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Just Court ADR

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My Favorite Resource Featuring James Alifni

Nicole Wilmet, October 1st, 2019

Our series My Favorite Resource, features interviews with ADR friends across the country to learn about their favorite resources. This month, I spoke with James Alfini, RSI Board Member and Dean Emeritus and Professor of Law at South Texas College of Law, to learn about his favorite resource.

NW: What is one of your favorite ADR resources?

JA: My favorite resource is the Center for Judicial Ethics (CJE) at the National Center for State Courts (NCSC). The Director of the CJE is Cynthia Gray who had been at the helm for well over twenty years when the CJE was located at the American Judicature Society. When AJS was dissolved a few years ago, soon after it had celebrated its 100th anniversary, Cindy Gray and the CJE moved to the NCSC.

NW: How did you first learn about the Judicial Ethics Center?

JA: I worked at the American Judicature Society (AJS) in the 1970s and 1980s and helped to organize the Center for Judicial Conduct Organizations, the predecessor of the Center for Judicial Ethics. AJS, as the premier court reform organization in the twentieth century, had been the catalyst for the establishment of state judicial conduct organizations to receive, investigate, and prosecute charges of judicial misconduct. These were viewed as necessary counterparts to judicial independence to insure that judges were not only independent but accountable to the public and would be held to high standards of conduct. The first judicial conduct organization was established in California in 1961. There are now state level judicial disciplinary organizations in every state and the District of Columbia. The CJE serves a very valuable function in reviewing and cataloging the decisions of the judicial conduct organizations and state high courts. These decisions are based on the judicial ethics rules adopted in each state, and usually referred to as the code of judicial conduct for that state.

NW: Why do you value this particular resource?

JA: The Center for Judicial Ethics is the national clearinghouse for information on judicial ethics and discipline. It is an essential resource for the state judicial conduct organizations in researching instances of judicial misconduct and applying relevant provisions of the code of judicial conduct. It is also the key resource for me and my co-authors of our treatise, Judicial Conduct and Ethics, which is currently in its 5th edition. The CJE also publishes the Judicial Conduct Reporter and other materials on judicial ethics. It responds each year to numerous inquiries from citizens, journalists, lawyers, court administrators and judges. Every other year CJE holds a national conference on judicial conduct and ethics.

NW: What interests you most about judicial ethics?

JA: In a democratic society, it is essential that we have an impartial judiciary of great integrity. That is, a judiciary that is beyond reproach and worthy of the public trust. Standards of judicial ethics permit us to hold our judges accountable and thus worthy of that public trust. It is an essential tool in holding judges accountable for their actions and is thus an important counterpart to the independent judiciary we value in a democratic society.

NW: For those unfamiliar with the Judicial Ethics Center, what’s one aspect of the Center that you wouldn’t want someone new to the resource to miss?

JA: For my colleagues in the court ADR field, I would stress that there are intersections between judicial ethics and court ADR. For example, a provision in the code of judicial conduct in most states requires judges to make appointments impartially and avoid the appearance of favoritism. This would include the appointment of mediators and other dispute resolvers. In Texas, ethical concerns about judicial selection of mediators (often turning on whether the mediator contributed to the judge’s re-election campaign) prompted the passing of a state statute, which mirrored the ethics rule (requiring fairness and transparency in the selection of mediators). The CJE thus offers the court ADR community an important resource on judicial ethics rules and cases.

Two New Chapters of RSI’s Guide to Program Success and a Special Topic for Program Administrators Now Available!

Nicole Wilmet, September 30th, 2019

We are thrilled to announce that two new chapters of our Guide to Program Success are now available! RSI’s Guide to Program Success combines the expertise of Executive Director Susan Yates and Director of Research Jennifer Shack and discusses how to effectively design, manage and evaluate successful court ADR programs. Newly released Chapter 10: Write Your Court Rules focus on writing and revising court rules and includes a Guide to Exemplary Rules, which highlights exemplary rules courts can turn to for guidance when developing or updating their court rules. Chapter 11: Design a System to Track Your Program discusses how courts can design a system to collect useful data so they know how their program is doing.

Additionally, we are pleased to introduce a new Special Topic for Program Administrators which corresponds with our Guide to Program Success to answer questions that program administrators may have about developing a new court ADR program and running or improving an existing one. Examples of some of the questions answered and included in the new Special Topic include: why should courts start an ADR program, who should be involved in the program development or improvement process, what does the planning team need to know before writing court rules and designing program processes, and when and how should courts be tracking program progress or evaluating the program?

We hope you find these resources valuable in your work!

