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Just Court ADR

The blog of Resolution Systems Institute

My Favorite Resource Featuring Alyson Carrel

Nicole Wilmet, October 30th, 2019

Our series My Favorite Resource, features interviews with ADR friends across the country to learn about their favorite resources. This month, I spoke with Alyson Carrel, RSI Board Member and Clinical Associate Professor and Assistant Director of Northwestern Pritzker School of Law’s Center on Negotiation and Mediation, to learn about her favorite ADR resource.

NW: What is one of your favorite ADR resources?

AC: One of my favorite ADR resources is the Dispute Resolution Resources for Legal Educators section of the University of Missouri Law School’s Center for the Study of Dispute Resolution website.

NW: Why do you value this particular resource?

AC:  This resource is a one-stop-shop with almost everything a person might need when they take on the daunting task of teaching or teaching a new class for the first time. While some textbooks include a teacher’s manual with a sample syllabus and a set of exercises, not all textbooks do. And even those that do present a single perspective on how best to teach a subject. But this website provides sample syllabi from multiple legal educators across the country (and the world) for multiple courses (including unique iterations of those courses). For instance, there are at least 30 mediation syllabi posted on the website, and another 30 syllabi for more unusual or specialized courses such as “Mediation and Collaborative Lawyering: Consensual Dispute Resolution” or “Introduction to Dispute Resolution in Healthcare.”

NW: How did you first learn about this resource?

AC: This resource is regularly referenced on its corresponding listserv, Dispute Resolution for Legal Educators listserv (DRLE), yet another fantastic resource available through Missouri’s website. The listserv is a place for individuals teaching a Dispute Resolution course in the legal education context to ask questions, provide answers, and share new information and tidbits. (Those interested in applying to the listserv can email listserv@po.missouri.edu and in the body of the email write: subscribe DRLE.)

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

AC: I would absolutely make sure to check out the Teaching Materials section of the website. I previously described the extensive set of simulations and exercises posted on the site, but you will also find links to other teaching resources compiled by the ABA, Suffolk University and more. Instead of having to remember all the different resources out there, Missouri has gathered them all in one place: Dwight Golann’s “class in a box” provides a folder with simulations, teaching notes and corresponding videos; the ABA has a list of exercises for “lawyer as problem-solver”; and Mitchell-Hamline’s video re-enactments of legal cases involving mediation ethics.

I often receive emails from individuals teaching for the first time, asking me for advice and guidance. The first thing I do is send them to this site. It is simply the best and most comprehensive site for ADR teaching resources.

RSI Publishes Report on Improving Pre-Mediation Screening for Intimate Partner Violence through Proposed Online Tool

Eric Slepak-Cherney, October 29th, 2019

Over the past year, RSI has been working on a project researching and exploring whether and how an online tool could improve the frequency and competency with which mediators screen for intimate partner violence (IPV) prior to mediation. Under a planning grant from the Family and Interpersonal Resilience and Safety Transformation (FIRST) Fund, RSI has been able to study the current landscape of screening tools, survey experts in IPV dynamics (as well as lawyers, judges and mediators) about the divergence between best and actual practices, and convene those experts to explore how to close that gap. As a result of that work, we have  published this extensive report, which outlines the features of RSI’s proposed solution and the steps needed to actualize it.

Among the many findings in the report, we note that it is critical to develop a tool geared towards new mediators and those who mediate on an infrequent schedule. These are the mediators who our research found would be most receptive to an online screening tool. Also, because adequate screening is essential to ensuring parties will be safe and able to exercise self-determination throughout the mediation process, the use of such a tool by new and intermittent mediators would greatly improve the mediation services their parties receive. Accordingly, we advocate for developing a tool that has low barriers to use (e.g. does not required significant specialized training) and is provided free of cost to mediators to encourage its wide adoption.

We recognize that there a number of existing protocols, such as SAFeR and MASIC (both of whose creators provided valuable input to our research), which serve as high-quality screening tools. However, no existing solution we found provided mediators a free, easy-to-use, guided process to screen parties for IPV. The reality, confirmed by our survey of the field, is that screening does not happen at the level and with the expertise that  the seriousness of IPV demands. One of the next steps will be to determine if there are funders who are enthusiastic about developing this tool.

Thank you to the FIRST Fund and all the expert voices who assisted RSI in the development of this report.

The Psychological Complications of Resolving Disputes Online

Jennifer Shack, October 28th, 2019

Online dispute resolution (ODR) can take many different forms, but one element is always present: the participants aren’t interacting in person. Jean Sternlight explores the possible psychological impact of this in her new article, “Pouring a Little Psychological Cold Water on ODR” (forthcoming 2020 Journal of Dispute Resolution).

It should be noted that before discussing the psychology of disputes and ODR, Sternlight opines that the term ODR is used too broadly as it’s used for any technology-assisted dispute resolution. Although she doesn’t state what she means by ODR in her article, the way in which she discusses it points to the conclusion that she is focused more on text-based and algorithmic processes rather than video-based processes.

