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Just Court ADR

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My Favorite Resource Featuring Robyn Weinstein

Nicole Wilmet, May 1st, 2019

Our series, My Favorite Resource, features interviews with our ADR friends across the country to learn about their favorite ADR resource. This month, Resource Center Director Nicole Wilmet spoke with Robyn Weinstein, ADR Administrator at the United States District Court for the Eastern District of New York, to learn about her favorite resource.

NW: What is your favorite ADR resource?

RW:  One of my favorite ADR resources is the New York City Dispute Resolution Listserv (“NYC DR Listserv”). The NYC DR Listserv was created by Professor Maria Volpe, director of the CUNY Dispute Resolution Center at John Jay College. The NYC DR Listserv is an unmoderated listserv that was developed shortly after 9/11 as a way to connect the dispute resolution community. It has since grown into an information hub (in New York and beyond) for those interested in events, issues and concerns of interest to dispute resolvers. The NYC DR Listserv has several thousand active subscribers and those interested in subscribing can do so by clicking here.

NW: Why do you value this particular resource?

RW: The NYC DR Listserv is a powerful way for individuals and organizations to disseminate information about conflict resolution conferences, events, programs, awards, ADR competitions, new initiatives, and various issues that arise in the dispute resolution community. The NYC DR Listserv is an effective resource for those looking for information about trainings, symposia, networking events, and job opportunities. (The job I have currently was posted on this listserv.)  Some of the job opportunities are in New York City, but many of the opportunities are located around the world. I also value this resource because many of the members of the listserv are active and passionate about the field.

NW: How did you first learn about this resource?

RW: I first learned about this Listserv while I was a student at Benjamin N. Cardozo School of Law. At the time, I was a participant in the law school’s mediation clinic and was interested in learning about opportunities in dispute resolution.

NW: For those unfamiliar with this resource, what is the best way to use it?

RW: I would recommend signing up for the digest version of the Listserv, as there are several posts daily. Also, as is the case with many listservs, conversation threads can “heat up” resulting in lengthy back and forth discussions. The digest culls together all of the subject lines of each e-mail and makes it easier to skim through the listserv activity and choose the topics that are most relevant to you. Periodically, Professor Volpe sends out annual list of trainings and events, which gives a great overview of the breadth of conflict resolution activity in New York and beyond.

NW: Are there any other resources you enjoy that you would also like to mention?

RW: A burgeoning resource that I also wanted to share is the ADR Inclusion Network. The ADR Inclusion Network is a group of individuals dedicated to promoting diversity and inclusion in the field of ADR. The network members meet regularly and have begun to compile listings of events, articles and research relating to diversity in dispute resolution. The network also maintains a listserv where members of the network can post events, speaking opportunities, and share information and updates regarding their respective diversity and inclusion initiatives and efforts. Those interested in joining the network may do so here.

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

Can Judges Provide Access to Justice Through Settlement Conferences?

Jennifer Shack, April 30th, 2019

This following isn’t new research (it was published in 2016), but it does present a framework for examining access to justice in ADR processes.

In research he conducted in Quebec, Jean-Francois Roberge found that judicial settlement conferences offer parties a sense of access to justice (SAJ). He also determined that particular factors were linked to parties having a more positive perspective of the process. These included judge behaviors and process characteristics. He discusses this research in “’Sense of Access to Justice’ as a Framework for Civil Procedure Justice Reform: An Empirical Assessment of Judicial Settlement Conferences in Quebec (Canada),” (Cardozo Journal of Conflict Resolution, 2016).

Roberge had two objectives for his research. The first objective was to assess parties’ perceptions of the quality and value of the settlement conference. The second research objective was to identify the factors that had a determining influence over the degree of SAJ the users had.

