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Just Court ADR

The blog of Resolution Systems Institute

RSI Board Member Alyson Carrel Presents at Court-Annexed Mediation Seminar

Nicole Wilmet, March 28th, 2019

In February, RSI Board Member Alyson Carrel was the featured speaker at the Cook County, Illinois, Law Division Court-Annexed Mediation Seminar. Alyson’s presentation entitled “Bringing Technology into the Mediation Room” generated a lively discussion about online dispute resolution. Alyson’s talk touched on the current role technology plays in our daily lives, how legal practitioners are utilizing technology, and the opportunities for mediators to use technology to enhance their mediations.

My Favorite Resource Featuring Tracy Johnson

Nicole Wilmet, March 27th, 2019

Our series, My Favorite Resource, features interviews with our ADR friends across the country to learn about their favorite resource. This month, Resource Center Director Nicole Wilmet spoke with Tracy Johnson, Executive Director at the Georgia Office of Dispute Resolution, to learn about her favorite resource.

NW: What is your favorite ADR resource?

TJ: While I utilize many resources – including RSI as one of my go-to favorites, I have found my relationships with Georgia’s court professionals through the Georgia Council of Court of Court Administrators and my network of colleagues across the nation through the National Association of Court Management to be valuable sources of information and knowledge.

NW: Can you share an example of when you turned to your network for support?

TJ:  Building relationships with court professionals has afforded me the opportunity to see what others are doing, identify potential resources, and help in the implementation of new initiatives. At the most recent NACM conference, I attended a number of sessions on Online Dispute Resolution. I was then able to talk to some of those court administrators of the mentioned programs to get a better sense of successes and challenges and how that might translate for Georgia courts.

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

TJ: Printed materials are a great resource, but are somewhat limited. My network of court administrators allows me the benefit of picking up the phone and calling my friend in another state to ask specific questions about his/her program. It allows me to build and develop relationships that aid in collaborative efforts.

NW: What do you value most about the input you receive from your network?

TJ:  Relationships with court professionals and the benefit of “rubber meets the road” approach to education. The educational programming of these organizations has a practical application component.

NW: How did you develop your network and what recommendations do you have for someone looking to develop their network?

TJ: Attend the conferences – a must for any court professional.

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

New to RSI’s Resource Center

Nicole Wilmet, March 26th, 2019

We are pleased to introduce two new program evaluation resources from RSI’s Director of Research Jennifer Shack to you!

Last month, Jen discussed findings from her recent evaluation of Ohio’s civil stalking pilot mediation program. This month, the final report on the evaluation is now available for download. This evaluation covers ten jurisdictions and examines mediation outcomes, agreement sustainability, agreement provisions, and the impact of referral to mediation on the probability of a full hearing being held. Additionally, the evaluation also looks at the experience of the program’s participants.

In November, we introduced Saving Homes, Building Understanding: An Evaluation of Eight Foreclosure Mediation Programs Funded by the Illinois Attorney General. In addition to access to the full evaluation and digital summary, we are pleased to introduce that individual circuit extracts from the study are now available for download. These circuit extracts summarize the study’s findings for Illinois’ 1st, 6th, 16th, 17th, 19th, 20th, and 21st judicial circuits.

Director of Research Jennifer Shack Celebrates 20 Years with RSI

Nicole Wilmet, March 25th, 2019

This month marks our Director of Research Jennifer Shack’s 20th anniversary with RSI. During her 20 years here at RSI, Jen has played an integral role not just as a member of RSI, but in the court ADR community as a whole. Jen has worked to cultivate and provide reliable court ADR research and has conducted complex evaluations to help court programs across the country.

In honor of Jen, this month we are revisiting her Get to Know You interview in which she reflects on her time at RSI, her favorite projects, and the greatest challenge she faced when she started working in court ADR. Please join us in congratulating Jen on twenty wonderful years at RSI.

Should There be an Ethical Obligation for Mediators to Support Transparency?

Jennifer Shack, March 22nd, 2019

I’m doing something different this month. Instead of summarizing empirical research or an evaluation, I’m discussing an article that presents an argument for mediators to be more transparent about the mediations they conduct and calls for a new standard for compulsory mediation that is mandated by the court or required by a contract of adhesion (e.g., a consumer or employment contract). The article is the start of a conversation, with many questions to be addressed, such as what exactly constitutes measured transparency, and how confidentiality and transparency can be balanced.

In her article, “Dispute Resolution Neutrals’ Obligation to Support Measured Transparency” (Oklahoma Law Review, Vol. 71, No. 3, 2019), Nancy Welsh argues that transparency is needed regarding the use and outcomes of dispute resolution processes in order to protect the public and the integrity of the processes. Further, according to Welsh, the neutrals themselves have an ethical responsibility to support that transparency. This is particularly true when parties don’t have a choice (or their choice is limited) but to participate in these processes.

Since Welsh focuses on mediators in her article, I will as well. First, though, let’s talk about what Welsh means by transparency. Although Welsh doesn’t state exactly what she means by the term, it appears from her examples that transparency is the provision of enough information about the use and outcomes of a process that the public can have confidence in that process and parties can make informed decisions. The information provided should also allow for empirical research and systematic analysis to be done, which can point to best practices and enlighten the public as to the effectiveness of the process.

To illustrate what this information might be, she points to the data released by the Nevada Supreme Court regarding the compliance of lenders with the foreclosure mediation program’s statutory requirements. She also highlights the opportunity that the RSI/ABA Model Mediation Surveys pose for gathering standardized participant feedback and mediator reporting.

Noting that the courts and arbitration organizations publish more information about the cases they hear than is generally available for mediation, Welsh points to reasons mediators should be more transparent. First, as with arbitration, parties are often compelled to mediate, from mandatory mediation in the courts to contracts of adhesion that include a mediation requirement. When processes are imposed upon parties, there is a greater responsibility to ensure that the processes are fair and effective, particularly when there is limited judicial review of the outcome, as with mediated settlements. Transparency helps to ensure that, according to Welsh: More information about mediations can help to equalize the knowledge of one-shot users and repeat players, allow for public oversight, and make it less likely that mediators would engage in unethical behaviors. It would, therefore, provide potential users with greater confidence in the usefulness and integrity of the process.

For these reasons, Welsh argues that a new set of standards for compelled mediations is the best option. Because these mediations are the ones that are most in need of transparency, a set of standards specific to them is warranted. As Welsh notes, a customized standard “would acknowledge that mediation occurring pursuant to mandates by courts, legislatures, or contracts of adhesion is different, and that its circumstances require a heightened level of public accountability.”

This article highlights a trend that is coming to the fore in other areas of dispute resolution. As dispute resolution processes, in particular arbitration, have become not only more routine but also more often required, calls for – and requirements for – transparency have followed. Welsh notes that confidentiality has become the hallmark of mediation. For the sake of self-determination and process integrity, she argues that the veil of confidentiality needs to be pierced, in a measured way, to make more information available to users, researchers and courts.