Recent Additions to RSI Database of Mediation Studies

Jennifer Shack, September 27th, 2019

I’ve slowly been adding to RSI’s database of mediation efficacy studies – those studies of court ADR that look at mediation outcomes, participant experience and the effect of mediation on cost and time. The database contains almost 100 studies and can be filtered by case type, variables examined, state and whether it compares mediated cases to those that weren’t mediated. The entire database can be downloaded as an Excel spreadsheet as well.

The following is a list of the latest studies I have added to the database.

Impact of Mediation on Criminal Misdemeanor Cases

In this study of criminal misdemeanor cases in Maryland, mediated cases in one county were compared to non-mediated cases in a similar county. The study of 206 cases examined the impact of mediation on later judicial actions in the case, as well as whether the parties returned to court within a 12-month period. The study also included interviews with the parties at the outset of mediation and three months after the case concluded in order to find out their perceptions on whether the issues involved in the case were resolved and to determine whether they experienced attitude changes regarding the conflict or the other party as a result of their experience with mediation or court.

The study found that mediation reduced later court activity in the case, as well as the probability that the parties would return to court. Parties who mediated were also more likely to believe that the issues were resolved and to be satisfied with the process. There was no difference in attitude changes.

Impact of Alternative Dispute Resolution on Responsibility, Empowerment, Resolution, and Satisfaction with the Judiciary: Comparison of Short- and Long-Term Outcomes in District Court Civil Cases

For this study of the effect of mediation on party attitudes and post-disposition activity, small claims cases were randomly offered the option to mediate on the day of trial. Parties in both the mediation group and the traditional group were interviewed before and after their process, and then again 3-6 months later.  The study found that those who went through mediation were more likely to feel they were able to express themselves and to feel the issues were resolved. In the long term, they were more likely to believe the outcome was working, to be satisfied with the outcome and to be satisfied with the judicial system. Those who reached agreement in mediation were less likely to return to court for an enforcement action in the 12 months after their case was closed than those who didn’t reach agreement in mediation (including those who reached agreement on their own and those who went to trial).

The Mediation Center of the Pacific Economic Impact and Social Return on Investment Analysis for the Fiscal Year 2016

This study uses social impact return on investment (SROI) to determine the overall economic impact of a statewide network of community mediation centers in Hawaii during the 2016 fiscal year. The SROI analyzes the economic impact of the centers’ services on two factors: the short-term (within a one year period) direct economic impact based on the fair market value of services delivered along with any immediate cash awards or amounts avoided as a result of the mediation centers’ services, and the longer-term economic impacts in the areas of community health costs, social support costs, law enforcement costs, taxation revenues, property valuation effects, and other community cost changes. The analysis found that for every $1 spent to provide services, the community receives $8.76 in immediate and long-term financial benefits.

Saving Homes, Building Understanding: An Evaluation of the Eight Foreclosure Mediation Programs Funded by the Illinois Attorney General (Note: this evaluation was published by RSI.)

This final evaluation of eight foreclosure mediation programs with very different service delivery models follows up the initial evaluation published in 2015. The programs were assessed on participation rate, the percentage of eligible and participating homeowners who were able to retain their homes, completion rates, the amount of time cases spent in the program, and the experience of participating homeowners at each stage of the process. Each program was evaluated individually and all eight were compared on these measures.

The findings from this evaluation supported those from the first evaluation. It, too, found that participation is greater in programs in which the homeowners are told to appear for their initial session and given a date and time to do so, as well as in programs in which the homeowners learn one-on-one how the program can help them. Homeowners with attorneys are more likely to complete the program, but they do not have a greater probability of saving their home. Homeowners also benefit from a second opportunity to participate. Among other findings are that the programs are providing a just process and are viewed positively by most participants.

Case Evaluation and Mediation in Michigan Circuit Courts: Follow-up Study

In 2011, an evaluation of Michigan’s court-connected case evaluation and mediation programs found that both case evaluation and mediation increased the probability of settlement, but that case evaluation significantly increased time to disposition. This follow-up study came to the same conclusion.  The study looked at a random sample of 358 cases (221 torts cases, 137 other civil cases) from three jurisdictions to determine what ADR process was used, the means by which the cases were resolved, and the time to disposition for each case. It found that for tort cases, there was no statistically significant difference in the type of disposition among the different options: no ADR, case evaluation only, mediation only, or both case evaluation and mediation. For other civil cases, both case evaluation and mediation (and both together) had higher rates of settlement than those cases that did not use ADR. For both torts cases and other civil cases, time to disposition was considerably longer when case evaluation was used than when either mediation or no ADR was used.

