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Just Court ADR

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Archive for the ‘Court Mediation Program’ Category

End of One Era, Beginning of Another

Susan M. Yates, August 31st, 2018

August 31, 2018, will mark the end of an era at RSI. Our five-year foreclosure mediation grant from the Office of the Illinois Attorney General will come to an end.

This grant, which we received 15 years into our operation, was our opportunity to prove that when given sufficient resources, RSI could deliver the kind of quality court mediation program that we had been recommending to others all those years. I used terms like “practice what we preach,” “proof is in the pudding” and even, “put up or shut up!”

At that time, we promised to:

  • Work with courts and other stakeholders to design and operate three foreclosure mediation programs in three judicial circuits in northern Illinois
  • Develop and conduct training for mediators in our programs and those operated by our partner organizations farther downstate
  • Develop an online system to collect data about the programs enabling us to produce regular statistical reports and two comprehensive evaluations

I am happy to report that we delivered!

In the process, we confirmed some maxims about how to do quality court ADR and added a few corollaries.

  1. Study first

Before we start working with a court on their ADR program, we update our knowledge of the particular area in which we will be working. In this situation we researched what was happening across the country with foreclosure and how courts were using alternative approaches.

Corollary: Sometimes you have to build the plane while flying it. In the midst of a national foreclosure crisis, courts across the country were scrambling to keep up. While it was helpful to see what others were doing, we needed to figure out how to do foreclosure mediation in a way that worked in Illinois courts with their particular needs and resources.

  1. Work with stakeholders

We know that it is critical to bring together all the stakeholders while developing a court ADR system so that their various needs can be considered. In foreclosure mediation, the usual stakeholders – judges, court administrators, mediators and lawyers for both lenders and borrowers – were joined by a new addition: housing counselors, who were critical to the success of many of the programs.

Corollary: As important as it is to have all the voices heard, in the end, judges often have to make decisions about exactly how court ADR programs will work, and these decisions may not satisfy everyone. Fortunately, RSI doesn’t “have a dog in the fight,” so we can offer unbiased, expert advice about pros and cons of various approaches.

  1. Value the people who do the work

Never underestimate the importance of visible, capable staff. These programs are being continued because of dedicated program coordinators, who kept the cases moving and kept the courts informed of program progress, and because of skilled mediators who worked with intelligence and compassion in the midst of foreclosure – which is a crisis for each homeowner, even once the nation’s crisis has abated.

Corollary: These programs are not easy to administer. Juggling spinning plates is an apt metaphor for the challenge of administering programs with sometimes complex court rules that apply to everyone from sophisticated lawyers to overwhelmed homeowners.

  1. Collect and use reliable data

Turning data into meaningful information means different things to different stakeholders at different times. In the foreclosure mediation programs, we produced everything from monthly statistical reports for judges about numbers of cases in their programs and how they were being resolved to a mega-evaluation of all the programs that compared strengths of the various approaches and made recommendations about how each might improve.

Corollary: In a situation like this one in which every program was different, finding ways to make “apples to apples” comparisons was critical. Doing that successfully allowed RSI to make recommendations for improvement from a place of knowledge, not opinion.

Success and a New Era

September 1st will mark the beginning of a new era, as all three of our foreclosure mediation programs continue to operate thanks to the support of their local courts! We take this as the surest sign of success, that the courts value these programs enough to find a way to continue them when outside funding ends. We are grateful to the Attorney General for supporting these programs, to courts for their partnership and to the skilled mediators for conducting the mediations. We are pleased to continue to provide services to homeowners and their lenders when foreclosure looms.

Looking at Process and Outcome to Improve an Effective Program

jenshack, August 28th, 2018
I recently had the great pleasure of evaluating Washington D.C.’s Child Protection Mediation Program. The court was interested in getting a better understanding of the issues involved in the process, such as whether the timing of mediation should be changed and whether the process was working for the participants. Therefore, the evaluation was a comprehensive examination of the outcomes and impact of mediation, as well as the program process from referral to completion of mediation.

