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Archive for the ‘Research’ Category

Introducing the Community Mediation Special Topic

Nicole Wilmet, October 26th, 2018

We are pleased to introduce a new special topic on community mediation to AboutRSI.org! Written in collaboration with the National Association for Community Mediation, our latest special topic takes an in-depth look at community mediation.

Inside the special topic you will find everything you need to know about community mediation including the basics, the relationship between courts and community mediation centers, and how tracking and evaluating mediation can help community mediation centers. Additionally, our community mediation special topic offers a compilation of exemplary studies on the effectiveness of community mediation, other processes that centers use, and information that can help centers to better address issues surrounding the provision of services.

We hope you enjoy this new resource as much as we do!

Top Criteria for Litigant Selection of Dispute Resolution Process

Jennifer Shack, September 28th, 2018

When litigants were asked soon after their case was filed what would influence their decision about what dispute resolution method they would use for their case, they most commonly said they would be relying on their lawyer’s advice, according to research conducted by Donna Shestowsky. As Shestowsky notes in her article, “Inside the mind of the client: An analysis of litigants’ decision criteria for choosing procedures” (Conflict Resolution Quarterly, Fall 2018) [sub. req.], this has important implications for lawyers and litigants, as lawyers don’t always understand their clients’ interests.

This is the fourth in a series of articles presenting different aspects of her research into the decision-making of litigants in civil cases. Previous articles reported that litigants prefer mediation, looked at what they wanted from a dispute resolution process, and discussed their lack of awareness of what options were available to them. The research is based surveys of litigants in three jurisdictions (in California, Oregon and Utah), that had mediation and arbitration options available to the surveyed litigants.

For this aspect of the research, 335 litigants completed surveys soon after their case was filed. Among the questions were those inquiring into how they would decide which dispute resolution process to use. Within three weeks of the closing of the case, they were called to conduct a survey about the processes they used and the reasons they used them. The litigants provided numerous factors influencing their process selection at the outset of the case, with their lawyer’s advice being the most common, cited by 25% of the respondents. The second most common response, given by 19% of litigants, was that they wanted to minimize economic costs. These two reasons held steady when the litigants were surveyed after the case closed. That is, those litigants who said their lawyer’s advice and/or economic costs were what would lead them to choose a particular dispute resolution process said that they were the factors that led them to ultimately select a process.

Shestowsky finds the significance of litigants relying on their lawyer’s advice in previous research. Tara Relis had earlier found that lawyers don’t always understand their clients’ interests. Similarly, Russell Korobkin and Chris Guthrie uncovered differences between how lawyers and non-lawyers assess whether to settle or litigate a case. This, for Shestowsky, means that unless the lawyers uncover their interests before advising their clients, they may not be acting in a way that best suits their clients when promoting one dispute resolution process over another. Another study also proves relevant in this context. In Arizona, Roselle Wissler found that lawyers were more likely to recommend mediation to their clients if they themselves had experience with the process. Thus, lawyers may simply not feel comfortable recommending a process that may fit best with what their clients want.

Given that litigants rely on their lawyer’s advice, Shestowsky recommends that lawyers “should attempt to understand their clients’ interests, values, and objectives before sharing their personal evaluations of procedures to avoid imposing their own views.” And when their values differ from those of their clients, they should defer to their clients’ values.

Courts and Attorneys Aren’t Doing Enough to Inform Litigants about Their ADR Options

Jennifer Shack, November 3rd, 2017

Donna Shestowsky at UC Davis School of Law has been researching the relationship between litigants and court ADR programs for quite a while. In the past, she has reported that litigants prefer mediation and has identified what they want from a dispute resolution process. Now, she’s reporting that few litigants know that the courts in which their cases have been filed offer mediation or arbitration (“When Ignorance Is Not Bliss: An Empirical Study of Litigants’ Awareness of Court-Sponsored Alternative Dispute Resolution Programs,” Harvard Negotiation Law Review, Spring 2017). Shestowsky found that only 24% of litigants surveyed knew that their court offered mediation, and only 27% knew that arbitration was a possibility.

