Key Considerations
RENTAL ASSISTANCE CAN SHAPE NEGOTATION AND MEDIATION IN CRITICAL WAYS
In the context of this eviction crisis, access to emergency rental relief/assistance has provided a critical lifeline for landlords and tenants. Having this money available has shaped the best (and worst) alternatives to a negotiated agreement (BATNA/WATNA) for the parties, and may have become the determining factor in mediations.
SUPPORT SERVICES ARE IMPACTFUL
A number of mediation programs have, to great success, employed a model that brings together legal assistance and financial counseling. It appears that providing access to these services through the courthouse experience provides added value, especially to parties who are unrepresented and underserved. This, in turn, can make resolutions more durable.
UNCERTAINTY HAS PLAYED A LARGE ROLE
In many ways, this crisis has afforded an opportunity to develop ADR-based responses in a very proactive manner. For jurisdictions where moratoria were put in place, the moratoria allowed courts to gear up and put program mechanisms in place while evictions were frozen. However, there were huge unknowns: When would the moratoria lift and cases be allowed to proceed? What would the volume of cases look like? How would the ongoing effects and consequences of the pandemic impact the economy and public life? Would the court operate virtually, in person or with a hybrid approach? All of these questions impact the way a mediation program needs to draft court rules, staff up, recruit mediators and operate.
WE NOW LIVE IN A VIRTUAL REALITY
The pandemic forced many courtrooms and court services to go virtual. As conditions stabilized, some courts went back to in-person proceedings, but others have chosen to keep some or all services online. Operating a mediation program virtually comes with both challenges and opportunities. Ensuring that parties and mediators are comfortable with certain technologies, such as video conferencing platforms like Zoom, and document exchange software like DocuSign, is critical to successfully conducting mediation online. On the flip side, being able to use these and other technologies can actually streamline lots of program functions. Early evidence on virtual courtrooms suggested they actually had lower default rates.
BATNAs LOOKED DIFFERENT DURING THE PANDEMIC
Landlords had more options before the pandemic than they did at its height. Amid the pandemic, the prospect of finding a reliable tenant became more difficult. By the same token, the prospect of an eviction carries added risk for the tenant during a pandemic. Every mediation features parties whose personal preferences shape their best alternative to a negotiated agreement (BATNA), but the pandemic impacted how individuals approached the mediation table.
ADDRESSING RECORD SEALING IS IMPORTANT
Having an eviction on one’s record can severely hinder an individual’s ability to secure future housing. Even an eviction filing that is subsequently dismissed can negatively impact a renter’s future prospects. In light of the pandemic, housing advocates have called on courts to be more expansive when it comes to sealing records in evictions matters, arguing that the extraordinary circumstances of this crisis merit additional protections. Accordingly, some states have addressed this issue legislatively, either mandating that records related to evictions during the pandemic be sealed, or giving courts discretion to seal the records in these cases. In some programs, the parties may make sealing the record a part of an agreement. The sealing issue has been a prominent part of the discourse around evictions, and eviction mediation programs would do well to consider how they will engage it.
Guidance on Data Collection
RSI has written extensively about program design — including designing a system to track your program — in our Guide to Program Success, and much of that guidance is directly applicable to eviction programs, including the use of participant surveys to collect data. There are, however, a couple of additional pieces of information in the eviction context that programs will be interested in to better understand their impact:
THE SPECIFIC OUTCOME OF MEDIATION
For eviction programs, it is helpful to know whether mediation led to an agreement in which the tenant is able to stay in the rental unit, will move out without an eviction on their record, or will be evicted. This helps to understand whether the program is keeping people in their homes.
SERVICES PROVIDED
As highlighted above, many eviction mediation programs include services other than mediation, such as rental relief, legal assistance or financial counseling. Knowing whether participants are provided these services will help programs better report how many people they have helped and in what ways. It can also help programs to better understand which specific services most help parties come to an agreement that avoids eviction.
PROPERTY ADDRESS
Collecting the property address provides mediation programs with a lot of useful information. It can show where a program is having an impact, and which communities are seeing fewer evictions as a result of the program. It is then possible to assess whether this impact is being felt in the communities most in need.
TECHNOLOGY-RELATED IMPACTS
In addition to eviction-specific information, programs that are operating virtually may want to know how the technology is affecting participants. For example, one could add technology-specific questions to participant surveys, such as whether the participant needed to take any steps to overcome a barrier to participation (e.g., go to a public place to access a computer or the internet), or whether they experienced technical difficulties. One could also add questions about whether the program reduced barriers to participation (e.g., participants were able to access the program without taking time off work).