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RSI Convenes Experts to Explore Access to Justice in Family ODR

Eric Slepak-Cherney, November 3rd, 2020

RSI recently held a series of online gatherings to explore the use of online dispute resolution (“ODR”) to serve thinly-resourced families, courts and communities with regards to developing parenting plans (or revising them in post-decree cases) for divorcing or separating never-married parents. These events were the culmination of a National Convening of Experts on Family ODR underwritten by the JAMS Foundation. As part of this project, we brought together experts from across the country and across multiple disciplines, conducted surveys of both these experts and court administrators nationwide, and facilitated discussion on a myriad of issues during the course of the Convening. Our findings will serve as the basis of a forthcoming report, which RSI expects to publish in by the end of 2020.

Our first step in this process was to collect existing research and data about family ODR. ODR is still relatively in its infancy and its application in resolving disputes around parental responsibilities even more nascent. At the time of writing this, there were five such family court programs operating nationwide and no data on outcomes as of yet has been made available.

We saw this as an opportunity to investigate the level of need and barriers to developing these programs nationwide. RSI sent out surveys to court ADR administrators across the country, and in all, received responses from individuals in 23 states and Washington, D.C. For more about our findings from this research, see this recent blog post from Director of Research Jennifer Shack.

A priority for this project was to facilitate dialogue among key stakeholders and thought leaders. We assembled a coalition of nearly 40 experts, comprising family lawyers, ADR practitioners, judges, court administrators, legal technology and ODR experts, legal aid attorneys, academics and funders. These experts provided us thoughtful insight into the benefits and concerns they have regarding the use of ODR in this field and for this underserved population.

Based on the expert responses and guidance from other research, particularly the International Council on Online Dispute Resolution Standards, we developed a framework for how we would explore the topic during the Convening and in our report. To ensure that courts are providing family ODR that serves stakeholders who are thinly-resourced (a term that acknowledges not just financial poverty, but lack of access to education, technology, infrastructure and other resources), a program must possess five essential characteristics: accessibility, ethicality, effectiveness, feasibility and sustainability. If a family ODR program – which entails not just the technological component, but also the dispute system design, human resources and interaction with the court – misses out on these characteristics, it runs the risk of either failing entirely, or perhaps even worse, widening the disparity in outcomes between thinly-resourced litigants and those with means.

Over the course of three 90-minute sessions we explored how family ODR programs could embody these characteristics, including identifying essential features that would need to be built into the programs. The experts were broken into new groups of four or five for each characteristic, maximizing the cross-pollination among professionals from different backgrounds. Each group explored the characteristic, prompted by a different guiding question for each group, and a facilitator captured the thinking of the group. For example, when the groups explored ethics (which we defined very broadly), they considered confidentiality, data security, fairness, procedural justice, information and education, informed consent, neutrality and impartiality, safety and transparency. 

A number of themes emerged throughout the course of the event. Access to a device with which to participate in ODR and access to the internet were significant concerns, as were concerns about potential barriers caused by disabilities or limited English proficiency. One big focus was on the risk posed to survivors of intimate partner violence; on the one hand, the remote nature of ODR might empower some, but the threat of coercion when participating in an ODR process that relies on self-determination could pose a huge risk. Another theme to emerge was the decision of whether to make programs opt-in or opt-out, and gaining clarity about what that really means. ODR programs nationwide have reported struggles with participation and volume, and the balance of getting people to try the platform and respecting their self-determination weighed heavy for the experts. The gatherings also tackled how family ODR for thinly-resourced parents, courts and communities could be supported financially and where it might be hosted.        

Reaction to the Convening was overwhelmingly positive. The experts appreciated the opportunity to collaborate with one another, particularly with individuals they might not have met otherwise, and dive into nuanced, detail-oriented discussions about particular features of family ODR. We at RSI are immensely grateful to the JAMS Foundation for enabling us to have this opportunity to move the ball on an issue we find very near and dear to our hearts and mission!

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.

RSI Hosts Expert Summit on Screening for Intimate Partner Violence Prior to Mediation

Eric Slepak-Cherney, July 18th, 2019

On June 11, RSI convened a summit of experts in mediation, family law and intimate partner violence (IPV) to help us explore whether and how a tool, such as a website or app, could improve the frequency and quality of mediator screening for IPV prior to mediation. Generally, IPV screening is intended to ensure parties will be safe while coming to, participating in and leaving mediation and also ensure there has not been coercive control that would impede a party’s ability to exercise self-determination in mediation.

Unfortunately, screening is not practiced universally by mediators and approaches to screening vary widely. While some mediators employ sophisticated screening techniques, many mediators do not screen, or rely on factors such as whether an order of protection has been filed to determine whether to mediate. This means some mediators may not uncover critical information and may risk re-victimizing survivors and empowering abusers.

