Eviction Diversion: Preventing Eviction Before Going to Court
Since November 2020, more than 8,000 Chicagoans have received support for evictions and related issues through a hotline. Another 1,000 people have received legal services or mediation as they face an eviction case in court, part of Cook County’s Legal Aid for Housing and Debt Initiative. This new eviction diversion initiative seeks to keep people housed by finding solutions to disputes between renters and landlords and avoiding court-mandated evictions during the pandemic.
“People can call to get connected to legal advice and mediation before anything happens, so they don’t even have to be in court to figure out issues related to eviction,” said Bob Glaves, executive director of The Chicago Bar Foundation, one of the organizations involved in the program. “Then, in court, every case starts with a special case management call…They can connect them to legal aid right away there and even set up a mediation if people want to do that right then.”
More than 16 months into the pandemic, millions of renters across the country still fear of losing their homes and experiencing homelessness. In August, the U.S. Census Bureau Pulse Survey found that more than 14 million adult renters in the United States have either no confidence or slight confidence of being able to pay rent next month.
A wide range of eviction moratoria and emergency social safety net benefits initially slowed the impact of evictions among tenants who lost income and employment during the pandemic. The longest federal protection, the CDC eviction moratorium, expired on July 31. The CDC instated the modified eviction moratorium a few days later, but the new order was struck down by the Supreme Court on August 26, 2021. With federal eviction prevention measures removed and cash benefits like expanded unemployment ending, local and state eviction diversion programs could be key to address a national crisis.
Eviction diversion programs vary in shape and scope, but Deanna Pantín Parrish, Clinical Instructor and Lecturer on Law at Harvard Law School, said that they most commonly aim to prevent evictions through a mix of legal representation, rent assistance, and mediation between landlords and tenants, among offering other resources and services. Parrish was the lead author of a study that analyzed several of these programs and the positive effect they can have.
Unlike in criminal cases, in housing court the U.S. government does not guarantee legal representation. In 2021, Washington became the first U.S. state to legislate a right to counsel in eviction court, followed by Maryland and Connecticut. Nationwide, only 3% of tenants have an attorney, while 81% of landlords do, according to the National Coalition for the Civil Right to Counsel.
Eviction diversion provides tools—like legal aid, mediation or other resources— that can address the problem at the center of the dispute, paying the rent and securing housing for a family while avoiding the nuclear option: an eviction.
“Investment in eviction diversion is urgent,” Parrish said. “The biggest thing that our research shows is that it’s doable, that there’s support for eviction diversion across stakeholder groups, and that there are best practices from both formal programs that are currently operational, as well as informal, coordinated efforts for eviction prevention across the country.”
The federal efforts to help tenants in need have focused so far on providing money for renters to catch up with landlords. Congress has approved $46 billion in rent assistance, and states and local governments have been in charge of the distribution of these funds.
Although this process has been speeding up, advocates and tenants have complained about the paperwork, an approval process that can last months, and that landlords are skeptical of participating in diversion or assistance programs, as several media outlets have reported. Parrish explained that rental assistance is an “essential” part of these programs, but an eviction diversion approach allows local governments and nonprofits to go beyond just distributing money.
“Many interviewees and stakeholders reported that without that additional rental or cash assistance tenants have little leverage in negotiations with landlords. But as our research showed, rental assistance is addressing one part of the problem and isn’t taking a holistic view on the eviction crisis,” Parrish said. “Things like supportive services, self-help resources, mediation, and legal representation provide a more robust and well-rounded intervention to the intersectional crisis that eviction presents.”
In a White House summit on how to address a potential eviction crisis on June 30, Eviction Lab’s founder Matthew Desmond described the components of a successful diversion program as “the three A’s”: access to a legal counsel or a non-lawyer advocate; assistance, understood as rental assistance or other support services; and an alternative to court, including mediation before filing a case, alternative dispute resolution or a settlement.
“Third party independent evaluations of eviction diversion programs all across the country show real returns on investment. These are cost effective, incredibly efficient programs,” Desmond said. “For example, in Durham, North Carolina, over 70% of families that participated in the diversion program remained in their home. This is the opposite of what happens in conventional eviction courts, where most families that show up to court receive an eviction judgment.”
In Chicago, tenants and landlords can receive help through the program’s hotline and its website. If they reach the point of an eviction filing, they can also find alternatives there: every case starts with a call where case managers of the Center for Conflict Resolution—a local organization that was already working in mediation services before the pandemic—assess the situation, provide referrals to legal and mediation services for those who are unrepresented, and connect them to rental assistance and other information as appropriate.
“What this program has done is sort of a harness and bring together the resources that we’ve historically had for landlords and tenants throughout all of Cook County, all in one place,” said Rae Kyritsi, programs director at the Center for Conflict Resolution. “[The program] really has streamlined the resources that we have, making them hopefully more accessible and also just sort of making better use of the limited resources that everyone has to be serving people who are facing eviction.”
Even if the parties do not want to participate in a mediation, they are pointed towards the other services, like legal aid services and rental assistance.
“Most landlords just want to get paid and most tenants just want to pay the rent,” Glaves said. “We are trying to help make that happen. You don’t necessarily need a lawyer for that piece.”
Another program that experts highlight is the one created in Philadelphia. While in Cook County’s program mediation services are optional, in Philadelphia landlords are required by law to seek mediation before filing in court for a nonpayment of rent eviction. The program assigns a housing counselor to the tenant, who informs them of rights and resources, rental assistance, and helps negotiate possible agreements. The housing counselor also attends the mediation session with the trained mediator to support the tenant in the mediation process. In cases where no solution is reached, the Diversion Program refers the tenant to legal services for advice and possible representation in court, depending on capacity.
“In our greater scheme of housing policy, we often focus on enforcement mechanisms while we lack the resources to create incentives,” Vincent Reina, an associate professor in the department of city and regional planning at the University of Pennsylvania, told Bloomberg CityLab in an article about Philadelphia’s program. What happens in court can also be a moment to offer services and protections. “If localities want to be proactive in protecting households from eviction, they can connect enforcement around evictions to those resources.”
Late in 2020, an early analysis showed that 86% of cases in Philadelphia have either reached an agreement or started a mediation process, according to a local NPR station in the city.
But, according to Parrish, eviction diversion programs are not only favorable to tenants.
“Of the property owners we surveyed, 80% had an increase in later delinquent payments in the last 12 months,” Parrish said. “If any eviction diversion program is tied to rental assistance or something that will allow property owners—and especially small mom-and-pop property owners—to be made whole, there’s an understandable level of buy-in from them for these kinds of interventions.”
According to experts, some of the key elements for the success of these programs are:
Regardless of the case outcome, an eviction case filing can damage a tenant’s credit and rental history, making it more difficult to find housing in the future. Additionally, in court the discussion can become more heated and it is less likely to end in favorable terms for both parties.
“The earlier we can intervene in the eviction process, the better. Only cases that need to be in court should be in court,” Parrish said. “If we can address these issues prior to a filing the better likelihood that we have of maintaining and meeting the goal of housing stability.”
Eviction diversion programs will face a test now that the CDC eviction moratorium has ended, but advocates and organizers hope that they will be able to contribute to speed up aid distribution and promote solutions before court.
“We have no idea what things will look like when the moratorium lifts, the impact it will have on filing and how we make sure that people get access to the services,” Kyritsi said. “But over the past six months we have been able to develop clearer referral processes and communication. And I think that will help increase the quality of the service that we’re able to provide to folks when they get referred into the program.”
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