The evidence presented is in direct contrast to the premise that rental assistance is necessary for eviction diversion programs to exist. Some have expressed the concern that without the leverage of rental assistance, landlords would not be incentivized to negotiate, and, if they did, would have little reason to “drop the case.” Yet, the findings from New Hampshire’s voluntary pre-filing eviction mediation program prove otherwise. First, the proportion of disputes that mediate is similar to other voluntary mediation programs, which indicates that the reasons why landlords and tenants mediate are not discernably different from those of parties in other types of disputes. Second, the program is pre-filing, which means that landlords are often agreeing not to file a case if settlement is reached. So, the fact that the proportion of cases that came to an agreement did not change between when rental assistance was available and when it wasn’t suggests that parties have incentives other than rental assistance to negotiate, come to an agreement, and avoid going to court. Even without rental assistance, 41% of mediations resulted in an agreement in which the tenant remained in the unit. There is no doubt that rental assistance increases housing stability by increasing the number of tenants that remain in the housing unit, but even when rental assistance is unavailable, pre-filing mediation can still support housing stability. The continuation of the program after the end of rental assistance allowed 72% of those who mediated to avoid filing an eviction case with the court, 41% of tenants to stay in their housing unit, and 32% to choose the date that the tenant moved out as opposed to having the tenant evicted by a sheriff after an eviction hearing. This evidence suggests that even without rental assistance, eviction diversion programs work to increase housing stability.
Additionally, eviction diversion programs may be a positive addition to a trauma-informed court process. Most tenants access the program after finding the contact information on the Eviction Notice. Tenants call the program after they have experienced the first step in a process through which they may lose their housing, i.e., receiving the eviction notice. Many are under the mistaken belief that the expiration of the eviction notice is the date by which they must leave the unit. Tenants who call the program may be going through a physiological stress response because they are experiencing a threat to their basic need for shelter. They can be angry, combative, panicked, overwhelmed, or afraid. High levels of stress affect people’s ability to think and may impair their memory. By going through the intake process with the caller and explaining their options, the eviction diversion specialist can de-escalate the stress through science-backed countermeasures: “fostering a sense of control,” “setting a calm tone,” and “building trust and rapport.” By reducing their stress levels, the eviction diversion specialist increases the likelihood that the caller is able to receive the information provided. Thus, in addition to increasing housing stability, the eviction diversion program may be part of a larger trauma-informed process.
The evidence in New Hampshire indicates that even with the end of federal rental assistance, eviction diversion programs can continue to support housing stability. RSI’s evaluation suggests that, while the end of rental assistance may impact the effectiveness of the program, eviction diversion programs can still substantially divert evictions by providing tenants and landlords with the opportunity to reach agreement. Lastly, eviction diversion programs continue to assist parties in a trauma-informed manner. RSI concluded that New Hampshire’s program should remain in place despite the end of rental assistance and eviction diversion programs in other jurisdictions should remain in place as well.
Factors to consider when expanding or piloting pre-filing mediation
Pre-filing eviction mediation programs created in response to the pandemic have proven to be successful. Hopefully, the success of these programs will persuade courts to consider piloting or expanding similar programs. The benefits of “upstream” early intervention are well-known to those in the ADR community. Mediation that occurs earlier in a dispute is correlated with more satisfied litigants and attorneys and higher percentages of settlement. Early mediation can save parties time and money if resolution is reached. And if resolution is reached, mediation can provide parties with a predictable outcome. Mediation can help to resolve conflict while preserving the relationship between the disputants. For courts, pre-filing mediation can increase administrative efficiency by reducing filings, clearing dockets, and saving time for court staff and judges. In the eviction context, early mediation also provides parties with the opportunity to plan for a transition if the tenant is moving out of the unit, assists in preserving the relationship between the landlord and the tenant if the tenant is to stay in the unit, and allows the tenant to avoid eviction on a tenant’s record, which will preserve the tenant’s ability to look for future housing.
However, courts should also take into account the flaws that court-connected mediation, especially pre-filing court-connected mediation, may have. Legal rights play a diminished role in mediation compared to litigation, and confidentiality in mediation means that the resolution of conflict occurs out of the public eye. Most court cases, on the other hand, are public. The concern raised by Professor Judith Resnik that courts are “turn[ing] into dispute resolution systems largely shielded from public oversight” is greater for pre-filing court-connected mediation programs, in which settlement often means that a court record is not created. Furthermore, if pre-filing mediation is mandated, then the “[mandated] mediation interposes another layer of expense for those parties who want to proceed to litigation but are forced, by court order, to suffer through the process.”
Courts can mitigate most of the concerns raised by prioritizing a central tenet of mediation, self-determination, in the design of pre-filing programs. Pre-filing mediation, which has less judicial oversight than post-filing mediation, needs to prioritize self-determination in its construction. By providing parties with the freedom to choose mediation (or not choose mediation) and the freedom to end the mediation at any time, program designers can reduce the coercion to settle (if any) that parties may experience. Pre-filing mediation programs should ensure that parties understand that they can choose to bypass mediation and access the courts, and that the decision not to mediate or not to settle will not affect the enforcement of their legal rights. Furthermore, the “burden” of going through an initial process before accessing the courts is mitigated if the parties choose to use that process instead of being forced to do so. As such, the decision of whether to mandate pre-filing mediation needs to be well-reasoned. Even though the court’s interest in docket reduction may be legitimate, pre-filing mediation should supplement the court process, not supplant it.
