Research Demonstrates Importance of Holding Tenant-Landlord Mediation Prior to Eviction Litigation

A new study from the Hawai‘i Appleseed Center for Law and Justice, “Eviction Prevention through Hawai‘i’s Tenant-Landlord Mediation Program,” compares tenant outcomes across three tenant-landlord mediation programs in Hawai‘i. The three mediation programs include one that took place during the COVID-19 pandemic and offered mediation prior to eviction litigation; one that took place during the pandemic and offered mediation post-litigation; and one that took place before the pandemic and also offered mediation post-litigation. The study found that the pre-litigation mediation program resulted in higher settlement rates than the post-litigation mediation programs. Pre-litigation mediation also resulted in significantly higher rates of tenants remaining in their homes.

The researchers used administrative data from the Mediation Center of the Pacific (MCOP) to assess outcomes for the three tenant-landlord mediation programs. The primary program serving tenants during the pandemic was instituted as a part of Act 57, a temporary COVID-19-era mediation program intended to serve households that had fallen behind on rent but had not yet accessed rental assistance. The program required landlords to inform tenants about the availability of a mediation program before filing for eviction, and tenants who opted in were entitled to a 1.5-hour long mediation session with a professional. The other two programs were both held post-litigation and used volunteer mediators, with one program occurring before the COVID-19 pandemic and another occurring during the pandemic. The research compared settlement data from 1,653 mediations: 92 that occurred pre-pandemic, 1,378 that occurred as a part of the pre-litigation Act 57 approach, and 183 that occurred as part of a post-litigation approach during the pandemic.  The researchers supplemented these data with additional outcome data from a smaller sample of cases, as well as interview data from interviews with involved mediators, tenants, and legal counsel.

The study found that tenant-landlord mediations held before a landlord filed for eviction were far more successful at reaching a settlement than mediations that were held after a landlord already filed for an eviction. Eighty-seven percent of pre-litigation mediation cases were settled, compared to 52% of post-litigation cases during the pandemic and 47% of pre-pandemic, post-litigation cases. The study also found that Act 57 pre-litigation mediations were significantly more successful in allowing tenants to remain in their homes than post-litigation mediations. Among a sample of settlement agreements provided by MCOP, 85% of pre-litigation mediation cases resulted in a tenant remaining in their apartment. Among tenants that received post-ligation mediation, only 28% of cases during the pandemic and 11% of cases pre-pandemic resulted in a tenant staying in their home.

Interviews with stakeholders provided additional context for why the Act 57 program may have been more successful than other mediation programs. Attorneys emphasized that pre-litigation mediation could help landlords and tenants reach a settlement because both parties may have a more open mindset before litigation begins. For example, landlords have not yet invested time or money in the litigation and may therefore be open to alternatives to eviction. Interviewed mediators also suggested the availability of rental assistance amid COVID-19 was critical in reaching settlements. Among the Act 57 settlement agreements reviewed, two-thirds explicitly said that rental assistance would be used to pay back rent owed. The authors emphasized the importance of rent relief in ensuring housing stability but suggested that the availability of rental assistance may be most effective when combined with other factors, such as holding mediation prior to litigation.

The Act 57 mediation program, which ended in August 2022, resulted in far more favorable outcomes for tenants compared to other mediation programs. The authors attribute the program’s success to the timing of mediation (pre-litigation), the utilization of professional mediators rather than volunteers, the availability of rent relief, and the flexibility of video conferencing. The researchers recommend that pre-litigation mediation be continued, and that this mediation be paired with emergency rent relief in order to achieve the most favorable tenant outcomes.

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