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Top Criteria for Litigant Selection of Dispute Resolution Process

Jennifer Shack, September 28th, 2018

When litigants were asked soon after their case was filed what would influence their decision about what dispute resolution method they would use for their case, they most commonly said they would be relying on their lawyer’s advice, according to research conducted by Donna Shestowsky. As Shestowsky notes in her article, “Inside the mind of the client: An analysis of litigants’ decision criteria for choosing procedures” (Conflict Resolution Quarterly, Fall 2018) [sub. req.], this has important implications for lawyers and litigants, as lawyers don’t always understand their clients’ interests.

This is the fourth in a series of articles presenting different aspects of her research into the decision-making of litigants in civil cases. Previous articles reported that litigants prefer mediation, looked at what they wanted from a dispute resolution process, and discussed their lack of awareness of what options were available to them. The research is based surveys of litigants in three jurisdictions (in California, Oregon and Utah), that had mediation and arbitration options available to the surveyed litigants.

For this aspect of the research, 335 litigants completed surveys soon after their case was filed. Among the questions were those inquiring into how they would decide which dispute resolution process to use. Within three weeks of the closing of the case, they were called to conduct a survey about the processes they used and the reasons they used them. The litigants provided numerous factors influencing their process selection at the outset of the case, with their lawyer’s advice being the most common, cited by 25% of the respondents. The second most common response, given by 19% of litigants, was that they wanted to minimize economic costs. These two reasons held steady when the litigants were surveyed after the case closed. That is, those litigants who said their lawyer’s advice and/or economic costs were what would lead them to choose a particular dispute resolution process said that they were the factors that led them to ultimately select a process.

Shestowsky finds the significance of litigants relying on their lawyer’s advice in previous research. Tara Relis had earlier found that lawyers don’t always understand their clients’ interests. Similarly, Russell Korobkin and Chris Guthrie uncovered differences between how lawyers and non-lawyers assess whether to settle or litigate a case. This, for Shestowsky, means that unless the lawyers uncover their interests before advising their clients, they may not be acting in a way that best suits their clients when promoting one dispute resolution process over another. Another study also proves relevant in this context. In Arizona, Roselle Wissler found that lawyers were more likely to recommend mediation to their clients if they themselves had experience with the process. Thus, lawyers may simply not feel comfortable recommending a process that may fit best with what their clients want.

Given that litigants rely on their lawyer’s advice, Shestowsky recommends that lawyers “should attempt to understand their clients’ interests, values, and objectives before sharing their personal evaluations of procedures to avoid imposing their own views.” And when their values differ from those of their clients, they should defer to their clients’ values.

The Role of Prejudice and Bias in ADR

Jennifer Shack, August 1st, 2018

How can mediation be saved? This is the question that Nancy Welsh attempts to answer in her recent article, “Do You Believe in Magic?: Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation,” (SMU Law Review, Vol 70, 2017).Welsh laments the lack of self-determination in mediation and looks 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 take a slightly different tack in their article, “Does Alternative Dispute Resolution Facilitate Prejudice and Bias? We Still Don’t Know” (SMU Law Review, Vol 70, 2017). They look at empirical research on ADR to see if there is evidence that ADR does indeed facilitate bias and prejudice.

In her article, Welsh argues that the promise of mediation to ensure self-determination isn’t being upheld. Instead, she claims that self-determination has been sidelined by judges and lawyers, and calls for reform have fallen on deaf ears. So Welsh turns to procedural justice, which includes having voice, being heard, being treated in an even-handed manner and being treated with dignity, as another way of providing self-determination. If the elements of procedural justice are present, the parties are more likely to have self-determination because they can have an open discussion that leads to an outcome that truly represents the interests of all involved.

The provision of procedural justice, however, is not straightforward. Recent social science research has found that the provision of procedural justice can be impeded by inequality, bias and prejudice. First, one’s experience of procedural justice and how much it influences one’s view of the substantive outcome is affected by one’s status. Procedural justice is more important to those of lower status, who use it to determine if the outcome was fair. Second, one’s ability and desire to have voice is dependent upon one’s status. Third, those with lower status may not be heard by those with higher status. Indeed, research has found that those with higher status are less likely to hear those of lower status due to their prejudices and biases.

