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Summer 1997
Autumn 1997

Court Vs Mediation
Making Mediation Work For You
By Terry Flora

If mediation hasn't come to your area already, it will soon. Like anything new, mediation can take on attributes that range from confusing, to irritating, to down right frightening. If you want to be successful when mediating it will take some advance planning and experience.

The main purpose of introducing mediation to the Small Claims and FED process is to free up the court system. If the parties can reach an agreement without a hearing, the judges calendar is cleared of one more case.

Mediation involves the owner or property manager, the tenant, and a mediator. Mediators are neutral and are trained to help the two parties communicate, identify areas of agreement and finally to write down the agreement you make. This agreement is called a Mediation Agreement and Stipulated Order, and when signed by a judge becomes enforceable by the court.

Here are some suggestions for a successful mediation:
1. Arrive on time. Just like any other court date - if you don't show up, or sometimes even if you're just late - you will lose. Even if you know the tenant has moved out - you can get a judgment for the court fees, however you must show up to do it.
2. Be prepared. Bring the whole tenant file. Included in the file should be: the rental agreement, file notes (problems, complaints, etc...) correspondence, and any notices you've served to the tenant. I usually write a short outline listing what led to the court action. This can be referred to, if necessary, during mediation.
3. Think and consider. Decide what the tenant owes and why. Think about what you're willing to settle for. You need to weigh your cost, time and just plain aggravation. If you're on a crusade to make the tenant "pay", or "teach him a lesson", it will be difficult, if not impossible, to find a compromise. Note - It can still be very beneficial to you to mediate even if you know that there is no way that you can settle. You will learn valuable information and get experience in the process - for next time.
4. Be courteous. Professional behavior isn't an option, it should be the only choice. Insults and angry words will handicap the process. Ignore the tenant's threats, insults and bad behavior. *If you are the plaintiff, you speak first. This begins the most important part of mediation strategy. In my experience the two best strategies are the "Pregnant Pause" and "He who blinks first - loses". The goal is to discover the strengths and weaknesses of the tenant's defense. This is very important if you don't come to an agreement and end up before a judge. Read on to see how to use these strategies.
5. State your case. Simply. Something like, "rent was due on the 1st, not paid by the 8th, I served a 72 hour notice for non-payment. Rent still wasn't paid on the 12th, so I filed an FED". Pause. Look at the tenant and the mediator. Don't say anything. The best look is rather perplexed, or confused. You expect rent, you gave notice, you're ready to understand what happened. Most people are very uncomfortable with a pregnant pause. They expect you to explain, keep talking, or to try to convince. Usually the mediator will attempt to get you to talk more - don't help. Just restate the facts if you must - and stop. The "He who blinks" strategy works in a similar manner. State the facts, "he owes $600 rent, $75 late fee, and court costs of $75." Stop. Now you really don't expect to get all that. Some money would be nice, all of it would be wonderful, but mostly you just want him out so you can cut your losses. But, just state it anyway and don't "blink". The tenant will usually want to appear as reasonable and responsible as possible and will jump in and say that of course he is going to pay the rent. Be gracious, and thank him. You could even be really generous and kind and offer to waive the late fees. The court costs haven't yet been addressed, assume the tenant is going to pay them. Wait until the agreement is being written and remind the mediator to add them to the agreement. Adding the court costs at the end makes them a separate issue. The tenant just wants to leave and he usually will agree to pay them just to be done.
6. Listen to the tenant. Don't interrupt or defend yourself. This is sometimes when you hear shocking "facts" about you or your rental property. Don't be embarrassed or get mad. This isn't a popularity contest - it's a business. Take notes. Try to see the humor or irony in the situation. Most of all pay attention. Listen for things that will benefit you during negotiations. You might hear that the tenant is willing to move out by the weekend, or that he has $400 right now - in his pocket. Get it now!!!
7. Negotiate. Today is the 15th and the tenant says he can't be out until the end of the month. He has a different house, but he's just too busy to move out and clean now. You reply that you understand how difficult it is to move. You know how it feels to be in financial difficulty - but you can only give him until the 20th.
8. Write the agreement. The mediator will repeat what you've both said, then write it down. You all sign it, and then the judge will sign it.
9. Follow-up with a Notice of Non-Compliance to the Court if necessary. If the tenant doesn't comply with the agreement file the form at the court house. Proceed with the next step.

