Resources / Study / Innovation for Court ADR

Just Court ADR

The blog of Resolution Systems Institute

Author Archive

Do Parties Trust Mediators When They’re Not in the Same Room?

Jennifer Shack, August 26th, 2019

Trust in an experienced mediator is the same whether a mediation participant interacts with that mediator via video or face-to-face, according to recent research. Susan Nauss Exon and Soomi Lee explain their research in their article, “Building Trust Online: The Realities of Telepresence for Mediators Engaged in Online Dispute Resolution,” (Stetson Law Review, Vol 49, No. 1).

Nauss Exon and Lee’s research focused on the impact of technology on parties’ perception of the mediator as trustworthy and on their trust in the mediator. To determine what that impact might be, they undertook an experiment in which a single experienced mediator conducted 31 simulated mediations with one party in the room with him and the other interacting via telepresence. Telepresence is sophisticated video conferencing, in which sensitive microphones and special cameras that pan and zoom are used to help participants follow the flow of the conversation.

During the experiment, the participants were asked to complete a questionnaire before the mediation began that measured their level of interpersonal trust. They then completed a second questionnaire after mediation that asked them about their interactions with the mediator and their perceptions of him in order to determine how much they trusted him and found him to be trustworthy. In all, 59 participants provided usable data. These participants included 36 females and 23 males who ranged in age from 18 to upwards of 36 years and who had education levels from high school diplomas to post-graduate degrees.

Nauss Exon and Lee found that although the participants’ questionnaire responses before mediation indicated they were on average more likely to distrust others than trust them, all participants agreed mildly or strongly that they could trust the mediator and that the mediator was trustworthy. Further, they found no difference in the level of response (mild or strong) between those who were in the same room as the mediator and those who participated via telepresence, with one exception. They found that those who had a lower predisposition to trust were more likely to see the mediator as trustworthy.

The issue of trust in mediation is important as courts move toward greater use of online dispute resolution. This research points to the possibility that trust is not affected by at least some online interactions. However, as Nauss Exon and Lee note, more research needs to be done to see if their findings can be replicated in other contexts and under other circumstances. For example, would the same results apply to video mediation that uses a web cam instead of sophisticated microphones and cameras? When only text is used to communicate among parties and the mediator? Would they apply with a less experienced mediator? In the real world, rather than a simulated mediation? Hopefully, further research will answer these questions.

Victim Youth Conferencing Program in Nebraska Showing Promise

Jennifer Shack, July 22nd, 2019

A statewide victim youth conferencing (VYC) program in Nebraska has proven to be successful at promoting participant satisfaction, attaining reparations agreements and ensuring youth fulfillment of those agreements. The program was launched in March 2015 as a pilot in three jurisdictions covering four counties and was expanded statewide in January 2018. Services are provided by Nebraska Office of Dispute Resolution-approved mediation centers. Referrals to the program came at three stages: pre-court referrals from the County Attorneys’ offices after a school-based incident, court diversion referrals from the County Attorney and Courts pre-adjudication, and referrals from the court post-adjudication.

The evaluation of the VYC program looked at the program’s goals to determine whether they were being met, as well as other aspects of the program, including who was served by the program and how the process was working in each of the centers providing the services. In terms of outcomes, the program had the following goals: 95% of conferences will end with a reparations agreement, 95% of agreements will be fulfilled and 97% of participants will report being satisfied with the process. The program exceeded the first goal and came within a percentage point or two of attaining the other two goals. All conferences held ended with a reparations agreement. Youth completed 94.2% of those agreements and partially completed 5.8% of them. Ninety-five percent of participants were satisfied with the process.

In addition to being satisfied with the process, 89% of participating youth and 70% of participating victims believed that the VYC made the justice system more responsive to their needs. Further, 94% of victims agreed that it was helpful to talk directly with the person who was responsible for the harm, and 77% of victims said that meeting that person reduced any fear that he/she would commit another crime against them. The youth held similar opinions: 88% said it was helpful to talk directly with the victim and 94% said that after the meeting they had a better understanding of the full impact of the crime on others.