Pre-filing mediation programs limit the public’s ability to access information about those disputes. The public’s interest is in direct tension with the confidential nature of mediation and likely cannot be addressed through a program’s design. Instead, the public’s interest has to be weighed against the benefit of confidentiality to the parties when deciding the types of cases that are allowed to access court-connected pre-filing mediation. For example, courts may be disincentivized to create pre-filing programs for case types that are likely to see disputes with large public entities as parties because the public may be invested in the outcome of these cases or have an interest in the information that arises from discovery. But for other case types, like evictions, the opportunity for parties to resolve their dispute in private may outweigh the public’s interest in being able to access a record of the dispute. With eviction cases, the public has a limited interest in an individual’s eviction case and the confidential nature of pre-filing mediation may offer often self-represented tenants a modicum of dignity as they contend with the loss of shelter by allowing them to avoid an eviction record. Courts should engage in this calculation when deciding the forum in which to pilot or expand pre-filing mediation.
With its many benefits, even if no additional incentive like rental assistance is available, pre-filing mediation should be expanded to give people the option of resolving their dispute with an intervention outside of the court process. However, how that happens should be carefully considered in order to maximize potential benefits and minimize downsides. Courts should prioritize self-determination in designing these programs to ensure that pre-filing mediation is not a gate for the court system but instead a door in the multi-door courthouse.
The role of the court in pre-filing mediation
Parties seek out court services when their dispute is ripe for intervention. Courts are well-positioned to provide pre-filing mediation services because a party may not seek out, or even remember, services exist until they are needed. For New Hampshire’s Eviction Diversion Program, I connected with tenant organizations, property owner/management organizations, and service providers to inform them about the program and obtain referrals. The program rarely received referrals from these organizations even though people expressed interest in the program.
The vast majority of inquiries came from tenants or landlords who had found the program’s information on the Eviction Notice, a required form that had to be provided to tenants before an eviction case could be filed. One caller stated that he had listened to my presentation before but had forgotten about it until he saw the information reiterated on the eviction notice. Because people access courts when they have a dispute that they cannot resolve on their own, courts are well-positioned to offer interventions prior to the involvement of a judge. When a party first seeks intervention, time and resources have not yet been invested into the adversarial court process and the party may not be entrenched in their position. While there may be other avenues by which to advertise a pre-filing mediation program, a relatively low-investment addition to a court form can target and reach a desired audience.
However, if pre-filing mediation already exists outside the court system, courts should be careful not to disrupt the services of community mediation centers or the work of private mediators. Community mediation centers are “an empowerment tool for individuals, as well as communities, as the open process [mediation] allow[s] individuals to take back control over their lives from a governmental institution, i.e., the courts.” They were developed with the belief that resolution of some issues lay “within the community itself, not necessarily the institutional structures designed to address such conflict.” Court-connected ADR, on the other hand, is about court process and establishing a “multi-door courthouse” where cases are triaged and directed to the dispute resolution process that is best suited to the case. As such, the goals of community mediation centers may differ from those of court-connected ADR programs. Similarly, courts should be careful not to disrupt the market of private mediators in a community. Identified barriers to increasing the diversity of the ADR field include the elusiveness of the ADR profession and the limited amount of paid work. Courts should be cautious about displacing paid work with limited compensation work or volunteer work, as it de-legitimizes the profession and reduces diversity within the field.
Courts should instead work within the dispute resolution landscape of their jurisdiction to fill a need. As stated above, parties seek the court’s services when their dispute is ripe. Turning parties away until they file a case and invest time and resources into the adversarial court process seems like a wasted opportunity. Courts can take an active role in pre-suit mediation by referring cases to community mediation centers or by offering free or low-cost mediation for cases where parties cannot afford to pay a private mediator or do not want to pay a private mediator based on the limited monetary value of the dispute.
New Hampshire’s eviction diversion program, for example, filled a need. Community mediation centers are not available in New Hampshire and private mediators rarely (if ever) mediated landlord-tenant disputes. The implementation of the eviction diversion program provided landlords and tenants with the opportunity to mediate, which was previously unavailable. With the continued success of the program, the court is wise to continue offering this service to litigants and potential litigants alike. Similar gaps in service are likely to exist in other jurisdictions and for other case types. Court-connected pre-filing mediation programs can fill those gaps.
Conclusion
Eviction diversion programs enhance housing stability even without the availability of rental assistance. Courts should continue to foster and support the infrastructure that was created during the pandemic to offer services like landlord-tenant mediation. Courts inspired by the success of pre-filing eviction mediation programs to expand pre-filing mediation to other areas may wish to (1) choose case types in which confidentiality for the parties outweighs the public’s interest in a dispute; (2) design the program to ensure self-determination, neutrality, confidentiality, and access to justice for the participants who use it; and (3) work within the dispute resolution landscape and not displace the role of community mediation programs or private mediators. With careful design, court-connected pre-filing mediation can save time and resources for parties and the courts, produce better outcomes, and increase access to justice.
