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My Favorite Resource Featuring John Lande

Nicole Wilmet, March 20th, 2020

Our series, My Favorite Resource, features interviews with our court ADR friends across the country to learn about their favorite resource. Prior to the COVID-19 epidemic, Resource Center Director Nicole Wilmet spoke with John Lande, Isidor Loeb Professor Emeritus at the University of Missouri School of Law, to learn about his favorite ADR resources.

NW:  What are some of your favorite ADR resources?

JL: I have been developing resources throughout my career, and I appreciate the opportunity to share these resources designed for practitioners, academics and students. I developed the following resources on my own or in collaboration with various colleagues.

My website includes practical forms I developed when I was in practice, materials for teaching courses, links to ADR resources and links to my publications. Readers can download for free my articles and a new edited book, Theories of Change for the Dispute Resolution Movement: Actionable Ideas to Revitalize Our Movement. The website also includes information about my two books published by the ABA Section of Dispute Resolution: Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions (with Michaela Keet and Heather Heavin) andLawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.

The Dispute Resolution Resources for Legal Education (DRLE) website, hosted by the University of Missouri School of Law, provides a wealth of resources for law school faculty including an extensive collection of syllabi for a wide range of courses, teaching materials, a list of dispute resolution programs at American law schools, links to other resources and information about the DRLE listserv.

The Stone Soup Dispute Resolution Knowledge Project is part of the DRLE website with lots of additional resources. It is designed to promote collaboration by faculty, students, scholars, practitioners, educational institutions and professional associations to produce, disseminate and use valuable qualitative data about actual dispute resolution practice. It provides an extensive collection of materials to (1) help faculty develop course assignments requiring students to learn about dispute resolution in real life and (2) help generate knowledge from student competitions and continuing education programs. It also includes a “mini-course” of blog posts about research on dispute resolution and how faculty can incorporate Stone Soup in their courses and scholarship.

The Legal Education, ADR, and Practical Problem-Solving (LEAPS) Project of the ADR in Law Schools Committee of the ABA Section of Dispute Resolution is designed to help faculty incorporate “practical problem-solving” (PPS) into a wide range of courses, including doctrinal, litigation, transactional and ADR courses. The website provides descriptions of various teaching methodologies, suggestions for how to engage colleagues in teaching more PPS in their courses, “talking points” for discussing the incorporation of PPS into doctrinal courses, a survey of how schools integrate PPS skills in their curricula, lists of consultants who can help with specific courses, suggestions for making discussions with faculty as productive as possible, examples of course exercises, approaches to introducing PPS in doctrinal courses and teaching materials and links to relevant resources on other websites.

The Planned Early Dispute Resolution (PEDR) Project of the ABA Section of Dispute Resolution promotes use of planned early dispute resolution techniques by lawyers and clients at the earliest appropriate time. The website includes the PEDR user guide, separate powerpoints for talks to groups of lawyers and business people and suggestions for speakers.

This post includes resources from the 2016 University of Missouri symposium, Moving Negotiation Theory from the Tower of Babel Toward a World of Mutual Understanding. It includes the articles from the symposium, an annotated reading list, blog posts with “virtual book club” conversations discussing the readings and videos of the symposium sessions.

More generally, I like the Indisputably blog, where I am one of nine bloggers writing about a wide range of dispute resolution issues. The bloggers are all law school faculty but many of the posts should be of interest to a wide variety of others interested in dispute resolution.

I also want to mention a different kind of resource. Since 1993, I have been taking photos of friends and colleagues at ADR events and I posted a collection of photo albums from these events. Our sense of identity in belonging to our wonderful community is an important resource and looking at photos of us is a great way to appreciate it.

NW:  Why do you value these resources?

JL: I’m a teacher and coach at heart and I want to help people learn cool and non-obvious insights, gain important skills and help others in turn. These resources don’t claim to provide the “best” or “right” way to analyze things or to act. Rather they provide ideas and options for people to consider as they make their own decisions.

NW: Can you share a time when you turned to one of these resources for either insight or to assist you in your work and how it was helpful to you?

