I had the honor of presenting at the Maryland Judiciary’s ADR Research Symposium a couple of weeks ago. The purpose of the symposium was to inform judges and court personnel of the results of a six-year research project examining ADR programs and processes. It reminded me of just how well Maryland has planned and implemented its ADR system. Because it serves as a model, I’d like to provide a little background about this before discussing the research.
Maryland has done a number of things right: it got people from around the state on board with ADR early on and brought in experts to help figure out the best way to approach program development; created a statewide ADR organization (MACRO); provided continuous funding for programs and MACRO; and funded research to both assess the impact of the ADR programs and determine what works best. When the judiciary decided to institute ADR statewide, it funded and worked with MACRO, which provided grants and technical support to courts (and other organizations) to develop new programs. MACRO began the process with a workshop that brought together experts from around the country and Maryland court personnel to discuss best practices for developing and implementing programs.
Since then, the judiciary has continued to fund ADR, which led it to request that the financial outlays be justified through research on the impact of ADR. After obtaining a grant to help fund the research, Maryland developed what is undeniably the most ambitious research project for ADR ever undertaken. They brought in experts to help plan and design the research. And once the research was completed, those involved in the research presented the findings and engaged the judiciary in how best to move forward with the findings.
All of this shows just how much can be accomplished with court ADR when good planning and administration, strong judicial support and proper funding converge.
Maryland researched five areas of ADR: family, day of trial (small claims), civil, criminal, and collaborative law. As the civil and criminal research has yet to be published, I’m going to be discussing the research into “what works” in family and day of trial mediation, the two areas for which this was studied. Two main themes emerged from this research:
- Greater use of caucus leads to poorer outcomes overall.
- The greater use of reflecting and eliciting strategies generally led to positive outcomes, while the greater use of directive or offering/telling strategies generally led to negative outcomes.
In both family and day of trial programs, researchers observed mediations and coded both mediator and participant statements and actions. This included time spent in caucus as compared to joint session. In both programs, greater percentage of time spent in caucus had a negative impact on the participants. In family cases, when mediators spent relatively more time in caucus, the participants were more likely to say that the mediators respected them and did not take sides. However, they also felt more hopeless about their situation and were less likely to believe they could work with the other parent.
In day of trial cases, the greater the percentage of time spent in caucus led to a number negative outcomes: participants were more likely to say that the mediator controlled the outcome and pressured them into solutions. Greater use of caucus also increased the participants’ sense of powerlessness and lowered their satisfaction with the process and outcome. Longer-term outcomes were also negative. Participants in mediations with relatively greater time spent in caucus were less likely to report self-efficacy (they believe they could make a difference) and to say that the court cares about resolving conflict. They were also more likely to return to court in the next 12 months for an enforcement action.
The research controlled for other possible causes for the outcomes, including participant behaviors. However, it did not explore what happened in caucus as opposed to joint sessions. It therefore could be how caucus was conducted rather than the fact of caucus itself that led to the outcomes.
The effect of particular mediator strategies was examined for family and day of trial cases. To define the strategies, the researchers conducted factor analysis to group particular mediator behaviors according to how often they occur together. They arrived at four strategies:
- Reflecting – reflecting emotions and interests; family also includes clarifying topics, reflecting what participants say, open-ended questions
- Eliciting – asking participants to suggest solutions and summarizing solutions that have been offered
- Offering/telling – offering opinions, advocating for their own solutions (day of trial), offering legal analysis, introducing topics (family)
- Directing (family only) – introducing and enforcing guidelines, explaining one participant to another, advocating for one participant’s ideas
It appears from the findings that the most beneficial strategies are reflecting and eliciting, while directive and offering/telling strategies are more detrimental than helpful, at least when used relatively more than the other strategies. Reflecting strategies in family mediations, for example, led parents to become more able to work together and to believe the other parent listened and understood. In day of trial mediations, reflecting strategies led to a greater sense of self-efficacy and a belief that the other person took responsibility. Reflecting strategies in both settings, however, lowered the probability of settlement. Eliciting strategies, on the other hand, increased the probability of settlement and had similar effects on the participants as reflecting strategies.
Offering/telling and directing strategies were not related to any positive outcomes. For day of trial mediations, offering/telling was related to a decline in the belief that the outcome was working and to decreased satisfaction with the outcome. Participants were also less likely to report that they changed their approach to conflict. Directing strategies in family mediation led parents to be less likely to say the mediator listened to them and respected them. Further, they made parents more likely to return to court.
The Maryland research is providing long-sought insight into the black box that is mediation. Most of the previous observational research about what happens in mediation suffers from methodological problems or examines and/or only links behaviors to the probability of settlement. That being said, there still is need for more research. The effect of caucus in civil cases is still unknown. And it would be beneficial to understand what differences exist between mediations in which parties are represented as compared to those in which they are not. On the second day of the symposium, one of the sessions was to ask what else could be done with the research that has already been done. Hopefully, further analysis will provide us with even more insight.