Resources / Study / Innovation for Court ADR

Just Court ADR

The blog of Resolution Systems Institute

New to RSI’s Resource Center

Nicole Wilmet, March 3rd, 2021

Did you know that RSI’s Resource Center is the most comprehensive and respected source of information on court ADR anywhere? Housed within the Resource Center is the Research Library which has an extensive collection of court ADR resources such as articles, studies, court rules, statutes and court forms.

RSI’s Resource Center Director Nicole Wilmet regularly adds new resources to the Research Library. The following list highlights a few of the resources that have recently been added.

We hope these resources are helpful in your work!

Jennifer Shack to Participate in Upcoming ABA Webinar

Just Court ADR, March 2nd, 2021

Tomorrow, March 3, 2021, RSI’s Director of Research Jennifer Shack will be participating in a webinar with John Lande entitled Help Clients by Combining “Facilitative” and “Evaluative” Mediation. The event is hosted by the American Bar Association Section of Dispute Resolution and is free for members to attend.

For Family Cases Involving Reports of Intimate Partner Violence, Shuttle and Videoconference Mediation Are Safe, Effective and Preferred by Parents

Jennifer Shack, March 1st, 2021

In a randomized controlled trial of family cases involving parents reporting high levels of intimate partner violence (IPV), parents felt safer in and were more satisfied with shuttle and videoconference mediation than litigation. Importantly, they also indicated a preference of shuttle mediation over videoconference mediation. The study, conducted in Washington, DC, by Amy Holtzworth-Munroe, et al., is discussed in their article “Intimate Partner Violence (IPV) and Family Dispute Resolution: A Randomized Controlled Trial Comparing Shuttle Mediation, Videoconferencing Mediation, and Litigation” (Psychology, Public Policy, and Law, February 2021).

For the study, the researchers compared traditional litigation (n = 67 cases), the process used for all cases prior to the study, to shuttle mediation (n = 64 cases) and videoconference mediation (n= 65 cases), two approaches designed to protect parent safety. All parents referred to mediation by the court were first screened for IPV by specially trained Dispute Resolution Specialists (DRSs). Based on the screening, the DRSs identified cases as being potentially eligible for the study if the IPV reported by either or both parents was at a level that the case was considered inappropriate for joint mediation. Cases were considered ineligible if: the case involved an open child abuse case or required other emergency interventions due to immediate danger; a parent lived too far away to participate in mediation in person, was deemed incompetent for mediation (e.g., acutely psychotic), was incarcerated or had a pending criminal case that would interfere; or the parents were in a same-sex relationship (pilot work revealed that there were too few same-sex cases for study purposes). Eligible parents were then randomly assigned to one of the three groups.

Mediators were trained in both shuttle mediation and video mediation and were assigned to both types of mediation. In both shuttle and videoconferencing mediation, parents were in different rooms in the same building but not near one another. In shuttle mediation, the mediator met in person with each parent separately and shuttled back and forth between rooms. The parents never saw or spoke directly to each other; all communications were through the mediator. Mediators assigned to shuttle mediation had no discretion to change the process format.

In videoconferencing mediation, the mediator was in a third room. Both parents and the mediator had access to a web camera and a computer screen and could see and hear each other on the screen. The mediators took regular breaks to check to see if each parent was comfortable with continuing with the three-way videoconference or if they wanted to move to either only audio (with other parent and mediator) or to communicate individually by video with the mediator. Mediators could make such changes if concerned about parent safety or emotional wellbeing, and parents could turn off the video equipment in their rooms at any point.

Mediator Assessment of the Approaches

In 41.3% of videoconferencing cases, mediators said they had private, in-person meetings with one or both parents. Mediators were most likely to hold such meetings to get forms (e.g., agreement to mediate) signed by the parents. In 71.7% of videoconferencing cases, mediators reported holding private, individual video meetings with one or both. Mediators reported that these meetings took place to help the mediation process (e.g., when a parent was behaving inappropriately) or to help parents process what was happening.

Immediately after mediation, the mediators were asked to complete a survey. They were asked their perceptions of the mediation in terms of their own and each party’s safety, their own and each party’s comfort, about their feelings of safety and comfort as well as their perception of each parent’s safety and comfort and their perception of the appropriateness of the process used for that case.  Mediators felt equally safe in both mediation approaches and perceived both as being similarly safe for mothers and fathers. They had similar perceptions about comfort in mediation, although they indicated feeling more comfortable and satisfied in shuttle mediation as compared to videoconferencing.

In 90% of cases, mediators believed shuttle mediation was appropriate for the case. This was significantly lower for videoconference mediation, which they said was appropriate in 78% of cases. Mediators also were significantly more likely to say that cases in videoconference mediations should have been handled with a different approach than that cases in shuttle mediation should have been handled differently (58% vs. 35%). Unsurprisingly, the mediators believed mediation had a greater effect on the parents’ ability to reach agreement when they conducted shuttle mediation than when they conducted videoconference mediation.