Welsh proposes a number of ways to address inequality, bias and prejudice, in the hope that mediation can live up to its promise of providing procedural justice, substantive justice and self-determination. These include: increasing the diversity of the mediator pool and training mediators to recognize and address implicit bias; utilizing pre-mediation caucusing to build trust; encouraging active listening in mediation; promoting the use of online tools for communication (as research has shown that people with lower status are more likely to exercise voice using online media); and empowering mediators to avoid unconscionably lopsided outcomes.

Where Welsh looks to social science research to inform how prejudice and bias may play out in the provision of procedural justice in mediation, Bachar and Hensler examine empirical research to find evidence of prejudice and bias in mediation and arbitration outcomes. They looked at 38 studies conducted over three decades that looked at a variety of case types. They found that the studies arrived at “mixed and contradictory” results and lacked methodological rigor. Therefore, they could draw no robust conclusions from them. However, they believed that the results of these studies indicate that both women and minority men fare worse in mediation than white men. There is no research on racial or ethnic bias in arbitration, but recent research points to women – both parties and lawyers – faring worse than men in the process.

Both articles point to a need for a greater focus on whether inequality, bias and prejudice impact the provision of justice through ADR, and how they may be addressed. This intersection of ADR and prejudice is examined in the two 2017 ADR Symposium issues of SMU Law Review, which are definitely worth the time to read.

Evaluation of ADR in Michigan

Jennifer Shack, July 2nd, 2018

In 2011, an evaluation of Michigan’s court-connected case evaluation and mediation programs found that both case evaluation and mediation increased the probability of settlement, but that case evaluation significantly increased time to disposition. A newly published follow-up study, The Use of Case Evaluation and Mediation to Resolve Civil Cases in Michigan Circuit Courts: Follow-up Study Final Report (Courtland Consulting, May 2018), came to the same conclusion.

Case evaluation, in which a panel of expert neutrals makes a recommendation as to what the case should settle for, is mandatory for tort and medical malpractice cases. Mediation in most jurisdictions is voluntary, and can be used in conjunction with case evaluation. The study looked at a random sample of 358 cases (221 torts cases, 137 other civil cases) from three jurisdictions to determine what ADR process was used, the means by which the cases were resolved, and the time to disposition for each case.

The study found that for tort cases, there was no statistically significant difference in the form of disposition among the different options: no ADR, case evaluation only, mediation only, or both case evaluation and mediation, with a range of 71% (no ADR) to 92% (mediation) ending in a settlement or consent judgment. For other civil cases, both case evaluation and mediation (and both together) had higher rates of settlement than those cases that did not use ADR (47% for no ADR, 79% for case evaluation and 80% for mediation). The difference appears to be in the higher rate of dismissal/default judgment for cases in which no ADR process was used (49% v 21% for case evaluation and 13% for mediation). For both torts cases and other civil cases, time to disposition was considerably longer when case evaluation was used than when either mediation or no ADR was used.

When compared to mediation, case evaluation started later in the case and averaged longer to disposition from the point at which the ADR process ended. The delay could be attributed to case evaluation being rescheduled more often, although it wasn’t clear whether it was rescheduled without having been held or whether more than one session was needed.

While the findings regarding case resolution and time to disposition were similar to the 2011 findings, the lawyers and judges who responded to a survey about their perspectives on case evaluation indicated they were less satisfied with this process. Judges in particular were less confident in the effectiveness of case evaluation, with the percentage of judges who believed it was effective dropping from 69% to 53%. Attorneys had a much smaller dip, from 49% to 43%. Similar drops were seen in the percentages who would use case evaluation if it wasn’t mandatory. The percentage of judges who said they would use it dropped significantly, from 83% to 66%, while the already small percentage of attorneys who would in 2011 (36%) dropped to 29%.  The attorneys’ opinion of case evaluation was reflected in their comments about the panels. They complained that the panels lacked experience, were unprepared, were biased and did not address the merits of the case.