Background

To explore the capacity of settlement conferences on participant sense of access to justice, Roberge developed a “Sense of Access-to-Justice Index,” which is based on the Hague Model Measuring Access to Justice, but tailored to settlement conferences. The SAJ Index contains what Roberge calls the three pillars of SAJ:

  • The user’s feeling of fairness of outcome and process
  • The user’s feeling of usefulness of the process (particularly cost-effectiveness)
  • The user’s sense that professional support was available from the judge-mediator

Each of these is made up of subcomponents. The user’s feeling of fairness of outcome and process is based on the quality of the outcome and quality of the process.  The quality of the outcome is based on four types of fairness:

  • Distributive fairness –does the outcome match the parties’ capacity, limits and needs?
  • Reparative fairness – does the outcome compensate for loss (both financial and non-financial)?
  • Functional fairness – does the outcome resolve the problem?
  • Transparent fairness – is the outcome substantiated and comparable to outcomes in similar situations?

The quality of the process is based on:

  • Fairness of process – decision-making process is coherent and impartial and allows the parties to be heard, considered and involved
  • Informational treatment – transparent communications lead to an enlightened decision
  • Interactional treatment – sincere communications respect the parties’ status and dignity

Usefulness of the process is focused on different types of cost:

  • Financial costs
  • Psychological and emotional costs (stress, negative feelings)
  • Opportunity costs (especially to business and reputation)

The feeling of professional support depends upon three approaches judges use to help parties obtain justice and the presence of participatory justice:

  • Risk manager – the judge assesses the strengths and weaknesses of each party’s case
  • Problem-solver – the judge identifies the needs and interests of parties
  • Justice facilitator – the judge develops a relationship of cooperation and trust between the parties

Participatory justice is the involvement of the parties in the “process to define and settle their dispute in a way that generates a feeling of justice for them. Collaboration, respect, proactiveness, and creativity are all statistically significantly correlated with the concept of participatory justice.” (p. 346)

The Study

The judges who conducted the settlement conference had been trained in facilitative mediation and integrative problem-solving. Questionnaires were distributed to parties and lawyers directly after the settlement conference. The questionnaires consisted of 67 items that explored the parties’ and lawyers’ SAJ, utilizing the theoretical framework discussed above. They were completed by 380 parties and 360 lawyers.

Findings

SAJ Score

Roberge developed a 100-point scale for each of the three areas of SAJ (the participants’ feelings of fairness, usefulness and professional support). The aggregated SAJ score for all respondents was 83 (averaged across the three areas), with usefulness (89) and support (88) being higher than fairness (71). Parties on average scored their experience lower than lawyers, particularly in terms of fairness. Parties scored a 65 on fairness, while lawyers scored a 77.

There were discrepancies between other groups in the survey as well.  Defendants were significantly more positive than plaintiffs. Those who reached agreement were  more positive in their ratings than those who did not. There was also a significant difference in assessment based on costs. The higher the costs incurred, the lower the assessment. Further, those who lost more than $10,000 in opportunity costs or spent more than 100 hours resolving the problem gave lower assessments of the process.

Factors Influencing SAJ

Roberge also looked at which factors influenced different aspects of SAJ, based on the participants’ answers to the 67 items on the questionnaire. The factors listed below are verbatim and were presented in the article without explanation. I tried to glean what they each mean from elsewhere in the article, which proved difficult. Any wording in parentheses is my understanding of what those items mean based on Roberge’s discussion of the factors.

The following had the most influence on the participants’ feelings of fairness, listed by order of how much influence each had:

  • Active judge for a fair solution for the parties (judge who helps the parties find a solution that appears to them to be fair and adapted to their needs)
  • Facilitative judge towards a sense of justice
  • Communication that allows to create trust (communication process that creates trust)
  • Unbiased process in favor of a party
  • Judge listens to needs and interests of the parties
  • Communication that allows justification
  • Process compliant to ethical norms
  • Active judge for a solution based on needs

Factors influencing participants’ sense of usefulness:

  • Communication that allows to create trust (communication process that creates trust)
  • Negotiated solution less risky than trial
  • Process that allows involvement of the parties
  • Negotiated solution faster than trial
  • Process that allows consideration of the parties
  • Communication that allows justification

Factors influencing participants’ sense of professional support:

  • Active judge for a fair solution for the parties (judge who helps the parties find a solution that appears to them to be fair and adapted to their needs)
  • Judge listens to needs and interests of the parties
  • Facilitative judge towards a sense of justice
  • Judge looks for a solution based on needs
  • Process compliant with ethical norms
  • Judge listens to legal positions

Conclusion

While the article is somewhat frustrating in that Roberge never fully describes the factors influencing participant perspectives on their experience in the settlement conference and doesn’t provide a list of the questionnaire items used to develop the factors, it is an interesting take on measuring access to justice for a legal process. It is more common, at least in the US, to break down his determinants of a sense of access to justice into individual elements: access to justice, cost and procedural justice. Pulling them all together creates a more global conception of access to justice, one in which justice is not accessed unless the process provides procedural justice and limits psychological and emotional costs.

