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Just Court ADR

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Get to Know You Interview Series: Jennifer Shack

Just Court ADR, September 11th, 2017

Welcome to the launch of our new 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. To kick off our series I sat down with Jennifer Shack, RSI’s Director of Research.

NW: What is your role at RSI?

JS: Director of Research

NW: How long have you been at RSI?

JS: I have been at RSI for 18 years. It has gone by so fast! I started out as the Administrative Director at RSI and I was only planning on staying for a year and a half. But then I was offered a new position at RSI, Director of Research, and here I am.

NW: What is a typical day like as the Director of Research?

JS: I don’t really have a typical day because I’m involved in so many different projects. What I do in general is conduct evaluations for court programs as well as develop evaluation systems for our own programs, other court programs, and non-court programs. This means I figure out what data programs need to collect and how to best collect it. An evaluation system includes the instruments for collecting data (surveys, forms, case management systems, etc.), as well as the platform and structure for using those instruments. I also keep up on the research that other court ADR folks are doing so that we can use that information to inform our own practice and to help other programs by disseminating the information through our Resource Center. Our goal in disseminating information is to help programs develop effective practices for their programs and their mediators.

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

JS: I really enjoy working with the people at RSI. RSI has been lucky to always have a great staff that is fun to work with. In terms of my actual work, I enjoy taking information whether it is data we are collecting or research that others are doing and pulling it together to figure out what it is all telling us. It’s fun synthesizing data and drawing conclusions from that because it tells us more than the individual pieces alone. For example, the foreclosure mediation programs around Illinois can be looked at individually, but when the data from them is combined, we can get a clearer picture of the factors that lead to greater participation in the programs. The same goes for research. If we can find patterns in the research results, we can make stronger arguments about the efficacy of mediation in particular situations.

NW: Based on your experience, do you feel like there is a common theme/item that people working in Court ADR want to learn more about?

JS: A common theme right now that people want to know is what works. We know that ADR, and in particular mediation, can be effective. Now we want to know, what works better? Are there things that can be done program-wise to make them more efficient? Are there things mediators can do to make mediation more successful, to lead to better outcomes for people who participate in them?

NW: Do you feel like you have an answer to any of these questions yet?

JS: I think we are getting close to being able to answer those questions. In the past, little research has been focused on those things. Studies that have looked at program characteristics or mediator techniques haven’t been uniform in their categorizations of the factors being examined and many haven’t been rigorous enough, so while we have some ideas of what works, we don’t have definitive answers. However, there has been a real push lately to get to those answers. I think we are getting there.

NW: During your time working in Court ADR, what, if any, would you identify as being one of the biggest challenges you have faced?

JS: One of the challenges I faced when I first started was that I had a huge ADR learning curve because I came from a background in international studies. I became interested in mediation when I first experienced it as a Peace Corps volunteer in West Africa and thought it should be made available in the US. When I came back home, I looked into it and discovered it was already a part of the legal landscape.

NW: How were you able to overcome that learning curve?

JS: I became a mediator myself. From that I had a better understanding of what I was reading about mediation because I had actual experience I could pull from. When I started maintaining RSI’s Resource Center, I also read everything about the theory of ADR and about issues that were popping up at the time. And of course, I learned a lot from Susan [RSI’s Executive Director], too.

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

JS: I am really interested in the ways in which ADR can open access to justice for people who don’t have the means to go through litigation process and how it can provide voice to those who don’t generally have one in the justice system. In terms of types of programs, I am very interested in the impact that child protection mediation can have on the parents involved.

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

JS: I have two favorite projects. The first was an evaluation of Cook County’s [Chicago] Child Protection Mediation Program. I loved it because I was actually able to see the impact of ADR on the participants. I observed 30 mediations and I was able to see how it could change their perspective in what was going on –particularly for the parents. It was enlightening to be able to watch the parents sit down and talk about what they needed and to talk with the people who decide what happens to their children. It was also rewarding for me to be able to talk to parents afterwards, to confirm that it was a positive experience for them and then put their perspective into a report with other quantitative and qualitative data that showed how important this type of mediation is and how beneficial it is overall.

My other favorite project was working on our foreclosure mediation programs. I enjoyed the intellectual process of being able to take, what is now, eight very different programs and figure out how to collect the same data from them while keeping costs down and administrative time to a minimum. I loved analyzing the data across the programs and being able to use the results of that analysis to identify what makes such programs successful. In the end, it was really rewarding to make recommendations based on my analysis and see programs make changes based on those recommendations and then see those changes lead to improvements in the effectiveness of the programs.

NW: You have written excellent resources on Court ADR, which resource would you say you are most proud of?