On the other hand, the judges’ and attorneys’ already high opinion of mediation remained steady. In 2011, 89% of the judges said mediation was an effective way to resolve disputes, compared to 93% in 2018. Attorneys were also much more likely to say mediation was effective than to say that case evaluation was, with 77% and 78% saying so in 2011 and 2018, respectively. While they had a high opinion of mediation, only 53% of attorneys said the mediators were highly skilled.

The comparison results were limited by a couple of factors. The cases that did not go through ADR processes were not similar to those that did. They were commercial cases, which are less complex, involve lower value claims, and require less discovery than other civil cases. Further, mediation was voluntary in most cases. This means the sample of mediation could be skewed by self-selection, in that the parties who decide to mediate could have been more motivated to settle and/or to settle early.

 

Motivational Interviewing: Successful Settlement and Pointers for Mediator Training

Jennifer Shack, May 1st, 2018

Last year, I wrote about two studies looking into the use of motivational interviewing in family mediation. The two summaries are presented together here. Motivational interviewing (MI) is a counseling technique designed to induce clients to change their behavior by exploring and resolving their ambivalence toward change. It has been found to be effective in a variety of contexts, including reducing aggression in intact couples.

An experiment in Australia found that when mediators used MI during the mediation, the parties were twice as likely to reach a full agreement. However, this technique does not reduce psychological distress, child adjustment problems or co-parental conflict. The study, undertaken by Megan Morris as part of her PhD thesis (Motivational Interviewing and Family Mediation: Outcomes for Separated Families, 2016 (see Chapter 4)), is the first to examine the use of MI in family mediation.

To determine the impact of MI on mediation outcomes, Morris randomly assigned 177 separated families to either the treatment group (n=94), in which the mediator used MI, or the control group (n=83), in which the mediator did not. The mediations were conducted over the phone and recorded and coded by multiple trained coders as to the integrity of the MI treatment. In all, 108 sessions were recorded, including 68 intake sessions and 40 joint sessions by 15 mediators. Eight of the mediators were randomly assigned to be trained in MI before the study; the other seven were offered training after the study was completed. Those trained prior to the study incorporated MI into their mediations during the study, while the other group continued to use their usual mediation techniques.

Recordings of intake interviews and joint sessions indicated that mediators trained in MI techniques ranked much higher on the MI Treatment Integrity Scale than those who were not, demonstrating that there was a difference in the services provided to the treatment and control groups. Parents in the treatment group were twice as likely to reach full agreement as those in the control group (33% v 16%) and less likely to reach no agreement (33% v 42%). There were no other statistically significant differences in satisfaction with the mediation, psychological distress or child adjustment.

Although the research was well-designed, it suffered from technical and logistical issues, including problems with recording equipment that significantly reduced the number of recorded sessions, and families who were accidentally provided the wrong service for at least one of their sessions. Further, there was a high attrition rate for the study: of those who agreed to participate, only 26% completed the post-mediation satisfaction surveys and psychological assessment instruments. This may have affected the research findings. In particular, the high attrition rate may have masked differences in outcomes that existed between the two groups, leading to the erroneous finding that there were no differences in the long-term outcomes (i.e., psychological distress and co-parental conflict).

Researchers at the University of Nebraska are also looking into combining mediation with MI. Their research, however, is looking at how to best train mediators to employ MI in family mediations. In an article in The Nebraska Lawyer (January/February 2017), they provide a primer on MI and how it can be used in mediation, then discuss the outcomes of their training research.

The researchers – Kristen M. Blankley, Lisa PytlikZillig and Kate Speck – are following eight mediators through the training process and into their practice post-training. The mediators completed self-efficacy surveys before starting training. They then participated in a follow-up discussion. The researchers are not just looking at change in skills and knowledge during training, but are gathering data on the mediators’ ability to use MI in their own mediation practice. Thus, after each mediation the mediators are also filling out reflection worksheets that are based on an assessment developed to improve MI proficiency. The research will also include two more follow-up discussions and another self-efficacy survey.