The program also had longer-term goals of reducing recidivism, “closing the gap in disproportionate minority contact with courts,” increasing safety in communities and sustaining capacity for VYC statewide. The program’s effect on recidivism proved hard to assess. The evaluator found that the 38 youth who participated in the initial pilot, 16% recidivated in the succeeding 12 months, compared to 24% of the 17 youth who did not. However, the data was insufficient and unreliable, so she did not determine that participation in the program caused the reduction in recidivism. The hope is that later evaluations can address this, as well as the other goals mentioned above.

Participants Are Highly Satisfied with Nevada’s Child Protection Mediation Program

Jennifer Shack, July 1st, 2019

Last month, I talked about a new evaluation of child protection mediation in Michigan. I’m following this up with a 2017 evaluation of child protection mediation in Nevada. Both evaluations were of several programs taking place throughout the respective states, but their focuses are quite different. Where the Michigan study primarily examined time to permanency, the Nevada study focused much more on participant experience in the mediation and process issues.

The Nevada study, “Process Evaluation of Nevada’s Statewide Dependency Mediation Program,” by Shamini Ganasarajah, et al, of the National Council of Juvenile and Family Court Judges, found high levels of satisfaction with mediation and agreement, as well as a possible impact on whether scheduled hearings after mediation were cancelled. 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.

The study looked at mediation in seven counties. In these counties, mediation can be used at any point of the case. However, most cases used the mediation program at the termination of parental rights (TPR) stage, which is at the end of the case. (This finding regarding the timing of mediation is skewed somewhat by one county using mediation almost exclusively at the TPR stage.) Time in mediation averaged two hours.

Those who participated in mediation were asked to complete post-mediation surveys. For the purposes of this study, these people were divided into program participants (these are natural parents and foster parents) and system stakeholders (the attorneys and case workers involved in the case). During the study period (July 2016 through April 2017), participants completed 113 post-mediation surveys and stakeholders completed 267. In their responses, 84% of the participants and 98% of the stakeholders expressed satisfaction with the mediation program. Their satisfaction was statistically related to whether they reached agreement in the mediation.

The participants (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, natural mothers or natural fathers.

The evaluators analyzed whether there was a relationship among the participants’ responses. One that stood out was that when participants believed others in the mediation had “really listened” to what they had to say, they were more likely to express satisfaction with the mediation regardless of whether an agreement was reached.

The stakeholders (attorneys and caseworkers) were also highly positive about the mediation, with all or almost all believing the process was fair, that they had an opportunity to express their opinion, were treated with respect, were listened to and were able to be a part of finding answers to the problems discussed.

Interestingly, both participants and stakeholders were most likely to mention communication as what was most helpful about the mediation. Both groups were also most likely to say that parties being unable or unwilling to compromise was the reason no agreement was reached.

Also interesting was that the mediators reported agreements in 84% of cases, while the stakeholders reported that agreement resulted from only 71% of their mediations. There is no explanation as to why. The study also found that hearings were cancelled after 51% of the mediations were held. The evaluators recommended further examination of the relationship between mediation and vacated hearings.

Other recommendations included expanding the use of mediation to all stages of the case, as most mediations occurred at the TPR stage; assessing implementation of domestic violence screening protocols; and enhancing mediator training to include additional strategies for effectively listening to participants and stakeholders and making them feel heard.

Study of Child Protection Mediation in Michigan Finds High Rates of Satisfaction, Permanency Effects

Jennifer Shack, May 29th, 2019

The Michigan State Court Administrative Office recently released its report on child protection mediation (CPM) in the state. In Michigan, CPM is conducted by community mediation centers associated with the courts. The study looked at CPM at five of these centers, which collectively provide services for 24 counties. It focused on descriptive statistics, participant and stakeholder perspectives, and time to permanency. The report found that CPM participants have positive perspectives on the process, that stakeholders are largely supportive of it and that it reduces time to permanency.

