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Just Court ADR

The blog of Resolution Systems Institute

My Favorite Resource Featuring Missy Greathouse

Nicole Wilmet, June 7th, 2018

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 Missy Greathouse, the Executive Director of Dispute Resolution Institute to learn about her favorite ADR Resource.

NW: What is one of your favorite ADR resources?

MG: Other than RSI’s website and newsletter (my number one favorite resources), my current favorite ADR resource is the newsletter of the Illinois State Bar Association’s Section on Alternative Dispute Resolution – In the Alternative.

NW: Why do you value this particular resource?

MG: On average there are six newsletters released a year, with updates on cases, ADR news and articles on topics of interest to those of us in ADR. I appreciate the information that is Illinois specific, but especially appreciate the opportunity to learn what is going on around the country.

NW: How did you first learn about this resource?

MG: When I joined the ISBA years ago, I learned about the newsletter when I signed up for the section. In addition, I have had the privilege of serving on the ISBA ADR Section Council for the last few years and have been able to see the work our editor puts into the newsletter along with the help of students from North Central College.

NW: For those unfamiliar with this resource, what is one part of this resource that you wouldn’t want someone to miss?

MG: I would definitely recommend the case briefs section to ensure you’re updated on the latest cases and how the ruling may affect our practice as ADR practitioners.

If you have a favorite resource you would like to share in an upcoming edition of our newsletter, please reach out to our Resource Center Director and Court ADR Connection Editor, Nicole Wilmet at nwilmet@aboutrsi.org!

Rhode Island and Connecticut May Soon Be Without Foreclosure Mediation Policies if Legislature Intervention is Unsuccessful

Nicole Wilmet, June 6th, 2018

The future of both Rhode Island and Connecticut’s foreclosure mediation policies are currently in the hands of their respective state legislatures. Both states have sunset provisions looming on the horizon with the Rhode Island Foreclosure Mediation Act set to end on July 1, 2018 and Connecticut’s foreclosure mediation program set to end June 30, 2019.

Enacted in 2013, the Rhode Island’s Foreclosure Mediation Act grants homeowners who face foreclosure the opportunity to meet with their lender and an independent mediator to try to work out a solution to avoid foreclosure. According to the Providence Journal, since 2013 the Foreclosure Mediation Act has helped 679 families stay in their homes. In an effort to keep foreclosure mediation, earlier this year, Sen. Elizabeth Crowley, Sen. Paul Jabour, Sen. Harold Metts, and Sen. Ana Quezada sponsored a Senate’s version of the bill that would extend the sunset provision to July 1, 2023. In the House, Rep. Susan Donovan, Rep. Raymond Johnston, Rep. Mary Messier, and Rep. Michael Morin sponsored the House version of the bill that would repeal the sunset provision entirely. Currently, the Senate voted and passed their version of the bill on May 23, 2018, but the House Judiciary Committee recommended earlier this month that their version of the bill be held for further study.

The Connecticut legislature is also working to extend the life of their state’s foreclosure mediation program. The Connecticut foreclosure mediation program began in 2008. As this article from the Hartford Courant highlights, between the program’s inception on July 1, 2008 to December 31, 2017, the program has heard 27,958 cases. Of these cases 70% resulted in borrowers staying in their homes, 16% reached agreements for a short sale or other measure, and only 14% did not settle. Like the bills in Rhode Island, there are two versions of an act that would either extend or eliminate the sunset provision making their way through the Connecticut legislature. Both versions of the bill are sponsored by the House of Representatives Banking Committee with the most notable difference between the two bills being the treatment of the sunset provision. The House version of the bill the bill would eradicate the sunset provision for the program entirely whereas the Senate version would extend the sunset provision to December 31, 2019.  Given that the sunset provision doesn’t expire until 2019, the Connecticut legislature has more time to save their foreclosure mediation program than Rhode Island.

Foreclosure Mediation Saves 1,000 Homes in Illinois

Eric Slepak, June 1st, 2018

In compiling the latest statistical report for the eight foreclosure mediation programs funded by the Illinois Attorney General, RSI discovered that, as of last year, the programs helped over 1,000 Illinois homeowners stay in their homes. That’s a tremendous accomplishment and much is owed to the talented program staff that administer these programs, the neutrals who mediate these cases, the housing counselors and legal aid attorneys who advise the homeowners, and the Office of the Attorney General whose belief in the power of mediation made this all possible.

About a quarter of the cases, and 5% of the total foreclosure filings, end in retention. While that might not sound like much, it’s worth bearing in mind that in many instances, there is a significant power imbalance between the homeowner and their lender. That fact makes it quite possible that without the guidance provided by the housing counselors and attorneys, and the channels of dialogue between borrower and lender opened by the program staff and mediators, these homeowners would have very little chance of prevailing in the traditional judicial foreclosure process. Therefore, a retention rate of that magnitude is a tremendous victory. Read the rest of this entry »

My Favorite Resource Featuring Doug Van Epps

Just Court ADR, May 11th, 2018

Our series, My Favorite Resource, features interviews with our court ADR friends across the country to learn about their favorite resource. In April, Resource Center Director Nicole Wilmet spoke with Doug Van Epps, Director of the Michigan Office of Dispute Resolution to learn about his favorite resource.

NW: What is one of your favorite ADR resources?