JL: As a professor, the collection of syllabi was especially helpful to see how other faculty taught their courses. This gave me ideas about how to structure my courses and what readings to assign.

NW: You have such an impressive collection of resources here. What advice would you give to someone who is either just starting or hoping to develop a collection of reliable ADR resources?

JL: The goal of a resource developer should be to help people do what they want to do. So, I would think about what people need in particular situations and what could help them achieve their goals and solve their problems. It helps to have been in the situation, which enables one to better understand others’ needs and what would be most helpful.

People have limited attention spans, so it’s important to be as concise as possible while providing the key material that people need. Generally, eliminate unnecessary words, use short sentences and paragraphs whenever appropriate and leave “white space’ to make it easier for readers to grasp the ideas. I try to write in plain English, spiced with a dash of humor. Here’s a post with more suggestions for writing well.

Resources for Courts Considering and Developing ODR Programs

Jennifer Shack, March 19th, 2020

With the COVID-19 epidemic leading courts to cease in-person activities, courts may be feeling a greater urgency to start down the path of online dispute resolution programs. I thought I’d share some resources that may help courts to make decisions regarding whether and how to implement such programs.

Considerations and Concerns in ODR Program Design

Online Dispute Resolution Special Topic

Resolution Systems Institute

RSI has written a guide for courts who are considering, have started developing or already have ODR programs. It discusses important considerations for ODR implementation, from goal setting to costs to ethical concerns. 

Read RSI’s advice about ODR on our website.

Considerations in Implementing Court ODR Systems

Doug Van Epps and Michelle Hilliker. Michigan Supreme Court State Court Administrators Office of Dispute Resolution. Jan. 6, 2020

Van Epps and Hilliker share their insights and the knowledge gained from their development and implementation of ODR in the Michigan courts in this guide. Based on both the issues they encountered and their discussions with others involved in implementing ODR systems, their considerations are meant to assist courts to determine how to design, implement and evaluate an online dispute resolution (ODR) system. 

The considerations span a variety of topics including leadership and court staff; prospective users and stakeholders; goals; implementing authority and legal implications administration; platform attributes and functions; mediators; non-court dispute resolution service staff; costs, fees and funding sources; confidentiality; protections; vendor selection; data collection and evaluation; and marketing plans. The guide also includes a list of recent ODR publications and resources.

Access the Considerations document on Michigan’s Supreme Court State Court Administrator’s Office website.

Case Studies in ODR for Courts

Joint Technology Committee, 2020

This paper presents seven case studies of ODR implementation in the courts. The case studies are short, but include key takeaways about what worked and what didn’t. The ODR programs include two outside the US, and deal with small claims, family, tax and traffic cases.

Read the case studies.

Online Dispute Resolution: A Digital Door to Justice or Pandora’s Box? Parts I and II

Doug McQuiston and Sharon Sturges, Colorado Lawyer, February and March, 2020.

McQuiston and Sturges are in the midst of publishing a three-part series on ODR in the courts that examines the use of videoconferenced mediation. They note that videoconferencing may be appropriate for family cases and those involving intimate partner violence. The main obstacle to providing this service is limited or poor internet connectivity. 

Part II focuses on the use of artificial intelligence in ODR. McQuiston and Sturges cite the many benefits of AI-assisted ODR for small claims and family cases, such as the ability to negotiate asynchronously, which eliminates the need to coordinate schedules. Self-represented litigants who may be reluctant to attend mediation without an attorney may be more inclined to use this technology. Further, they can save money by using this technology. McQuiston and Sturges note some drawbacks, however. These include AI’s inability to understand and address human emotions and its tendency to deviate to the mean, without reference to shades of gray in disputes or situational fairness. To help readers understand how AI in ODR would work, they end by describing systems already in place around the world. 

Read Part I and Part II of the series. Part III is forthcoming in April.

