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Just Court ADR

The blog of Resolution Systems Institute

The Year in Research: A Review

jenshack, December 28th, 2017

To cap off 2017, I thought I’d look back at what we learned through research over the past 12 months.

We learned that use of motivational interviewing in family mediation in Australia led to a much greater likelihood of the parents reaching full agreement.  As a follow-up, researchers in Nebraska provided insight into how best to train mediators to use motivational interviewing in their practice.

Researchers from the Pacific Rim gave us a new way of thinking about cultural approaches to conflict resolution. Their intake instrument for mediators can be used to understand each individual disputant’s “unique cultural preferences” in the way in which they respond to a particular dispute.

James Wall and Kenneth Kressl delved into mediators’ conscious and unconscious thinking to see how they influenced the mediators’ view of the conflict and how they approached mediation. They found patterns that led them to put mediators into one of three categories: reflective persuaders, pressers and laissez-faires.

A review of restorative justice studies found that victim-offender conferencing, family group conferencing, arbitration/mediation programs, and circle sentencing programs showed promise for reducing recidivism. The researchers also concluded that pre-mediation or pre-conference meetings increased the effectiveness of the programs.

Another review of studies – this time of those that connected mediator behaviors with mediation outcomes – gave us insight into what behaviors might be more effective.  These included eliciting disputants’ suggestions or solutions; giving more attention to disputants’ emotions, relationship, and sources of conflict; working to build trust and rapport, expressing empathy or praising the disputants, and structuring the agenda; and using pre-mediation caucuses focused on establishing trust.

We also found out about the effectiveness of a specific program design for providing services to divorcing families. This Denver-based program provided an array of services to the families, which led to a significant improvement in parental well-being and co-parenting.

On the other hand, courts’ and attorneys’ communication to litigants about their ADR options has been ineffective, according to research in three courts. Despite rules requiring attorneys talk with their clients about their options, only 24% of those surveyed knew that they had the opportunity to mediate their case, and only 27% knew about arbitration.
That’s what we learned this year. Here’s to more insights in 2018!

A Look Back on 2017

Nicole Wilmet, December 27th, 2017

What a wonderful year 2017 has been! From court program evaluations and trainings to staff gatherings, we have had an exciting year and continued to make great strides in serving communities with court alternative dispute resolution!

One of the greatest highlights from this year was the launch of our new website, AboutRSI.org! The launch of our new site brought together our two previous sites CourtADR.org and AboutRSI.org to become a one-stop shop for all things ADR. Our updated Resource Center allows for quick and easy searches for court ADR resources in our Research Library, and provides summaries of Court ADR Across Illinois and Court ADR Across the US. Additionally, the launch of our new website also brought the release of our Guide to Program Success, a how-to guide on court ADR program design, management, and evaluation. We look forward to continuing to share and add new resources to our Resource Center in 2018!

This year, our staff continued to bring RSI’s expertise to communities across the U.S. Here in Illinois, our program coordinators ran successful Foreclosure Mediation programs in Lake, Winnebago, Boone, and Kane Counties. We also launched our Child Protection Mediation program in Kane County, addressing cases involving abuse and neglect. Outside of Illinois, our Executive Director Susan Yates and Kane County Mediation Programs Manager Kevin Malone traveled to San Francisco for the American Bar Association Section of Dispute Resolution Conference! Additionally, this year, Susan traveled to Georgia and New Hampshire to lead a training for court ADR program administrators and provide training for state and federal court mediators and lawyers.

2017 was also a busy and exciting year for our Director of Research, Jennifer Shack, who spent the year engaged in several research and evaluation projects. This year, Jen lead an evaluation of Washington, D.C. Court’s child protection mediation program, an evaluation of a pilot program in Ohio that will use mediation for civil stalking cases, and an evaluation of the Supreme Court of Ohio Dispute Resolution Section’s The Right Track Project, a pilot program to address truancy problems. Want to have Jen help evaluate your court’s program in 2018? Click here to learn more!

Last but certainly not least, our Board members were also recognized for their work in ADR this year! In April, long-serving RSI Board member James J. Alfini was awarded the American Bar Association Chair’s Award for Outstanding Service to the ABA Section of Dispute Resolution!

As we finish this month we are thankful for a wonderful 2017 and are looking forward to 2018!

Happy New Year From All of Us Here at RSI!

The Twelve Hours of Conflict

Susan M. Yates, December 20th, 2017

In what has become a holiday tradition at RSI, here is my ADR-themed parody of the Twelve Days of Christmas. Happy holidays!