Elements of a good agreement

1. Specific move out date.
2. Agreement to pay the rent and other money due on a specific date, or a payment plan to pay the amount due.
3. Agreement that tenant will pay court costs.
4. Agreement that tenant cleans the unit and does no damage upon move out.

President's Message
By Norton Cabell

My most recent eviction was preceded by a period of angst. After several lease violations-including having the front door kicked in and a kitten that was just "visiting"-and several in-your-face confrontations, I'd given her a notice. Her response was, "I'm not leaving. See you in court." I don't go to court often enough that the prospect didn't occupy my thoughts quite a bit. Would she claim discrimination? Retaliation? Over several evenings I tried to explain to my wife Holly what I would do in the event that...

Holly shut that off. "Don't get so emotionally involved," she said. "It's just a business." She was right, of course. Landlording is a business. That means not only marketing, ORS this-and-that, tax returns, and maintenance schedules-but also a point of view. A professional point of view.

Being a professional includes many things. But one essential element is dispassion, which one of my dictionaries defines as "freedom from emotion." Only with dispassion can you make decisions that are right for your business.

Where I had been thinking, I'll get this tenant, I'd been wrong. I'm a landlord. I make a living by providing housing for people. It's that simple.

This issue of the Oregon Rental Housing News focuses on extra-judicial tools for resolving differences between landlords and tenants. In order for these tools to work for you, you need to be able to divorce your emotions, your feelings, from your relationship with your tenant. You're simply looking for a tenant who will pay rent, care for the property, be a good neighbor, and be rule- and law-abiding. If that can be this tenant, great. If not, you'll find another. That's a more productive approach than "I'll get that no-good, lying, little..."

My tenant, naturally, didn't see me in court. She meekly moved out the day after the sheriff served her with papers. My wife had helped me save a whole bunch of psychic energy.

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Around The State
Klamath Rental Housing Association

A survey of members attending KRHA's November meeting revealed a BIG change in vacancy rate over previous years. KRHA had been reporting a vacancy rate of 1 to 2% for years... however, figures gleaned at the November meeting indicated the current rate to be in excess of 10%. Ex-treasurer Dave Reed investigated reasons for the change with County employees. He was told that over the past four (4) years over 2400 units had been added to housing stock in the county..... this included single family and multiple units as well as manufactured housing. The majority of new permits had been issued for manufactured housing.

At the same time it was noted that the population of the county had remained static. It seems as if some home owners were building and moving into larger homes, while many former renters had been taking advantage of deals being offered by sellers of manufactured housing. This latter trend may or may not continue, as an increase in defaults and bankruptcies has been observed in the area of manufactured housing.

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Treasure Valley Rental Association
Greetings from TVRA, located in the Capitol of Eastern Oregon (Ontario).

Our membership keeps growing with 90 members at the end of 1997. We offered the new membership book to everyone who paid their dues before January 1, 1998. The response was very good and our members expressed surprise on how nice the book is. Good job ORHA!

TVRA is getting well known in the community, not only do the courts refer landlords to us for information and problem solving but the police department has landlords calling us too. We are proud to be associated with ORHA and appreciate all the help with seminars, forms, advice, update on laws and of course the convention. The vacancy factor has gone from zero percent to an alarming 25 percent in the past six months. We hope it will improve soon.

We meet the fourth Tuesday of every month and President, Rick Hutchinson has had some outstanding programs for our meetings. All the Officers and Board Members have done an exceptional job this year of managing our organization with a special thank you to our Treasurer, Nadine Gosmeyer, who has gone above and beyond the call of duty.

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Then and Now
The Evolution of Mediation
by Lynn Partin

Back in the olden days, meaning when I was a trial lawyer in the '80's, our job as litigators was in large part to rattle our trial preparation sabers so loudly that our opponents, in dread fear of us, would settle on the courthouse steps. Such settlements were, in fact, the rule rather than the exception even then, with well over 90 % of cases settling without a trial. Still, the vast bulk of effort went into preparation for litigation, not settlement, with a litigator being prized primarily for his or her trial rather than negotiating skills. After all, some lawyers "do trial work" and others "do deals." The British, for instance have always made a formal distinction between these roles: a solicitor advises clients on legal matters, draws up legal documents, and otherwise greases the wheels of commerce, while a barrister is a litigator pure and simple. Except for contingency cases, all of this adversarial machinery was paid for in the United States on a by-the-hour basis. Eventually it began to dawn on Lawyers and, not surprisingly, paying clients that there had to be a better way.

