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Updated Compendium Highlights New Empirical ADR Studies

Jennifer Shack, March 31st, 2021

James Coben and Donna Stienstra have updated their comprehensive list of empirical studies of alternative dispute resolution-related topics to include studies published through fall 2020. Each listed study includes an abstract. The list includes 

  • apology
  • arbitration
  • conflict resolution theory and design
  • courts and litigants
  • ethics/deception
  • facilitation
  • mediation
  • negotiation
  • ombuds
  • online dispute resolution
  • persuasion
  • restorative justice

Some interesting additions to the list are described below.

Unintended Consequences: The Regressive Effects of Increased Access to Courts 

Anthony Niblett & Albert H. Yoon, Journal of Empirical Legal Studies 14(1): 5-30 (March 2017)

Niblett and Yoon found that when small claims limits were increased from $10,000 to $25,000 in Ontario, the demographics of those filing claims changed. Although the number of claims did not increase significantly, the proportion of plaintiffs from richer neighborhoods increased, while the proportion from poorer neighborhoods declined. They offer potential reasons for why this occurred.

Professionalism and Ethics in Family Law: The Other 90%

Deanne Sowter, Journal of Arbitration and Mediation 6(1): 167-218 (2016)

In this article, Sowter looks to contribute to the discussion about what it means to behave ethically in family law ADR by presenting empirical research obtained through roundtable discussions with mediators, collaborative lawyers and settlement-focused negotiators.

Mediation Strategies in the Face of Custody Conflicts

Wenke Gulbrandsen, Hanne Haavind & Odd Arne Tjersland, Conflict Resolution Quarterly 36(4): 293-309 (Summer 2019)

The authors analyzed mediator initiatives and responses on six dimensions: the topics that were addressed, how the agenda for the sessions was decided, focus on agreement versus relational topics, oral versus written orientation, limited versus generous time and parental versus system focus. They found that effective mediators handled these dimensions with flexibility, recognized and validated both parents’ perspectives, accepted and explored differences, differentiated topics, focused on relational issues when needed, tracked the process by written summaries and encouraged testing solutions.

Ask in Person: You’re Less Persuasive Than You Think Over Email

M. Mahdi Roghanizad & Vanessa K. Bohns, Journal of Experimental Social Psychology 69: 223-226 (March 2017)

Of possible relevance to the growth in asynchronous, text-based online dispute resolution, this study found that people overestimated the probability that people would comply with their emailed request. Study findings suggest that requesters fail to recognize the suspicion, and resulting lack of empathy, with which requestees view email requests from strangers. 

For Family Cases Involving Reports of Intimate Partner Violence, Shuttle and Videoconference Mediation Are Safe, Effective and Preferred by Parents

Jennifer Shack, March 1st, 2021

In a randomized controlled trial of family cases involving parents reporting high levels of intimate partner violence (IPV), parents felt safer in and were more satisfied with shuttle and videoconference mediation than litigation. Importantly, they also indicated a preference of shuttle mediation over videoconference mediation. The study, conducted in Washington, DC, by Amy Holtzworth-Munroe, et al., is discussed in their article “Intimate Partner Violence (IPV) and Family Dispute Resolution: A Randomized Controlled Trial Comparing Shuttle Mediation, Videoconferencing Mediation, and Litigation” (Psychology, Public Policy, and Law, February 2021).

For the study, the researchers compared traditional litigation (n = 67 cases), the process used for all cases prior to the study, to shuttle mediation (n = 64 cases) and videoconference mediation (n= 65 cases), two approaches designed to protect parent safety. All parents referred to mediation by the court were first screened for IPV by specially trained Dispute Resolution Specialists (DRSs). Based on the screening, the DRSs identified cases as being potentially eligible for the study if the IPV reported by either or both parents was at a level that the case was considered inappropriate for joint mediation. Cases were considered ineligible if: the case involved an open child abuse case or required other emergency interventions due to immediate danger; a parent lived too far away to participate in mediation in person, was deemed incompetent for mediation (e.g., acutely psychotic), was incarcerated or had a pending criminal case that would interfere; or the parents were in a same-sex relationship (pilot work revealed that there were too few same-sex cases for study purposes). Eligible parents were then randomly assigned to one of the three groups.