Designing and Implementing a State Court ODR System: From Disappointment to Celebration

David Allen Larson, Journal of Dispute Resolution, Vol. 2019, No. 2, Jun. 5, 2019

This article chronicles the author’s work to develop an online dispute resolution (ODR) system to handle credit card debt collection in New York State courts. The author worked with the New York State Unified Court system for a little over two years to design and implement their ODR platform. The article discusses the issues related to dispute system design in this setting, explains how the project was derailed and ends with lessons learned. The four lessons discussed are (1) anticipate conflicts and resistance (2) obtain support from judges and court staff at the beginning (3) figure out the technology while also ensuring a fair vendor bidding process and (4) pick your case type carefully.

The article also touches on some issues specific to ODR such as how ODR relates to a court system that is not fully digitized and how long to retain records of online communications. It also offers general advice, such as recommending that ODR processes should “balance efficiencies, neutrality and self-determination.”

Read the full article on SSRN.

Pouring a Little Psychological Cold Water on ODR

Jean Sternlight, Journal of Dispute Resolution, 2020

This article explores online dispute resolution (ODR) from a psychological lens to examine the strengths and weakness of ODR. The article examines the psychology of dispute resolution by focusing on four different areas: the psychology of perception and memory, the psychology of human wants, the psychology of communication, and judgment and decision making. Sternlight’s article suggests that ODR may not be the best tool to assist individuals in creatively working things out with a fellow disputant and may be better employed for small and predictable disputes, like small online purchases. The article also posits that computers may not be the best forum for communication and argues that human mediators, lawyers or friends are more effective than computers in helping humans deal with their emotions and other judgement and decision-making issues. Sternlight ends by calling for empirical research for both online and in-person dispute resolution.

Read the full article on SSRN.

Studies of Online Dispute Resolution Programs

So far, there have been few published studies of online dispute resolution programs in the courts. Below are two conducted a while back. 

Getting Divorced Online: Procedural and Outcome Justice in Online Divorce Mediation

Martin Gramatikov and Laura Klaming, Journal of Law & Family Studies, Jan. 1, 2012

This study of a Dutch experiment with ODR for divorcing couples found that the participants perceived the process to be fair, with procedural fairness, interpersonal justice and informational justice all given high marks. On a scale of 1 to 5, they had averages of 4.27, 4.5 and 4.19, respectively. The participants’ perception of the outcome was also positive, though to a lesser extent than for the procedure. They gave an average of 3.91 for distributive justice, 3.37 for restorative justice, 3.18 for functionality and 3.0 for transparency. The ratings were similar for both men and women. Other findings included men reporting higher out of pocket costs and time spent in mediation than women, and women reporting higher levels of frustration and anger than men.

The participants were referred to ODR, which was provided free of charge, if both parties had an email account and the issues were not complex. Once referred, the parties completed an intake questionnaire to provide the mediator with some details about the dispute. The parties could communicate with the mediator and each other via text message or email. The mediator moderated all communications. Each party was required to respond to the other within 48 hours as a condition of the agreement to mediate. Once all issues in dispute were finalized, the parties completed an evaluation of the procedure before the agreement could be finalized.

Read the complete abstract and access the full study in RSI’s Research Library. 

Evaluation of the Small Claims Online Dispute Resolution Pilot

Marc Mason, Avrom Sherr. Sep. 1, 2008

Two courts in England tested online mediation to resolve 25 small claims cases. Those parties who were willing to try mediation were given the option of mediating face-to-face, by telephone, or online. Two mediators were responsible for all online mediations, which were conducted using TheMediationRoom.com.

The online mediations resulted in settlement in 48% of the cases, which was similar to the settlement rate for the face-to-face and telephone mediations, but lower than other small claims mediation programs have reported. Mediators and parties were surveyed post-mediation about their experiences with the process. Mediators reported using more than one method of communication outside TheMediationRoom.com platform – generally email or telephone – to complete the mediation in most cases, and as many settlements were completed outside the platform as within it. The mediators attributed this to difficulties in getting responses from the defendants, as well as to technical difficulties. Because of this and because they lacked the ability to judge non-verbal cues, the mediators said they would have preferred using telephone or email in all but four cases.