Through their research, Blankley, et al, have concluded that the most important things in MI training for mediators were:

  • Clarify what the new strategies are. MI and mediation share a lot of skills and terminology, but there are important differences. The mediators initially didn’t understand what those differences were and thus how to change their practice.
  • Be careful with terminology. MI and mediation can use different terms for the same concepts. This can be confusing. Either explain the differences or change the terminology to fit mediation.
  • Demonstrate MI skills. The mediators benefitted greatly from a fishbowl in which an expert in MI demonstrated change talk and the mediators could discuss options for mediator responses.
  • Address concerns about appearance of bias. This was a major concern of the mediators. They felt uncomfortable exploring change with one party while the other looked on. The mediators discussed strategies for managing appearance of bias, including the use of caucus.

What is apparent from this article is that the research is not only providing a template for future training, but it is also identifying strategies for incorporating MI into mediation. The article is only six pages and worth a read.

Courts and Attorneys Aren’t Doing Enough to Inform Litigants about Their ADR Options

Jennifer Shack, November 3rd, 2017

Donna Shestowsky at UC Davis School of Law has been researching the relationship between litigants and court ADR programs for quite a while. In the past, she has reported that litigants prefer mediation and has identified what they want from a dispute resolution process. Now, she’s reporting that few litigants know that the courts in which their cases have been filed offer mediation or arbitration (“When Ignorance Is Not Bliss: An Empirical Study of Litigants’ Awareness of Court-Sponsored Alternative Dispute Resolution Programs,” Harvard Negotiation Law Review, Spring 2017). Shestowsky found that only 24% of litigants surveyed knew that their court offered mediation, and only 27% knew that arbitration was a possibility.

For this particular aspect of Shestowsky’s study, 336 litigants to civil cases with a median amount in controversy of $35,000 were interviewed within three weeks of the closure of their case. The litigants were drawn from three jurisdictions (in California, Oregon and Utah) that had both mediation and arbitration programs for which all the surveyed litigants were eligible. Each of the three jurisdictions had a rule requiring attorneys to discuss ADR options with their clients.

Despite the rules requiring attorneys to discuss mediation and arbitration with their clients, there was no significant difference in responses between represented and unrepresented litigants. Further, only 31% of litigants said that they or their attorney contemplated mediation, while only 24% had contemplated arbitration. The only factor that increased the likelihood of litigants knowing whether their court offered ADR was whether they were repeat players. Repeat players were 2.53 times more likely to know whether the court had ADR programs.

The results are surprising. Not only do the three courts have requirements for discussing ADR, but the Utah and Oregon courts made ADR the default, requiring the parties to take action to avoid mediation and arbitration. Shestowsky concludes that “discussions about procedure did not take place at all, were not flagged as important, or were not conducted in an in-depth or personalized enough way to trigger deep processing,” meaning that they didn’t have enough of a discussion for the information about ADR to stick in the litigants’ memory.

These findings are not just important to those who advocate for ADR, but have a real impact on litigants and the courts. If litigants don’t know the options available to them, or haven’t had them fully explained, they aren’t giving informed consent to participate in the chosen process. On the other side of the coin, it appears that courts are allocating funds to processes that aren’t being used fully because litigants don’t know about them. Additionally, a key finding of the study is that those litigants who knew that the court offered mediation had a higher opinion of the court than those who did not. This suggests that courts can benefit by having litigants be better-educated about their ADR options, even if they don’t elect to use them.

Shestowsky’s research gives us in the ADR field useful information about how little litigant awareness there is about ADR options even when court rules are designed to ensure that litigants can make informed decisions about the process to use. She points to courts whose processes force more litigant acknowledgement of having been educated about ADR as possible models for increasing awareness. The next step should be to test these different processes for educating litigants to determine which is most effective, particularly for those litigants who are less sophisticated.