how fair was the mediation process?” Most of the participants who responded felt that the mediation was fair overall, with 62% saying it was highly fair. Notably, this is very similar to the percentage of respondents who said the mediator was highly fair. Not all of the respondents were impressed with the process, and 10% of respondents rated the mediation a little fair or not at all fair.

Tenants who rated overall fairness as high focused on the clarity mediators provided them, describing mediators as “helping” and “kind.” An attorney who rated overall fairness high also emphasized the mediator’s “sympathetic demeanor.”

Comments of Tenants, Attorneys

We asked respondents to explain their overall fairness ratings. The landlord did not comment, but many tenants and some attorneys did. Tenants who rated overall fairness as high focused on the clarity mediators provided them, describing mediators as “helping” and “kind.” An attorney who rated overall fairness high also emphasized the mediator’s “sympathetic demeanor.” A quarter of the tenant comments mentioned court-based rental assistance, which tenants were often referred to by the program. Several tenants also saw the mediators as helping, saying, “They stood up for me … They didn’t let [the landlord] push me,” and “[We asked] for what we wanted and [the mediator] basically fought for us to get it.”

In contrast, tenants who gave medium and low ratings on overall fairness tended to focus their frustrated comments on the mediator’s relationship with the landlord. One tenant said the mediator “may have been more partial to the landlord” because they “were familiar with one another”; another tenant said plainly that “they are there to mostly help the landlord.” One tenant felt frustrated that the mediator did not seem to believe what the tenant said at mediation, saying, “The mediator seemed to take what I had to say about the situation with a grain of salt.” Attorneys who rated the overall fairness at a medium or low level focused on efficiency, with one saying, “I was disappointed that the mediator allowed the opposing side to spend valuable time on issues irrelevant to the case.”

Likelihood to Recommend Eviction Mediation

To further explore participant satisfaction, we asked participants: “If a friend or colleague had a dispute like yours, how likely are you to recommend eviction mediation?” Most of the participants who responded were likely to recommend mediation to a friend or colleague, with 67% saying they were highly likely to recommend it. One tenant commented, “I would recommend all mediation options; sometimes tenants are unaware of the resources available due to lack of communication or shame.” However, another tenant who was less satisfied with the process commented, “It doesn’t help the tenant. At all. It helps landlords.”

As was the case with the first question on participant satisfaction, the landlord did not comment on their responses to this question, but we did receive two attorney comments. One attorney who was highly satisfied with the mediation process commented, “We made the exact same settlement offer that was accepted at mediation to the landlord’s attorney months ago, and they never responded in any way despite multiple phone calls. I assume this was on their client’s instructions. Because of the mediation process, I believe they would have continued stonewalling us.” The attorney who was unlikely to recommend mediation to a colleague said: “The lengthy mediation process is not helpful in my view. Before this system was implemented, and still now (in other counties), I am often able to reach agreements with the tenants within 5–10 minutes in the hallway outside the Courtroom. There is no need for the mediator, in my opinion.”

Conclusion

In conclusion, the survey responses indicate that the program continues to provide a positive experience to most participants. Those who completed the survey generally had positive perceptions of the mediators and the program, with the majority giving high ratings on fairness, trust and satisfaction. However, some participants’ comments point to a perception among tenants that mediators are biased toward the other side and a perception among attorneys that the mediation process is not efficient.

Use of Joint Session to Open Mediation Influenced by Lawyers and Geography

Dee Williams, October 18th, 2022

Historically, mediations would begin with a joint introductory session with all parties discussing the case together along with the mediator, and the parties having the opportunity to discuss their issues and interests directly in a guided conversation. Mediations would either continue in joint session or move into separate caucuses, depending on the course of the conversation and the preferences of the mediator. In the last 10-20 years, however, it has become increasingly uncommon for mediations to begin jointly.

