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Just Court ADR

The blog of Resolution Systems Institute

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.

Which Mediator Techniques Are Most Effective? Report Points to Some with Potential

Jennifer Shack, October 3rd, 2017

The ABA Section of Dispute Resolution Task Force on Research of Mediator Techniques  has recently released its report on almost 50 studies that looked at the effect of mediator techniques and actions on (1) settlement and related outcomes; (2) disputants’ relationship or ability to work together and their perceptions of the mediator, the mediation process or the outcome; and (3) the attorneys’ perceptions of the mediation. Although the nature of the studies made it hard to draw broad and definitive conclusions about what works, a few threads could be pulled from their findings. Four categories of techniques were found to have the potential to increase the probability of settlement and improve party relationships and perception of the mediation. Each of the four focuses on the parties in some way, whether eliciting their ideas or building rapport.

Because the studies defined mediator techniques and actions differently, the Task Force organized them into the following conceptual categories:

  • pressing or directive actions or approaches
  • offering recommendations, suggestions, evaluations, or opinions
  • eliciting disputants’ suggestions or solutions
  • addressing disputants’ emotions, relationships, or hostility
  • working to build rapport and trust, expressing empathy, structuring the agenda, or other “process” styles and actions
  • using pre-mediation caucuses
  • using caucuses during mediation

Mediator techniques and actions

When looked at as a whole, the studies were mixed in their findings regarding the effect of categories of techniques on outcomes. Because the findings were mixed, the studies provide no clear guidance about which techniques will have a positive effect on outcomes and which will be detrimental. However, a few techniques were found to have the potential to have a positive effect both on settlement and on disputants’ relationships and perceptions of mediation. These are:

  • eliciting disputants’ suggestions or solutions
  • giving more attention to disputants’ emotions, relationships, and sources of conflict
  • working to build trust and rapport, expressing empathy or praising the disputants, and structuring the agenda
  • using pre-mediation caucuses focused on establishing trust

Eliciting disputants’ suggestions or solutions

Five studies looked at the effect of mediators working with disputants to suggest possible solutions, helping them to generate new ideas, or asking them to respond to or evaluate ideas or proposals. None found a negative effect on settlement or on participant relationships or perceptions of the mediation, though they were mixed as to whether they had a positive effect or no effect.

Addressing disputant’s emotions, relationships or sources of conflict

Most of the 11 studies that examined the effect of mediators paying more attention to the relationship/emotional aspects of disputes found that this had a positive or neutral effect on settlement, although a couple of studies did find a negative effect. The effect of these actions on disputants’ perceptions and/or relationships was either positive or neutral. In labor-management mediations, trying to reduce emotional tensions decreased the likelihood of settlement, while attempting to reduce expressions of hostility had a positive effect for labor negotiators, but no effect for management negotiators. If paying more attention to the relationship/emotional aspects of the dispute was combined with proposals for how to avoid the appearance of defeat, settlement was more likely.

Working to build trust and rapport, expressing empathy or praise, and structuring the agenda

Of the 11 studies that looked at the effect of the mediator building trust and rapport or expressing empathy or praise on settlement, only two found a negative effect. The other nine found either a positive effect or no effect. Three studies looked at the effect of these actions on the disputants’ relationships and/or perception of the mediation. These either found a positive effect or no effect.

Nine studies looked at what effect structuring the agenda had on settlement. Only one found a negative effect. The others found either a positive or no effect. Studies suggest that agenda setting should be flexible rather than rigid if it is to have a positive effect on disputants’ perceptions of the mediation.

Using pre-mediation caucuses

Three studies looked at the effect of pre-mediation caucuses on settlement and post-mediation relationship conflict. Their findings indicate that these can be effective, but only if used to build trust with the disputants. They were not effective, and could possibly be detrimental, if mediators used them to encourage disputants to accept settlement proposals.

Guidance for mediators

Despite seeing a trend in the studies that pointed to the potential of these categories of techniques and actions, the Task Force did not feel that there was sufficient evidence to state that these were best practices for mediators. However, enough evidence exists to suggest that the above techniques will not be harmful and may well be beneficial to the goals of mediation.

Next steps

The Task Force recommends as next steps that the studies involved in this report be made available in a repository that could be built upon and researched more thoroughly. Other recommendations include developing common terminology, definitions, and measures for mediator actions and mediation outcomes to provide more uniformity and consistency across studies so their findings could more meaningfully be compared. Along with this, research needs to be done to test the reliability and validity of mediator action and mediation outcome measures so that future studies produce more rigorous and meaningful findings. All of this can be possible with the collaboration of researchers, practitioners, trainers and program administrators.

Next Era in Court ADR Resources Now Available

Susan M. Yates, September 26th, 2017

Dear Friends of RSI,

I am thrilled to announce that RSI has launched our new website! Many years in the making, AboutRSI.org now offers a one-stop shop for all things court ADR.

In the revamped Resource Center, you’ll find easier ways to access the resources you rely on, such as information about programs across the country and details on over 5,000 articles, studies and other resources related to court ADR.

You’ll also find new content written by the RSI team. I’m especially proud of our Guide to Program Success – covering how to design, manage and evaluate successful court ADR programs – written by RSI Director of Research Jen Shack and me.

If you are interested in RSI and the critical work we’re doing in court ADR, you will find robust information. You’ll also find all of our major publications – including our program evaluations and monthly Court ADR Connection newsletter.

To learn more, visit us at www.aboutrsi.org!

Sincerely,

Susan Yates

Executive Director

 

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 »