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Just Court ADR

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My Favorite Resource Featuring Catherine Geyer

Just Court ADR, October 1st, 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 Catherine Geyer, Manager of the Dispute Resolution Section, Supreme Court of Ohio, to learn about her favorite resource.

NW: What is your favorite ADR Resource?

CG: My favorite resource is my network of experienced and talented dispute resolution colleagues from Ohio and across the country. I am fortunate to be minutes away from one of the top-ranked dispute resolution programs in the country at The Ohio State University Moritz College of Law. Ohio is fortunate to have a wealth of experienced, dedicated and knowledgeable dispute resolution professionals at OSU and throughout the state. On a regular basis, usually quarterly and over the lunch hour, we meet to discuss dispute resolution developments and challenges with the law professors, mediators and other dispute resolution professionals. Also, throughout the year, the Supreme Court of Ohio Dispute Resolution Section conducts roundtables with the court-connected dispute resolution professionals. Through these regular, planned meetings and roundtables we discuss trends, statewide rules, ethics, and the gamut of dispute resolution topics.

In addition, I am a member of the ABA’s Dispute Resolution Section and Court ADR Committee which both have a collective knowledge on dispute resolution that fills courthouses across the nation and the world. To my great fortune, those individuals are generous with their thought, time, energy, innovation and experience. At the ABA Section on Dispute Resolution’s Annual Spring Conference, there is updated content on a variety of topics including an entire day of content for courts, called the Court Symposium hosted by the ABA’s Court ADR Committee. From my perspective since joining the Supreme Court of Ohio’s Dispute Resolution Section three years ago after many years in the private sector, the ABA Section on Dispute Resolution and Court ADR Committee are akin to a virtual library, absent the Dewey Decimal System, of course.

NW: For those unfamiliar, what do typical quarterly lunches and ABA Court ADR Committee monthly calls look like?

CG: The quarterly lunches are informal and unstructured although I usually jot down some bullet points to talk about in advance and during our discussions. The monthly calls with the ABA Court ADR Committee are more structured and this year’s co-chairs, Alan Weiner from Maryland and Robyn Weinstein from New York, do a great job creating an agenda and focusing on topics that are most important to the members and to the committee’s goals.

NW: Can you recall a time when you turned to this network for support?

CG: Yes, once the network is established, it is easier to contact one another as issues arise. The Ohio colleagues were instrumental in helping with our first statewide dispute resolution conference in March.  The Court ADR Committee had a discussion on one call where everyone was sharing information on their state’s initiatives. One of the members had been working on child protection mediation and offered valuable insights and resources, and then [RSI Executive Director] Susan Yates provided additional information on the same topic. That was helpful to me because in Ohio the Commission on Dispute Resolution recommended a statewide initiative on child protection mediation to address the influx of cases in the juvenile courts related to opioids and other substance abuse issues. Although we have offered child protection mediation in Ohio for a long time, the new information from others on the call brought a fresh perspective on a national level that was useful. The information I learned on our call gave me a direct resource to research and information that I would not have otherwise found so readily.

NW: What do you most value about the input you receive from other court personnel?

CG: So much. The creativity, innovation, passion, experience and collaboration.

NW: In what ways have you found that these resources have been better able to serve your needs than a traditional print resource?

CG: Traditional print resources or online resources are helpful, but there is no substitute for experience. Taking time to establish a network, or taking advantage of an established network like the ABA’s Court ADR Committee, takes academic information and translates it into practical tips and advice. These networks also build camaraderie and a pre-planned, informal place to convene to discuss and explore emerging and challenging topics. I am grateful for these networks and encourage others to take advantage of them.

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!

Top Criteria for Litigant Selection of Dispute Resolution Process

Jennifer Shack, September 28th, 2018

When litigants were asked soon after their case was filed what would influence their decision about what dispute resolution method they would use for their case, they most commonly said they would be relying on their lawyer’s advice, according to research conducted by Donna Shestowsky. As Shestowsky notes in her article, “Inside the mind of the client: An analysis of litigants’ decision criteria for choosing procedures” (Conflict Resolution Quarterly, Fall 2018) [sub. req.], this has important implications for lawyers and litigants, as lawyers don’t always understand their clients’ interests.

This is the fourth in a series of articles presenting different aspects of her research into the decision-making of litigants in civil cases. Previous articles reported that litigants prefer mediation, looked at what they wanted from a dispute resolution process, and discussed their lack of awareness of what options were available to them. The research is based surveys of litigants in three jurisdictions (in California, Oregon and Utah), that had mediation and arbitration options available to the surveyed litigants.

For this aspect of the research, 335 litigants completed surveys soon after their case was filed. Among the questions were those inquiring into how they would decide which dispute resolution process to use. Within three weeks of the closing of the case, they were called to conduct a survey about the processes they used and the reasons they used them. The litigants provided numerous factors influencing their process selection at the outset of the case, with their lawyer’s advice being the most common, cited by 25% of the respondents. The second most common response, given by 19% of litigants, was that they wanted to minimize economic costs. These two reasons held steady when the litigants were surveyed after the case closed. That is, those litigants who said their lawyer’s advice and/or economic costs were what would lead them to choose a particular dispute resolution process said that they were the factors that led them to ultimately select a process.