JS: Other than the two that I mentioned, it would be a combination of my Bibliographic Summary of Cost, Pace, and Satisfaction Studies of Court-Related Mediation Programs and the ABA Dispute Resolution magazine article that summarized it and said that and challenged the ADR field to improve studies of programs and the characteristics that make them more effective. I have found that people have used those two resources more than anything I else I have written, which I think means that they have been useful in the ADR field.

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

JS: Anything outdoors: hiking, biking, walking on the beach, or walking in the woods. As long as it is outdoors and in nature I am happy.

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

JS: I would have dinner with Mohammad, Jesus and Buddha because I would love to see what they would say to each other, how they would interact. Would they dwell on their similarities or their differences? I’d also want to ask how they feel their messages have been followed over time.

 

Mediators, Can We Shift Perspectives on the “Blind Men and the Elephant” Story?

Susan M. Yates, August 11th, 2017

I have a problem with a story that we in the conflict resolution field use and I’m hoping we can find a replacement for it. It’s the story about people who are blind encountering an elephant. It’s a metaphor and it’s used to make a point about differing perspectives, but from my perspective it sends a negative message about people who are blind.

If you don’t know the story, the idea is that several people who are blind encounter an elephant and because they each touch a different part of the elephant, they perceive it differently. Someone touches the tail and says an elephant is a rope, someone else touches the trunk and says it is a snake, etc. You get the idea. Only a sighted person – who can see the whole – understands that it is an elephant.

My problem with this story is that it defines people who are visually impaired as inherently limited and lacking in capability. Read the rest of this entry »

Conscious and Unconscious Thinking in Mediators

Jennifer Shack, July 6th, 2017

The mediation field now has more information in our push to unlock the black box of mediation. A recent study by James Wall and Kenneth Kressl examined the conscious and unconscious thought processes of ten civil case mediators. Their findings do more to confirm what many have long assumed, rather than provide new insights, but they are no less informative because of that. As they discuss in “Mediator Thinking in Civil Cases” (Conflict Resolution Quarterly, Spring 2017), the mediators focused on settlement as well as client satisfaction and obtaining repeat business. Unconsciously, they were biased against emotions being brought into the mediation and saw the dispute as one in which the parties would have to compromise on monetary value.

The study involved 20 observations, two for each of the ten mediators. Nine of the mediators were male; nine were white. When setting up the study, Wall and Kressl made three assumptions:

  • Mediators have goals and pursue them.
  • Mediator thinking operates on two levels – unconscious (system 1) and conscious (system 2). System 1 thinking is emotional and based on personal biases, while system 2 thinking is rational.
  • Mediators engage in mental mapping when adopting goals and pursuing them. Mental mapping involves figuring out what to do and at what point in the mediation in order to achieve their goals.

They used these assumptions to frame their observations. Prior to each mediation, the observer met with the mediator for about 30 minutes and asked, “What are you thinking?” The observer then asked the same question after introductions and after the joint opening session. Once the parties were separated (in each mediation, there was only one joint session), the observer asked the mediator what he was thinking as they walked from one caucus room to the other. After mediation, the observer interviewed the mediator for about 45 minutes.

Conscious Thinking

On the conscious level, Wall and Kressl found that the mediators all had two outcome goals, which they pursued in mediation. These were achieving a settlement and having the clients leave satisfied. Additionally, most of the mediators were interested in obtaining repeat business. The mediators’ operational goals were also universal: lower the clients’ aspirations, keep parties flexible and maintain client control. Interestingly, they all looked to the attorneys to control their clients.

Most of the mediators created mental maps of how they would achieve their goals, although the level of mental mapping varied greatly among them. Mental mapping in general starts with pre-planning – getting relevant information before the mediation starts in order to get an idea of where the case might settle. During mediation, the mediators might take verbal and non-verbal cues into consideration while continuously determining when and how settlement will be achieved, and at what dollar amount. For me, the most surprising finding of the study was that some experienced mediators engage very little in mental mapping. The common factor for the three mediators in the study who used only slight mental mapping was their focus on their own role and actions rather than on those of the parties.

Wall and Kressl found that as part of their mental mapping, the mediators considered how much to press the parties and what the pace of the mediation should be. On both factors, there was considerable variation between mediators. Pressing, defined in the study as “pointing out the weaknesses in the client’s case; noting the strengths of the opponent’s case; and emphasizing the risks, pain, uncertainty, and costs of trial” was used very little by three of the mediators and three used it extensively as a method of control, dominance and pace-quickening.

Unconscious Thinking

Wall and Kressl divided unconscious thinking between prior to mediation and during mediation. Prior to mediation, mediators unconsciously frame the negotiation situation as distributive. That is, they believe that mediation is about getting the parties to make monetary concessions in order to reach agreement. They also believed that mediation should be low conflict and that any mediated settlement was better than trial. The mediators also saw emotions as problematic and to be avoided in mediation.

