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Reintroducing Brian Roche, New President of the RSI Board of Directors

Just Court ADR, May 25th, 2022

Welcome to RSI’s Board Member Profile series! Each profile will feature a different member of RSI’s talented and dedicated Board of Directors. We begin this month with Board President Brian Roche, who was elected to the position in April to fill the unexpired term of Raven Moore. Raven stepped down amid increasing demands from her expanding role in the counsel’s office at McDonald’s Corporation, which will take her overseas. (Lucky for RSI, she is able to remain a Board member.)

Prior to being elected Board President, Brian Roche served as Board Vice President since 2015. He has been on the RSI Board since 2010. Brian is a partner in Reed Smith’s Litigation Department, focusing on intellectual property and technology disputes. We asked him to share a bit about how alternative dispute resolution fits into his practice, the importance of RSI’s work, and his goals as Board President.

RSI Board President Brian Roche

Can you tell us a bit about your law practice?

My practice is intellectual property litigation. I focus predominantly on patent, trade secret litigation, high-tech wireless communications, medical devices, electronic securities trading and software, database networking and telecommunications. I’ve been doing this work for about 25 years. It’s been an exciting area, especially as we’ve seen the technology breakthroughs in telecommunications in speed and bandwidth. What has come with that is a lot of disputes with patent holders over who owns the technology, who owns the rights. It has involved some of the largest companies in America trying to protect what they are developing. And people trying to preserve what they have developed against people who say, “Hey, I did it first; I got a patent.” 

How do you use alternative dispute resolution in your practice?

It’s a central part of (intellectual property) litigation in the US today. The courts favor having parties try to resolve the litigation through negotiation. Every court does it differently; some encourage mediation early on, some recognize that it’s not effective early on and encourage it after there’s been more evidence developed in the case before the trial. Others do it right before you go to trial. But these mediations sometimes last a couple days. The mediators tend to be active and retired judges, and retired litigators that used to do what I do now. I have actively been doing ADR since it began. It became a normal thing in the kind of work I do in the 1990s. Before then, it was really unusual.

What attracted you to/made you want to join the RSI board?

I didn’t have much contact with what RSI was doing until a colleague introduced me to the organization, and that was (RSI Board member) Hon. Morton Denlow. He was a federal magistrate at the time, and before that he was a partner with me at this law firm. He was recruiting to try to expand the board to get younger lawyers who were active in law firms. At that time RSI’s board was heavily focused on former and current judges. So he invited me, and I joined.

What’s your favorite thing about being on the board?

What I have really enjoyed is that the mediation RSI focuses on is not between big corporations that have the best law firms and best lawyers in the country working for them, and that can afford to hire the best private mediators. That’s not what RSI’s about.

RSI is about making the legal process that ordinary people occasionally run into better by having a way to have it resolved quickly. They get to participate immediately and don’t have to spend years litigating. That’s really what RSI is trying to do and has been able to do effectively in areas where people in these lawsuits are not regularly in the legal world. If there’s a problem with their mortgage, or a family dispute, such as divorce or child custody. And also small disputes, like with a contractor or a neighbor. Those are the kinds of disputes we believe can really be solved with mediation, if the courts are supporting and encouraging it.

So what’s been exciting about what we’ve done with RSI is we’ve partnered with the courts, predominantly in Illinois to advance mediation as an alternative to full-blown litigation. During the mortgage crisis that began in 2008, seeing what RSI was able to accomplish was remarkable: people who thought they were going to lose their homes found a way to keep their homes through mediation. 

Another of the things that excites me about taking on the role of Board President is working directly with our Executive Director, Susan Yates, who is a national leader in mediation in the courts and a national leader in innovative ways to move mediation online. I’m very excited about working closely with her.

In your RSI bio, you say that court ADR is often “a better and more efficient process” than litigation. What makes it that way?

I think that was referring to the context of what I do in these large cases, but applying it more to RSI, it can also be the best way for disputes to get resolved. People get hauled into court unexpectedly; they don’t have resources to hire a lawyer for a long fight. Really, all they want to do is tell their side of the story to the other side. They can hear the other side, and they get a neutral person to help resolve it, and most of the time, things get resolved that way. There’s recognition that litigation might go on for years, so for people who aren’t familiar with the court process, mediation can be a savior.  

Do you have any particular plans or things on your to-do list as Board President?

One focus is attracting younger people to the board who are excited about RSI’s mission, so there is confidence the organization will continue for years into the future; that it’s influenced by younger people who see different ways to resolve these kinds of problems, who have new ideas, new energy, new blood. Getting younger people from all different communities to join the board is a high priority.

The second priority is to see if we can expand services in the area of family disputes – in particular child protection cases in which children have been removed from their homes due to allegations of neglect or abuse. These are so difficult for families. Mediation has proved to be effective – it can be even more effective with online tools available today. And also just to be supportive of the courts in their own efforts to expand ADR in small claims, mortgage and rent disputes, among others.