Mediators were trained in both shuttle mediation and video mediation and were assigned to both types of mediation. In both shuttle and videoconferencing mediation, parents were in different rooms in the same building but not near one another. In shuttle mediation, the mediator met in person with each parent separately and shuttled back and forth between rooms. The parents never saw or spoke directly to each other; all communications were through the mediator. Mediators assigned to shuttle mediation had no discretion to change the process format.

In videoconferencing mediation, the mediator was in a third room. Both parents and the mediator had access to a web camera and a computer screen and could see and hear each other on the screen. The mediators took regular breaks to check to see if each parent was comfortable with continuing with the three-way videoconference or if they wanted to move to either only audio (with other parent and mediator) or to communicate individually by video with the mediator. Mediators could make such changes if concerned about parent safety or emotional wellbeing, and parents could turn off the video equipment in their rooms at any point.

Mediator Assessment of the Approaches

In 41.3% of videoconferencing cases, mediators said they had private, in-person meetings with one or both parents. Mediators were most likely to hold such meetings to get forms (e.g., agreement to mediate) signed by the parents. In 71.7% of videoconferencing cases, mediators reported holding private, individual video meetings with one or both. Mediators reported that these meetings took place to help the mediation process (e.g., when a parent was behaving inappropriately) or to help parents process what was happening.

Immediately after mediation, the mediators were asked to complete a survey. They were asked their perceptions of the mediation in terms of their own and each party’s safety, their own and each party’s comfort, about their feelings of safety and comfort as well as their perception of each parent’s safety and comfort and their perception of the appropriateness of the process used for that case.  Mediators felt equally safe in both mediation approaches and perceived both as being similarly safe for mothers and fathers. They had similar perceptions about comfort in mediation, although they indicated feeling more comfortable and satisfied in shuttle mediation as compared to videoconferencing.

In 90% of cases, mediators believed shuttle mediation was appropriate for the case. This was significantly lower for videoconference mediation, which they said was appropriate in 78% of cases. Mediators also were significantly more likely to say that cases in videoconference mediations should have been handled with a different approach than that cases in shuttle mediation should have been handled differently (58% vs. 35%). Unsurprisingly, the mediators believed mediation had a greater effect on the parents’ ability to reach agreement when they conducted shuttle mediation than when they conducted videoconference mediation.

Parent Assessment of the Approaches

Parents were asked to assess the process in which they participated immediately after conclusion, including traditional litigation. Parents felt safer and less fearful in mediation than in traditional litigation, with no difference between the two mediation approaches. Parents in mediation were also more satisfied with the process than parents in traditional litigation, again with no difference between the two mediation approaches. Asked whether they believed the process used for their case was appropriate for their case, parents in mediation were significantly more likely to agree than were parents who participated in traditional litigation (87% vs. 76%). As with safety and satisfaction, parent perception of appropriateness of videoconferencing and shuttle mediation did not differ significantly. A similar pattern was found in their response to nine questions that assessd the positive effects of the process, such as feeling heard, able to express feelings efficiency, fairness, parents being held accountable.

Interestingly, there were no differences in parents’ satisfaction with the outcome or whether the process was helpful in resolving the issues among the three approaches. However, among those who reached a final resolution, parents who mediated using either approach were more likely to believe that the parents would follow the resolution terms than those who went through the traditional court process. There was no difference in parents’ responses between the two mediated approaches.