The 18 parties who responded to the questionnaire were less frustrated with their experience than the mediators. They expressed fewer issues with the technology, with 47% saying the technology was easy to use. However, they were not overwhelmingly satisfied with the process or the fairness of the outcome. Only 53% were satisfied with their experience and only 23% felt the outcome was fair. Responses to both satisfaction and fairness of outcome were more positive for those who settled their case. The small number of responses limits the reliability of these findings.

Read the full study on SSRN.

Studies Regarding Particular Issues Related to ODR

Shuttle and Online Mediation: A Review of Available Research and Implications for Separating Couples Reporting Intimate Partner Violence or Abuse

Fernanda S. Rossi, Amy Holtzworth-Munroe, Amy G. Applegate, Connie J. Beck, Jeannie M. Adams, Darrell F. Hale. Family Court Review (Association of Family and Conciliation Courts), Aug. 17, 2017

This article examines the published research on shuttle mediation, online audio-visual mediation, and online text-based mediation to discuss the applicability of these mediation methods to family law cases with a history of intimate partner violence and/or abuse (IPV/A). It first presents potential advantages and disadvantages of each mediation method in cases with IPV/A history. The authors suggest that mediators on IPV/A cases must carefully consider a variety of potential issues including the parties’ suspicion of mediator bias, confidentiality concerns and victim-perpetrator power dynamics. The authors also note the need for more empirical research comparing different effects of various mediation methods.

This article is behind a paywall on the Wiley Online Library.

Building Trust Online: The Realities of Telepresence for Mediators Engaged in Online Dispute Resolution, 

Susan Nauss Exon and Soomi Lee. Stetson Law Review, Vol 49, No. 1, 2019

Exon and Lee found that trust in an experienced mediator is the same whether a mediation participant interacts with that mediator via video or face-to-face. In their experiment, a single experienced mediator conducted 31 simulated mediations with one party in the room with him and the other interacting via telepresence. Telepresence is sophisticated video conferencing, in which sensitive microphones and special cameras that pan and zoom are used to help participants follow the flow of the conversation. 

During the experiment, the participants were asked to complete a questionnaire before the mediation began that measured their level of interpersonal trust. They then completed a second questionnaire after mediation that asked them about their interactions with the mediator and their perceptions of him in order to determine how much they trusted him and found him to be trustworthy. In all, 59 participants provided usable data. 

Nauss Exon and Lee found that although the participants’ questionnaire responses before mediation indicated they were on average more likely to distrust others than trust them, all participants agreed mildly or strongly that they could trust the mediator and that the mediator was trustworthy. Further, they found no difference in the level of response (mild or strong) between those who were in the same room as the mediator and those who participated via telepresence, with one exception. They found that those who had a lower predisposition to trust were more likely to see the mediator as trustworthy.

Read the full study on SSRN.

Studies Regarding Topics Related to ODR

ADR Empirical Research Studies

James Coben and Donna Steinstra. Mitchell Hamline Dispute Resolution Institute, Jun. 1, 2018

This compilation of abstracted studies includes a number on topics that are related to the use of ODR. These include: 

  • A study of compliance with emailed requests
  • Team decision-making in a virtual environment
  • A qualitative analysis of email negotiation
  • Honesty in face-to-face communication as compared to through an intermediary

Find the abstracted studies on the Mitchell Hamline website.

How COVID-19 is Impacting Court ADR Programs

Nicole Wilmet, March 18th, 2020

It is without a doubt an understatement to say that the coronavirus (COVID-19) global health crisis is drastically impacting communities worldwide. News about COVID-19 is changing at a rapid pace (and has likely changed drastically since this piece was written). Words like “lockdown” and “social distancing” are becoming commonplace as states across the country are taking new measures to limit social interactions and keep communities and individuals safe. Here in the United States, this epidemic continues to raise all sorts of questions about what should remain open, what should be closed, and when? 

