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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.

Which Mediator Techniques Are Most Effective? Report Points to Some with Potential

Jennifer Shack, October 3rd, 2017

The ABA Section of Dispute Resolution Task Force on Research of Mediator Techniques  has recently released its report on almost 50 studies that looked at the effect of mediator techniques and actions on (1) settlement and related outcomes; (2) disputants’ relationship or ability to work together and their perceptions of the mediator, the mediation process or the outcome; and (3) the attorneys’ perceptions of the mediation. Although the nature of the studies made it hard to draw broad and definitive conclusions about what works, a few threads could be pulled from their findings. Four categories of techniques were found to have the potential to increase the probability of settlement and improve party relationships and perception of the mediation. Each of the four focuses on the parties in some way, whether eliciting their ideas or building rapport.

Because the studies defined mediator techniques and actions differently, the Task Force organized them into the following conceptual categories:

  • pressing or directive actions or approaches
  • offering recommendations, suggestions, evaluations, or opinions
  • eliciting disputants’ suggestions or solutions
  • addressing disputants’ emotions, relationships, or hostility
  • working to build rapport and trust, expressing empathy, structuring the agenda, or other “process” styles and actions
  • using pre-mediation caucuses
  • using caucuses during mediation

Mediator techniques and actions

When looked at as a whole, the studies were mixed in their findings regarding the effect of categories of techniques on outcomes. Because the findings were mixed, the studies provide no clear guidance about which techniques will have a positive effect on outcomes and which will be detrimental. However, a few techniques were found to have the potential to have a positive effect both on settlement and on disputants’ relationships and perceptions of mediation. These are:

  • eliciting disputants’ suggestions or solutions
  • giving more attention to disputants’ emotions, relationships, and sources of conflict
  • working to build trust and rapport, expressing empathy or praising the disputants, and structuring the agenda
  • using pre-mediation caucuses focused on establishing trust

Eliciting disputants’ suggestions or solutions

Five studies looked at the effect of mediators working with disputants to suggest possible solutions, helping them to generate new ideas, or asking them to respond to or evaluate ideas or proposals. None found a negative effect on settlement or on participant relationships or perceptions of the mediation, though they were mixed as to whether they had a positive effect or no effect.

Addressing disputant’s emotions, relationships or sources of conflict

Most of the 11 studies that examined the effect of mediators paying more attention to the relationship/emotional aspects of disputes found that this had a positive or neutral effect on settlement, although a couple of studies did find a negative effect. The effect of these actions on disputants’ perceptions and/or relationships was either positive or neutral. In labor-management mediations, trying to reduce emotional tensions decreased the likelihood of settlement, while attempting to reduce expressions of hostility had a positive effect for labor negotiators, but no effect for management negotiators. If paying more attention to the relationship/emotional aspects of the dispute was combined with proposals for how to avoid the appearance of defeat, settlement was more likely.

Working to build trust and rapport, expressing empathy or praise, and structuring the agenda

Of the 11 studies that looked at the effect of the mediator building trust and rapport or expressing empathy or praise on settlement, only two found a negative effect. The other nine found either a positive effect or no effect. Three studies looked at the effect of these actions on the disputants’ relationships and/or perception of the mediation. These either found a positive effect or no effect.

Nine studies looked at what effect structuring the agenda had on settlement. Only one found a negative effect. The others found either a positive or no effect. Studies suggest that agenda setting should be flexible rather than rigid if it is to have a positive effect on disputants’ perceptions of the mediation.

Using pre-mediation caucuses

Three studies looked at the effect of pre-mediation caucuses on settlement and post-mediation relationship conflict. Their findings indicate that these can be effective, but only if used to build trust with the disputants. They were not effective, and could possibly be detrimental, if mediators used them to encourage disputants to accept settlement proposals.

Guidance for mediators

Despite seeing a trend in the studies that pointed to the potential of these categories of techniques and actions, the Task Force did not feel that there was sufficient evidence to state that these were best practices for mediators. However, enough evidence exists to suggest that the above techniques will not be harmful and may well be beneficial to the goals of mediation.

Next steps

The Task Force recommends as next steps that the studies involved in this report be made available in a repository that could be built upon and researched more thoroughly. Other recommendations include developing common terminology, definitions, and measures for mediator actions and mediation outcomes to provide more uniformity and consistency across studies so their findings could more meaningfully be compared. Along with this, research needs to be done to test the reliability and validity of mediator action and mediation outcome measures so that future studies produce more rigorous and meaningful findings. All of this can be possible with the collaboration of researchers, practitioners, trainers and program administrators.