Mediation in the five sites (Gaylord, Jackson, Marquette, Petoskey and Traverse City) is voluntary and primarily takes place early in the case, on average within 60 days of the filing of the petition. In the five sites, the number of mediated cases during the study period (January 2016 – October 15, 2018) ranged from six to 105.

Petoskey and Gaylor had participant experience data. In both, participants responded positively to each survey question asked. In Petoskey, 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 Gaylord, they had similarly high ratings for those topics, and also said they felt safe and believed the mediator was neutral.

The study included data from surveys statewide that asked those going through the traditional process and those going through CPM how satisfied they were with their experience. On three metrics, parties who went through CPM gave slightly higher ratings: case resolution, staff courtesy and courtesy of the judge.

The researchers interviewed ten stakeholders for the report. The stakeholders were asked about their perspectives on the effectiveness of CPM. The majority believed that CPM resulted in significant time and cost savings. They also felt that mediation was effective at improving family permanency and the parents’ relationships with child protection workers. On the other hand, they had some reservations about how often parents comply with mediation agreements.

The interviewees were also asked their perceptions of other parties’ willingness to participate in CPM. Their responses indicated that stakeholders were consistently likely, or very likely, to be willing to participate in CPM, with child protection workers relatively willing and guardians ad litem extremely willing to do so.

The researchers compared the average time to permanency in the CPM study sites to those in comparable sites that did not have CPM. They found variation in the time to permanency among the five sites, as well as the comparison sites, with Petoskey having a much longer time to permanency than any of the other sites. Overall, however, they found that time to permanency was 50 days shorter on average in CPM sites than in the comparison sites. The researchers also found that cases in the CPM sites were more likely to close within 2 years than those in the comparison sites. Again, there was significant variation among the sites.

It isn’t clear from the data provided that CPM was the cause of the shorter time to permanency or the higher closure rate. In Traverse City and Jackson, which had the shortest times to permanency, a very small percentage of cases was mediated (6 mediated cases, 145 cases closed for Traverse City and 9 cases mediated, 133 cases closed for Jackson), which calls into question how much of an effect CPM was on permanency at those sites.

Can Judges Provide Access to Justice Through Settlement Conferences?

Jennifer Shack, April 30th, 2019

This following isn’t new research (it was published in 2016), but it does present a framework for examining access to justice in ADR processes.

In research he conducted in Quebec, Jean-Francois Roberge found that judicial settlement conferences offer parties a sense of access to justice (SAJ). He also determined that particular factors were linked to parties having a more positive perspective of the process. These included judge behaviors and process characteristics. He discusses this research in “’Sense of Access to Justice’ as a Framework for Civil Procedure Justice Reform: An Empirical Assessment of Judicial Settlement Conferences in Quebec (Canada),” (Cardozo Journal of Conflict Resolution, 2016).

Roberge had two objectives for his research. The first objective was to assess parties’ perceptions of the quality and value of the settlement conference. The second research objective was to identify the factors that had a determining influence over the degree of SAJ the users had.

Background

To explore the capacity of settlement conferences on participant sense of access to justice, Roberge developed a “Sense of Access-to-Justice Index,” which is based on the Hague Model Measuring Access to Justice, but tailored to settlement conferences. The SAJ Index contains what Roberge calls the three pillars of SAJ:

  • The user’s feeling of fairness of outcome and process
  • The user’s feeling of usefulness of the process (particularly cost-effectiveness)
  • The user’s sense that professional support was available from the judge-mediator

Each of these is made up of subcomponents. The user’s feeling of fairness of outcome and process is based on the quality of the outcome and quality of the process.  The quality of the outcome is based on four types of fairness:

  • Distributive fairness –does the outcome match the parties’ capacity, limits and needs?
  • Reparative fairness – does the outcome compensate for loss (both financial and non-financial)?
  • Functional fairness – does the outcome resolve the problem?
  • Transparent fairness – is the outcome substantiated and comparable to outcomes in similar situations?