In “Joint Session or Caucus? Factors Related to How the Initial Mediation Session Begins,” by Roselle Wissler and Art Hinshaw (Ohio State Journal on Dispute Resolution, September 2022), the authors report the findings of the first study to examine the relationships between the way in which mediation opens and a wide range of factors. It found that although many mediators suggest tailoring the structure of mediation to the needs of an individual case, the likelihood of mediation beginning with a joint session is instead tied to whether the parties are represented by an attorney, whether the mediator has a law degree and where in the US the mediator resides.

Wissler and Hinshaw note that there is significant disagreement as to whether joint opening sessions are still needed. Some possible benefits of such a session include that it would provide: a chance to explain to parties the process and the issues at hand and make sure all are on the same page, a chance to open channels of communication and foster understanding between opposing parties via face-to-face communication, and a chance for the mediator to observe the dynamic between the parties and establish a rapport. There are also some who argue that the existence of mediation-informed lawyers and pre-session discussions between parties and mediators, as well as the changing landscape of mediation proceedings (which frequently includes more “impersonal” civil and commercial cases with little or no pre-existing relationship), obviate the need for these sessions.

Many mediators and lawyers, rather than advocating for or against joint opening sessions, suggest tailoring the structure of the mediation to the needs of an individual case. They indicate that joint opening sessions may be helpful in situations where litigants may not be well informed about each other’s positions and/or when there exists a continuing relationship between parties. On the other hand, joint opening sessions may not be recommended if the relationships between parties are highly contentious, or when violence or abuse is involved.

Study

To examine the factors involved in how mediations begin, Wissler and Hinshaw conducted a survey among civil and family mediators with publicly available contact information in eight states across the US. They limited participation to those who had mediated civil or family disputes (outside of small claims or probate) involving only two parties within the US in the last four months. Out of 5,510 mediators who received an email invitation, 1,065 (19.3%) responded. Respondents were asked to focus on their most recent concluded mediation in their responses. Both family and civil mediators’ cases mainly came directly from lawyers or court mediation programs/judges.

Findings

Wissler and Hinshaw found that joint opening sessions have not been replaced by pre-session communication, as there is no correlation (or in civil cases, there is a slight positive correlation between pre-mediation communication and…) between whether litigants are present in pre-session communications and whether the mediation begins in joint session. Joint opening sessions have also not been obviated by litigants being more informed (either by the mediator in pre-session communication or by their lawyers) about the mediation process and the issues at hand. In general, issues discussed in pre-session were more likely to be brought up in the mediation session proper, not less likely – so these communications are not taking the place of communication in a joint opening session.

Similarly, the findings suggest that the way mediation begins is not strongly related to dispute characteristics (such as disputants’ prior experience with litigation; the presence of non-monetary issues in the case; or the presence of abuse, harassment, or violence between disputants). Joint session was more likely when litigants had the goal of speaking face-to-face (90% vs 70% in civil cases, 92% vs. 54% in family cases) or preserving their relationship (86% vs 63% in family cases), suggesting that it is more likely to occur when litigants have goals that are in line with a desire to communicate directly with the opposing party.

Several sets of findings address the hypothesis that lawyers generally do not wish for joint opening sessions. Mediation was less likely to begin in joint session when the mediator had a legal background or a history as a neutral evaluator (59% vs 77% in civil cases), or when one (67%-82%) or both (57%-72%) of the disputants was represented by an attorney, compared with when neither disputant had an attorney (88%-95%). It was also less likely to begin in joint session in cases referred from lawyers (33%) compared with any other source, and less likely to begin in joint session when mediators said the lawyers were the parties with the most influence over how mediation began (17%).

The state in which the mediation took place had a large impact on likelihood of beginning in joint session, as did the mediator’s history in terms of how frequently they opted to begin in joint session. Out of the states surveyed, mediation is most likely to begin in joint session in Maryland, New York and Illinois and least likely to do so in Utah.

Wissler and Hinshaw note that, taken together, the findings suggest that the recommendation to determine how mediation begins on a case-by-case basis, tailored to the nature of the particular dispute and the needs of the disputant, is largely disregarded.

