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Archive for the ‘Program Evaluation’ Category

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. 

RSI’s Complete “Guide to Program Success” Now Available!

Susan M. Yates, September 15th, 2020

As the pandemic wears on, courts have been transitioning services online and exploring how ADR and ODR can aid their communities in new ways. Given the challenging nature of the situation, I am pleased to share a newly completed resource from RSI that can help.

RSI’s entire Guide to Program Success is now available both online and for individual download. Together, RSI’s Director of Research Jennifer Shack and I wrote this step-by-step guide on how to design, manage and evaluate a court ADR program. Each chapter of the guide contains an in-depth examination of an element of program success. Topics include:

  • Why a court ADR program may be beneficial
  • How to gather a planning team
  • Exploring the legal and ADR environment
  • Articulating program goals
  • Figuring out budgets and funding
  • Applying standards for court ADR
  • Deciding which ADR process to use
  • Designing mechanics of an ADR program
  • Selecting and managing neutrals
  • Writing court rules
  • Designing systems to track the program
  • Creating court program forms
  • Launching a court ADR program
  • Managing a court ADR program
  • Evaluating a court ADR Program

This guide can be used for any type of court ADR process and may be used at any stage of a court ADR program. If you are responsible for a court ADR program or are looking to design a new court ADR program, this is the guide you need.

We hope that this resource is valuable in your work. If you are able to support Resolution Systems Institute, please make a donation. As we all struggle to do our best in challenging times, your support is deeply appreciated.

Susan M. Yates

Executive Director

Resolution Systems Institute

Resources for Courts Considering and Developing ODR Programs

Jennifer Shack, March 19th, 2020

With the COVID-19 epidemic leading courts to cease in-person activities, courts may be feeling a greater urgency to start down the path of online dispute resolution programs. I thought I’d share some resources that may help courts to make decisions regarding whether and how to implement such programs.

Considerations and Concerns in ODR Program Design

Online Dispute Resolution Special Topic

Resolution Systems Institute

RSI has written a guide for courts who are considering, have started developing or already have ODR programs. It discusses important considerations for ODR implementation, from goal setting to costs to ethical concerns. 

Read RSI’s advice about ODR on our website.

Considerations in Implementing Court ODR Systems

Doug Van Epps and Michelle Hilliker. Michigan Supreme Court State Court Administrators Office of Dispute Resolution. Jan. 6, 2020

Van Epps and Hilliker share their insights and the knowledge gained from their development and implementation of ODR in the Michigan courts in this guide. Based on both the issues they encountered and their discussions with others involved in implementing ODR systems, their considerations are meant to assist courts to determine how to design, implement and evaluate an online dispute resolution (ODR) system. 

The considerations span a variety of topics including leadership and court staff; prospective users and stakeholders; goals; implementing authority and legal implications administration; platform attributes and functions; mediators; non-court dispute resolution service staff; costs, fees and funding sources; confidentiality; protections; vendor selection; data collection and evaluation; and marketing plans. The guide also includes a list of recent ODR publications and resources.

Access the Considerations document on Michigan’s Supreme Court State Court Administrator’s Office website.

Case Studies in ODR for Courts

Joint Technology Committee, 2020

This paper presents seven case studies of ODR implementation in the courts. The case studies are short, but include key takeaways about what worked and what didn’t. The ODR programs include two outside the US, and deal with small claims, family, tax and traffic cases.

Read the case studies.

Online Dispute Resolution: A Digital Door to Justice or Pandora’s Box? Parts I and II

Doug McQuiston and Sharon Sturges, Colorado Lawyer, February and March, 2020.

McQuiston and Sturges are in the midst of publishing a three-part series on ODR in the courts that examines the use of videoconferenced mediation. They note that videoconferencing may be appropriate for family cases and those involving intimate partner violence. The main obstacle to providing this service is limited or poor internet connectivity. 

Part II focuses on the use of artificial intelligence in ODR. McQuiston and Sturges cite the many benefits of AI-assisted ODR for small claims and family cases, such as the ability to negotiate asynchronously, which eliminates the need to coordinate schedules. Self-represented litigants who may be reluctant to attend mediation without an attorney may be more inclined to use this technology. Further, they can save money by using this technology. McQuiston and Sturges note some drawbacks, however. These include AI’s inability to understand and address human emotions and its tendency to deviate to the mean, without reference to shades of gray in disputes or situational fairness. To help readers understand how AI in ODR would work, they end by describing systems already in place around the world. 

Read Part I and Part II of the series. Part III is forthcoming in April.

Designing and Implementing a State Court ODR System: From Disappointment to Celebration

David Allen Larson, Journal of Dispute Resolution, Vol. 2019, No. 2, Jun. 5, 2019

This article chronicles the author’s work to develop an online dispute resolution (ODR) system to handle credit card debt collection in New York State courts. The author worked with the New York State Unified Court system for a little over two years to design and implement their ODR platform. The article discusses the issues related to dispute system design in this setting, explains how the project was derailed and ends with lessons learned. The four lessons discussed are (1) anticipate conflicts and resistance (2) obtain support from judges and court staff at the beginning (3) figure out the technology while also ensuring a fair vendor bidding process and (4) pick your case type carefully.