RSI’s Board Member Alyson Carrel Co-Authors New Negotiation Textbook

Just Court ADR, May 6th, 2021

Congratulations to RSI’s Board Member Alyson Carrel for co-authoring a new negotiation textbook entitled Negotiation and Lawyers. Joining Alyson as co-authors are Art Hinshaw, Leonard L. Riskin, Chris P. Guthrie, Richard C. Reuben, Jennifer K. Robbennolt and Nancy Welsh. The textbook is responsive to the increased role technology plays in the negotiation practice and presents the core concepts, skills and strategies lawyers need to be successful in negotiation both online and offline. In particular, Alyson crafted a chapter on technology and negotiation.

Congratulations to Alyson and the entire team of authors on this terrific new resource!

RSI Convenes Experts to Explore Access to Justice in Family ODR

Eric Slepak-Cherney, November 3rd, 2020

RSI recently held a series of online gatherings to explore the use of online dispute resolution (“ODR”) to serve thinly-resourced families, courts and communities with regards to developing parenting plans (or revising them in post-decree cases) for divorcing or separating never-married parents. These events were the culmination of a National Convening of Experts on Family ODR underwritten by the JAMS Foundation. As part of this project, we brought together experts from across the country and across multiple disciplines, conducted surveys of both these experts and court administrators nationwide, and facilitated discussion on a myriad of issues during the course of the Convening. Our findings will serve as the basis of a forthcoming report, which RSI expects to publish in by the end of 2020.

Our first step in this process was to collect existing research and data about family ODR. ODR is still relatively in its infancy and its application in resolving disputes around parental responsibilities even more nascent. At the time of writing this, there were five such family court programs operating nationwide and no data on outcomes as of yet has been made available.

We saw this as an opportunity to investigate the level of need and barriers to developing these programs nationwide. RSI sent out surveys to court ADR administrators across the country, and in all, received responses from individuals in 23 states and Washington, D.C. For more about our findings from this research, see this recent blog post from Director of Research Jennifer Shack.

A priority for this project was to facilitate dialogue among key stakeholders and thought leaders. We assembled a coalition of nearly 40 experts, comprising family lawyers, ADR practitioners, judges, court administrators, legal technology and ODR experts, legal aid attorneys, academics and funders. These experts provided us thoughtful insight into the benefits and concerns they have regarding the use of ODR in this field and for this underserved population.

Based on the expert responses and guidance from other research, particularly the International Council on Online Dispute Resolution Standards, we developed a framework for how we would explore the topic during the Convening and in our report. To ensure that courts are providing family ODR that serves stakeholders who are thinly-resourced (a term that acknowledges not just financial poverty, but lack of access to education, technology, infrastructure and other resources), a program must possess five essential characteristics: accessibility, ethicality, effectiveness, feasibility and sustainability. If a family ODR program – which entails not just the technological component, but also the dispute system design, human resources and interaction with the court – misses out on these characteristics, it runs the risk of either failing entirely, or perhaps even worse, widening the disparity in outcomes between thinly-resourced litigants and those with means.

Over the course of three 90-minute sessions we explored how family ODR programs could embody these characteristics, including identifying essential features that would need to be built into the programs. The experts were broken into new groups of four or five for each characteristic, maximizing the cross-pollination among professionals from different backgrounds. Each group explored the characteristic, prompted by a different guiding question for each group, and a facilitator captured the thinking of the group. For example, when the groups explored ethics (which we defined very broadly), they considered confidentiality, data security, fairness, procedural justice, information and education, informed consent, neutrality and impartiality, safety and transparency. 

A number of themes emerged throughout the course of the event. Access to a device with which to participate in ODR and access to the internet were significant concerns, as were concerns about potential barriers caused by disabilities or limited English proficiency. One big focus was on the risk posed to survivors of intimate partner violence; on the one hand, the remote nature of ODR might empower some, but the threat of coercion when participating in an ODR process that relies on self-determination could pose a huge risk. Another theme to emerge was the decision of whether to make programs opt-in or opt-out, and gaining clarity about what that really means. ODR programs nationwide have reported struggles with participation and volume, and the balance of getting people to try the platform and respecting their self-determination weighed heavy for the experts. The gatherings also tackled how family ODR for thinly-resourced parents, courts and communities could be supported financially and where it might be hosted.        

Reaction to the Convening was overwhelmingly positive. The experts appreciated the opportunity to collaborate with one another, particularly with individuals they might not have met otherwise, and dive into nuanced, detail-oriented discussions about particular features of family ODR. We at RSI are immensely grateful to the JAMS Foundation for enabling us to have this opportunity to move the ball on an issue we find very near and dear to our hearts and mission!

