Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.
Welcome back to my series of blog posts showcasing how RSI uses our expertise in dispute system design to improve access to justice in the three foreclosure mediation programs we administer. If you’re wondering how this series came to be, check out my introduction to the series. In my previous entry, I discussed how we at RSI leveraged the data we collected to improve participation in our foreclosure mediation program in the 19th Circuit Court of Lake County, Illinois. By looking at “apples-to-apples” comparison of data among six programs in Illinois, we saw participation went up when judges referred people to the program, and when we only required people to complete a phone screening rather than an in-person information session. The 19th Circuit made these changes, and while it has only been a couple of months since that happened, we are already starting to see more people being able to access the program.
Building off that previous discussion about using data to drive program improvements, my focus in this entry is a different tool in the program administration toolbox: thoughtful, dynamic triage. In our early conversations about ADR and ATJ, Richard Zorza encouraged me to explore the question of triage, which he framed by asking “[h]ow do we develop legitimate and accurate protocols to decide where and how ADR fits into the dispute resolution process? There will be types of cases in which it is appropriate for all cases, others for none, and others for some. Developing those rules, testing them, and figuring out how to collect the data and apply them as early as possible in the process is critical.” He reiterated the importance of testing the rules a court system develops for determining which cases are ripe for ADR by speaking of “dynamic triage.” He suggested that “[t]riage need not be to a single in-out decision. Circumstances may change, so triage needs to be dynamic, with the decision under regular and perhaps constant review.”
RSI’s 17th Judicial Circuit Foreclosure Mediation Program, serving Winnebago and Boone counties and based in Rockford, Illinois, provides a wonderful example of dynamic triage in action. Since the program’s inception, homeowners facing foreclosure have been able to go online to enter information about their case and apply to enter the mediation program. Housing counselors from HomeStart, a local HUD-approved agency and program partner, step in to assist homeowners who stop before they finish filling out their application.Program Coordinator Kristen Sanchez explains that “the website is one of the best parts of our program. Counselors can monitor where homeowners are in the process and help them right where they get stuck.”
Once the housing counselors receive the information, they evaluate whether a homeowner is likely to qualify for a loan modification. Those who do not qualify still receive housing counseling services, but they do not enter the mediation program. The thinking behind this sorting rule was to use limited mediation resources efficiently by targeting those cases that were most likely to reach an agreement where people kept their homes. And it worked! In the first year and a half of the program’s life, 61% of those cases that have gone to mediation have ended with the homeowners keeping their houses. This is significantly higher than any other program in Illinois.
Of course, having a dynamic triage process, where sorting rules are evaluated and reconsidered on an ongoing basis, means that court programs can evolve in response to new understandings of when certain services are appropriate. In the Rockford-based program, RSI and the court recognized that there are benefits to holding mediation sessions even when a homeowner will not qualify for a loan modification. For example, even when homeowners do not get the outcome they hoped for in mediation, Kristen says that they still feel like mediation allows them to “get a fair shake at trying to save their home. They also understand what their options are and, more importantly, why certain things are happening. They have an opportunity to be heard.”
It is this sense of procedural justice where mediation’s value lies for homeowners who ultimately end up moving out of their homes. In the 17th Circuit, more than 90% of those who didn’t reach agreement to keep their home reported being satisfied with the mediation process and described it as fair. This pattern is seen in foreclosure mediation programs across Illinois. Other programs have also showed that for those people facing foreclosure who want to relinquish their homes, mediation can help them to explore different relinquishment options and reach agreements that allow them to avoid a foreclosure even if they do not wind up staying in their homes. These agreements can bring closure and peace of mind to parties as well and avoid the costly consequences of foreclosure for both parties and communities.
Based on these findings, RSI and the court have been working on recommendations changing the triage model to one in which homeowners without a high likelihood of receiving a loan modification nonetheless have the opportunity to go through mediation to enjoy its procedural justice benefits.
Keep an eye out for the final installment in this series, where we’ll take a look at the importance of bringing together housing counselors and legal service providers to promote access to justice.
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