This year we learned about the efficacy of a variety of dispute resolution programs, explored party trust in mediators, and considered ways to assess and improve the party experience in dispute resolution processes.
The theme of evaluations of ADR programs is that participants like them. This includes the multiple studies I summarized for our Mediation Effectiveness Studies database. Each of the studies that looked at the participant experience found high levels of satisfaction and, in comparative studies, the level of satisfaction was greater for those going through mediation than those who did not.
Nevada and Michigan provided us with insights into their child protection mediation (CPM) programs. The evaluation of Nevada’s statewide program found that family members were highly positive about all aspects of the mediation. All of them thought the process was fair. Almost all said they were able to voice their opinions, were treated with respect and were able to be a part of finding answers to the problems discussed. Almost 90% said the others really listened to them. For all practical purposes, these responses did not vary based on whether they were foster parents or natural parents. The study also found that there was no difference in satisfaction rate based on the stage at which mediation occurred, but that satisfaction was higher when mediation resulted in agreement as compared to when it did not.
Child protection mediation participants in Michigan were also highly satisfied with their experience in mediation. In the two counties with experience data, participants said that they had the opportunity to express themselves, gained a better understanding of the issues, felt respected and felt the process was fair to them. In a statewide comparison between those family members who participated in mediation and those who did not, through who went through CPM gave slightly higher ratings on case resolution, staff courtesy and courtesy of the judge.
I also discussed an evaluation I conducted of the Civil Stalking Pilot Mediation Program in Ohio. While there wasn’t enough survey data to determine how satisfied participants were with their experience, we did find that almost ¾ of these cases reached agreement, with most of the agreements being for the parties to have no further contact.
Switching to restorative justice, we learned that participants in Nebraska’s Youth Conferencing Program also have high rates of satisfaction. In addition to being satisfied with the process, most participating youth and victims believed that the victim youth conferencing VYC made the justice system more responsive to their needs. Further, almost all of the victims agreed that it was helpful to talk directly with the person who was responsible for the harm, and most said that meeting that person reduced any fear that he/she would commit another crime against them. The youth held similar opinions: most said it was helpful to talk directly with the victim and almost all of them said that after the meeting they had a better understanding of the full impact of the crime on others. In addition to providing a positive experience to participants, youth conferencing led to a high rate of agreement completion, with almost 95% of the youth ending with full compliance.
From a study of one restorative justice program in Nebraska, we move to a compilation of forty years of research on victim offender mediation (VOM). The research found that victims receive multiple benefits from VOM. Victims who participate in VOM as compared to those who went through the traditional process received more restitution, had less fear of re-victimization and were less likely to remain upset after the process. Additionally, participation in VOM leads victims to feel empowered and to have a more humanized view of the offender.
Offenders were also found to receive benefits from the VOM process. These included being more empathetic toward victims of their crimes, being held directly accountable to victims (which is a core need for many offenders), being able to deal with their feelings and seeing victims change their feelings toward them, feeling empowered, and avoiding jail or court.
Other benefits accrue to the courts and community. Some studies found that VOM led to a higher rate of agreement completion than the traditional process. Many studies, but not all, found that VOM led to a lower recidivism rate than the traditional process. A few studies also found VOM to be cost-effective. Short-term, VOM lowers costs by being less expensive than court. Long-term, lowered recidivism and lower incarceration rates lead to cost savings. One study found as well that mature programs were more cost-effective than those that were just started up, and another found that those involving community mediation centers were more cost-effective.
Two of the studies I summarized were about trust in the mediator. We learned that participant trust in the mediator is the same whether mediation is in person or via a sophisticated video conferencing tool, in which sensitive microphones and special cameras that pan and zoom are used to help participants follow the flow of the conversation. We also learned that mediators and parties have similar perspectives on what mediator behaviors and characteristics engender trust in parties, with the exception of eight factors for which the parties were significantly more likely than the mediators to say built trust with mediator. These were:
- The mediator’s familiarity with legal aspects relating to the dispute
- The mediator suggests an alternative or a way out of the dispute
- The mediator provides candid and frank input about the dispute
- The mediator does not linger too long on the dispute but advances toward its settlement
- The mediator is appointed by an authority, such as a reputed judge
- The mediator shows an interest in the parties’ mutual concerns and focuses on their common goals
- The mediator highlights the rules of mediation
- The mediator talks to the parties about informal matters as opposed to just talking about the dispute
We also looked at research focusing on access to justice. A study of judicial settlement conferences in Canada examined what factors were related to parties’ sense of access to justice, as indicated by their sense that the process was fair and useful, as well as their sense that the settlement judge provided professional support. These included: the judge being active in helping the parties to reach a resolution that is fair and suited to their needs; communication that creates trust; the judge facilitates a just process and a process that complies with ethical norms.
Two of my summaries were of articles that used research to argue for changes to how we approach disputes resolution. Nancy Welsh argued that transparency is essential to 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. She then noted that mediation is now often imposed on parties through contracts and mandated by the courts. For these mediations, there is a greater responsibility to ensure that the processes are fair and effective. Thus, Welsh argues for a new set of standards for these “compelled” mediations that call for more information to be imparted about mediations.
Jean Sternlight focused her attention on online dispute resolution (ODR), arguing that ODR should be designed to take into account human psychology. That requires an imaginative approach to determining whether and how to incorporate technology into dispute resolution. She 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.
I’m looking forward to a research-filled 2020!