Survey of States Points to Widespread Unmet Need for Family ADR and ODR

Jennifer Shack, November 2nd, 2020

Resolution Systems Institute recently surveyed state court and alternative dispute resolution (ADR) administrators to gather information about the status of family mediation and family online dispute resolution in their states. The survey was part of a larger project, funded by the JAMS Foundation, we are doing that explores the potential for online dispute resolution (ODR) to help thinly-resourced parents to resolve their disputes, particularly in courts and communities that also have limited resources. The purpose of the survey was to understand the landscape of family ADR and ODR in the states, to learn about their efforts to provide ODR and, for those who had implemented ODR, to gain insights from their experience. 

The survey responses tell the story of the haves and have-nots. Some states have everything in hand when it comes to ADR, but about half of those who responded see an unmet need for both in-person and online services. They lack the funding and resources to make this happen. Their responses, too, indicate that they are interested in providing greater access to services.

Background

To prepare to distribute the survey, we conducted an exhaustive search for a contact person within the state court administrative office in each state. For those states for which we couldn’t find a contact person, we attempted to locate someone else within the state who would have knowledge of the statewide status of ADR and ODR. In the end, we sent surveys to 36 states and Washington, DC, of which 33 were to statewide court or ADR administrators. People from 24 states and Washington, DC, completed the survey. The responses are skewed toward those with statewide ADR offices, as 14 of the 23 states represented in the survey, as well as DC, have statewide ADR offices. This is 62% of the respondents. In contrast, of the total possible sample of states (and DC), only 39% (20 of 51) have ADR offices. 

For the survey, we defined ODR broadly as both video-conference mediation like Zoom and formal ODR platforms like Modria or Matterhorn. We also asked the respondents to concentrate on family dispute resolution for parents and courts with limited resources. That is, for parents who are not able to pay for dispute resolution services and courts that lack the resources to provide these services at no cost. 

Findings

All but two of the responding states have at least one staff person dedicated to ADR part-time. However, having an ADR office makes it more likely that the state court administrative office has full-time staff dedicated to ADR. Ten of the 15 states with an ADR office have at least one full-time person dedicated to ADR; only three of the ten states without an ADR office have full-time staff dedicated to ADR.

In the majority of represented states, the state provides some form of funding. However, these states range from minimally supporting to fully supporting ADR for court users. As with staffing, those states with ADR offices are more likely to provide some support for ADR programs. All but one of these fund ADR in some way, with ten providing ongoing funding. In contrast, only six of the ten states without ADR offices provide any funding for ADR in the courts. Of these, two provide ongoing support.

Face-to-face (or in-person) mediation is available in all states represented in the survey, although it is available statewide in only 63% of them. With the need to adjust to COVID-19, states have made the switch to video-conference mediation, with almost half providing this statewide. Text-based platforms are much less widely used. Only seven states have such a service, and none has made it available statewide. 

While face-to-face mediation is available in all states, more than half of the respondents said there was an unmet need for mediation in their state for parents with limited resources. Most of these said they lacked the funding and mediators necessary to meet that need. More than half said they required stakeholder buy-in and about half said leadership was needed. 

Almost all states have either implemented ODR statewide (in the form of video-conference mediation like Zoom) or are in the process of implementing it. The two most common reasons for pursuing ODR are to increase access to justice and to respond to the restrictions placed on in-person services due to the COVID-19 pandemic. Funding appears to be the tricky spot for them, with eight respondents saying either they have yet to figure out funding for long-term maintenance or that individual courts were going to have to figure it out. 

Despite the increased availability of online services, almost half of the respondents said there was an unmet need for family ODR, with another third saying that they weren’t sure about the need for ODR in their state. Those who said there was an unmet need said that to meet that need their state needed funding, staff time and technical support, followed closely by leadership, stakeholder buy-in and mediators.  

Conclusion

While both in-person and video mediation are widely available in the responding states, more than half of the respondents see a need for greater resources to provide access to dispute resolution services to parents with limited resources. In all, most of the respondents held a positive view of ODR and its role in providing dispute resolution to parents and areas that are not well served by mediation. This is evident in the relatively widespread adoption of video-conference mediation.  

RSI Executive Director Susan Yates Receives ADR Professional of the Year Award

Just Court ADR, October 16th, 2020

RSI’s Executive Director Susan Yates has been awarded the ADR Professional of the Year Award by the Association for Conflict Resolution Chicago Chapter. Last night, during the Chapter’s celebration of International Conflict Resolution Day, Susan was recognized for her commitment and contributions to the alternative dispute resolution community, both in Chicago and across the nation. The award celebrates Susan’s talent and skill in helping parties resolve their disputes outside the courtroom and her dedication to teaching improved mediation effectiveness.

Congratulations Susan!