To conduct the evaluation, I interviewed parents and judges, observed mediations and court hearings, developed post-mediation surveys and analyzed court files and program data. RSI Executive Director Susan Yates and I also conducted focus groups with groups of professionals who participate in mediation (guardians ad litem, parent’s attorneys, Assistant Attorneys General and social workers) as well as with program mediators. The results of the evaluation, Improving an Effective Program: A Comprehensive Evaluation of the Superior Court of the District of Columbia Child Protection Mediation Program, pointed to the program effectively achieving its goals, but needing to address some issues surrounding the program process.

Mediation in this program is mandatory and is supposed to occur within 30 days of the initial hearing. The goals for mediation, as expressed by the attorneys, social workers and judges, are to:

  • Make progress on the legal issues in the case and reach agreement on the stipulation (an agreement as to the facts of the case that takes the place of trial)
  • Help parents to understand their situation and their responsibilities going forward
  • Increase professionals’ understanding of the case, the parents and the family’s situation
  • Enhance communication among the professionals
  • Provide parents with an opportunity to talk about their concerns and be heard
The court and professionals agree that mediation at this early stage of the case brings all those involved in the case together at an opportune time to discuss the issues involved and progress that should be made at a time when they normally would not be focused on the case. This allows them to exchange more information, update services and visitation, and ensure that professionals are being held accountable for their tasks. Additionally, mediation is seen as a unique forum for parents to be important in the process and to speak about their concerns and be heard. When mediation is conducted early in the case, the exchange of information and parents’ input help professionals make better decisions. Mediators assist in this process by facilitating the discussion, clarifying and summarizing the points being made, reframing position statements in a more positive way, and, at times, supporting the professionals’ goals for the parents.

The results show that the program is generally achieving its goals. Of significance, parents who mediate are twice as likely to stipulate before trial as those who don’t mediate. Further, it is likely that they are more compliant with services, although limitations to the data make it impossible to state this with certainty. Limitations to the data also made it difficult to draw conclusions about mediation’s effect on time to permanency. The evidence, however, points to mediation not having an effect on the time it takes for a child to have a permanent home.

Other results indicate that the percentage of mediations ending with a signed stipulation declined from 2013-2014 to 2017, from 44% to 25%. This was most likely due to a policy change at Child and Family Services Agency in 2015, which judges and professionals said led to only the most challenging cases being brought to court. Despite this, approximately half of the mediations in 2017 ended with some progress on the stipulation.

Importantly, both parents and professionals are gaining understanding through mediation. Almost all parents who completed surveys after mediation said they better understood the points of view of the others at the mediation, as well as what they had to do next. The vast majority of professional participants who completed surveys believed that they gained understanding of others’ points of view and the parents’ situations. In their survey responses, almost three-quarters of parents said they trusted that those involved in their case wanted to do what was best for their children. Parents who were interviewed shed light on the effect of mediation on their level of trust in the professionals. Half of the parents interviewed trusted the professionals before they participated in mediation. Mediation for them was an opportunity to see once more that they could trust them. Of the other half, three entered mediation lacking trust in at least one of the professionals and nothing in mediation led them to change their minds; while for a two, mediation did change their minds from seeing the professionals as being against them to learning they could be trusted.

More than three quarters of the parents were satisfied with the mediation and 83% believed it was helpful to them. Both parents and professionals believed they had an opportunity to talk about what was most important to them and that they were understood. Most parents believed the mediator and, more importantly, the professionals, treated them fairly and with respect. All professionals believed that the mediator treated them fairly and with respect.

Despite the success the program has in achieving its goals, the program process can be improved. One such opportunity lies in the timing of mediation. There was general agreement among professionals that mediation shouldn’t take place within 10 or 15 days of the initial hearing because enough time needs to elapse in order to make the most effective use of mediation. Mediation too soon means that not enough time has elapsed for new information to be available or for parents and professionals to have started taking the steps required of them in the initial case plan. Without these, discussion in mediation is less productive. On the other hand, there was little interest in extending the deadline much beyond 30 days because some of the benefits of mediation are lost if it takes place too late. Generally, almost all professionals thought mediation around 30 days was an ideal time. Despite this, about 1/3 of mediations were scheduled either within 15 days or after the 30-day deadline. It was recommended that the court increase the deadline to 40 days so that more mediations could be held after 15 days had elapsed, but still not too late to keep the case moving forward.