Child Protection Mediation in Michigan 2019

This study examines child protection mediation (CPM) at five centers in Michigan (Gaylord, Jackson, Marquette, Petoskey, and Traverse City). The study focuses on descriptive statistics, participant and stakeholder perspectives, and time to permanency.  For participants, data was collected through statewide surveys that asked participants going through the traditional process and those going through CPM how satisfied they were with their experience. Additionally, researchers also interviewed ten stakeholders for the report. Overall, the findings indicate that CPM participants had a positive experience in the process and also gave slightly higher satisfaction ratings in case resolution, staff courtesy and courtesy of the judge than participants going through the traditional process. Moreover, the information gathered by stakeholders indicated that stakeholders were largely supportive of the process. Finally, the study results also indicate that CPM reduces time to permanency.

Process Evaluation of Nevada’s Statewide Dependency Mediation Program

In this study of child protection mediation in seven Nevada counties, the evaluators examined post-mediation surveys to determine not only the participants’ level of satisfaction, sense of fairness and experience of procedural justice, but also whether any variables were associated with more positive responses. They found that most participants had a positive experience. This was correlated with whether the parties reached agreement in the mediation. The evaluators also found that when participants believed others in the mediation had “really listened” to what they had to say, they were more likely to express satisfaction with the mediation regardless of whether an agreement was reached.

Improving an Effective Program: A Comprehensive Evaluation of the Superior Court of the District of Columbia Child Protection Mediation Program (Note: this evaluation was published by RSI.)

In Washington, D.C., child protection mediation is mandatory at the outset of a case. Natural parents, their attorneys, a government attorney, the children’s attorney and the social worker meet with the goals of making progress on the legal issues in the case, services for the parents and children, and visitation. This evaluation looks at outcomes of mediation, the larger impact of participating in mediation on the case, and the program process.

The results of the evaluation show that parents who participated in mediation in 2013-2014 were twice as likely to stipulate to the facts of the case before trial as those who did not mediate. Further, it is likely that they were more compliant with services, although limitations to the data make it impossible to state this with certainty. Limitations to the data also made it difficult to draw conclusions about mediation’s effect on time to permanency. The evidence, however, points to mediation not having an effect on the time it takes for a child to have a permanent home.

More than three-quarters of the parents were satisfied with the mediation and 83% believed it was helpful to them. Both parents and professionals believed they had an opportunity to talk about what was most important to them and that they were understood. Most parents believed the mediator and, more importantly, the professionals, treated them fairly and with respect. All professionals believed that the mediator treated them fairly and with respect.

AFCC Endorses Child Protection Mediation Model Mediator Competencies

Nicole Wilmet, September 26th, 2019

The Association of Family and Conciliation Courts’ (AFCC) Board of Directors recently endorsed the Child Protection Mediation (CPM) Model Mediator Competencies. Inspired by the AFCC’s Guidelines for Child Protection Mediation, the competencies were developed by a CPM Model Mediator Competencies Workgroup after the group reviewed a chapter in the Guidelines on “Mediator Recruitment and Training.” The workgroup was comprised of a variety of CPM practitioners including: Laura Bassein, JD; Kelly Browe Olson, JD; Gregory Firestone, PhD; Marilou Giovannucci, MS; and Susan Storcel, JD.

The competencies take a thorough look at CPM and identify the various knowledge, skills, and abilities that effective CPM mediators should have. Some of the subjects addressed include communication skills, ethics, diversity issues, self-determination and domestic violence issues. Court programs and mediators may utilize these competencies to further their understanding of what CPM programs should expect their mediators to know and may be used as a basis for training, personal development, mentoring, and evaluation.

Characteristics of Quality Court ADR Programs

Susan M. Yates, September 18th, 2019

What characteristics do you think are shared by quality court ADR programs? I took a swing at a list here. What would you add? Change?

1. Goals

There must be a shared understanding of the goals of the ADR program so that there can also be a shared understanding about whether it is succeeding.

  1. The court must be clear about its goals for the ADR program
  2. Those goals must be shared with stakeholders

 

2. Principles

The ADR program must operate on a common set of foundational principles, including ethics as appropriate for the ADR process being provided.

  1. Confidentiality (in mediation)
  2. Fairness of process
  3. Fairness of outcomes
  4. Procedural justice
  5. Accessibility
  6. Neutral quality
  7. Self-determination (in mediation)
  8. Timeliness

 

3. Accessibility

Everyone – including litigants and lawyers – must be able to readily access the ADR program.

  1. Parties who are unable to pay for ADR are afforded the opportunity to use ADR
  2. Parties who are representing themselves are able to participate fully in ADR
  3. Parties with disabilities are able to participate fully in ADR

 

4. Process Quality

Notwithstanding the importance of other characteristics, the true quality of a court ADR program boils down to what happens during each ADR session.