Arizona Launches ODR Pilot Programs to Handle Family Court Cases

Nicole Wilmet, April 29th, 2019

In August 2018, the Supreme Court of Arizona released an Administrative Order authorizing the Superior Courts in both the Pinal and Yuma Counties to utilize an online dispute resolution (ODR) pilot project for family court cases. Both programs are approved to run for 12 months from the date of their implementation. Last year, the Yuma County program launched their program on December 3, 2018, and the Pinal County program recently launched their program on March 25, 2019. Both programs are free to parties and, in most cases, eliminate the need for parties to go to the courthouse. The decision of which cases are eligible to participate in the program are made by each county’s Conciliation Service Departments (“CSD”). According to the press releases for both programs, when selecting cases to participate in the program, the CSD will consider “the issue to be decided and other factors.”

To learn more about each of these ODR pilot programs, this month I spoke with Nicole LaConte, Court Program Specialist at the Arizona Administrative Office of the Courts. The vendor for both programs is Court Innovations. After the CSD has identified eligible cases for the program, the CSD then uploads the parties’ information into the platform and the platform sends a notice to the parties inviting them to participate. Once a party agrees to participate, a facilitator is assigned to their case. The facilitators for the ODR program are current members of the CSD staff who are trained court mediators. Aside from learning how to utilize the platform, these facilitators are not required to undergo any specific technology training. The platform is designed so that the communication between the parties and the facilitators is asynchronistic, meaning that parties have 24-hour access the ODR platform. As a result, they can upload materials, communicate, and respond to their court facilitator at their convenience. In Pinal, the platform is designed so that the facilitator can speak to only one party at a time and the court is currently working on adding the ability for the facilitator to speak to the parties at the same time. Additionally, in Yuma, the platform was structured so that the Attorney General can also participate if the parties are deciding something that affects child support.

The program was designed for parties to access the service from their own personal computer or mobile device without having to go to the courthouse. Although similar, one notable difference between the two programs is that the Yuma program will be handling only post-decree cases and the Pinal program will be handling both pre-decree and post-decree cases. The goals for both programs is to broaden litigants’ access to the court and reduce the number of court hearings. To evaluate the programs, litigant satisfaction surveys will be sent out and the court will measure the time to disposition as well as the reduction in court hearings. Since both programs are currently in the pilot stage, there is no information about the programs in either county’s court rules. However, additional information about the programs is available at both the Yuma County ODR program website and the Pinal County ODR program website.

Introducing RSI’s Special Topic on Online Dispute Resolution!

Eric Slepak-Cherney, April 26th, 2019

We are excited to introduce our new Special Topic on Online Dispute Resolution (ODR)! With courts across the country exploring ODR at a rapid pace, we sought to develop a resource that would help provide thoughtful context and guidance on how court administrators and stakeholders should approach the intersection of technology and dispute resolution. Containing a history of ODR, considerations for courts and links to other helpful resources, we hope you will find this new content enlightening and will excite you for the future of delivering justice through online dispute resolution.

RSI’s Susan Yates and Jennifer Shack Attend ABA Section of Dispute Resolution Annual Conference

Just Court ADR, April 25th, 2019

This month, Executive Director Susan Yates and Director of Research Jennifer Shack headed to Minneapolis for the American Bar Association Section of Dispute Resolution Annual Conference. At the Conference, Jen presented on what her evaluations of child protection mediation programs in Chicago and Washington, DC, can tell other courts about how to design programs that are effective, efficient, and attend to the needs of all mediation participants. Jen and Susan also hosted a court ADR resource share during the conference.

For both, the highlight of the conference was the Court ADR Symposium. From the opening plenary to the individual sessions, the information was both interesting and in-depth.