Outcomes and Time

Videoconferenced cases were half as likely to reach agreement as cases in shuttle mediation (43% vs. 22%). Through coding the content of the document that resolved case issues (i.e., the mediated agreement or the court order), the researchers found no statistically significant group differences in legal custody, physical custody, or parenting time arrangements and few differences in the likelihood of the document specifying a variety of arrangements (e.g., how to handle missed parenting time) or including safety provisions (e.g., supervised child exchanges).

However, there were statistically significant differences across groups for some specifications in the resolution document that might help decrease risk of violence. These differences indicate that mediation might result in more details regarding issues related to possible safety. Specifically, final documents for cases that had mediation were more likely than final documents for cases in traditional litigation to: address interparental communication at all (56 vs. 31%); agree to limit interparental disputes in the children’s presence (44% for mediation vs. 14%); include aspirational language about interparental communication (e.g., parents will try to have civil discussions; 38% vs. 8%); and agree to limit parents’ passing of messages to one another through the child (35% vs. 10%).

The researchers found that mediated cases also fared well in terms of the time needed to resolve a case. Cases that went through the traditional process took 3 times as long to reach final resolution as mediation cases.

Conclusion

The researchers conclude that “in cases with parents reporting concerning levels of IPV, when both parents are independently willing to mediate, mediation designed with strong safety protocols and carried out in a protected environment by well-trained staff may be an appropriate alternative to court.” (Taken from the article abstract.) They state that their findings do not definitively favor either shuttle or videoconference mediation. However, they note there are suggestions in the data that shuttle mediation might be preferable, as it was more likely to lead to agreement and mediators seemed to prefer it. They suggest that as COVID has put restrictions on in-person processes, future researchers could examine shuttle mediation via video technology.  In the meantime, “longer term outcomes and additional research are needed to more clearly understand if videoconferencing mediation, as structured in this study, is as safe and appropriate as shuttle mediation for cases reporting high levels of IPV.”

Felony Settlement Conferences Appear to Positively Impact Procedural Justice

Jennifer Shack, February 1st, 2021

Judge-facilitated felony plea bargains in New Hampshire, known as felony settlement conferences, provide the opportunity for the prosecution and defense to better understand each other and to tap into the judge’s expertise. This, in turn leads attorneys to believe that these conferences increase procedural justice. This is the conclusion Rebecca Sigman draws from her 15 interviews with attorneys and judges who have experience with felony settlement conferences. 

Sigman discusses the program and her findings in her article, “Learning to Listen: An Evaluation of New Hampshire’s Felony Settlement Conference” (Ohio State Journal of Dispute Resolution, 2019). A case is appropriate for the program if the defendant has admitted wrongdoing, but the defendant and/or victim have struggled to reach resolution, and if someone other than the defendant and the state is involved. 

Settlement conferences are facilitated by either retired judges or active judges who are not presiding over the case. Five days before the settlement conference, both sides must submit a memorandum that outlines each side’s case and evidence, aggravating factors of the crime, what offers have been made by both sides, and any relevant history on the victim and defendant. Generally, the settlement conference begins with the judge meeting privately with the prosecutor and defense attorney. At this time, they review the settlement conference memorandum and they discuss the details of the case, such as why negotiations have failed and whether a victim is involved.

The settlement conference begins with a joint session at which each side presents its opening statement the defendant and victim (if present) make statements. Others, such as family members or police officers, may speak as well. The judge then separates the parties and begins shuttle negotiations. If the two sides reach agreement and the judge is not retired, they may offer to take the plea right then and there. If not, they submit it to the judge presiding over the case.  

For her study, Sigman interviewed two prosecutors, one victim-witness advocate, six defense attorneys and six participating judges. Due to confidentiality issues, she was unable to interview defendants or victims. Her interviews focused on procedural justice, namely the quality of decision-making and the quality of treatment. In terms of the quality of decision-making, attorneys said that the judges’ experience and judicial legitimacy increased the perceived fairness of the process. Judges reported that defendants and victims felt the judges were neutral and thus respected their opinion. On the other hand, attorneys and judges alike were concerned about possible coercion by settlement judges to get the sides to accept a plea bargain. 