Courts across the country are also grappling with these types of questions. Here in Illinois, courts are considering these concerns and are currently taking a variety of different approaches at this time with some courts postponing certain types of cases and non-essential meetings or choosing to remain open but promoting remote access services. In Georgia, the chief justice has issued an order declaring a statewide judicial emergency and is ordering courts and clerk’s offices to suspend all non-essential court functions and “to the extent court proceedings are held, they should be done in a manner to limit the risk of exposure, such as by videoconferencing, where possible.” In Michigan, the state Supreme Court has released an administrative order detailing emergency procedures in court facilities and some courts have closed business operations via local administrative orders

As a hub for court ADR, here are the issues we have been hearing at our organization that court ADR programs are encountering as they address the coronavirus:

  • Responses to COVID-19 by court ADR programs are shaped by what their courts decide  to do. 
  • ADR program administrators are concerned for the health of their neutrals, the health of the parties, and their own health. 
  • ADR program administrators are concerned they will not have sufficient neutrals available due to actual illness or a neutral’s need to protect themselves by quarantining. 
  • This might be a good time for courts to use online platforms (such as Zoom) or telephonic conference options to conduct ADR sessions. However, online dispute resolution options also have their own set of considerations like:
    • The free Zoom account has a limit of 40 minutes for group meetings and courts may need to pay for a premium account that would allow them to access certain features to conduct their meetings. 
    • Courts are unlikely to have sufficient neutrals who are trained in how to conduct ADR processes online and there may be a learning curve to conduct sessions telephonically or online. 
    • Parties may not have the resources to be able to access online ADR options at this time. 
    • Online platforms, like Zoom, will likely become overly burdened as an entire workforce and education systems transition to these platforms.

With information surrounding the coronavirus changing so quickly, for the latest information on how your court program is responding to COVID-19, I recommend visiting your court’s website or calling your local court directly. If your state has a state court ADR office (which you can find by searching your state on RSI’s Court ADR Across the U.S. resource), that office may have more information about how court ADR programs are moving forward in your state. If your state does not have a court ADR office, visit your local bar association’s website, which may have more information. In the meantime, I hope you are all staying well!

My Favorite Resource Featuring Joel Shapiro

Nicole Wilmet, March 4th, 2020

Our series, My Favorite Resource, features interviews with our court ADR friends across the country to learn about their favorite resource. This month, Resource Center Director Nicole Wilmet spoke with Joel Shapiro, Chief Circuit Mediator for the U.S. Court of Appeals for the Seventh Circuit Mediation Program, to learn about his favorite resource.

NW: What is your favorite ADR resource?

JS: For information, I turn to RSI. (Seriously, there is no better source to keep up with developments in ADR in Illinois and around the country.) For insight and guidance, I turn to my immediate professional community – the cadre of forty to fifty mediators who work full-time for the federal appellate and district courts. We are few enough to feel connected and to call on one another when the need arises. Of course, the closest to hand are my fellow Seventh Circuit Mediators. We consult informally on a daily basis and have lunch together once a week to make sure we stay in touch. 

NW: Can you share an example of when you turned to your network for support?

JS: Confidentiality is fundamental in mediation, even more so when mediation is conducted under the aegis of the court. Dilemmas regarding confidentiality arise from time to time, requiring principled and pragmatic responses. Years ago, I was subpoenaed to give testimony and produce my notes in a state court action to enforce a settlement I had mediated. In addition to consulting the Judiciary’s Office of Legal Counsel and the leadership of my court, I asked colleagues in other circuits how they had responded to similar demands. Those conversations reinforced my own belief that I must not comply with the subpoena unless directed to do so by the Court of Appeals. I requested representation from the Office of the U.S. Attorney, which removed the subpoena to federal district court and successfully moved to quash it. 

NW: In what ways have you found that your network has been better able to serve your needs than a traditional print resource?

JS: Whatever the commonalities among mediators and mediations, performing this work as court staff is a specialized role. My counterparts in the other federal courts share that experience and an outlook rooted in the utmost respect for judicial institutions. They “know the territory.” Their collective wisdom is not available in traditional print resources.  Perhaps it should be.

NW: What do you value most about the input you receive from your network?

JS: The input I receive from my network is generous, honest, on-point, and well-informed. I know I can count on my “posse.”

NW: How did you develop your network and what would you recommend for someone looking to develop their network?