During mediation, the mediators made quick judgments about the parties and the probability of settlement. Universally, this judgment was negative for insurance adjusters (although the adjuster was only present in five cases). Also noted was that the mediators were “creatures of habit”.  All but one conducted the mediation the same no matter the situation. (This was confirmed for five of the mediators, who had been observed for multiple mediations a decade before.) Wall and Kressl noted that the mediators had on average a 70% settlement rate, which might have led the mediators to confirm that their mediation style worked well.

Although the study only included ten mediators, Wall and Kressl saw patterns in their approach to mediation, leading them to put the mediators into three distinct groups:

  • Reflective Persuaders: these were high mental mappers who were moderate on pressing and extracting offers.
  • Pressers: these were high on pressing and extracting offers, moderate on what the pace of mediation should be and moderate on mental mapping.
  • Laissez-faires: these were low on pressing and extracting offers, moderate on repeat business and having pleased clients and moderate on the pace of mediation. They made mental maps but were hands off.

This study suffers from a small and homogeneous sample, so it is not readily generalized to the general population of mediators.  Another issue is that the cases were very heterogeneous; differences in case types, dollar amounts and representation may have had an impact on how mediators approached their cases. Nonetheless, the study is significant in that it provides insights into mediators’ unconscious biases. This information can be used to uncover the influence of unconscious thinking on mediator behavior and the path that mediation takes.

U.S. Supreme Court Upholds Mandatory Arbitration Clause in Nursing Home Dispute

Nicole Wilmet, July 5th, 2017

In May, the U.S. Supreme Court upheld a binding arbitration clause when it heard the case of Kindred Nursing Centers Limited Partnership v. Clark. In Kindred, Beverly Wellner and Janis Clark, the wife and daughter of Joe Wellner and Olive Clark, each held power of attorney for their respective family members. When Joe and Olive moved into Kindred Nursing Centers L.P., Beverley and Janis completed all the necessary power of attorney paperwork on behalf of their family members. Included in this paperwork was a binding arbitration agreement whereby Beverly and Janis agreed, on their family member’s behalf, that any disputes arising out of their family member’s stay at the facility would be resolved through binding arbitration.

After Joe and Olive passed away, Beverley and Janis brought negligence suits against Kindred Nursing Centers L.P. alleging that Kindred’s substandard care caused their family member’s deaths. Kindred then moved to dismiss these cases and claimed that the binding arbitration agreements signed by Beverly and Janis prohibited these cases from being heard in court. Both the Kentucky trial court and appellate courts dismissed Kindred’s claims and found that Beverly and Janis could try their case in court. Following the appellate court’s decision, Kindred then appealed to the Kentucky Supreme Court who affirmed the lower courts’ decisions and once again found that the families’ claims could be tried in court. As the Kentucky Supreme Court explained, the Kentucky Constitution protects an individual’s right to a jury trial. 478 S.W. 3d 306, 328-329 (2015). As such, the court found that the nursing home’s power of attorney agreement could not permit an individual with power of attorney to waive a jury trial and enter into a binding arbitration agreement without specifically saying so. Id. at 329. Following the court’s decision, Kindred then appealed to the U.S. Supreme Court.

On May 15th, in a 7-1 decision, the Supreme Court determined that the lower courts in Kentucky violated the Federal Arbitration Act (“FAA”) when they failed to give effect to the nursing home’s binding arbitration clause. As the court explained, under the FAA, courts are required to give arbitration agreements the same weight as all other contracts. (pg. 7) By failing to uphold the Kentucky nursing home’s arbitration clause, the Court found that the Kentucky courts failed to give the arbitration clause the same weight as other contracts. (pg. 8) As a result, the Court held that the nursing home’s clause was valid and enforceable.

Mediation Shouldn’t Be More of a Barrier Than a Boon

Susan M. Yates, March 17th, 2017

When it comes to defining mediation, I am not a strict constructionist. As long as a mediation program operates within the ethical boundaries, such as confidentiality, neutrality and voluntariness, which are articulated in the Model Standards of Conduct for Mediators, I can agree with a wide variety of approaches.

Unfortunately, sometimes certain entities (e.g., courts, governments, schools, corporations) seem to use the word “mediation” as cover to make a process that is not really mediation appear more palatable. It is worse yet when the purpose of the program appears to be to create a set of hurdles. One of my core principles in mediation system design is that a mediation program should ease the path to resolution, not erect barriers to it.

A program being developed by the City of Concord, California, to address rising rental rates is looks like the latest example of breaking this principle. Read the rest of this entry »