The biggest complaint among the professionals in the focus groups was that mediations didn’t start on time. A review of the data found that most of the time, the delay is due to either a professional or parent arriving late. The mediation was often further delayed because a parent’s attorney needed to speak with his or her client. The recommendation to address this was to require that parents and their attorneys arrive 30 minutes before the scheduled time for mediation.

After speaking with the professionals and mediators in focus groups, it became clear that everyone could benefit from opportunities to learn from each other as well as others, and that many wanted this to happen. The focus groups became an opportunity for the participants to find out how their peers were approaching issues in mediation, and to find out what was possible. The focus group participants talked about wanting to gain more information or to explain to others what their own role is. Mediators mentioned areas of uncertainty for them. Professionals discussed areas in which they felt mediators could improve. All of this points to a need for an ongoing education program for both professionals and mediators, which was recommended.

The mediation program was first put in place in 1998 as a pilot. It has evolved over time, but hadn’t been comprehensively evaluated in more than a decade, and those evaluations were outcome-oriented, meaning that the process hadn’t been examined in a methodical way. This evaluation demonstrated that looking at both outcomes and process were essential to assessing the program and determining what could make it better.

For a quick take on the evaluation, see the Executive Summary.

For a full discussion and all statistics, see the Full Evaluation.

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.

 

Nevada Foreclosure Mediation Program to Use HLP Online Portal to Administer Program

Nicole Wilmet, June 29th, 2018

In August, we reported that the Nevada legislature revived the state’s foreclosure mediation program by passing Senate Bill 490. One of the most notable changes Senate Bill 490 brought to the program included the transfer of program management duties from the Nevada Supreme Court to the Nevada District Courts and Home Means Nevada, Inc., a state affiliated non-profit that was created to address challenges and needs of distressed homeowners. As Home Means Nevada describes, under this new structure when an individual receives notice of default, they will then petition the District Court to participate in mediation. The District Court will then assign a mediator to mediate the case and Home Means Nevada will work closely with the courts and mediators to ensure a successful program.

This month, Home Means Nevada announced that it has selected Hope LoanPort’s® (HLP) web-based platform as the designated channel to administer the program. Founded in 2009, HLP was initially created to help solve the foreclosure crisis by developing a web portal where non-profit credit counseling agencies, attorneys and homeowners could apply for a loan modification or other solution. Today, the HLP platform has become a one-stop shop for homeowners nationwide to send documents to their mortgage companies. As Business Wire reports, the HLP portal will be the designated channel through which Home Means Nevada will administer the foreclosure program. As United Trustees Association reports, the HLP portal will streamline the document sharing process and will afford parties the opportunity to see and receive updates for their case in real time.

The HLP platform will be implemented in several stages with the first phase scheduled to launch July 1, 2018. The HLP Nevada Foreclosure Mediation page can be accessed here and contains updates, information on registering, and access to HLP platform training for counselors, servicers, and attorneys.

Virginia Appellate Courts to Launch Pilot Mediation Program

Nicole Wilmet, June 28th, 2018

This month, the Supreme Court of Virginia and the Court of Appeals of Virginia released a press release announcing the launch of a two-year pilot appellate court mediation program that will begin on January 1, 2019. The mediation program will only be available in select civil cases where both parties are represented by legal counsel. Additionally, in the Court of Appeals, mediation will be available for equitable distribution and/or related attorneys fee disputes. Mediation will also be available for Supreme Court cases where a petition for appeal has been granted. In both courts, the Clerk of each court will notify counsel that, if both parties agree to mediate, there will be an automatic stay of proceedings for 30 days to allow for mediations to occur.

The genesis behind the pilot program stems from recommendations made by the Special Committee to Study Appellate Mediation in Virginia. In 2017, the Special Committee was created at the request of Chief Justice Donald W. Lemons, the Joint Alternative Dispute Resolution Committee of the Virginia State Bar (“VSB”), and the Virginia Bar Association (“VBA”). Members of the Special Committee included representatives from both appellate courts, appellate litigation representatives from the VSB and the VBA, leaders from the Joint ADR Committee and the Dispute Resolution Services Manager from the Office of the Executive Secretary of the Supreme Court of Virginia.

In addition to recommending the creation of the pilot program, the Special Committee also recommended a new level of certification for appellate mediators during the pilot projects. The request for a new level of certification will be presented to the judicial council for adoption later this year. The full report from the Special Committee can be found here.