The quality of decision-making is also affected by the quality of communication between the two sides. Interviewed attorneys said that the settlement conferences provided a forum for robust discussion and better understanding of the other side’s reasoning. They also appreciated the streamlined negotiation process caused by their ability to discuss plea bargain in a single meeting, rather than at scattered, infrequent times. Less formally, the attorneys noted that the non-adversarial nature of the conferences promoted active listening and empathy.  

Defendant and victim voice is an important contributor to the quality of decision-making. Those interviewed indicated that voice is enhanced in settlement conferences. Victim voice is enhanced by incorporating the victim’s views into the resolution process and by giving victims the opportunity to explain the impact of the crime on them. Even if the victim doesn’t attend the conference, the prosecutor is in contact with them throughout the process. The defendant’s voice is enhanced by being able to bring up mitigating factors, express emotions and be heard by the judge. 

The quality of treatment is the second procedural justice factor Sigman explored with interview participants. They spoke of quality of treatment in terms of two themes: the treatment of participants and the steps taken to mitigate power differentials between them. One important factor in the quality of participant treatment is the breadth of confidentiality measures governing settlement conferences. These measures are similar to those for mediation – statements made in the settlement conference shall not be divulged to anyone outside the conference, and they shall not be admissible at any other proceeding. In addition to confidentiality, quality of treatment is enhanced by the dignity and respect with which all participants are treated. 

It is generally agreed that prosecutors have more power than defendants and their attorneys. This gaping power differential, according to scholars, significantly hinders perceptions of procedural justice in the plea bargaining system. Interview participants said that settlement conferences may mitigate this power differential by providing confidentiality protections and by the use of an authoritative judge as neutral, which serves as a check on prosecutor power. Having a neutral facilitator as well as significant time allotted for negotiations also reduces the possibility that prosecutors will resort to high-pressure tactics. 

Although Sigman’s study didn’t include the voice of victims and defendants, her interviews with attorneys and judges indicate that felony settlement conferences may be perceived as more procedurally just than the normal plea bargain process. I would love to hear from the victims and defendants themselves to find out if they have the same perceptions – particularly defendants who have experienced both processes. 

Research Year in Review

Jennifer Shack, December 18th, 2020

The past year we focused on research that related to the times we’ve been experiencing. With courts going online and an expected surge in evictions on the horizon, I turned my attention to those topics, summarizing research on online dispute resolution (ODR) and presenting outcomes from housing mediation programs. 

Online Dispute Resolution

In March, I rounded up the research to date on ODR. A study in the Netherlands found that participants in ODR for divorcing couples perceived the process to be fair, with procedural fairness, interpersonal justice and informational justice all given high marks. On a scale of 1 to 5, they had averages of 4.27, 4.5 and 4.19, respectively. The participants’ perception of the outcome was also positive, though to a lesser extent than for the procedure. They gave an average of 3.91 for distributive justice, 3.37 for restorative justice, 3.18 for functionality and 3.0 for transparency.

A small study of a pilot small claims ODR program had less positive results. It found that 47% of cases reached agreement. The 18 parties who responded to a survey had some issues with the technology, with only 47% saying the technology was easy to use. In addition, only 53% were satisfied with their experience and only 23% felt the outcome was fair.

In the round up, I also summarized research about the potential advantages and disadvantages of using video-based and text-based ODR in cases with a history of intimate partner violence or abuse (IPV/A). The researchers suggest that mediators on IPV/A cases must carefully consider a variety of potential issues including the parties’ suspicion of mediator bias, confidentiality concerns, and victim-perpetrator power dynamics. 

While others in 2020 wrote about the possibilities for ODR, Jean Sternlight examined some of its weaknesses. Her article explored online dispute resolution (ODR) through the lens of the psychology of dispute resolution, focusing on four different areas: the psychology of perception and memory, the psychology of human wants, the psychology of communication, and judgment and decision making. She concluded that ODR may not be the best tool to assist individuals in creatively working things out with a fellow disputant and may be better employed for small and predictable disputes, like small online purchases.

