RENTAL ASSISTANCE CAN SHAPE NEGOTATION AND MEDIATION IN CRITICAL WAYS
In the context of this eviction crisis, access to emergency rental relief/assistance is providing a critical lifeline for landlords and tenants. Having this money available will shape the best (and worst) alternatives to a negotiated agreement (BATNA/WATNA) for the parties, and may become the determining factor in mediations.
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.
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 (or are still in place), the moratoria allowed (allows) courts to gear up and put program mechanisms in place while evictions were (are) frozen. The flip side of all that are the huge unknowns: When will the moratoria lift and cases be allowed to proceed? What will the volume of cases look like? How will the ongoing effects and consequences of the pandemic impact the economy and public life? Will the court operate virtually, in-person or with a hybrid approach? All of these questions impact the way a mediation program would need to draft court rules, staff up, recruit mediators and operate.
The pandemic forced many courtrooms and court services to go virtual. As conditions have stabilized, some courts are going back to in-person, but many others are choosing to keep 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. The early evidence on virtual courtrooms appears to show that they actually have lower default rates.
Before the pandemic, landlords had a lot more options. Now, the prospect of finding a reliable tenant is more difficult. By the same token, the prospect of an eviction for a tenant has added consequences when housing is more scarce, and the prospect of homelessness carries added risk during a pandemic. Every mediation will still feature parties who have their own personal preferences that shape their Best Alternative To A Negotiated Agreement (BATNA), but the pandemic has definitely impacted how individuals approach the mediation table.
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.
RSI has written extensively about program design in our Guide to Program Success, and much of what we have there 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:
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.
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.
Collecting the property address provides mediation programs with lots of useful information. It can show where programs are having an impact, and which communities are seeing fewer evictions due to their impact. They are then able to assess whether this impact is being felt in the communities most in need.
In addition to eviction-specific information, programs that are operating virtually may want to know how the technology is affecting participants. This can be done by adding technology-specific questions to participant surveys, such as whether they needed to do anything 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. This can also be done by adding questions about whether the program brought down barriers to participation (e.g., participants were able to access the program without losing time from work).