Mediation and Settlement in Eviction Cases: Resolving the Dispute Without a Trial

Mediation can often be a very good choice for landlords and tenants who have a dispute. And it can happen even at the time the trial is scheduled for.  In mediation, both sides meet with a neutral person who is specially trained to help people resolve their disputes. In mediation, everyone works together to reach an agreement, instead of having the judge or jury make a decision.  If the parties fail to reach an agreement, they can still go to court for a judge or jury to decide their case. If they reach an agreement, they can write up a settlement and will not need to have a trial.

Many landlord-tenant disagreements can be due to misunderstandings. There may be disagreement over a rent increase, responsibility for repairs, or return of a security deposit. Some of these disagreements can be solved by talking them out.

Mediation is also a valuable resource in eviction cases.  It can save the landlord AND the tenant time and money, help the parties agree if and when the tenant will move out or pay the landlord money, facilitate agreements to make repairs to the property, and protect the tenant from getting an eviction judgment on his or her record.

The landlord and tenant can:

  • Try to work out an agreement on their own, or
  • Ask a neutral person (mediator) to help them.

A mediator helps the landlord and tenant to come to a mutually agreeable solution. The process is less hostile than going to court.  The mediator will not force you to reach an agreement.  Whether you decide to resolve your dispute, and how you resolve it, is up to you.  If you cannot settle, you can still go to court to have  judge or jury decide.

There is nothing to lose by trying mediation, and there is a lot to gain.

Watch the video below on Resolving Your Unlawful Detainer (Eviction) Case (also available in Spanish, Russian and Vietnamese) with the help of a mediator.

There are a lot of reasons why it is a good idea to mediate your dispute, whether you are the landlord or the tenant.

  • Unlawful detainer trials are difficult to do without a lawyer. You need to know the law AND follow the rules of evidence. In mediation, you are not limited by the rules of evidence and other strict legal requirements. Also, mediation allows you to talk about other issues that may not be directly related to the law but are very important to you and how you feel about the dispute.
  • Both sides must agree on the outcome in mediation, and it is typically more satisfactory to all parties involved. These agreements are often more likely to be followed than a court order that is imposed by a judge.
  • If the landlord and tenant settle the unlawful detainer case through mediation with a written settlement agreement, and they agree that the case will not be reported to credit reporting agencies, it will not appear on the tenant’s credit report, even if the tenant agrees to move out or pay the landlord money. But if the agreement says that the eviction can be reported on the tenant’s credit report, then it may appear.

The parties may settle eviction disputes in many different ways, depending on what is important to them. For example, they may agree that:

  • The tenant may continue to live in the property but pay for costs related to late payment of rent;
  • The tenant will move out of the property on an agreed date and leave the property in good condition;
  • The tenant will make back rent payments to the landlord/owner;
  • The landlord will make repairs to the property;
  • A judgment will not be entered against the tenant if he or she complies with the agreement; or
  • The unlawful detainer case will not appear on the tenant’s credit report.

Preparing for mediation is a lot like preparing for your trial.  It is important to identify and organize the facts that are relevant to your dispute and understand the law that applies to your case.  And you should make sure you know about the facts that support the other side, not just those that support you.

If you are going to mediation before or instead of trial, there are some other things you should do to prepare.

  • Be realistic about how the judge will decide your case if you have to go to court. If possible, talk with a lawyer who can give you advice about how a judge would decide.
  • Think about whether you or the other party has angry or hurt feelings, and why.
  • Consider what you and the other party would really like to accomplish through the case.
  • Think about whether something beside, or in addition to, staying in or moving out of the property might help to satisfy you or the other party.
  • Decide what conditions you would be willing to accept to avoid going to a trial, to avoid the possibility of losing, or to avoid the possibility of delays and not collecting any owed money if you win.

At the mediation meeting be sure to present your side of the dispute clearly and listen carefully to the other side’s point of view.  Have your suggestions for settlement prepared, but also listen to the other side’s proposal and be open to other ideas.  Remember that for mediation to work there must be a give and take. There are 2 sides to every story, and although you may feel like you are 100 percent right, you may learn things from the other side during the mediation that make you realize that the blame is not entirely theirs.

If your mediation is successful and you are able to reach an agreement, you will be much more satisfied with the process. You will find that you are less frustrated about what happened, and more empowered, because you were able to resolve your dispute to your satisfaction without needing to have a judge decide what is best for you.

Sometimes, the tenant agrees to move out and just needs more time to find housing. Or the tenant is willing to make the changes the landlord asked for and the landlord is also willing to do what the tenant asks.

If the landlord has not filed an unlawful detainer case yet, then both can write up the agreement clearly and make sure everyone understands what to do.

If the landlord has already filed a lawsuit, the landlord and tenant should write up an agreement, called a "stipulation," to file with the court.

You can write up your own agreement, or you can use the Stipulation for Entry of Judgment-Unlawful Detainer (Form UD-115). This form tells the court the exact terms of the agreement.

Make sure the agreement or stipulation says:

  • What each side is promising to do (like pay the back rent, fix something that is broken, or move out);
  • By what date each side has to do his or her part of the agreement;
  • By what date the landlord will dismiss the case if the tenant follows the agreement;
  • That if the tenant does not do what he or she agreed to do, the landlord can get an eviction order from the judge right away; and
  • What the tenant can do if the landlord breaks the agreement.

In mediation, a landlord may also agree to dismiss the case if the tenant does everything he or she has agreed to do. This can happen after there is a Stipulation and Order filed and both sides did everything they were supposed to, or before any type of agreement or court order is filed with the court. Click to find out how to dismiss an eviction case.

There will be a trial and the judge will make the decision. The court order will always say whether the landlord gets the property back or if the tenant gets to stay.

It can also include an order for back rent, lawyer and court costs. In some cases, the order may include what are called  "statutory damages" which can go up to $600 if the judge finds that the tenant purposely stayed in the property after the notice of eviction in order to hurt the landlord.

Find a Mediator

Many counties have nonprofit dispute resolution programs that provide free or low-cost mediation before or after a lawsuit is filed. To find a program near you, ask your court for a list of mediation programs in your area. Some courts offer free or low-cost mediation either before the trial or on the day of the trial. Private mediators are available in many communities, and they often advertise in the Yellow Pages or legal newspapers, or on the Internet. Their backgrounds and fees vary considerably, so be sure to ask!