Thus was the trend in the '90's born toward "ADR" alternative dispute resolution, or, as some would prefer, appropriate dispute resolution. A number of different variations on this theme exist, including but not limited to arbitration, in which the parties select someone to "adjudicate" their issues in a less formal setting than court, and mediation, during which the parties reach their own agreement with the help of an impartial mediator who facilitates their discussion. The primary thread connecting all ADR processes is an emphasis on the parties having control over their own proceedings and the outcomes of those proceedings. Parties who have had a hand in negotiating their own mediated settlements have a higher rate of follow-through on those agreements than parties dictated to by the court, despite the greater power of the latter to enforce its agreement. In many counties now, litigants are required to submit to mediation efforts before proceeding with their cases in court. Mediation can be especially effective when the parties have an underlying relationship that is still going to need to be there after this case is over, for instance where parents may be getting divorced, but will still have to cooperate in child-rearing, or in non-eviction landlord/ tenant cases.

Before reaching the point of facing court-mandated mediation in a landlord-tenant context, the Manufactured Dwelling Park Ombudsman at the Oregon Housing and Community Services Department (OHCSD) can help. The program provides assistance to 1,358 manufactured dwelling parks with 62,000 spaces around the state. Though a joint effort between OHCSD and the Oregon Dispute Resolution Commission, community-based dispute resolution services are provided to park residents and landlords in Clackamas, Douglas, Jackson, Lane and Marion Counties in addition to the direct Salem-centered services available to park landlords and residents throughout the state. In 1997, for instance, the community-based programs served 2,151 individuals in addition to the 2,984 served from Salem. Interested parties may reach the Ombudsman Program at (503) 986-2017 or (800) 453-5511 to speak to Dave Sheelar, the Ombudsman, or Debra Clark or Ann Brown, staff.

Lynn Partin is currently inactive (but in good standing!) with the Oregon State Bar. She mediated landlord-tenant disputes as the Mobile Home Park Ombudsman for a part of her more than seven years with the Oregon Housing and Community Services Department. She is now a candidate in the Democratic primary in House District 14 in Portland for the Oregon State Legislature.

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THE ART OF MEDIATION IN THE F.E.D. PROCESS
As Seen Through The Eyes Of A Multnomah County Participant
By Sharon Fleming-Barrett

The average case load in F.E.D. (eviction) court in Multnomah Co. is forty cases per day. Evictions are heard five days per week, 52 weeks of the year (holidays excepted, of course). Because of the amount of cases, the court system itself proposed a mediation program. However, they involved the landlord organizations at the very beginning in order to garner support for the idea. The Oregon Apartment Association (OAA), the Portland metropolitan area chapter of Oregon Rental Housing Association, was one of the organizations invited to participate in the planning of the mediation program.

Because the court docket was so crowded and the costs of going through the process were surely going to increase to support the number of cases, OAA was a willing participant in the planning of mediation. After all, the person who initially pays for the filing fees, service fees, trial fees and all other related costs is the landlord. OAA felt that if there was a way to slow the spending of costs by landlords it was a worthy endeavour. They were right! OAA went to the bargaining table with very few demands on the proposal:
(1) make mediation available at the first appearance so that the process is not slowed down and
(2) make mediation FREE. Both of these items were necessary in order to encourage people to participate.

The initial concept was for the judge to send plaintiffs and defendants into the hall to attempt to settle the case themselves (as was already the policy). If they failed to reach an agreement, rather than set the case for trial the mediator would meet with the parties right then and there. Any mediated agreement would be entered as a Stipulated Judgment by the Judge so that it would be enforceable through the balance of the eviction process.

The person charged with the responsibility of making the program work not only had to solicit volunteers for the mediator positions, but also had to design a training program in both mediation skills and landlord/tenant law that would be brief enough to be palatable but in depth enough to give necessary information in order to resolve cases.

Fortunately, she turned to Michael Marcus of Legal Aide and the landlord organizations for assistance in the landlord/tenant portion of the training. A comprehensive program was completed and taped for future classes of mediators to use.