Rental Relief and Eviction Mediation Work Hand in Hand to Make Housing More Stable

Eric Slepak Cherney, August 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.

Photo by Kostiantyn Li, via Unsplash

Rental assistance has been a critical component of eviction mediation programs over the past two years. With tenants unable to work for months on end and moratoria on evictions in place, past due rent amounts soared. Conducting mediations in which tenants could not pay landlords much, if any, accumulated rent would not have been fruitful. While mediation in landlord-tenant cases has a long pre-COVID history of success, the sheer number of impacted households and amount of past-due rent threatened to destabilize housing markets and leave millions without a home in the midst of a global health emergency.

The key was rental assistance: Landlords and tenants applied to government programs, which would then make payments to landlords for past-due rent and, in some instances, for a few months in the future.

Across two separate rounds of relief, Congress appropriated over $46 billion in emergency rental assistance. Through June 30, 2022, some $32 billion of that funding had been expended. The relief was allocated to individual states, under the assumption that each state would be best situated to decide how to distribute its allocated funds most effectively. Generally speaking, the states designed their rental assistance programs along a continuum, with one end being central administration by statewide agencies, and the other being delegation of administration to individual municipalities such as cities and counties. Many fell somewhere along the continuum in a hybrid approach.

Timely Processing of Applications a Challenge

The coordination among federal, state and local governments to deliver these services has been a massive undertaking, and certainly not without challenge. An analogous challenge in coordination has arisen between the executive branches of states that are charged with distributing these funds, and the judiciaries that are charged with adjudicating the eviction cases filed in their courts. The interplay between these two, particularly around the speed at which each operates, often determines the reality of whether a tenant can successfully stay in their home.

Using Illinois, where RSI operates several eviction mediation programs, as an example, we saw early on how gaps in coordination were impacting applicants. As cases began to be filed in the wake of our state’s eviction moratorium being lifted in October 2021, the processing time for rental assistance applications was significant. Anecdotally, we heard stories from tenants, landlords and legal aid providers that it wasn’t unusual for applications to take two or three months to be approved. 

Even with many jurisdictions in Illinois electing to continue their eviction cases, some for up to 28 days, the rental application process simply wasn’t going to move fast enough in many cases to change case outcomes. While judges could potentially continue cases to allow for a decision on rental assistance, they also had to balance the needs of the landlord, some of whom had already gone 18 months or longer without collecting rent.

Expediting the Resolution Process

Commendably, our state agencies responded by developing a dedicated Court-Based Rental Assistance Program (CBRAP). This rental relief program is solely for parties to an active eviction court case, and its resolution process has been expedited to stay within the timelines of most courts in the state. The program has been effective at resolving rental assistance applications in a period of three weeks or sooner, meaning that many parties know whether they’ve been approved by the time their case comes back up for their continuance date.

RSI and our fellow mediation centers in Illinois have assisted CBRAP in expediting cases by accepting referrals from the Illinois Housing Development Authority to mediate certain pending rental assistance applications. Typically, these cases are ones in which a rental assistance application has been conditionally approved but the landlord has also secured an eviction order, often from a default judgment. Because the rental assistance terms stipulate that a landlord agrees to not evict for an additional 90 days (the rent is prepaid by the award), the primary focus of these mediations has been to help the parties make sure they both understand the terms of the agreement, including that the landlord will need to vacate the eviction order to receive rental assistance.

Complementary Programs

Our work on CBRAP complements our eviction mediation programs operating in Illinois’ circuit courts. When tenants are evicted and taken to court, our mediation programs are often the first touchpoint for many parties, and thus we make a lot of referrals to rental assistance as part of our intake and triage process.

Illinois’ CBRAP is just one example of many that demonstrate how eviction diversion programs complement and intersect with rental assistance efforts. We’ve previously showcased the Philadelphia eviction diversion program, which innovatively integrated rental assistance directly into the program model itself, and also allowed for pre-filing cases to give parties more time to explore the rental assistance. A recent webinar jointly hosted by the White House and Treasury Department highlighted the significant role eviction diversion programs have played in improving rental assistance delivery. And a forthcoming post on this blog will take a look at the unique and effective approach that was taken in Hawaii on Oahu.