Parent Assessment of the Approaches

Parents were asked to assess the process in which they participated immediately after conclusion, including traditional litigation. Parents felt safer and less fearful in mediation than in traditional litigation, with no difference between the two mediation approaches. Parents in mediation were also more satisfied with the process than parents in traditional litigation, again with no difference between the two mediation approaches. Asked whether they believed the process used for their case was appropriate for their case, parents in mediation were significantly more likely to agree than were parents who participated in traditional litigation (87% vs. 76%). As with safety and satisfaction, parent perception of appropriateness of videoconferencing and shuttle mediation did not differ significantly. A similar pattern was found in their response to nine questions that assessd the positive effects of the process, such as feeling heard, able to express feelings efficiency, fairness, parents being held accountable.

Interestingly, there were no differences in parents’ satisfaction with the outcome or whether the process was helpful in resolving the issues among the three approaches. However, among those who reached a final resolution, parents who mediated using either approach were more likely to believe that the parents would follow the resolution terms than those who went through the traditional court process. There was no difference in parents’ responses between the two mediated approaches.

Outcomes and Time

Videoconferenced cases were half as likely to reach agreement as cases in shuttle mediation (43% vs. 22%). Through coding the content of the document that resolved case issues (i.e., the mediated agreement or the court order), the researchers found no statistically significant group differences in legal custody, physical custody, or parenting time arrangements and few differences in the likelihood of the document specifying a variety of arrangements (e.g., how to handle missed parenting time) or including safety provisions (e.g., supervised child exchanges).

However, there were statistically significant differences across groups for some specifications in the resolution document that might help decrease risk of violence. These differences indicate that mediation might result in more details regarding issues related to possible safety. Specifically, final documents for cases that had mediation were more likely than final documents for cases in traditional litigation to: address interparental communication at all (56 vs. 31%); agree to limit interparental disputes in the children’s presence (44% for mediation vs. 14%); include aspirational language about interparental communication (e.g., parents will try to have civil discussions; 38% vs. 8%); and agree to limit parents’ passing of messages to one another through the child (35% vs. 10%).

The researchers found that mediated cases also fared well in terms of the time needed to resolve a case. Cases that went through the traditional process took 3 times as long to reach final resolution as mediation cases.

Conclusion

The researchers conclude that “in cases with parents reporting concerning levels of IPV, when both parents are independently willing to mediate, mediation designed with strong safety protocols and carried out in a protected environment by well-trained staff may be an appropriate alternative to court.” (Taken from the article abstract.) They state that their findings do not definitively favor either shuttle or videoconference mediation. However, they note there are suggestions in the data that shuttle mediation might be preferable, as it was more likely to lead to agreement and mediators seemed to prefer it. They suggest that as COVID has put restrictions on in-person processes, future researchers could examine shuttle mediation via video technology.  In the meantime, “longer term outcomes and additional research are needed to more clearly understand if videoconferencing mediation, as structured in this study, is as safe and appropriate as shuttle mediation for cases reporting high levels of IPV.”

New York Court Launches ODR Pilot Program for Small Claims Cases

Nicole Wilmet, February 26th, 2021

In January, Manhattan’s Civil Court launched an online dispute resolution (ODR) pilot program for small claims cases. The program is designed to assist self-represented parties and eligible cases include disputes regarding the purchase or sale of goods or services up to $10,000. Cases meeting these criteria will automatically be referred to the program and then be screened for eligibility. If eligible, parties will have the opportunity to negotiate through the platform to resolve their dispute.

New York’s new program uses the Matterhorn platform and is free for parties. In a press release for the program, the court indicates that the new ODR platform will lead parties through an “automated double-blind bidding process, in which each party makes an offer that may only be disclosed after both offers match [and] depending on the outcome.” In this helpful video, the court explains what this process looks like in practice. As the video explains, once on the platform, both parties will be invited to submit a proposed settlement amount. In the example from the video, if one party submits a settlement amount for $800 and the other party presents a settlement amount for $200, then the program will use the overlap between these two amounts and split the difference in half (ex: $500). From there, the platform will present this amount to the parties as a proposed solution. If the parties are able to agree to the proposed amount, the platform will then guide the parties through negotiating the other terms of the settlement.

In the event parties are unable to reach an agreement, the ODR platform will then present several other resolution options to the parties. First, the platform will give parties the opportunity to communicate with each other through a chat interface to see if they are able to reach a settlement. Second, if the parties are still unable to reach agreement, they will be given the option to work with a mediator. Finally, if the parties do not want to proceed with chat and mediation, or were unable to reach an agreement in mediation, parties will then have the option to proceed to court. For additional information about the program, visit the program’s website or contact the Civil Court of the City of New York by phone at 646-386-5484.

RSI is Seeking an Eviction Mediation Program Coordinator

Just Court ADR, February 25th, 2021

RSI is currently seeking a Program Coordinator for an Eviction Mediation Program in Kane County. RSI is in the process of developing an eviction mediation program to serve landlords and tenants in Kane County, Illinois. We need someone who can help direct parties in need to vital services, keep good records so we can share meaningful data, and generally step up as a team member on a day-to-day basis to provide the highest quality services to those involved in the eviction process.

Applications will be accepted on a rolling basis. Those interested in reading more about the position and applying may learn more here.