The group of Chicagoland-based and national experts spent the day digging into questions such as whether potential downsides outweigh likely benefits, who would be the audience for this kind of tool and how it might function. One critical question in this project is whether a tool like this is a good idea, or will its potential misuse outweigh its benefits? Overall, the group of experts was positive about the tool while also raising a number of important issues that would need to be considered in developing it.

One major theme was the role the tool could play in increasing mediator knowledge, especially about IPV, how to screen and what to do with the results. The experts valued the idea of giving mediators a thoughtful dialogue guide that would empower them to explore issues around safety and coercive control. They stressed that a tool could be very beneficial if it guided the mediator through the screening process and also provided information, such as how to refer a party for IPV services. Conversely, the group raised concerns about whether a tool could provide sufficient training for mediators to use the tool responsibly.

Relatedly, the group also discussed the usability of the tool. Ultimately, they wanted to create something that a large number of mediators would use, particularly those who are new to mediating family cases or do so on an infrequent basis. A chief concern centered on how long and robust of a guided experience the tool should provide. Finding a balance between making sure a mediator has comprehensive conversations with all parties, on the one hand, and making the guide concise enough that mediators actually use it, on the other, will be a key challenge.

Having identified some of the challenges and barriers, the group brainstormed some features that the tool could employ to address these challenges. Access to resources for the participants would be greatly beneficial, as would educational videos for the mediators. The experts were keen on using visualizations, such as radar charts, as a way to summarize and map participant responses, and identify particular areas of concern.

These are but a few of the takeaways from this informative and collaborative event. RSI is in the process of developing a full report that will summarize the consensus for developing such a tool, and lay out the steps that would be needed to make this tool a reality. RSI sincerely thanks all of the experts who volunteered their time to provide their thoughtful insights, and the FIRST Fund for their support of this project.

                           Images from RSI’s IPV Screening Summit.                                   Photos taken by Gahyun Kim and collaged by Nicole Wilmet.

Facilitating Earlier Intervention in Child Protection Mediation

Eric Slepak-Cherney, June 27th, 2019

Since 2017, RSI has been mediating cases involving families in the child welfare system in Kane County, Illinois. In these mediation sessions we focus on the dynamics within the family, such as communication between family members and how their relationships with one another impact the children. Our roster of volunteer mediators also address issues involving family members and the professional stakeholders, such as the Department of Child and Family Services caseworkers, guardians ad litem, and attorneys; for instance, we assist parties in clarifying what services family members should be receiving and the logistics therein.

Many of these cases, unfortunately, linger in the child welfare system for a long time. There is robust evidence suggesting that children experience more adverse effects the longer they are in foster care, or without permanency (finding these children a stable, long-term home and support). Another unfortunate outcome of cases lingering in the system is that as cases languish without resolution, the parties often become disillusioned. When these sorts of cases are referred into mediation the neutrals often find themselves with a nearly insurmountable challenge: finding common ground between parties who have years of negative interactions between them.

One way our program is trying to combat this problem is by intervening at an earlier stage in the court case, in what will be called “facilitation” sessions. Modeled off similar sessions we observed in Cook County, Illinois, our goal for these facilitations is to help better orient the family to what they can expect from the court process as well as to build rapport between family members and professionals. The role of the mediators in these sessions is still to facilitate a conversation, but one that is centered less on exploring a potential agreement and more on the exchange of information and answering questions. This seemingly simple objective has the potential to prevent major conflict down the line by providing clarity about the Child Protection process and establishing positive relationships early on.

We are still finalizing details about what exactly these sessions will look like, but we expect them to take place very soon after the children have been removed from the home. One challenge this presents is helping family members navigate the shock and raw emotions of this experience, and presenting information in a way that can be absorbed in spite of the overwhelming circumstances they face. We’re also mindful after having evaluated the DC Child Protection Mediation program that conducting a mediation session too early can run the risk of duplicating the family team meeting, which is why we want to have a clear purpose for facilitation and distinguish it from the mediation sessions we conduct later in the process.

In spite of these potential pitfalls, we are hopeful that the facilitation session will be another powerful tool in navigating these fraught cases. We are operating in a context where, among all states, Illinois ranks last in time to permanency. Everything we can do to help bring the focus on the kids and their needs stands to help ameliorate this unacceptable status quo. We welcome the input of any and all of our colleagues for suggestions on how we can get the most out of these sessions.

Introducing RSI’s Special Topic on Online Dispute Resolution!

Eric Slepak-Cherney, April 26th, 2019

We are excited to introduce our new Special Topic on Online Dispute Resolution (ODR)! With courts across the country exploring ODR at a rapid pace, we sought to develop a resource that would help provide thoughtful context and guidance on how court administrators and stakeholders should approach the intersection of technology and dispute resolution. Containing a history of ODR, considerations for courts and links to other helpful resources, we hope you will find this new content enlightening and will excite you for the future of delivering justice through online dispute resolution.