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Just Court ADR

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My Favorite Resource Featuring Doug Van Epps

Just Court ADR, May 11th, 2018

Our series, My Favorite Resource, features interviews with our court ADR friends across the country to learn about their favorite resource. In April, Resource Center Director Nicole Wilmet spoke with Doug Van Epps, Director of the Michigan Office of Dispute Resolution to learn about his favorite resource.

NW: What is one of your favorite ADR resources?

DVE: Aside from the RSI website, which is my “go to” point of departure for most research questions, I frequently rely on the 3-volume set, “Mediation: Law, Policy & Practice,” by Cole, McEwen, Rogers, Coen, and Thompson, updated annually, and published by Thomson Reuters.

NW: Why do you value this particular resource?

DVE: This compendium of mediation research, practice, and state statutes has frequently been helpful in researching a gamut of mediation questions, e.g., the operation of confidentiality and privilege across the states, identifying the array of mandatory arbitration practices in the country, resources for specific dispute types, and a state-by-state encyclopedia of statutes, to name a few examples.

NW: How did you first learn about this resource?

DVE: A marketing brochure.

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

DVE: Acknowledging that this resource is probably most helpful for persons frequently researching policy questions, practices, procedures, and statutes across states, I’ve found it helpful just to periodically review my own state’s compendium of statutes so that I’m up to speed on how dispute resolution is evolving in branches of government beyond the judiciary.

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!

Motivational Interviewing: Successful Settlement and Pointers for Mediator Training

Jennifer Shack, May 1st, 2018

Last year, I wrote about two studies looking into the use of motivational interviewing in family mediation. The two summaries are presented together here. Motivational interviewing (MI) is a counseling technique designed to induce clients to change their behavior by exploring and resolving their ambivalence toward change. It has been found to be effective in a variety of contexts, including reducing aggression in intact couples.

An experiment in Australia found that when mediators used MI during the mediation, the parties were twice as likely to reach a full agreement. However, this technique does not reduce psychological distress, child adjustment problems or co-parental conflict. The study, undertaken by Megan Morris as part of her PhD thesis (Motivational Interviewing and Family Mediation: Outcomes for Separated Families, 2016 (see Chapter 4)), is the first to examine the use of MI in family mediation.

To determine the impact of MI on mediation outcomes, Morris randomly assigned 177 separated families to either the treatment group (n=94), in which the mediator used MI, or the control group (n=83), in which the mediator did not. The mediations were conducted over the phone and recorded and coded by multiple trained coders as to the integrity of the MI treatment. In all, 108 sessions were recorded, including 68 intake sessions and 40 joint sessions by 15 mediators. Eight of the mediators were randomly assigned to be trained in MI before the study; the other seven were offered training after the study was completed. Those trained prior to the study incorporated MI into their mediations during the study, while the other group continued to use their usual mediation techniques.

Recordings of intake interviews and joint sessions indicated that mediators trained in MI techniques ranked much higher on the MI Treatment Integrity Scale than those who were not, demonstrating that there was a difference in the services provided to the treatment and control groups. Parents in the treatment group were twice as likely to reach full agreement as those in the control group (33% v 16%) and less likely to reach no agreement (33% v 42%). There were no other statistically significant differences in satisfaction with the mediation, psychological distress or child adjustment.

Although the research was well-designed, it suffered from technical and logistical issues, including problems with recording equipment that significantly reduced the number of recorded sessions, and families who were accidentally provided the wrong service for at least one of their sessions. Further, there was a high attrition rate for the study: of those who agreed to participate, only 26% completed the post-mediation satisfaction surveys and psychological assessment instruments. This may have affected the research findings. In particular, the high attrition rate may have masked differences in outcomes that existed between the two groups, leading to the erroneous finding that there were no differences in the long-term outcomes (i.e., psychological distress and co-parental conflict).

Researchers at the University of Nebraska are also looking into combining mediation with MI. Their research, however, is looking at how to best train mediators to employ MI in family mediations. In an article in The Nebraska Lawyer (January/February 2017), they provide a primer on MI and how it can be used in mediation, then discuss the outcomes of their training research.

The researchers – Kristen M. Blankley, Lisa PytlikZillig and Kate Speck – are following eight mediators through the training process and into their practice post-training. The mediators completed self-efficacy surveys before starting training. They then participated in a follow-up discussion. The researchers are not just looking at change in skills and knowledge during training, but are gathering data on the mediators’ ability to use MI in their own mediation practice. Thus, after each mediation the mediators are also filling out reflection worksheets that are based on an assessment developed to improve MI proficiency. The research will also include two more follow-up discussions and another self-efficacy survey.

