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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.

Getting the Story Right with Data to Make the Right Decisions

Jennifer Shack, October 20th, 2016

I’m a data geek. I love poring over data and running analyses to see what story unfolds. On the national level, data can tell us the story of our rise as an industrial power and how that changed how people lived and worked. On a local level, it can tell the story of how the closing of a factory affects the fabric of a community and the institutions that bind it. For foreclosure mediation programs, the data can tell the story of how homeowners are affected by changes to the program. Thus, I was eager to find out how changes to the court rules in the 19th Judicial Circuit of Illinois at the beginning of this year would play out. What story would the data tell? (more…)

Maryland Research Offers Insight into What Works (And What Doesn’t) in the Mediation Room

Jennifer Shack, June 29th, 2016

I had the honor of presenting at the Maryland Judiciary’s ADR Research Symposium a couple of weeks ago. The purpose of the symposium was to inform judges and court personnel of the results of a six-year research project examining ADR programs and processes. It reminded me of just how well Maryland has planned and implemented its ADR system. Because it serves as a model, I’d like to provide a little background about this before discussing the research. (more…)