Conscious and Unconscious Thinking in Mediators

Jennifer Shack, July 6th, 2017

The mediation field now has more information in our push to unlock the black box of mediation. A recent study by James Wall and Kenneth Kressl examined the conscious and unconscious thought processes of ten civil case mediators. Their findings do more to confirm what many have long assumed, rather than provide new insights, but they are no less informative because of that. As they discuss in “Mediator Thinking in Civil Cases” (Conflict Resolution Quarterly, Spring 2017), the mediators focused on settlement as well as client satisfaction and obtaining repeat business. Unconsciously, they were biased against emotions being brought into the mediation and saw the dispute as one in which the parties would have to compromise on monetary value.

The study involved 20 observations, two for each of the ten mediators. Nine of the mediators were male; nine were white. When setting up the study, Wall and Kressl made three assumptions:

  • Mediators have goals and pursue them.
  • Mediator thinking operates on two levels – unconscious (system 1) and conscious (system 2). System 1 thinking is emotional and based on personal biases, while system 2 thinking is rational.
  • Mediators engage in mental mapping when adopting goals and pursuing them. Mental mapping involves figuring out what to do and at what point in the mediation in order to achieve their goals.

They used these assumptions to frame their observations. Prior to each mediation, the observer met with the mediator for about 30 minutes and asked, “What are you thinking?” The observer then asked the same question after introductions and after the joint opening session. Once the parties were separated (in each mediation, there was only one joint session), the observer asked the mediator what he was thinking as they walked from one caucus room to the other. After mediation, the observer interviewed the mediator for about 45 minutes.

Conscious Thinking

On the conscious level, Wall and Kressl found that the mediators all had two outcome goals, which they pursued in mediation. These were achieving a settlement and having the clients leave satisfied. Additionally, most of the mediators were interested in obtaining repeat business. The mediators’ operational goals were also universal: lower the clients’ aspirations, keep parties flexible and maintain client control. Interestingly, they all looked to the attorneys to control their clients.

Most of the mediators created mental maps of how they would achieve their goals, although the level of mental mapping varied greatly among them. Mental mapping in general starts with pre-planning – getting relevant information before the mediation starts in order to get an idea of where the case might settle. During mediation, the mediators might take verbal and non-verbal cues into consideration while continuously determining when and how settlement will be achieved, and at what dollar amount. For me, the most surprising finding of the study was that some experienced mediators engage very little in mental mapping. The common factor for the three mediators in the study who used only slight mental mapping was their focus on their own role and actions rather than on those of the parties.

Wall and Kressl found that as part of their mental mapping, the mediators considered how much to press the parties and what the pace of the mediation should be. On both factors, there was considerable variation between mediators. Pressing, defined in the study as “pointing out the weaknesses in the client’s case; noting the strengths of the opponent’s case; and emphasizing the risks, pain, uncertainty, and costs of trial” was used very little by three of the mediators and three used it extensively as a method of control, dominance and pace-quickening.

Unconscious Thinking

Wall and Kressl divided unconscious thinking between prior to mediation and during mediation. Prior to mediation, mediators unconsciously frame the negotiation situation as distributive. That is, they believe that mediation is about getting the parties to make monetary concessions in order to reach agreement. They also believed that mediation should be low conflict and that any mediated settlement was better than trial. The mediators also saw emotions as problematic and to be avoided in mediation.

During mediation, the mediators made quick judgments about the parties and the probability of settlement. Universally, this judgment was negative for insurance adjusters (although the adjuster was only present in five cases). Also noted was that the mediators were “creatures of habit”.  All but one conducted the mediation the same no matter the situation. (This was confirmed for five of the mediators, who had been observed for multiple mediations a decade before.) Wall and Kressl noted that the mediators had on average a 70% settlement rate, which might have led the mediators to confirm that their mediation style worked well.

Although the study only included ten mediators, Wall and Kressl saw patterns in their approach to mediation, leading them to put the mediators into three distinct groups:

  • Reflective Persuaders: these were high mental mappers who were moderate on pressing and extracting offers.
  • Pressers: these were high on pressing and extracting offers, moderate on what the pace of mediation should be and moderate on mental mapping.
  • Laissez-faires: these were low on pressing and extracting offers, moderate on repeat business and having pleased clients and moderate on the pace of mediation. They made mental maps but were hands off.

This study suffers from a small and homogeneous sample, so it is not readily generalized to the general population of mediators.  Another issue is that the cases were very heterogeneous; differences in case types, dollar amounts and representation may have had an impact on how mediators approached their cases. Nonetheless, the study is significant in that it provides insights into mediators’ unconscious biases. This information can be used to uncover the influence of unconscious thinking on mediator behavior and the path that mediation takes.