An RSI survey found that the COVID pandemic has led most states to adopt video mediation for family cases. Others are moving forward with formal ODR platforms. Despite the increased availability of online services, almost half of the states that responded to the survey said there was an unmet need for family ODR and that funding was the main requirement for meeting that need. 

During the past year, we also learned about how to design ODR platforms from a study of Utah’s small claims platform, and were given tips on researching the impact of ODR on access to justice. 

Eviction Mediation

Two articles published in this year discussed programs in Minnesota and Missouri to help landlords and tenants avoid eviction. The results of these programs indicate that they help keep evictions off tenant credit histories and reduce forcible evictions. 

In St. Paul, Minnesota, the court instituted multiple changes to its housing court, including expanding access to mediation and making it, along with financial and legal resources, available at the court during eviction hearings. After a year and a half, the court’s numbers appear to show an improvement in outcomes. The court has a goal of reducing evictions by 50% in five years. In the first 18 months, evictions declined by 8%, to the lowest eviction rate in 10 years. Settlements increased by 5%, to the highest rate in five years. The impact was highest on expungements, which doubled. On the other end, fears of increased trial numbers and longer court calls didn’t come true. The number of trials as a proportion of cases declined and court call length increased by 10 minutes on average.

In St. Louis, in a voluntary program for cases in which neither landlord nor tenant is represented, 71% of mediated cases resulted in a settlement in 2018. The terms of more than half of these agreements were completed, resulting in a dismissal. One-third of agreements resulted in a consent judgment for eviction against the tenant and 25% resulted in the sheriff executing the judgment through forcible removal of the tenant. Cases that went to trial, on the other hand, were significantly more likely to end in eviction. Consent judgments were entered against tenants in 92% of these cases and resulted in forcible removal in 40%. The authors extrapolate from that data that 279 families avoided eviction in 2018 by settling in mediation and completing the terms of their agreement rather than going to trial.

Family ADR

Studies of family ADR programs continue to demonstrate the benefits of helping parents to resolve their issues outside of court. 

In Anchorage, Alaska, an Early Resolution Program (ERP) for family cases reduced time to resolution, reduced staff time spent on cases and had no impact on the number of post-disposition motions to modify, according to a recently completed evaluation. The study found that 80% of the parties who participated in ERP reached agreement in a three-hour hearing. Unsurprisingly, ERP cases reached disposition more quickly, with a median of 42 days as compared to a median of 104 for cases in the control group. The program also led to significant time savings for staff. For cases undergoing ERP, there were 28 to 30 processing steps, taking a total of 240 minutes (4 hours). The number of steps for the average non-ERP case was 49, taking a total of 1,047 minutes (17.45 hours).

study of parenting time mediation in Massachusetts found multiple benefits for parents and families. In surveys, parents said that conflict between them and the other parent was diminished in about 2/3 of the mediations. This benefit appeared to last for weeks after mediation for many parents, as 53% of those who were interviewed said that conflict continued to be reduced. Similarly, more than 2/3 of surveyed parents reported greater civility between them and the other parent. Again, this benefit remained over time, with 50% saying that they and the other parent treated each other with greater civility. Most parents also said that their communication had improved, with 72% of those surveyed saying so and 54% of those interviewed weeks later agreeing.  

Litigant Perception Research

Litigant attendance at a dispute resolution process impacts their assessment of the fairness of that process, according to research conducted by Donna Shestowsky. Shestowsky found that when litigants attended a settlement procedure used to resolve their case, they rated that procedure as fairer than those litigants who attended an adjudicative procedure. However, when litigants did not attend the procedure used to resolve their case, they saw settlement and adjudicative procedures as similarly fair. When comparing attendance within procedures, she found that attendance did not affect fairness ratings for settlement procedures, but that those who attended an adjudicative procedure rated the procedure as less fair than those who did not attend the procedure.