Has the mediation program been successful? You be the judge. Before mediation there were approximately 40 cases per day in F.E.D. court. Of the 40 cases, approximately 20 cases both sides appeared (both landlord and tenant). Of these 20 cases about 12 did not reach resolution and were set for trial.

Since mediation, the same approximate number of cases with an even higher number of cases with both sides appearing. However, there are rarely more than three or four cases per day set for trial. The mediation program is making a difference!
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Seaside '98
Convention At The Coast
June 18-21

Mark your calendar for the 1998 Oregon Rental Housing Association convention which will be held in Seaside June 18-21. Hosted by the Clatsop County Rental Owners Association convention headquarters will be at the Seaside Civic and Convention Center. An array of workshops are planned including one by a representative of the IRS, everyone's favorite government agency. The Comfort Inn, a block away from the Center, has been reserved for your stay.

There's much to do and see in Seaside and the surrounding area, so bring the family for an enjoyable and educational weekend. Reservation information will be coming out in March but for more information call Dick or Margene Ridout at 503-738-8078.

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ORHA'S NEW 1997 LAWBOOK
It's bigger... and better...and essential.

The new lawbook has more than ten times as much explanatory material. In layman's language, the new Lawbook explains what the law means and how to comply with it.

Call your local Rental Owners Association.

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Management Tip
Carpet Care
By Susan Strawn

Why? To extend the life of your carpet:

1. Good door mats outside and inside every entrance reduces carpet damage and soiling;
2. Use soil retardant after cleaning carpet, especially in traffic areas;
3. Provide the tenant with a spot removal chart when the tenant moves in (contact Don Aslett). Emphasize to the tenant to call you to help remove stains.
4. Have carpets shampooed at least yearly in high traffic areas. On the rental agreement under service charge, list cleaning of the carpet.

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Around The Capitol
A Matter Of Control
By Shawn Miller

The war is waged this election year for one important thing: Control of the Oregon House of Representatives. With a close 31-29 Republican majority, the race is dead even for a partisan war that will outweigh the battles going on across the chamber in the Senate.

Although there are key Senate races this year, control should remain in Republican hands, staying at plus or minus one or two seats from the current 20-10 majority.

With about 70 percent of the battle plans concentrating on the House, we have narrowed the priority races to about 24 out of the 60 House races. What this means is that based on demographics, incumbency and the candidate's ability to win there are 24 races which will ultimately decide the control of the House of Representatives. Remember, Governor Kitzhaber is the favorite to be re-elected as Governor; and if the House were to sway to Democratic control, the edge next legislative session would go to the Democrats. This is why both Republicans and Democrats are ready to do battle in all targeted races.

The Majority Leader, Lynn Snodgrass and Minority Leader, Kitty Piercy are in charge of the strategy behind every targeted race. The one that strategically executes the campaign plans in a majority of the key races will take the reigns next legislative session. Both have been working feverishly to organize a major effort on behalf of their party to accomplish control.

The Democrats have organized Future PAC which will be their fund raising PAC and name behind the campaign strategies for '98. The Democratic office has traditionally been very effective in organizing a structured plan which involves the major Democratic interest groups such as the Trial Lawyers, Oregon Public Employees Union, Teachers Union, AFL-CIO and NARAL.

On the other hand, the Republicans have traditionally been more fragmented in their efforts and have gained success with individual interest group participation that has not been necessarily as resourceful as the Democrats. In the early 1990's, then Speaker Larry Campbell was able to formalize a major effort to gain Republican control of the House but his model left when he did.

This election cycle will be much different than the past for Republicans. Representative Lynn Snodgrass and Speaker Lynn Lundquist are putting together a campaign boiler plate to be used not just for this election cycle but also for the elections to follow. The organization is Majority '98 and it, in conjunction with business groups and Republican PAC's, will set the stage for a highly organized and contested Republican/Democrat war.

The Oregon Rental Housing Association has traditionally played a modest role in helping to elect pro-small business candidates. Though our efforts are bi-partisan, make no mistake, our interests are better served by a legislature controlled by Republicans. The personal and corporate income tax refund is a good example. With Democrats in control, you wouldn't have received your refund check last year when the state over collected your taxes. Meanwhile, the Oregon Rental Housing Association will make every effort to build bridges to Republicans and Democrats alike.

If you need information on a legislative race in your area, feel free to call Shawn Miller at (503) 585-2119.

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