Over the past year, I presented you with new research (and a little old research) that covered three broad areas: evaluations of ADR programs, evaluation of the efficacy of particular ADR processes, and research about particular aspects of ADR that can inform our practice.
Shamelessly, I promoted evaluations I completed in Washington, DC and Illinois. In Washington, DC, I found that early mandatory child protection mediation led to a much greater probability that parents would agree to stipulate to the facts of the case, thus precluding the need for a trial. Parents were also likely to be more compliant with services (such as parenting class or addiction therapy) and visitation requirements. Parents who participated left with a greater understanding of their responsibilities in the case and the points of view of the others at the table. Most also felt mediation was helpful to them.
In Illinois, we learned that program design was an important factor in how much impact a foreclosure mediation program had on homeowners facing foreclosure. Those programs in which the homeowners were given a date and time to arrive for their first pre-mediation session led to higher participation rates and to a higher proportion of homeowners facing foreclosure saving their homes. Across all programs, homeowners left their first pre-mediation session with a better understanding of the foreclosure process and felt they were treated with the dignity that the courts were wanting for them.
I also told you about the results of a study of Michigan’s civil case evaluation and mediation programs. It found that, with the exception of tort cases, cases using case evaluation and mediation were more likely to result in settlement than those that went through the traditional court process. Nonetheless, judges and attorneys who were surveyed were less enthusiastic about case evaluation than those surveyed in 2011 had been, indicating that they had less faith in the effectiveness of the process. This was not the case with mediation, for which their high opinion remained steady.
Research on Processes
In 2018, we learned that research on teen courts needs to be improved if we are to learn if it is effective. We also learned that parenting coordination shows promise for reducing post-decree court activity.
A round-up of 35 studies on teen courts that started as an attempt to understand what program characteristics were most effective ended as a plea for more uniformity in how teen court programs are studied. They found that not only do differences among programs make it difficult to understand program effectiveness, but that the methodology and definitions used in the studies themselves make it impossible to draw conclusions.
A review of 13 studies of parenting coordination found that the process shows promise for reducing post-decree court activity for divorce cases involving high-conflict families. The authors, however, noted that the studies suffered from small samples, limited generalizability and weak methodologies. They pointed to the need for better research and the development of an underlying theory of parenting coordination in order to not only better understand the effect of the process, but also to standardize its practice.
Research on Aspects of ADR
Recent research looked at prejudice and bias in mediation, and what influences litigants’ decisions regarding what dispute resolution process to use.
Prejudice and bias were the subject of a 2017 issue of SMU Law Review. Nancy Welsh lamented the lack of self-determination in mediation and looked at social science research to question whether mediation really provides procedural justice in a world of inequality, bias and prejudice. Gilat J. Bachar and Deborah R. Hensler took a slightly different tack in their article. They looked at empirical research on ADR and determined that this research indicates that both women and minority men fare worse in mediation than white men.
Donna Shestowsky continued her research into how litigants end up using a particular process to resolve their disputes. This time, she let us know that litigants are most likely to rely on their attorney when deciding on which process to use. This has important implications for lawyers and litigants, as lawyers don’t always understand their clients’ interests.
I’m looking forward to sharing more research with you in 2019. Happy Holidays, everyone!