The quality of the process is based on:

  • Fairness of process – decision-making process is coherent and impartial and allows the parties to be heard, considered and involved
  • Informational treatment – transparent communications lead to an enlightened decision
  • Interactional treatment – sincere communications respect the parties’ status and dignity

Usefulness of the process is focused on different types of cost:

  • Financial costs
  • Psychological and emotional costs (stress, negative feelings)
  • Opportunity costs (especially to business and reputation)

The feeling of professional support depends upon three approaches judges use to help parties obtain justice and the presence of participatory justice:

  • Risk manager – the judge assesses the strengths and weaknesses of each party’s case
  • Problem-solver – the judge identifies the needs and interests of parties
  • Justice facilitator – the judge develops a relationship of cooperation and trust between the parties

Participatory justice is the involvement of the parties in the “process to define and settle their dispute in a way that generates a feeling of justice for them. Collaboration, respect, proactiveness, and creativity are all statistically significantly correlated with the concept of participatory justice.” (p. 346)

The Study

The judges who conducted the settlement conference had been trained in facilitative mediation and integrative problem-solving. Questionnaires were distributed to parties and lawyers directly after the settlement conference. The questionnaires consisted of 67 items that explored the parties’ and lawyers’ SAJ, utilizing the theoretical framework discussed above. They were completed by 380 parties and 360 lawyers.

Findings

SAJ Score

Roberge developed a 100-point scale for each of the three areas of SAJ (the participants’ feelings of fairness, usefulness and professional support). The aggregated SAJ score for all respondents was 83 (averaged across the three areas), with usefulness (89) and support (88) being higher than fairness (71). Parties on average scored their experience lower than lawyers, particularly in terms of fairness. Parties scored a 65 on fairness, while lawyers scored a 77.

There were discrepancies between other groups in the survey as well.  Defendants were significantly more positive than plaintiffs. Those who reached agreement were  more positive in their ratings than those who did not. There was also a significant difference in assessment based on costs. The higher the costs incurred, the lower the assessment. Further, those who lost more than $10,000 in opportunity costs or spent more than 100 hours resolving the problem gave lower assessments of the process.

Factors Influencing SAJ

Roberge also looked at which factors influenced different aspects of SAJ, based on the participants’ answers to the 67 items on the questionnaire. The factors listed below are verbatim and were presented in the article without explanation. I tried to glean what they each mean from elsewhere in the article, which proved difficult. Any wording in parentheses is my understanding of what those items mean based on Roberge’s discussion of the factors.

The following had the most influence on the participants’ feelings of fairness, listed by order of how much influence each had:

  • Active judge for a fair solution for the parties (judge who helps the parties find a solution that appears to them to be fair and adapted to their needs)
  • Facilitative judge towards a sense of justice
  • Communication that allows to create trust (communication process that creates trust)
  • Unbiased process in favor of a party
  • Judge listens to needs and interests of the parties
  • Communication that allows justification
  • Process compliant to ethical norms
  • Active judge for a solution based on needs

Factors influencing participants’ sense of usefulness:

  • Communication that allows to create trust (communication process that creates trust)
  • Negotiated solution less risky than trial
  • Process that allows involvement of the parties
  • Negotiated solution faster than trial
  • Process that allows consideration of the parties
  • Communication that allows justification

Factors influencing participants’ sense of professional support:

  • Active judge for a fair solution for the parties (judge who helps the parties find a solution that appears to them to be fair and adapted to their needs)
  • Judge listens to needs and interests of the parties
  • Facilitative judge towards a sense of justice
  • Judge looks for a solution based on needs
  • Process compliant with ethical norms
  • Judge listens to legal positions

Conclusion

While the article is somewhat frustrating in that Roberge never fully describes the factors influencing participant perspectives on their experience in the settlement conference and doesn’t provide a list of the questionnaire items used to develop the factors, it is an interesting take on measuring access to justice for a legal process. It is more common, at least in the US, to break down his determinants of a sense of access to justice into individual elements: access to justice, cost and procedural justice. Pulling them all together creates a more global conception of access to justice, one in which justice is not accessed unless the process provides procedural justice and limits psychological and emotional costs.