This morning Mayor Bruce Harrell announced a 30-day extension of the city’s eviction moratorium. During that short period of time, the city will assess the “effectiveness” of its moratorium before deciding to greenlight evictions for nonpayment of rent after two years.

The announcement comes a week after Stay Housed Stay Healthy, a coalition of 40 progressive organizations, sent a letter urging the mayor to extend the moratorium in the face of the Omicron surge.

Landlord groups, however, are anxious for the moratorium to end. In a joint statement issued last week, the Rental Housing Association of Washington and the Multifamily Housing Association of Washington said that “now is the time to end Seattle’s eviction moratorium,” arguing that rental assistance programs, new tenant protection laws, and the state’s new Eviction Resolution Pilot Program (ERPP) prevented a feared wave of evictions from crashing down on the courts and exacerbating the homelessness crisis.

However, in the last few months some pretty sizable cracks in that system have started to reveal themselves.

While the city and the state have tried to establish the safety net needed to support struggling renters, in King County there is not enough rental assistance to meet the need. Though the Seattle City Council did pass new laws to protect tenants facing nonpayment of rent, tenants must go to court to access them. But before they go to court, a new state law forces renters and landlords to try to settle their differences using a mediation program called the ERPP. Tenants and lawyers who have been through that process argue that it ends up favoring landlords. They complain of toothless mediators and a lack of lawyers to help tenants navigate a confusing system, which ends up saddling tenants with worse deals than they would have gotten if they’d just gone to court in the first place.

Shadowbox eviction courts seem to waste time, add confusion, and favor landlords

In the face of a potential tsunami of evictions triggered by the end of the governor's statewide eviction moratorium, Sen. Patty Kuderer passed Senate Bill 5160, which made Washington the first state in the country to give low-income tenants facing eviction the right to a lawyer.

With that legislation, Kuderer aimed to readjust a huge power imbalance: 90% of landlords have access to legal counsel compared to just 10% of tenants in the U.S., according to the Institute for Research on Poverty. The bill also established the Eviction Resolution Pilot Program, which diverts eviction cases to a mediation at one of the state's 21 Dispute Resolution Centers (DRCs). This added step aimed to prevent a sudden influx of eviction cases from overwhelming courts as executives started lifting state and local eviction moratoriums.

While Kuderer’s bill hoped to declaw some aspects of the nearly 50-year old, landlord-biased Residential Landlord-Tenant Act, the lawyers and tenants who have experienced the ERPP process first-hand worry the landlord biases still play out in the first step of the mediation.

“Even though we finally passed right-to-counsel to fix the power imbalances in court, now we have these shadowbox courts with no right to counsel, where those power imbalances will just continue,” said Edmund Witter, managing attorney of the King County Bar Association's Housing Justice Project.

Toothless mediators, a lack of lawyers

When a landlord wants to evict a tenant for non-payment, the state’s new eviction resolution program mandates they first try to resolve the issue in a DRC. If the landlord issues a tenant a “pay or vacate” notice, the landlord must also give the tenant an ERPP notice, which explains the mediation process, lists rent assistance resources, and provides numbers for free legal help. The landlord must also send copies of both notices to a DRC. Kuderer said including contact information for legal help was intended to encourage tenants to call lawyers before going through the mediation process. But, unlike the right to counsel in eviction court, the court does not appoint a lawyer for the tenant in mediation.

Mediation is designed to be non-judicial, which means that “parties can come up with basically whatever they want to that is legal,” said Leslie Ann Grove, the executive director of the Northwest Mediation Center in Spokane.

Because the mediator is not a judge, even if tenants are correct in claiming that they’re being unlawfully evicted, Grove said tenants would have to be “pretty convincing” to get a landlord to cave before going to court.

Often, mediations result in both parties agreeing to repayment plans, which cannot exceed more than one-third of the tenant’s monthly rent. This means the renter’s case could be resolved before they can even use the many renter’s protections the council fought for over the course of the pandemic – the ban on winter evictions, the ban on school year evictions, and even the six-month financial hardship defense must be used in court.