Michigan Mental Health Mediation Program Offers Alternative to Court Intervention

Sandy Wiegand, August 11th, 2022

A new statewide mediation program in Michigan – likely the first of its kind in the United States – offers free mediation as an alternative to court intervention in mental health cases involving individuals who qualify for community mental health services. Michigan Behavioral Health Mediation Services realizes part of the longtime vision of State Court Administrator Emeritus Milton Mack, Jr., who recently spoke with RSI about the program.

Judge Milton Mack, Jr., recently was awarded the 2022 Judge Stephen Goss Lifetime Achievement Award from the Judges and Psychiatrists Leadership Initiative of the Council of State Governments, recognizing his leadership in guiding state courts as they address mental illness in the justice system.

“Typically a family member feels someone needs help, and the person is refusing help,” Judge Mack, who also chairs the Michigan Governor’s Mental Health Diversion Council, explained. “So they go to the courthouse and ask the court to schedule a hearing on ordering this person to get help. What this process does is it says, OK, before we get to the point of the judge ordering you to receive treatment, we’re going to send you into mediation and see if you can work this out without a court order.”

Oakland Mediation Center (OMC), in Bloomfield Hills, Michigan, developed the mental health mediation program in partnership with the Michigan Community Mediation Association. It kicked off in September 2021 and is funded by a grant from the Michigan Department of Health and Human Services. OMC connects participants with their local community dispute resolution center for mediation. In addition to the subject of the mediation, the petitioner and the (volunteer) mediator, participants may include the subject’s attorney and community mental health providers. Mediators for the program complete advanced behavioral health-specific mediation training, as well as Michigan’s usual state-required mediation training.

Legislation Facilitated Changes

Changes to Michigan law in 2018 helped make mediation an option, said Judge Mack, who first advocated for mental health mediation in 2004, as a member of the Governor’s Mental Health Commission. Under the prior statute, a judge couldn’t order a person to outpatient treatment until they had been involuntarily hospitalized twice or incarcerated twice, by which point their illness had progressed significantly. Additionally, a trial had to be scheduled within seven days of a petition being filed, which left little time to schedule mediation. Under the new law, a family member can petition the court to order an individual to undergo outpatient treatment, and a hearing must be scheduled within 28 days – a much more realistic timeline for scheduling mediation. Furthermore, Judge Mack said, this earlier intervention makes it more likely that people get treatment in community, and do so while able to function at a higher level than if treatment waited.

“Getting in early is your greatest opportunity,” said Judge Mack. “When you’re in a psychotic state, you’re steadily going downhill … The longer you wait, the harder it is to get back to baseline.”

So far, the program has mediated five mental health cases, with three reaching resolution and a fourth reaching partial resolution. Petitioners cannot request mediation; only the subject of the mediation or their attorney may do so.

New Ground for Courts

Buy-in has been a challenge, Judge Mack said, because the concept of mental health mediation is very unfamiliar territory for courts. As one way to overcome this, he will be leading trainings for attorneys on the program in mid-August, starting in Wayne County, Michigan, where he was previously a probate judge. A longtime proponent of mediation for cases of all types, he said attorneys will be instructed to request mediation in eligible mental health cases as a rule, noting: “When I instruct the lawyers next week, I am going to explain to them: One of your duties is, when you get this assignment, you immediately consider requesting mediation; that is the expectation of the court.”

While acknowledging that for other states to replicate this program they might need to enact legislation, Judge Mack’s advice to courts in the meantime is that they look for situations where the timeframe is not an impediment to mediation. Additionally, he suggested, “I would say watch us here in Michigan prove the concept. Our process of having a system of early intervention and keeping people out of the hospital I think has got promise.”

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