DVE: Aside from the RSI website, which is my “go to” point of departure for most research questions, I frequently rely on the 3-volume set, “Mediation: Law, Policy & Practice,” by Cole, McEwen, Rogers, Coen, and Thompson, updated annually, and published by Thomson Reuters.

NW: Why do you value this particular resource?

DVE: This compendium of mediation research, practice, and state statutes has frequently been helpful in researching a gamut of mediation questions, e.g., the operation of confidentiality and privilege across the states, identifying the array of mandatory arbitration practices in the country, resources for specific dispute types, and a state-by-state encyclopedia of statutes, to name a few examples.

NW: How did you first learn about this resource?

DVE: A marketing brochure.

NW: For those unfamiliar with this resource, what is one part of this resource that you wouldn’t want someone to miss?

DVE: Acknowledging that this resource is probably most helpful for persons frequently researching policy questions, practices, procedures, and statutes across states, I’ve found it helpful just to periodically review my own state’s compendium of statutes so that I’m up to speed on how dispute resolution is evolving in branches of government beyond the judiciary.

If you have a favorite resource you would like to share in an upcoming edition of our newsletter, please reach out to our Resource Center Director and Court ADR Connection Editor, Nicole Wilmet at nwilmet@aboutrsi.org!

Motivational Interviewing: Successful Settlement and Pointers for Mediator Training

Jennifer Shack, May 1st, 2018

Last year, I wrote about two studies looking into the use of motivational interviewing in family mediation. The two summaries are presented together here. Motivational interviewing (MI) is a counseling technique designed to induce clients to change their behavior by exploring and resolving their ambivalence toward change. It has been found to be effective in a variety of contexts, including reducing aggression in intact couples.

An experiment in Australia found that when mediators used MI during the mediation, the parties were twice as likely to reach a full agreement. However, this technique does not reduce psychological distress, child adjustment problems or co-parental conflict. The study, undertaken by Megan Morris as part of her PhD thesis (Motivational Interviewing and Family Mediation: Outcomes for Separated Families, 2016 (see Chapter 4)), is the first to examine the use of MI in family mediation.

To determine the impact of MI on mediation outcomes, Morris randomly assigned 177 separated families to either the treatment group (n=94), in which the mediator used MI, or the control group (n=83), in which the mediator did not. The mediations were conducted over the phone and recorded and coded by multiple trained coders as to the integrity of the MI treatment. In all, 108 sessions were recorded, including 68 intake sessions and 40 joint sessions by 15 mediators. Eight of the mediators were randomly assigned to be trained in MI before the study; the other seven were offered training after the study was completed. Those trained prior to the study incorporated MI into their mediations during the study, while the other group continued to use their usual mediation techniques.

Recordings of intake interviews and joint sessions indicated that mediators trained in MI techniques ranked much higher on the MI Treatment Integrity Scale than those who were not, demonstrating that there was a difference in the services provided to the treatment and control groups. Parents in the treatment group were twice as likely to reach full agreement as those in the control group (33% v 16%) and less likely to reach no agreement (33% v 42%). There were no other statistically significant differences in satisfaction with the mediation, psychological distress or child adjustment.

Although the research was well-designed, it suffered from technical and logistical issues, including problems with recording equipment that significantly reduced the number of recorded sessions, and families who were accidentally provided the wrong service for at least one of their sessions. Further, there was a high attrition rate for the study: of those who agreed to participate, only 26% completed the post-mediation satisfaction surveys and psychological assessment instruments. This may have affected the research findings. In particular, the high attrition rate may have masked differences in outcomes that existed between the two groups, leading to the erroneous finding that there were no differences in the long-term outcomes (i.e., psychological distress and co-parental conflict).

Researchers at the University of Nebraska are also looking into combining mediation with MI. Their research, however, is looking at how to best train mediators to employ MI in family mediations. In an article in The Nebraska Lawyer (January/February 2017), they provide a primer on MI and how it can be used in mediation, then discuss the outcomes of their training research.

The researchers – Kristen M. Blankley, Lisa PytlikZillig and Kate Speck – are following eight mediators through the training process and into their practice post-training. The mediators completed self-efficacy surveys before starting training. They then participated in a follow-up discussion. The researchers are not just looking at change in skills and knowledge during training, but are gathering data on the mediators’ ability to use MI in their own mediation practice. Thus, after each mediation the mediators are also filling out reflection worksheets that are based on an assessment developed to improve MI proficiency. The research will also include two more follow-up discussions and another self-efficacy survey.

Through their research, Blankley, et al, have concluded that the most important things in MI training for mediators were:

  • Clarify what the new strategies are. MI and mediation share a lot of skills and terminology, but there are important differences. The mediators initially didn’t understand what those differences were and thus how to change their practice.
  • Be careful with terminology. MI and mediation can use different terms for the same concepts. This can be confusing. Either explain the differences or change the terminology to fit mediation.
  • Demonstrate MI skills. The mediators benefitted greatly from a fishbowl in which an expert in MI demonstrated change talk and the mediators could discuss options for mediator responses.
  • Address concerns about appearance of bias. This was a major concern of the mediators. They felt uncomfortable exploring change with one party while the other looked on. The mediators discussed strategies for managing appearance of bias, including the use of caucus.

What is apparent from this article is that the research is not only providing a template for future training, but it is also identifying strategies for incorporating MI into mediation. The article is only six pages and worth a read.