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The Research Year in Review

Jennifer Shack, December 20th, 2018

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.

Program Evaluations

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!

Findings from an Evaluation of Eight Foreclosure Mediation Programs

Jennifer Shack, December 5th, 2018

As I mentioned last month, I recently completed a comprehensive evaluation of eight foreclosure mediation programs in Illinois. One great benefit of evaluating eight programs with different approaches to resolving the same cases is that it allowed me to uncover program design factors and other variables that promote program success. The three big takeaways from the evaluation are that proper program design is essential, provision of services has an impact on homeowner outcomes, and data is crucial to program improvement. The evaluation was a final look at the eight programs that were funded by the Illinois Attorney General, encompassing up to four years for each program. Seven of the eight programs used relatively uniform data that was collected on the same online case management system. Further, I worked with each program to define the variables used so that we had a clear understanding of the meaning of each variable. This allowed me to develop uniform measures for the programs that enabled comparisons of program performance across them.

First, some basic findings. The eight programs helped 4,766 homeowners, representing 23% of all foreclosure filings in their jurisdictions. They saved 1,100 homes. Once homeowners entered the programs, 21% to 40% saved their homes, depending on the program. More than 90% of homeowners who completed surveys said that they gained a better understanding of their options and how to work with their lenders. Almost all homeowners felt that they were treated fairly and with respect. Most felt that they were able to talk about the issues and concerns that were most important to them and almost all felt the mediator understood what was important to them. Most were satisfied with their experience.

Now to the takeaways. Program design played a significant role in how many homeowners a program was able to help and how many homeowners participated in the program. The two variables are different because most programs helped homeowners to understand their options and the foreclosure process, even if they could not or decided not to participate. Those programs that told homeowners that they must appear for their initial session and provided a date and time for that had significantly higher proportions of homeowners appear and participate than programs that had them contact the program in other ways. And those programs that told homeowners they had to call the program coordinator, provided a deadline to do so and sent additional reminders had significantly higher proportions of homeowners contact the program and participate than those programs that informed the homeowners of the program and told them how to start the process to participate.

Participation rate is very important, not just because higher participation means that more homeowners are helped. The greater the proportion of homeowners facing foreclosure who participate in the program, the greater the proportion of homeowners who save their homes.

Other aspects matter as well. Having the homeowners meet with a representative for their lender from the outset appears to improve program completion rates and possibly improves the probability that participating homeowners save their homes. Within individual programs, those homeowners who worked with a housing counselor are more likely to complete the program. Those who worked with attorneys were much more likely to complete the program. Interestingly, they weren’t more likely to save their homes.

It was very gratifying to see that those programs that made changes based on the data they were collecting and the recommendations from my first evaluation were improved by those changes. For example, the 19th Circuit and 20th Circuit programs made changes to the manner in which homeowners contacted and entered the program, significantly improving participation. The 16thand 19th Circuits worked with mediators to improve their skills, leading to fewer mediator issues and more participants leaving mediation with a good experience.

For a quick take on the evaluation, see the Executive Summary.
To access a digital summary of the evaluation, click here.
For the Full Evaluation, download PDF .

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.