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Just Court ADR

The blog of Resolution Systems Institute

My Favorite Resource Featuring Raeshann Canady

Just Court ADR, August 2nd, 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 Raeshann Canady the Court Division Administrator for the Eighth Judicial District Court Clark County, Nevada, to learn about her favorite ADR resource.

NW: What is your favorite ADR Resource?

RC: I have two favorite ADR resources.  One is a training manual I received while taking an advanced mediation training with Ken Cloke, “Advanced Mediation Training: Maintaining Dialogue and Overcoming Impasse,” and one is the Resolution Systems Institute newsletter.

NW: Why do you value these particular resources?

RC: Both resources include information about research related to mediation.  Incorporating evidence-informed decision making into my practice is very important.

NW: How did you first learn about these resources?

RC: I learned about both resources from a faculty member at UNLV’s Saltman Center for Conflict Resolution.

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

 RC: Don’t miss Ken Cloke’s discussion about research on “priming” and don’t miss the research-related section of RSI’s newsletter.

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

The Role of Prejudice and Bias in ADR

Jennifer Shack, August 1st, 2018

How can mediation be saved? This is the question that Nancy Welsh attempts to answer in her recent article, “Do You Believe in Magic?: Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation,” (SMU Law Review, Vol 70, 2017).Welsh laments the lack of self-determination in mediation and looks at social science research to question whether mediation really provides procedural justice in a world of inequality, bias and prejudice. Gilat J. Bachar and Deborah R. Hensler take a slightly different tack in their article, “Does Alternative Dispute Resolution Facilitate Prejudice and Bias? We Still Don’t Know” (SMU Law Review, Vol 70, 2017). They look at empirical research on ADR to see if there is evidence that ADR does indeed facilitate bias and prejudice.

In her article, Welsh argues that the promise of mediation to ensure self-determination isn’t being upheld. Instead, she claims that self-determination has been sidelined by judges and lawyers, and calls for reform have fallen on deaf ears. So Welsh turns to procedural justice, which includes having voice, being heard, being treated in an even-handed manner and being treated with dignity, as another way of providing self-determination. If the elements of procedural justice are present, the parties are more likely to have self-determination because they can have an open discussion that leads to an outcome that truly represents the interests of all involved.

The provision of procedural justice, however, is not straightforward. Recent social science research has found that the provision of procedural justice can be impeded by inequality, bias and prejudice. First, one’s experience of procedural justice and how much it influences one’s view of the substantive outcome is affected by one’s status. Procedural justice is more important to those of lower status, who use it to determine if the outcome was fair. Second, one’s ability and desire to have voice is dependent upon one’s status. Third, those with lower status may not be heard by those with higher status. Indeed, research has found that those with higher status are less likely to hear those of lower status due to their prejudices and biases.

Welsh proposes a number of ways to address inequality, bias and prejudice, in the hope that mediation can live up to its promise of providing procedural justice, substantive justice and self-determination. These include: increasing the diversity of the mediator pool and training mediators to recognize and address implicit bias; utilizing pre-mediation caucusing to build trust; encouraging active listening in mediation; promoting the use of online tools for communication (as research has shown that people with lower status are more likely to exercise voice using online media); and empowering mediators to avoid unconscionably lopsided outcomes.

Where Welsh looks to social science research to inform how prejudice and bias may play out in the provision of procedural justice in mediation, Bachar and Hensler examine empirical research to find evidence of prejudice and bias in mediation and arbitration outcomes. They looked at 38 studies conducted over three decades that looked at a variety of case types. They found that the studies arrived at “mixed and contradictory” results and lacked methodological rigor. Therefore, they could draw no robust conclusions from them. However, they believed that the results of these studies indicate that both women and minority men fare worse in mediation than white men. There is no research on racial or ethnic bias in arbitration, but recent research points to women – both parties and lawyers – faring worse than men in the process.

Both articles point to a need for a greater focus on whether inequality, bias and prejudice impact the provision of justice through ADR, and how they may be addressed. This intersection of ADR and prejudice is examined in the two 2017 ADR Symposium issues of SMU Law Review, which are definitely worth the time to read.

Rhode Island Passes Legislation to Extend Foreclosure Mediation

Nicole Wilmet, July 31st, 2018

In May, I reported that the Rhode Island foreclosure mediation program was in jeopardy of ending on July 1, 2018 without legislative intervention. In June, the Rhode Island legislature intervened to extend the state’s Foreclosure Mediation Act.

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. As I reported in May, the House and Senate sponsored two different versions of the bill with the Senate version extending the sunset provision to July 1, 2023 and the House version repealing the sunset provision entirely. In May, the Senate voted and passed their version of the bill while the House Judiciary Committee recommended that their version of the bill be held for further study.

On June 28, 2018, Rhode Island Governor Gina Raimondo signed the Senate version of the bill into law. Under the new law, the Foreclosure Mediation Act’s sunset provision has been extended to July 1, 2023.

New Tools for Mediator Peer Review

Eric Slepak, July 20th, 2018

I’m excited to share with you all a new resource RSI put together for court ADR programs. Curiosity and self-reflection tend to be self-selecting criterion for successful mediators, so it’s not surprising that mediators often crave feedback about their performance and how they can improve. Fortunately for courts, that’s a great instinct, and one that should be nurtured through the use of a structured process whenever possible. To these ends, we at RSI put together some tools for program administrators to utilize in developing a peer-based review support system.

Peer review is a great way for mediators to develop new skills: as long as proper oversight exists to make sure bad habits aren’t proliferating, mediators can learn a tremendous amount from one another. Implementing a peer review system also has the added benefit of galvanizing a community of mediators. Perhaps most beneficially, peer review can function as quality assurance to ensure that the services people receive aren’t a form of second-class justice. Programs that serve self-represented, indigent and other underserved populations may be particularly keen to ensure quality services. Read the rest of this entry »

Support RSI Through AmazonSmile This Prime Day

Just Court ADR, July 16th, 2018

Today is Amazon Prime Day! Are you participating? If so, you can support RSI through AmazonSmile!

When you support RSI on AmazonSmile, Amazon will donate 0.5% of the price of your eligible AmazonSmile purchase to RSI! You can register to support RSI through AmazonSmile here.

We appreciate and thank you for your support!