The article also touches on some issues specific to ODR such as how ODR relates to a court system that is not fully digitized and how long to retain records of online communications. It also offers general advice, such as recommending that ODR processes should “balance efficiencies, neutrality and self-determination.”

Read the full article on SSRN.

Pouring a Little Psychological Cold Water on ODR

Jean Sternlight, Journal of Dispute Resolution, 2020

This article explores online dispute resolution (ODR) from a psychological lens to examine the strengths and weakness of ODR. The article examines the psychology of dispute resolution by 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. Sternlight’s article suggests 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. The article also posits that computers may not be the best forum for communication and argues that human mediators, lawyers or friends are more effective than computers in helping humans deal with their emotions and other judgement and decision-making issues. Sternlight ends by calling for empirical research for both online and in-person dispute resolution.

Read the full article on SSRN.

Studies of Online Dispute Resolution Programs

So far, there have been few published studies of online dispute resolution programs in the courts. Below are two conducted a while back. 

Getting Divorced Online: Procedural and Outcome Justice in Online Divorce Mediation

Martin Gramatikov and Laura Klaming, Journal of Law & Family Studies, Jan. 1, 2012

This study of a Dutch experiment with ODR for divorcing couples found that the participants 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. The ratings were similar for both men and women. Other findings included men reporting higher out of pocket costs and time spent in mediation than women, and women reporting higher levels of frustration and anger than men.

The participants were referred to ODR, which was provided free of charge, if both parties had an email account and the issues were not complex. Once referred, the parties completed an intake questionnaire to provide the mediator with some details about the dispute. The parties could communicate with the mediator and each other via text message or email. The mediator moderated all communications. Each party was required to respond to the other within 48 hours as a condition of the agreement to mediate. Once all issues in dispute were finalized, the parties completed an evaluation of the procedure before the agreement could be finalized.

Read the complete abstract and access the full study in RSI’s Research Library. 

Evaluation of the Small Claims Online Dispute Resolution Pilot

Marc Mason, Avrom Sherr. Sep. 1, 2008

Two courts in England tested online mediation to resolve 25 small claims cases. Those parties who were willing to try mediation were given the option of mediating face-to-face, by telephone, or online. Two mediators were responsible for all online mediations, which were conducted using TheMediationRoom.com.

The online mediations resulted in settlement in 48% of the cases, which was similar to the settlement rate for the face-to-face and telephone mediations, but lower than other small claims mediation programs have reported. Mediators and parties were surveyed post-mediation about their experiences with the process. Mediators reported using more than one method of communication outside TheMediationRoom.com platform – generally email or telephone – to complete the mediation in most cases, and as many settlements were completed outside the platform as within it. The mediators attributed this to difficulties in getting responses from the defendants, as well as to technical difficulties. Because of this and because they lacked the ability to judge non-verbal cues, the mediators said they would have preferred using telephone or email in all but four cases.

The 18 parties who responded to the questionnaire were less frustrated with their experience than the mediators. They expressed fewer issues with the technology, with 47% saying the technology was easy to use. However, they were not overwhelmingly satisfied with the process or the fairness of the outcome. Only 53% were satisfied with their experience and only 23% felt the outcome was fair. Responses to both satisfaction and fairness of outcome were more positive for those who settled their case. The small number of responses limits the reliability of these findings.

Read the full study on SSRN.

Studies Regarding Particular Issues Related to ODR

Shuttle and Online Mediation: A Review of Available Research and Implications for Separating Couples Reporting Intimate Partner Violence or Abuse

Fernanda S. Rossi, Amy Holtzworth-Munroe, Amy G. Applegate, Connie J. Beck, Jeannie M. Adams, Darrell F. Hale. Family Court Review (Association of Family and Conciliation Courts), Aug. 17, 2017

This article examines the published research on shuttle mediation, online audio-visual mediation, and online text-based mediation to discuss the applicability of these mediation methods to family law cases with a history of intimate partner violence and/or abuse (IPV/A). It first presents potential advantages and disadvantages of each mediation method in cases with IPV/A history. The authors 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. The authors also note the need for more empirical research comparing different effects of various mediation methods.

This article is behind a paywall on the Wiley Online Library.

Building Trust Online: The Realities of Telepresence for Mediators Engaged in Online Dispute Resolution, 

Susan Nauss Exon and Soomi Lee. Stetson Law Review, Vol 49, No. 1, 2019

Exon and Lee found that trust in an experienced mediator is the same whether a mediation participant interacts with that mediator via video or face-to-face. In their experiment, 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. 

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.

Read the full study on SSRN.

Studies Regarding Topics Related to ODR

ADR Empirical Research Studies

James Coben and Donna Steinstra. Mitchell Hamline Dispute Resolution Institute, Jun. 1, 2018

This compilation of abstracted studies includes a number on topics that are related to the use of ODR. These include: 

  • A study of compliance with emailed requests
  • Team decision-making in a virtual environment
  • A qualitative analysis of email negotiation
  • Honesty in face-to-face communication as compared to through an intermediary

Find the abstracted studies on the Mitchell Hamline website.