  1. Whichever ADR process is being used, it adheres to the foundational principles of that process
  2. Participants have an experience of procedural justice when engaging in the ADR process:
    1. They feel they had a voice in the process (e.g., had a chance to talk, felt they were heard)
    2. They feel they were respected in the process
    3. They feel the process was fair to them

 

5. Program Support

The ADR program will only succeed if it receives steady support from a number of sources.

1. Stakeholders understand and support the ADR program

  • Judges
  • Litigants
  • Court staff
  • Neutrals

2. The program has sufficient, stable financial support

 

6. Neutrals

Neutrals are the face of the program to litigants and lawyers, so they must provide quality services.

  1. Neutrals share a common understanding of the service they are to provide
  2. Neutrals provide services in the manner expected by the program and its stakeholders
  3. Neutrals operate in an ethical manner
  4. Neutrals have the necessary skills and knowledge
  5. Neutrals are selected for the roster fairly
  6. Neutrals are appointed to cases in a fair manner
  7. Neutrals receive appropriate initial and ongoing training
  8. Neutrals provide a sufficiently uniform version of the ADR process
  9. Parties have a way to lodge complaints about neutrals
  10. Neutrals are treated fairly when a complaint against them is made
  11. Neutrals are compensated fairly (which does not preclude volunteer mediators)
  12. Neutrals are assessed fairly
    1. Participant surveys
    2. Peer review

 

7. Lawyers

Lawyers must support, or at the very least accept, the ADR program.

  1. Lawyers are often repeat users of the ADR program, therefore their support is especially important
  2. This applies equally to those who typically represent one side or the other, e.g., landlords’ lawyers and tenants’ lawyers.
  3. Lawyers should:
    1. Find the program useful
    2. Be educated about the program
    3. Fulfill their responsibilities in the program

 

8. Program Safety

ADR processes must be safe, both literally and figuratively.

  1. Participants, neutrals and staff are all safe when participating in ADR and otherwise interacting with the ADR program
  2. Participants are screened prior to ADR, when appropriate, to identify intimate partner violence and other potential barriers to participation

 

9. Data Collection and Dissemination

Reliable data must be collected regularly and shared appropriately, or it won’t be available when it is time to sustain or improve the ADR program.

  1. Data is collected regularly and includes both quantitative and qualitative information (e.g., statistics and success stories)
  2. Changes in the program are tracked and acted on, e.g., changes in:
    1. The number of cases being sent to ADR
    2. The number of agreements being reached
    3. The number of mediators signing up to mediate
    4. The number of parties showing up for ADR sessions
  3. Data is turned into reports that can be readily digested
    1. Easy to read
    2. No use of insider language or acronyms
    3. Fitting use of charts and other visuals
  4. Reports are adapted to their particular audience and disseminated appropriately, typically as follows:
    1. Judges and court administrators with direct responsibility get the most detailed reports
    2. Those higher up in the court system get summaries with explanations
    3. Funders’ reports depend on what the funder requires. They may also get some anecdotes about how parties are experiencing the program.
  5. Reports include recommendations for action when appropriate
  6. The program is evaluated near the end of the first year, after a substantial period of time, or when there has been a major change in the program or the context in which the program operates

 

10. Program Promotion

Reminding stakeholders of the value of the ADR program will help maintain its support.

  1. Brochures are made available in courtrooms and other locations as needed
    1. Brochures are only produced if they will serve a particular purpose, such as giving parties the number they need to call to schedule a mediation
    2. If brochures are targeted to self-represented litigants, they must be in easy-to-understand language
  2. News about the program is publicized via:
    1. Local radio, TV, newspaper, news websites
    2. Court newsletter
    3. Bar association newsletter
  3. Program is featured on appropriate websites
    1. Information about the ADR program can be readily found on the court’s site
    2. If the program maintains its own site, instead of appearing as part of the court’s site, it must be easy to find and navigate and kept up to date
  4. As members of stakeholder groups change, the new individuals are familiarized with the program
    1. Judges are educated on how it works, ethical limitations, what to expect
    2. Lawyers, e.g., child protection attorneys, assigned to courtrooms are trained in how to use the program
    3. Staff at funders are educated about the program’s benefits and history
    4. Court staff are educated about the program’s benefits and how it fits into court processes

 

11. Program Administration

Someone wakes up every morning with the feeling that it is their job to do everything on this list to ensure the quality and continuity of the ADR program.

  1. Individuals with power over the program, e.g., funding or case referrals, are kept informed about the program
  2. The ADR program operates in accordance with applicable laws, court procedures and rules
  3. The program functions efficiently and effectively, e.g.:
    1. Cases are referred to ADR in a consistent manner
    2. Cases are scheduled promptly
    3. Reports are provided to court on time
    4. The benefits provided by the ADR program are reasonable in relationship to the costs of the program
    5. Changes in the program are tracked and potential responses suggested when needed