For the first hour of conflict, my neutral gave to me a round table with a great view

For the second hour of conflict, my neutral gave to me two succinct summaries
And a round table with a great view

For the third hour of conflict, my neutral gave to me three paraphrases
Two succinct summaries
And a round table with a great view

For the fourth hour of conflict, my neutral gave to me four mirrored feelings
Three paraphrases
Two succinct summaries
And a round table with a great view

For the fifth hour of conflict, my neutral gave to me five as-pir-in
Four mirrored feelings
Three paraphrases
Two succinct summaries
And a round table with a great view

For the sixth hour of conflict, my neutral gave to me six tested realities
Five aspirin
Four mirrored feelings
Three paraphrases
Two succinct summaries
And a round table with a great view

For the seventh hour of conflict, my neutral gave to me seven caucuses
Six tested reality
Five aspirin
Four mirrored feelings
Three paraphrases
Two succinct summaries
And a round table with a great view

For the eighth hour of conflict, my neutral gave to me eight explored BATNAs
Seven caucuses
Six tested reality
Five aspirin
Four mirrored feelings
Three paraphrases
Two succinct summaries
And a round table with a great view

For the ninth hour of conflict, my neutral gave to me nine fresh perspectives
Eight explored BATNAs
Seven caucuses
Six tested reality
Five aspirin
Four mirrored feelings
Three paraphrases
Two succinct summaries
And a round table with a great view

For the tenth hour of conflict, my neutral gave to me ten brainstorms
Nine fresh perspectives
Eight explored BATNAs
Seven caucuses
Six tested reality
Five aspirin
Four mirrored feelings
Three paraphrases
Two succinct summaries
And a round table with a great view

For the eleventh hour of conflict, my neutral gave to me eleven cookie breaks
Ten brainstorms
Nine fresh perspectives
Eight explored BATNAs
Seven caucuses
Six tested reality
Five aspirin
Four mirrored feelings
Three paraphrases
Two succinct summaries
And a round table with a great view

For the twelfth hour of conflict, my neutral gave to me twelve resolved issues
Eleven cookie breaks
Ten brainstorms
Nine fresh perspectives
Eight explored BATNAs
Seven caucuses
Six tested reality
Five aspirin
Four mirrored feelings
Three paraphrases
Two succinct summaries
And a round table with a great view

Have a great New Year!

Get to Know You Interview Series: Susan Yates

Just Court ADR, November 27th, 2017

Welcome to the second installment in our Get to Know You Interview series! My name is Nicole Wilmet and I am RSI’s Resource Center Director. Each month, I will be sitting down with members of the RSI staff to learn more about them and what they do in their role at RSI.

This month, I sat down with RSI’s Executive Director Susan M. Yates.

NW: What is your role at RSI?

SMY: Executive Director

NW: How did you first get involved in ADR?

SMY: Back in college, I studied labor relations at Cornell University’s School of Industrial and Labor Relations. I was especially interested in the courses about mediation, arbitration and negotiation. The school was very divided between people coming from the labor perspective and those coming from the management perspective. That seemed pointless and wasteful to me.

When the school brought in someone from one of the very first community mediation organizations in the country to talk to the students about community mediation, it clicked for me. Why waste all that time and energy in divisiveness and angst when you can sit down and work out a plan that satisfies everyone?

NW: What is your favorite part about being a mediator?

SMY: The people. I love getting to know people and learning from them. People in conflict are often very open with mediators, and I am no exception. With that openness, I can generate rapport and help people construct a way out of a conflict that has been weighing them down. It is a pretty special service to be able to provide.

NW: How did RSI come to be?

SMY: That is a long story. As with many successful ventures, RSI started with a few smart, committed people who shared a vision. A judge, an academic and a funder saw the need for collecting and disseminating reliable data and guidance that courts could use to improve their management and delivery of ADR services. They formed the base for RSI and over the years we developed a remarkable Board of Directors, a fabulous staff and a wide array of services.

NW: With all the various types of ADR, how did RSI come to focus on court ADR specifically?

SMY: If we want to make systemic change in how people resolve their disputes, what better way than by working with courts? I have adapted the quote from the bank robber Willie Sutton who, when asked why he robbed banks, said, “Because that’s where the money is.” I say, “Why work with court ADR? That’s where the cases are.”

NW: What is a typical day like as Executive Director?

SMY: Ha! Typical day? There is no such thing!

NW: What is your favorite part of your job? Why?

SMY: Dispute system design. I love figuring out how ADR can meet the needs of people in dispute, as well as all the stakeholders. These days I am focused on online dispute resolution for families. A process like this will help smooth the way for parents as they go through separation or divorce, and we know less parental conflict is good for the children. It will help judges who are overwhelmed with parents who are trying to represent themselves. Plus, from the perspective of the ADR field, it will help keep the “A” in alternative dispute resolution.

NW: What role does RSI play in the ADR community and how do you see this role expanding in the future?

SMY: We are seen as the “go-to” source for everything related to court ADR. We accomplish a lot of this through our totally renovated website (AboutRSI.org) that we launched recently. The other critical piece is the expertise of our amazing staff. Over the years we have worked with all kinds of court, bar and other committees; trained mediators, judges and court staff; presented at conferences and via webinars; and written, written, written. With all these great resources – online and in person – I expect RSI will be able to meet the needs of people working in court ADR for years to come.