Early Resolution Triage Program for Family Cases Increases Efficiency without Reducing Satisfaction

Jennifer Shack, February 3rd, 2020

In Anchorage, Alaska, an Early Resolution Program for family cases has 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 program includes triage, dispute resolution and attorney assistance with documents. Stacey Marz reports on her study in, “Faster and as Satisfying: An Evaluation of Alaska’s Early Resolution Triage Program” (Family Court Review, 2019).

In the Early Resolution Program (ERP), cases involving two self-represented litigants are reviewed by a staff attorney to determine if they are appropriate for the program. The staff attorney generally screens out cases involving: current or serious domestic violence incidents; issues that require evidentiary findings; a pending child abuse or neglect case; or a non-parent who is asserting a custodial claim.

If a case is appropriate, the parties are notified of the opportunity to participate. If they agree to do so, they are either provided two unbundled lawyers who work collaboratively (and only on dispute resolution), a court mediator or a settlement judge to help them resolve the case. If the parties reach agreement, they go to court to finalize their divorce approximately three weeks after entering the program. There, a staff attorney completes the final documents, including the findings of fact and conclusions of law, parenting plan, divorce decree, and child support order. The judge reviews and signs all the documents, which are then copied and distributed in the courtroom. The judge then grants the divorce and the parties leave with all the documents.

For the evaluation, Marz looked at 299 ERP cases from 2011 to 2013 that resolved through settlement and compared them to a control group of 392 cases closed before the ERP was implemented. These cases followed a traditional court track involving an initial status conference, a pre-trial conference and a trial or settlement conference. For the study, the pre-ERP cases were screened the same way as cases filed after the implementation of the ERP in order to make them comparable.   

Marz found a high rate of resolution for ERP participants, with 80% reaching agreement in a three-hour dispute resolution session. In addition, ERP cases were able to close more quickly. The time from filing to closure for ERP cases was a median of 42 days as compared to a median of 104 for cases in the control group.

As a proxy for party satisfaction with the process, Marz also looked at the number of motions filed per case to modify the judgment. The assumption is that parties file motions to modify soon after the final judgment if they are unhappy with the outcome. She found no significant difference between the two groups: for the ERP group,.18 motions were filed per case within two years of disposition, compared to .22 motions per case for the control group. According to Marz, this indicates that concerns that the ERP process was too quick and parties didn’t have enough time to think about the issues were not supported.  

The last item Marz examined was the number of processing steps staff undertook for each case. For cases undergoing ERP, there are 28 to 30 processing steps, taking a total of 240 minutes (4 hours). The number of steps for the average non-ERP case is 49, taking a total of 1,047 minutes (17.45 hours). Marz notes that the reason for this increased efficiency is two-fold: First, once the staff attorney screens and accepts a case into ERP, the file stays with the attorney, eliminating many case-processing steps that occur in typical cases. Second, there are great efficiencies in scheduling multiple cases during the same ERP hearing block, especially when most cases resolve in one court event.

The evaluation indicates that the Early Resolution Program in Anchorage has increased efficiency in cases involving self-represented litigants without inducing parties to enter into agreements that aren’t sustainable.

RSI Evaluating Online Dispute Resolution

Just Court ADR, January 30th, 2020

Resolution Systems Institute is pleased to announce that we are partnering with the University of California, Davis, (UC Davis) and The Pew Charitable Trusts (Pew) to evaluate certain small claims court online dispute resolution (ODR) programs in Hawaii and Texas. These programs enable parties involved in small claims matters to negotiate online and, if needed, receive online mediation services to attempt to resolve their case. These programs could eliminate the need for some parties to appear in physical courthouses.

This evaluation examines the impact of ODR on litigants and courts. For litigants, the focus will be on access to justice, with an eye toward determining whether certain groups in society tend to experience the benefits or costs associated with ODR more than others. To that end, the study will explore, among other questions, whether ODR reduces the time stress on parties; affects case outcomes; improves litigants’ use of court procedures and navigation of court rules; and increases users’ sense of procedural fairness. The study will also look at the effect ODR has on court efficiency, such as time from filing to resolution, the number of hearings held and staff time spent per case.

ODR is increasingly being adopted by courts in the United States, but there have not been neutral, empirical studies before this evaluation and other concurrent evaluations in partnership with Pew. An initial report is expected in mid-2021.

“We are excited for this opportunity to bring rigorous empirical research to the nascent field of court ODR,” said Susan M. Yates, RSI Executive Director. “While we are hopeful that ODR can improve access to justice, we will await the results to see what we learn.”

Resolution Systems Institute’s principal investigator for the project is Jennifer Shack, Director of Research, the go-to evaluator for court ADR in the US. The principal investigator for the overall project is Dr. Donna Shestowsky of the UC Davis School of Law; she is a nationally recognized scholar in alternative dispute resolution.