Shestowsky finds the significance of litigants relying on their lawyer’s advice in previous research. Tara Relis had earlier found that lawyers don’t always understand their clients’ interests. Similarly, Russell Korobkin and Chris Guthrie uncovered differences between how lawyers and non-lawyers assess whether to settle or litigate a case. This, for Shestowsky, means that unless the lawyers uncover their interests before advising their clients, they may not be acting in a way that best suits their clients when promoting one dispute resolution process over another. Another study also proves relevant in this context. In Arizona, Roselle Wissler found that lawyers were more likely to recommend mediation to their clients if they themselves had experience with the process. Thus, lawyers may simply not feel comfortable recommending a process that may fit best with what their clients want.

Given that litigants rely on their lawyer’s advice, Shestowsky recommends that lawyers “should attempt to understand their clients’ interests, values, and objectives before sharing their personal evaluations of procedures to avoid imposing their own views.” And when their values differ from those of their clients, they should defer to their clients’ values.

State Certification Board and Court-Contracted Mediation Services Heather Scheiwe Kulp

Heather Scheiwe Kulp, September 27th, 2018

In this guest post, Heather Scheiwe Kulp, the Alternative Dispute Resolution Coordinator for the New Hampshire Judicial Branch Office of Mediation & Arbitration reports on the connection between the state of New Hampshire’s family mediator certification board and the New Hampshire Circuit Court—Family Division ADR program. The Court contracts only with board-certified mediators to provide parties in divorce/parenting cases with mediation services. Earlier in her career, Heather was a Skadden Fellow at RSI.

In 1990, the New Hampshire legislature enacted legislation (RSA 328-C) creating the Family Mediator Certification Board (the “Board”) to certify family mediators and family mediator training programs. The statute gave the Board rule-making authority under the Administrative Procedure Act (RSA 541-A), thus housing family mediator certification functions in the executive branch. The purpose of the legislation was (and still is) to “protect and assist the public by providing standards for the practice of family mediation, training and continuing education for certified family mediators and certified family mediator training programs, and disciplinary procedures for violating ethical rules and requirements.” RSA 328-C:1. While most of RSA 328-C addresses the Board’s duties, the legislation does address some aspects of family mediation that are independent of the board: RSA 328-C:2(VI-V) defines “family mediator” and “family mediation”; and RSA 328-C:9 creates a mediation confidentiality for all family mediation, not just family mediation conducted by certified family mediators.

In 2015, the Board became part of the State’s Office of Professional Licensure and Certification—Technical Division. The duties of the 11-member Board include establishing eligibility criteria to be a certified family mediator, adopting ethical standards, and disciplining mediators after conducting complaint investigations. To fulfill its duties, the Board promulgates Administrative Rules and Practice Standards. These Rules and Standards inform mediator practice and establish what mediators must do to remain certified, including renewing their certification every three years. The Rules and Standards are also the criteria by which any complaints of misconduct are evaluated, investigated and determined.

In 2007, the New Hampshire legislature established (RSA 490-E) the Office of Mediation and Arbitration (the “Office”) within the Judicial Branch. The Office is responsible for developing and supporting alternative dispute resolution (“ADR”) programs in all courts and in pre-suit situations when ADR might be appropriate. Duties include contracting with, assigning, and overseeing court-contracted mediators, including family mediators.

Circuit Court Administrative Order 2014-11 sets out the criteria for family mediators who contract with the Court, including that a mediator “maintain [family mediator] certification at all times while contracted as a mediator with the family division of the Circuit Court.” Admin. Order 2014-11(2). Parties in a divorce or parenting case are welcome to choose their own private mediator, regardless of whether the mediator is certified. However, the Judicial Branch only contracts with (and therefore only assigns and only compensates for cases with indigent parties) family mediators who are certified pursuant to RSA 328-C. Fam. Div. Rule 2.13.

Currently, the Court contracts with approximately 40 certified family mediators to provide over 3000 court-assigned divorce or parenting mediation sessions per year. Most of these mediators also provide mediation services to private clients.

The Board and the Court have some interaction. The primary interaction is that the Court requires court-contracted mediators to be Board-certified. Thus, if a family mediator loses certification or chooses to let certification lapse, the Court terminates the mediator’s contract.  Also, the Board includes two Judicial Branch officers: one judge who regularly sits in the Family Division; and one full-time marital master. These officers share perspectives about issues before the Board that impact the Court. At times, the Board will reach out to the Office to learn more about how an issue may impact Court-based ADR. For instance, this summer, the Judicial Branch—including the Office—was invited to provide comments at the public hearing (or in writing) about the Board’s Administrative Rules changes.

New AboutRSI.org Celebrates One Year

Just Court ADR, September 26th, 2018

Last year we launched the new AboutRSI.org (which combined our two previous sites CourtADR.org and AboutRSI.org). For the past year, our new site has not only offered improved functionality but has allowed us to share new resources and connect with you better.

This year, we have shared with you:

We look forward to continuing to provide the latest court ADR research and resources with you this year.

 

Two New Chapters of RSI’s Guide to Program Success Now Available!

Just Court ADR, September 12th, 2018

We are thrilled to announce that Chapters 8 and 9 of our Guide to Program Success are now available!

Our Guide to Program Success combines the expertise of Executive Director Susan Yates and Director of Research Jennifer Shack and discusses how to effectively design, manage, and evaluate successful court ADR programs. Newly released chapters 8 and 9 cover how to design the mechanics of a court ADR program and how to select and manage neutrals.

In addition to being available online, each chapter of our Guide to Program Success is also available to download for offline reading. If you are looking to design or improve a court ADR program, this is the step-by-step guide that you need.

Click here to start reading Chapters 8 and 9.