JS: In the performance of their regular duties, Chief Circuit Mediators meet at least once a year and confer intermittently by phone and email. The entire corps of federal appellate and district court staff mediators meets biennially for a three-day workshop sponsored by the Federal Judicial Center. These periodic meetings are the trellis on which our network has developed. In addition, I host monthly conference calls that are in the nature of “self-reflective practice” conversations. Those sessions, populated by eight or ten colleagues at a time, provide an opportunity to think deeply about our work, help one another “brainstorm” about particular day-to-day challenges, and continually reaffirm the values and friendships that bind us together. 

If someone were looking to develop a network of mutually supportive ADR practitioners, I would suggest they form a self-reflective practice group – it could be as few as three or four colleagues – whose shared professional experience and values can create a foundation of trust.  Mediators who have done this find it to be not only informative but invigorating. Anyone who would like to tap into my thoughts about “self-reflective practice” is welcome to contact me at joel_shapiro@ca7.uscourts.gov.

Parents See Conflict Reduction and Relationship Benefits from Mediation in Massachusetts

Jennifer Shack, March 2nd, 2020

Custody and parenting time mediation in Massachusetts is providing parents with multiple benefits while facilitating agreements. The most recent evaluation of the Parent Mediation Program in four counties, published by the Massachusetts Office of Public Collaboration in 2019, found that 74% of mediations ended in an agreement. Additionally, parents reported multiple benefits beyond agreement, including a reduction in conflict, better conflict resolution skills, greater civility and better communication.

Services for the program are provided by community mediation centers, who conduct intake with the parents and are contracted to provide one session at no charge to the parents. If additional sessions are needed, the parents agree to pay the center on a sliding fee schedule. For the evaluation, mediators were asked to complete a report after each mediation session. Additionally, mediators asked parents to complete a survey after the last mediation session (150 parents across 80 cases did so) and center staff conducted phone interviews with 94 parents in 70 cases four to ten weeks after mediation ended.

During fiscal year 2019 (July 2018 – June 2019), 141 cases were referred to the centers. Almost 2/3 of these referrals were from the courts and the rest were from the community. During this same time period, 129 mediations were completed. In 74% of these, some form of agreement was reached: 30% full agreement, 34% partial agreement, 16% temporary agreement). In surveys, 93% of parents said they needed to devise a parenting plan, and 77% said that mediation either fully (43%) or partially (34%) helped them with that. In their reports, mediators indicated that mediation led to progress on the parenting plan in a similar percentage of cases, at 80%.

Parents and mediators were asked about other benefits experienced through mediation. In surveys, parents said that conflict between them and the other parent was diminished in about 2/3 of the mediations, an assessment with which mediators agreed – stating conflict was diminished in 69% of mediations. This benefit appeared to last for weeks after mediation for many parents, as 53% of those who were interviewed said that conflict continued to be reduced.

Similarly, more than 2/3 of surveyed parents reported greater civility between them and the other parent. Again, this benefit remained over time, with 50% saying that they and the other parent treated each other with greater civility. Most parents also said that their communication had improved, with 72% of those surveyed saying so and 54% of those interviewed weeks later agreeing.  It’s not surprising, then, that 70% of surveyed parents, and 54% of those who were interviewed, believed their skills for resolving conflict had improved.

While research has shown these benefits to be important for the emotional well-being of the children, this study points to another effect. Nearly half of surveyed parents said that less conflict with the other parent and 33% said better communication with the other parent would help them to financially support their children.

Reduced conflict and better communication did not necessarily lead to greater involvement with their children, however. Roughly half of those who were surveyed said that the other parent’s time with the children decreased and 20% said there was no difference. In interviews, parents continued to see little to no difference in the other parent’s involvement in their children’s lives. Nonetheless, 36% of custodial parents reported that the other parent’s involvement was greater than before.

The many benefits identified by parents were likely one reason they had a positive experience in mediation. Fully 97% said they would use mediation again and 99% would recommend it to others. Large majorities also thought the mediator was fair and unbiased (84%), listened well to their concerns (82%), identified relevant issues (80%) and helped generate ideas (78%).

The full study includes more background information on the level of conflict between the parents (29% had a high level), complications between the parents, demographics and the parents’ custodial status.