Through their research, Blankley, et al, have concluded that the most important things in MI training for mediators were:

  • Clarify what the new strategies are. MI and mediation share a lot of skills and terminology, but there are important differences. The mediators initially didn’t understand what those differences were and thus how to change their practice.
  • Be careful with terminology. MI and mediation can use different terms for the same concepts. This can be confusing. Either explain the differences or change the terminology to fit mediation.
  • Demonstrate MI skills. The mediators benefitted greatly from a fishbowl in which an expert in MI demonstrated change talk and the mediators could discuss options for mediator responses.
  • Address concerns about appearance of bias. This was a major concern of the mediators. They felt uncomfortable exploring change with one party while the other looked on. The mediators discussed strategies for managing appearance of bias, including the use of caucus.

What is apparent from this article is that the research is not only providing a template for future training, but it is also identifying strategies for incorporating MI into mediation. The article is only six pages and worth a read.

A Pawfect Participant – New Study Says Therapy Dogs May Help Manage Emotions in Family Mediation

Nicole Wilmet, May 1st, 2018

A recent Harvard Negotiation Law Review paper written by David Paul, an attorney, mediator, and family law arbitrator in British Columbia, suggests that therapy dogs may benefit participants in family law mediation. As this article reports, the genesis behind David’s idea to use dogs in mediation first came to him twelve years ago when he brought his family dog into work with him. As David explains, while at work his dog would quietly sit in on family law mediations and he noticed that the dog had a calming effect on the mediating parties. Flash forward a decade later, while David was pursuing his Masters of Law degree in Dispute Resolution, he dove further into this subject by dedicating his thesis to studying therapy dogs and mediation after he realized that the use of therapy dogs had been studied in a wide variety of fields except for law.

David’s article, discusses how Animal-Assisted Intervention (using animals for therapeutic purposes) may be a useful practice to incorporate into family mediations as a means to deescalate emotions and facilitate effective communications. The article begins by cultivating research that details the physical and emotional health benefits of therapy animals. Benefits of therapy dogs include an increase in positive emotions, attention, concentration, relation, and motivation and a decrease in blood pressure, heart rate, emotional pain, stress, depression, anger, anxiety, and feelings of loneliness. Given the emotional benefits of therapy dogs, David advocates for using Canine-Assisted Mediation (CAM) in family law mediations, which often involve highly emotional and life-changing disputes.  David argues that including therapy dogs in mediation would provide mediators with a cost-effective, safe and non-verbal tool that mediators could add to their toolbox and use to manage parties’ emotions. The article also argues a variety of ways that CAM could meet the needs of family litigants including: making the mediation process less intimidating, enhancing the mood, increasing feelings of trust, relieving the parties’ emotional distress, and providing parties with social support. Finally, the article also provides guidelines for planning and implementing effective CAM.

Today, Paul is currently working on putting his research to practice and is having his puppy Charlie trained to become Canada’s first certified therapy dog in family law mediation.

      David Paul and his dog Charlie
      Image: Jenifer Norwell /CBC

Happy Birthday RSI!

Just Court ADR, April 22nd, 2018

Happy birthday to us! Today RSI celebrates 23 years of working to strengthen access to justice by enhancing court ADR systems.

Thank you to all our staff and supporters for everything you do to make RSI so great. We appreciate your continued support and look forward to the next 23 years!

A Glitch In The Matrix: The Challenges of ODR

Eric Slepak, April 19th, 2018

In my previous entry, I shared the features of online dispute resolution, or ODR, that had me excited about the myriad ways technology is shaping the way we approach dispute resolution. But as is so often the case with technology, the flip side of new opportunities is the potential for abuse (as the Facebook CEO Mark Zuckerberg’s recent testimony before Congress demonstrates). Here are my three biggest concerns I’ve identified in researching ODR and talking with courts about it.

ODR is Not a Crock-Pot
In an age where Amazon can reliably create our shopping lists for us and the timeline for self-driving cars to rule the road is being projected in years, not decades, it is tempting to think that the computerization of dispute resolution will be a fully automated process that will free our courts to just ‘set it and forget it.’ This canard, which has also plagued non-digital ADR as well in a slightly different format, presupposes that there is no need for regular human intervention.

In reality, implementing ODR into our courts will not only require a watchful eye, but probably several sets of them. The recent requirement to e-file cases in my home state of Illinois provides a good example. Circuit Court clerks across the state geared up for nearly two years to launch this change, and many are still working through a transition period where they are still utilizing paper filings as a redundancy and staffing personnel to help answer litigant questions.

Beware the Crock-Pot. Image: NBC

Similar precautions, and then some, would be needed to introduce ODR into a court ecosystem. There would need to be rigorous education and outreach offering, both prior to and coinciding with program launch. Staff would need to be available to address technical issues and procedural questions. Ongoing monitoring to assess the program’s success, making necessary adjustments to the program, and reporting back to judges and court administration are all aspects that require human intervention. While that involvement may decrease over time, ODR is not a crock-pot: you can’t just throw everything together, hit start and expect things to work out.

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