I wish you all a happy, safe and healthy holiday season!

Eviction Mediation in St. Louis Significantly Reduces Evictions

Jennifer Shack, November 23rd, 2020

As the eviction crisis looms, a number of courts around the country are implementing mediation programs. Data collected from a decade-old program in St. Louis County provide more evidence that these new programs are likely going to be effective. Mediation there was found to have a positive effect on outcomes and compliance, helping both landlords and tenants to maintain stability in income and housing. 

In a recent article, “Addressing the Housing Crisis Through Mediation” (Washington University Journal of Law and Policy, 2020), Karen Tokarz, et al, discuss how the program works and the benefits that have accrued to participants. The Washington University School of Law Civil Rights & Mediation Clinic developed the program in partnership with Metropolitan St. Louis Equal Housing and Opportunity Council more than a decade ago. In 2012, mediators affiliated with United States Arbitration & Mediation joined clinic students in providing free mediation services for landlord-tenant cases in which neither side has a lawyer. Originally opt-in, the program was made opt-out in 2018. 

The mediators for the program – lawyers and students alike – attend a training that includes an overview of housing law in St. Louis County, mediator ethics, mediation strategies and agreement drafting. The mediators must observe at least two mediations, co-mediate at least two mediations, and be shadowed for at least two mediations before they begin mediating independently. Mediations are conducted on the first court date for the case, which is generally the trial date.

The program uses two agreement forms that are completed as a part of each mediation agreement. The first, the conditional continuance, lays out the settlement terms. This document continues the case while the parties comply with the terms and notes that if the terms are satisfied, the case will be dismissed. It also notes that if a party breaches the terms of the agreement, the other party may file a consent judgment. The consent judgment is the second form that is completed during the mediation.  It typically grants possession and the full rent owed to the landlord. Should the case come back before the judge to sign the consent judgment, the judge uses both documents to determine whether to do so. The judge may decline to sign if, for example, the landlord has not made repairs agreed to in the conditional continuance. 

The program has been successful. In 2018, 71% of mediated cases resulted in a settlement. The terms of more than half of these agreements were completed, resulting in a dismissal. One-third of agreements resulted in a consent judgment for eviction against the tenant and 25% resulted in the sheriff executing the judgment through forcible removal of the tenant. Cases that went to trial, on the other hand, were significantly more likely to end in eviction. Consent judgments were entered against tenants in 92% of these cases and resulted in forcible removal in 40%. The authors extrapolate from that data that 279 families avoided eviction in 2018 by settling in mediation and completing the terms of their agreement rather than going to trial. It must be noted, however, that the two groups of cases – those that mediated and those that did not – are not similar. Mediated cases, as mentioned above, were limited to those in which neither side had an attorney. Those cases that went to trial included those in which at least one party (generally the landlord) had an attorney. 

The authors note that the impact of the eviction mediation program is limited due to its focus on cases in which neither party is represented and the day-of-trial mediation format. Further, growth is difficult due to the limited number of mediators available. They point to four directions the program can take to widen its impact. The first direction is to offer mediation prior to the first court date, or even before the eviction is filed. This would require greater outreach to landlords, tenants and government agencies to ensure that landlords are on board, tenants know about the program and agencies can urge its use. The second direction is to fund the program so that it can be sustained at a broader scale. Third, the program could be expanded to Municipal Court, where housing and building code enforcements are handled. Landlords and tenants are often unrepresented in this court and mediation in this context could lead to housing improvements and stability. The fourth direction would be to adopt online dispute resolution, allowing mediations to occur during the pandemic.  

The St. Louis County eviction mediation program is one of many recent programs that have been implemented around the country. The data indicating its effectiveness adds to the increasing evidence that such programs are successful at reducing evictions, thus providing stability to landlords, tenants and communities.