Starting from the premise that “human disputes are intimately connected to human psychology,” Sternlight states that ODR should be designed to take into account human psychology and that requires an imaginative approach to determining whether and how to incorporate technology into dispute resolution. Even given this, however, she says that we should consider the possibility that humans are better suited than computers to resolve many disputes.

Sternlight explores the psychology of dispute resolution through four areas: the psychology of perception and memory, the psychology of human wants, the psychology of communication, and judgment and decision-making. Perception and memory often differ among those involved in a dispute. In in-person disputes, mediators and lawyers currently take on the role of overcoming parties’ beliefs that their perception is correct and the only possible version. Sternlight questions whether a computer or avatar can have the same effect, as research has found that simply receiving a message on a computer or reading a book aren’t sufficient to shake one’s belief that theirs is the only right view.

When it comes to human wants, people are complex. We don’t always know what we want, and when we do, we often have many different wants, or our wants may change over time. Further, each person may have different wants in the same circumstances. Because of this, Sternlight suggests that “computers are not likely the best tool for helping humans think through how they want to respond to a dispute, and how they might creatively work things out with a fellow disputant.” She concludes that ODR may best be used for disputes that involve wants that are simple and predictable, such as small online purchases.

Communication is another area in which computers may not provide the best forum, although Sternlight does say that computers may make communication easier by enabling fast and low-cost exchanges, and by allowing for the anonymity that some prefer. However, many ODR platforms rely on check boxes and limited exchange of textual information. This does not permit disputants to communicate fully their broad range of beliefs and concerns nor learn about those of the other party. Textual communications also make it difficult to build trust or rapport among disputants.

Sternlight also believes that human mediators, lawyers or friends are more effective than computers in helping humans deal with their emotions and other judgment and decision-making issues. She notes that a trusted person is more likely than a computer to move a disputant off an unreasonable position, even if both convey the same information.  Humans can build rapport and trust and tell persuasive stories, whereas being provided information on a chart or in text will not be as useful.

Sternlight acknowledges that online processes may have their place in dispute resolution, but to do so requires a system design that takes into account human psychology. To figure out how best to approach the resolution of disputes online, Sternlight says that empirical research is required of both online and in-person dispute resolution.

While some readers may not agree with Sternlight’s message, she does offer a thoughtful counterpoint to the current enthusiasm for ODR.

California’s Yolo Superior Court Launches New Online Dispute Resolution Program

Nicole Wilmet, October 25th, 2019

California’s Yolo County Superior Court has launched a new online dispute resolution (ODR) program to resolve debt and money due cases. The program utilizes Tyler Technologies’ Modria® software and guides parties step-by-step through the small claims process. Parties participating in the ODR program will be required to pay a fee of $25. The plaintiff will be responsible for payment, unless the parties agree to split the cost or the defendant agrees to reimburse the plaintiff.

A brochure for the program notes that the ODR process begins after a plaintiff logs in to the platform and registers their case. Then, the plaintiff will use the platform to make an initial demand to the defendant for an amount they are willing to accept to settle the case before trial. The platform then sends an email to the defendant with the demand, at which point the defendant can agree or provide a counter-offer. In the event the parties are unable to reach an agreement during these initial steps, then either party may request a mediator. If both parties agree to mediate, then a mediator will be assigned to the case and the mediator will contact the parties to initiate their confidential online mediation. If the parties reach an agreement during mediation, the agreement will be emailed to the parties for signature. After signing, the agreement is sent to the court and the case is dismissed. However, if the parties are unable to resolve their dispute within 45 days then the case will go to trial.

The court’s website for the program answers questions about the program and includes several informative videos for parties discussing the basics of mediation, how the program works and how to use the Modria® platform.

RSI Conducts Seminars on Court ADR in New Mexico

Just Court ADR, October 24th, 2019

RSI Executive Director Susan Yates conducted a series of three seminars on “Building Your Court’s Civil ADR System” at New Mexico’s statewide ADR conference in Santa Fe on October 9 and 10. The court track at the conference was hosted by the New Mexico Administrative Office of the Courts and the Statewide ADR Commission. Judges, court personnel and mediators from all across the state participated.

The first of the three sessions was called “Design Your Program” and addressed issues such as goal-setting, research, determining which ADR process to use and budgeting. The second session, “Work with Neutrals,” dealt with a variety of topics from determining the criteria for mediators and other neutrals to ensuring continuing quality of services. The third session, “Manage, Track, Evaluate and Promote Your Program,” detailed the many tasks required to maintain a healthy court ADR program. During the seminars, participants had opportunities to work with others from their particular jurisdictions about how to address the issues in their local context. If you are interested in reading more about these topics, visit our Guide to Program Success. To learn about how RSI can work with or provide training for your program, send a message to a member of our staff!

Left to Right: RSI Executive Director Susan Yates during her presentation in New Mexico and Susan Yates with Mateo Page, ADR Statewide Program Manager at the New Mexico Administrative Office of the Courts.