For this particular aspect of Shestowsky’s study, 336 litigants to civil cases with a median amount in controversy of $35,000 were interviewed within three weeks of the closure of their case. The litigants were drawn from three jurisdictions (in California, Oregon and Utah) that had both mediation and arbitration programs for which all the surveyed litigants were eligible. Each of the three jurisdictions had a rule requiring attorneys to discuss ADR options with their clients.

Despite the rules requiring attorneys to discuss mediation and arbitration with their clients, there was no significant difference in responses between represented and unrepresented litigants. Further, only 31% of litigants said that they or their attorney contemplated mediation, while only 24% had contemplated arbitration. The only factor that increased the likelihood of litigants knowing whether their court offered ADR was whether they were repeat players. Repeat players were 2.53 times more likely to know whether the court had ADR programs.

The results are surprising. Not only do the three courts have requirements for discussing ADR, but the Utah and Oregon courts made ADR the default, requiring the parties to take action to avoid mediation and arbitration. Shestowsky concludes that “discussions about procedure did not take place at all, were not flagged as important, or were not conducted in an in-depth or personalized enough way to trigger deep processing,” meaning that they didn’t have enough of a discussion for the information about ADR to stick in the litigants’ memory.

These findings are not just important to those who advocate for ADR, but have a real impact on litigants and the courts. If litigants don’t know the options available to them, or haven’t had them fully explained, they aren’t giving informed consent to participate in the chosen process. On the other side of the coin, it appears that courts are allocating funds to processes that aren’t being used fully because litigants don’t know about them. Additionally, a key finding of the study is that those litigants who knew that the court offered mediation had a higher opinion of the court than those who did not. This suggests that courts can benefit by having litigants be better-educated about their ADR options, even if they don’t elect to use them.

Shestowsky’s research gives us in the ADR field useful information about how little litigant awareness there is about ADR options even when court rules are designed to ensure that litigants can make informed decisions about the process to use. She points to courts whose processes force more litigant acknowledgement of having been educated about ADR as possible models for increasing awareness. The next step should be to test these different processes for educating litigants to determine which is most effective, particularly for those litigants who are less sophisticated.

Reflecting on RSI Focus Groups in Washington, DC

Susan M. Yates, March 1st, 2017

Last week I had the honor of accompanying Jennifer Shack, RSI’s remarkable Director of Research, to Washington, DC. Jen is the principal investigator on an RSI evaluation of the child protection mediation program[1] in the DC Courts. I came along to facilitate the focus groups that are part of the evaluation. Each of the focus groups brought together a distinct group of lawyers who participate in mediation regularly: Guardians ad litem, lawyers for parents and prosecutors. The focus groups provided insight into how differing interests shape how mediation is perceived.

I found that my mediation skills, honed over many years, made it easy to shift into the role of focus group facilitator. Asking open-ended questions, encouraging everyone to participate and keeping the conversation moving were all familiar. Unlike mediation, the group didn’t have a goal of reaching agreement and I found that to be kind of liberating! What was more surprising to me was that it was difficult to remove my trainer/teacher “hat.” When a participant made a comment based on a misunderstanding of mediation, I had to resist the urge to engage in a conversation to educate the participant about mediation.

The groups of lawyers came from very different perspectives and often had different goals for mediation. (more…)

Tough Love

Eric Slepak-Cherney, July 18th, 2016

A recent study out of Columbia University suggests that nice mediators finish last. Inspired by the familiar trope of bickering siblings setting aside their differences to unite against a stern parent, researcher Ting Zhang created simulations in which student participants attempted to reach resolution using text-based chatrooms. Zhang added a further twist to the experiment by introducing computerized participants and/or mediators in some of the sessions (though all participants were told they were interacting with other humans). The participating students were randomly assigned a hostile mediator, a neutral mediator or a nice mediator. Across all of these different scenarios, however, the data showed that agreement was more likely when the participants teamed up against a hostile mediator, and that the quality of the agreements reached was similar to those reached with a nice mediator. (more…)