Though they could access more protections in court, tenants feel real pressure to resolve the issue in the DRC whether they have counsel or not. When he represents landlords in the DRC, attorney Max Soi tells tenants that even just filing an eviction lawsuit would go on the tenant’s record, which could hurt their ability to find another place. When he advises tenants — though he makes it clear he is not their lawyer — he tells them it’s “probably better to settle, move out, or get into a payment plan.”

While mediators strive for neutrality (a mediator from Bellevue used the word “omnipartial,” which she defined as “working hard for both parties”), Grove said “it is very difficult for tenants because they do feel that the landlord has all the cards.”

Though no one is stopping tenants from getting a lawyer for these mediations, and though the new state law requires the landlord to give tenants a notice with legal resources, many tenants face mediation alone due to the lack of lawyers available to help. Tenants must either pay for legal help, or draw from a small and overworked stable of local right-to-counsel attorneys.

Andrew Newman, a staff attorney with the Northwest Justice Project, said only five lawyers work right-to-counsel cases in Spokane. The King County HJP employs 16 attorneys, Witter said.

"I left there pissed"

Cynthia Rice ran into this issue last autumn. She and her twin daughters have lived in an apartment building in Federal Way for three years. When her car caught on fire in May, she said she missed one month’s rent to pay for a replacement. Her landlord eventually served her an eviction notice and an ERPP notice at the end of November. Rice called the legal services listed on the flier and told the King County HJP she didn’t want to face her landlord and her landlord’s lawyer alone. HJP consulted her but did not join her in mediation. Witter said the program does not have the bandwidth for this service right now.

“[HJP] said ‘Oh, you'll be fine.’ Yeah, I wasn't fine. I left there pissed,” Rice said. “And I just don't think anybody should have to fight for themselves by themselves.”

The mediation was only supposed to take half an hour, but it ended up lasting two hours, Rice said. She said the landlord slapped on charges that she did not owe beyond her missed month of rent, and she held firmly in her conviction not to pay more than she owed. The two sides were not able to cut a deal, and Rice said she felt as if the mediator failed to fight for a fair one. Now she will go to eviction court alongside a lawyer from the HJP.

Rice does not know if she will fare better with HJP. She said they have only reached out to her twice so far. For another renter, however, the help of free legal aid saved her from accepting a bad deal.

Autumn Stapleton, an Auburn renter, also fell behind on a month’s worth of rent when she lost her job in October. She applied for rental assistance and got the award she needed, but she said she could not get ahold of her landlord for a month to see if they’d accept the terms of the rental assistance. She fell behind again before she was able to use that money, and when she finally got ahold of her landlord, they ultimately rejected the assistance. (In some cases, when a landlord accepts rental assistance, tenants get limited protections for the next six months.)

At that point, it was off to a DRC for Stapleton. But, instead of squaring off with her landlord, she was arguing with Jim Henderson, RHA Lobbyist, Landlord Solutions President, and, according to Stapleton, “The most aggro person in Washington.” Stapleton was definitely punching above her weight.

Stapleton credited the mediator for trying to stand up for her, but ultimately she said Henderson “bullied” her into verbally accepting a $300 per month payment plan. (Henderson didn't immediately respond to a request for comment.) She asked to have 24 hours to think it over before signing. In that time, she called HJP and they got her a much better deal: They got her the money for the months she owed and covered her rent through April so she could get back on her feet.

“I was willing to fight, but for other people who are more timid than I am – they're fucked,” Stapleton said.

The path forward

Establishing the ERPP was a huge undertaking, and Kuderer acknowledged the lack of representation for tenants in DRCs as a “practical” problem that comes with trying new things. She is open to reasonable fixes; in fact, she is working on a bill to bring more uniformity to the process throughout the state.

For now, tenants like Rice and Stapleton call on leaders to bring more education to renters who may not be familiar with the new program or their rights as tenants. In a press conference today, Harrell said his administration will focus in part on educating tenants on their rights and “streamline[ing] acquisition and distribution of support funds.”

Though she read the ERPP notice and saw the lists of resources, Stapleton still felt alone and confused in the process before she had legal counsel.

“You shouldn’t have to walk into this alone and deal with some landlord lobbyist and a neutral party that can't have your back,” Stapleton said. “I’m just a normal 26 year old, like, I don't know the tenant laws. I have no idea. All I know is I don't want to be on the streets.”