“The Law Is an Ass.”
That was the outrageously amusing comment of Mr. Bumble, a Charles Dicken’s character in his novel Oliver Twist. But if Mr. Bumble had stumbled into Cleveland’s Housing Court as a landlord or tenant, he might have reached a more positive conclusion: “This Court isn’t just a decider! It has a range of ASSETS to help advance dispute resolution!”
At Cleveland’s Housing Court, thanks to the efforts of former Judge Raymond L. Pianka, and our current Judge Ronald J. H. O’Leary, more than 80% of cases routed through dispute resolution do in fact settle. This is remarkable given that the Court operates in one of the most contentious legal environments in the State of Ohio. Eviction may be an interaction between individuals with wealth and individuals with limited income; in other cases it is a dispute between two financially-distressed parties, each with a great deal at stake. The abrupt loss of possession on the part of a tenant can be emotionally and physically distressing. The loss of rent conferred to a landlord can have its own negative consequence, particularly for landlords with only one or two rental units.
So why do so many cases settle?
Settlement can be a useful alternative. Going to trial regarding possession and money may not be the most practical resolution. Compliance with statutory notice requirements and the principles of equity and law can impact the outcome of a case. The tenant’s consequences emerging from a Court-dictated decision can also be problematic. An eviction judgment can impose an abrupt departure for the tenant and the existence of the eviction as a public record may affect credit status and future rental opportunities.
A settlement, on the other hand, commonly crafted as an Agreed Judgment Entry, can be a better resolution. Rather than simply going to trial, the parties can agree that the tenant will depart by a specified date. They can also agree that money will be paid on an incremental basis prior to departure. Such an agreement creates a certainty of outcome for the landlord and affords the tenant a “graceful exit.” In some instances, entries are crafted by mutual agreement that permit restoration of the tenancy rather than a departure, predicated upon a series of payments, past and future rent, going forward.
Vigilance in monitoring a settlement agreement is a major asset. Dispute resolution specialists have the authority to set up a series of status hearings after the crafting of an agreement. If the payments are made and if the tenant departs as agreed, the status hearings will not trigger a judgment. But if there is a default on the part of the tenant along the way, the status hearing will generate possession and money judgments. From the landlord’s perspective, the agreement will assure a certain outcome of the possession issue. Independent money lawsuits are also managed by the Court utilizing incremental terms of payment and status hearings.
Multiple status hearings
Multiple status hearings, as opposed to a single trial, may be characterized as a burdensome time resource for a court, but that is simply not the case. The Housing Court’s experience is that the vast majority of status hearings are brief, the parties not having to return to the Court so long as compliance with the terms of the settlement has been achieved. A status hearing is distinguishable from a trial. The latter may take a significant amount of time but a status hearing is brief, limited to very specific objective standards of performance set forth in the Agreed Judgment Entry.
Judge Ronald J. H. O’Leary has provided additional Court assets to help to advance settlement.
The number of dispute resolution specialists has expanded. Their actions are essential in providing linkage between the goals of the parties and the assets of the Court. They provide services such as educating parties and counsel as to the availability of status hearings, arranging the status hearings, and drafting the Agreed Judgment Entries setting forth well- defined objective performance standards to be monitored by the Court.
Time is an asset as well.
The dispute resolution specialists frequently review the pleadings of cases before conferences take place. This affords them the opportunity to craft proposed Agreed Judgement Entries that are then made available for consideration by parties and counsel and which, of course, can be embraced, modified, or rejected by the parties, but which, in any event, will help to enhance settlement discussion. The specialists are also permitted to arrange a second or third settlement conference. This can be useful for a variety of reasons. Continuing evidence discovery after a first conference can bring greater clarification as to the prospects for settlement. And on a number of occasions, parties simply need time to reconsider what they’ve heard and what they’ve witnessed and what they’ve reviewed as a sample Agreed Judgment Entry. If there is an impasse following one or more conferences, a dispute resolution specialist can email or mail additional alternative resolutions for consideration by the parties. Settlement discussion need not be a single moment in time.
Another asset is the Cleveland’s Housing Court’s Social Service Referral Program.
Tenants who are aged, or are veterans, or who have a mental health diagnosis, can obtain assistance from a referral specialist who can help to ease the consequences of an eviction. Behavior issues such as a Hoarding Disorder can sometimes be the basis for an eviction. But an agreement can be achieved preserving a lease, predicated upon the tenant agreeing to utilize the resources of available agencies to help resolve the tenant’s behavioral problems—the Court, as always, remaining vigilant to monitor the commitment on the part of the tenant.
Judge O’Leary has recently introduced an additional asset. Many landlords, in assessing a potential tenant, examine whether an eviction case has been filed against the tenant at any time, irrespective of the outcome. This means that as a practical matter, the simple filing of an eviction— which becomes a matter of public record—can be a kind of “scarlet letter” for a tenant. Even if a tenant wins the eviction case, or the case is dismissed, or the landlord is later made whole, the damage is already done.
To combat this problem, the Cleveland Housing Court now allows parties to file motions to seal eviction records. Generally, a tenant’s record can only be sealed where: 1) the Court dismissed a claim or entered judgment in favor of the tenant, 2) the landlord dismissed the claim for possession, or 3) the landlord agreed to a sealing of the record. In all cases, the Court requires the tenant’s motion to seal to be served upon the landlord who obtained the judgment so that the landlord has an opportunity to respond.
There is one additional scenario where a tenant’s record may be sealed. If a landlord prevailed on the merits of the claim for possession—but there were extenuating circumstances that led to the eviction such as medical issues and/or loss of employment, a tenant may have the opportunity to seek a sealing of the record. But in such an instance, the Court will only consider the motion where at least five years have elapsed without an additional eviction judgment having been rendered against the tenant.
The option of the sealing of a record has become a valuable asset the dispute resolution specialists can utilize within the settlement process to the advantage of both the landlord and the tenant. A landlord can agree to endorse a sealing of the record, but with the sealing of the record predicated upon the tenant complying with possession and money commitments set forth in the settlement agreement.
Some assets invoked by the Cleveland Housing Court may be characterized as unique or specialized, given the context of the Court. However, that should not preclude other courts from examining the standardized needs of parties that appear before them. Other assets are useful for all courts. Courts can have the flexibility, with the assistance of a dispute resolution specialist, to include settlement elements beyond the pleadings themselves. Examples include apologies, agreements to avoid future contact, and a full resolution of all claims. A settlement can be privatized with confidentiality requirements, the court retaining jurisdiction to monitor the settlement.
Charles Dickens wrote another novel, A Tale of Two Cities, in which he observed “it was the best of times,” and “the worst of times.” Had he found his way to Cleveland’s Housing Court, he likely would have reaffirmed that position, calling it A Tale of Two Litigants, somebody winning and somebody losing. But thanks to the assets generated by Judges Pianka and O’Leary, dispute resolution can be an alternative good time to the benefit of both Plaintiff and Defendant. In the words of B. B. King, let’s expand dispute resolution so that we can “let the good times roll!”
C. David Witt is an ADR Specialist with the Cleveland Housing Court and an adjunct professor at Case Western Reserve University. He has been a CMBA member since 2014. He can be reached at (216) 664-6105 or firstname.lastname@example.org.