NW: During your time working in court ADR, what, if any, would you say has been one of the biggest challenges you have faced and how were you able to overcome this challenge?

SMY: Funding. I can’t say we have overcome this challenge, but I don’t know that any non-profit ever overcomes the challenge of bringing in the funds needed to provide services. I must say that RSI would not exist were it not for the generous support of the M.R. Bauer Foundation. They have supported us since the very beginning. Over the years, they have been joined by individuals, law firms, ADR providers, corporations and other foundations. We are also supported by government entities. For example, the Office of Illinois Attorney General Lisa Madigan has supported our work in foreclosure mediation for more than four years. Also, courts around the country have contracted with RSI to provide services ranging from training to program evaluations.

There is still a lot of work to do. If anyone wants to donate, they can visit our page on Razoo, which processes our contributions!

NW: What aspect of ADR are you most interested in?

SMY: I am dedicated to mediation as a method of improving access to justice. There are a lot of challenges, but I think there is enormous potential.

NW: What are some of your favorite projects that you have worked on while at RSI?

SMY: Foreclosure mediation is definitely a big favorite. This is the area where I say RSI got to “practice what we preach.” Thanks to the support of the Illinois Attorney General, we got to do it all: dispute system design with stakeholders, training mediators, administering programs, collecting monitoring data and conducting a statewide evaluation. We helped all the programs in the state improve by giving them actionable data. With foreclosure mediation, I think we showed we know what we are doing.

NW: What is your favorite activity to do outside of work?

SMY: Anything related to my son! He is a Marine so I don’t get to see him often, but he is always my favorite person. (Pictured below.)

NW: If you could have dinner with any three people (living or dead) who would they be and why?

SMY:

Jesus.

My great-great-great grandmother. She was pregnant when she got on a ship to emigrate to the US and she gave birth on that ship. I would want to ask her what she was thinking.

Someone who wants to fully fund RSI in perpetuity!

 

Courts and Attorneys Aren’t Doing Enough to Inform Litigants about Their ADR Options

Jennifer Shack, November 3rd, 2017

Donna Shestowsky at UC Davis School of Law has been researching the relationship between litigants and court ADR programs for quite a while. In the past, she has reported that litigants prefer mediation and has identified what they want from a dispute resolution process. Now, she’s reporting that few litigants know that the courts in which their cases have been filed offer mediation or arbitration (“When Ignorance Is Not Bliss: An Empirical Study of Litigants’ Awareness of Court-Sponsored Alternative Dispute Resolution Programs,” Harvard Negotiation Law Review, Spring 2017). Shestowsky found that only 24% of litigants surveyed knew that their court offered mediation, and only 27% knew that arbitration was a possibility.

For this particular aspect of Shestowsky’s study, 336 litigants to civil cases with a median amount in controversy of $35,000 were interviewed within three weeks of the closure of their case. The litigants were drawn from three jurisdictions (in California, Oregon and Utah) that had both mediation and arbitration programs for which all the surveyed litigants were eligible. Each of the three jurisdictions had a rule requiring attorneys to discuss ADR options with their clients.

Despite the rules requiring attorneys to discuss mediation and arbitration with their clients, there was no significant difference in responses between represented and unrepresented litigants. Further, only 31% of litigants said that they or their attorney contemplated mediation, while only 24% had contemplated arbitration. The only factor that increased the likelihood of litigants knowing whether their court offered ADR was whether they were repeat players. Repeat players were 2.53 times more likely to know whether the court had ADR programs.

The results are surprising. Not only do the three courts have requirements for discussing ADR, but the Utah and Oregon courts made ADR the default, requiring the parties to take action to avoid mediation and arbitration. Shestowsky concludes that “discussions about procedure did not take place at all, were not flagged as important, or were not conducted in an in-depth or personalized enough way to trigger deep processing,” meaning that they didn’t have enough of a discussion for the information about ADR to stick in the litigants’ memory.

These findings are not just important to those who advocate for ADR, but have a real impact on litigants and the courts. If litigants don’t know the options available to them, or haven’t had them fully explained, they aren’t giving informed consent to participate in the chosen process. On the other side of the coin, it appears that courts are allocating funds to processes that aren’t being used fully because litigants don’t know about them. Additionally, a key finding of the study is that those litigants who knew that the court offered mediation had a higher opinion of the court than those who did not. This suggests that courts can benefit by having litigants be better-educated about their ADR options, even if they don’t elect to use them.

Shestowsky’s research gives us in the ADR field useful information about how little litigant awareness there is about ADR options even when court rules are designed to ensure that litigants can make informed decisions about the process to use. She points to courts whose processes force more litigant acknowledgement of having been educated about ADR as possible models for increasing awareness. The next step should be to test these different processes for educating litigants to determine which is most effective, particularly for those litigants who are less sophisticated.