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Research Year in Review

Jennifer Shack, December 19th, 2019

This year we learned about the efficacy of a variety of dispute resolution programs, explored party trust in mediators, and considered ways to assess and improve the party experience in dispute resolution processes.

Program evaluations

The theme of evaluations of ADR programs is that participants like them. This includes the multiple studies I summarized for our Mediation Effectiveness Studies database. Each of the studies that looked at the participant experience found high levels of satisfaction and, in comparative studies, the level of satisfaction was greater for those going through mediation than those who did not.

Nevada and Michigan provided us with insights into their child protection mediation (CPM) programs. The evaluation of Nevada’s statewide program found that family members were highly positive about all aspects of the mediation. All of them thought the process was fair. Almost all said they were able to voice their opinions, were treated with respect and were able to be a part of finding answers to the problems discussed. Almost 90% said the others really listened to them. For all practical purposes, these responses did not vary based on whether they were foster parents or natural parents. The study also found that there was no difference in satisfaction rate based on the stage at which mediation occurred, but that satisfaction was higher when mediation resulted in agreement as compared to when it did not.

Child protection mediation participants in Michigan were also highly satisfied with their experience in mediation. In the two counties with experience data, participants said that they had the opportunity to express themselves, gained a better understanding of the issues, felt respected and felt the process was fair to them. In a statewide comparison between those family members who participated in mediation and those who did not, through who went through CPM gave slightly higher ratings on case resolution, staff courtesy and courtesy of the judge.

I also discussed an evaluation I conducted of the Civil Stalking Pilot Mediation Program in Ohio.  While there wasn’t enough survey data to determine how satisfied participants were with their experience, we did find that almost ¾ of these cases reached agreement, with most of the agreements being for the parties to have no further contact.

Switching to restorative justice, we learned that participants in Nebraska’s Youth Conferencing Program also have high rates of satisfaction. In addition to being satisfied with the process, most participating youth and victims believed that the victim youth conferencing VYC made the justice system more responsive to their needs. Further, almost all of the victims agreed that it was helpful to talk directly with the person who was responsible for the harm, and most said that meeting that person reduced any fear that he/she would commit another crime against them. The youth held similar opinions: most said it was helpful to talk directly with the victim and almost all of them said that after the meeting they had a better understanding of the full impact of the crime on others. In addition to providing a positive experience to participants, youth conferencing led to a high rate of agreement completion, with almost 95% of the youth ending with full compliance.

Research

From a study of one restorative justice program in Nebraska, we move to a compilation of forty years of research on victim offender mediation (VOM). The research found that victims receive multiple benefits from VOM. Victims who participate in VOM as compared to those who went through the traditional process received more restitution, had less fear of re-victimization and were less likely to remain upset after the process. Additionally, participation in VOM leads victims to feel empowered and to have a more humanized view of the offender.

Offenders were also found to receive benefits from the VOM process. These included being more empathetic toward victims of their crimes, being held directly accountable to victims (which is a core need for many offenders), being able to deal with their feelings and seeing victims change their feelings toward them, feeling empowered, and avoiding jail or court.

Other benefits accrue to the courts and community. Some studies found that VOM led to a higher rate of agreement completion than the traditional process. Many studies, but not all, found that VOM led to a lower recidivism rate than the traditional process. A few studies also found VOM to be cost-effective. Short-term, VOM lowers costs by being less expensive than court. Long-term, lowered recidivism and lower incarceration rates lead to cost savings. One study found as well that mature programs were more cost-effective than those that were just started up, and another found that those involving community mediation centers were more cost-effective.

Two of the studies I summarized were about trust in the mediator. We learned that participant trust in the mediator is the same whether mediation is in person or via a sophisticated video conferencing tool, in which sensitive microphones and special cameras that pan and zoom are used to help participants follow the flow of the conversation. We also learned that mediators and parties have similar perspectives on what mediator behaviors and characteristics engender trust in parties, with the exception of eight factors for which the parties were significantly more likely than the mediators to say built trust with mediator. These were:

  • The mediator’s familiarity with legal aspects relating to the dispute
  • The mediator suggests an alternative or a way out of the dispute
  • The mediator provides candid and frank input about the dispute
  • The mediator does not linger too long on the dispute but advances toward its settlement
  • The mediator is appointed by an authority, such as a reputed judge
  • The mediator shows an interest in the parties’ mutual concerns and focuses on their common goals
  • The mediator highlights the rules of mediation
  • The mediator talks to the parties about informal matters as opposed to just talking about the dispute

We also looked at research focusing on access to justice. A study of judicial settlement conferences in Canada examined what factors were related to parties’ sense of access to justice, as indicated by their sense that the process was fair and useful, as well as their sense that the settlement judge provided professional support. These included: the judge being active in helping the parties to reach a resolution that is fair and suited to their needs; communication that creates trust; the judge facilitates a just process and a process that complies with ethical norms.

Two of my summaries were of articles that used research to argue for changes to how we approach disputes resolution. Nancy Welsh argued that transparency is essential to help to equalize the knowledge of one-shot users and repeat players, allow for public oversight, and make it less likely that mediators would engage in unethical behaviors. She then noted that mediation is now often imposed on parties through contracts and mandated by the courts. For these mediations, there is a greater responsibility to ensure that the processes are fair and effective. Thus, Welsh argues for a new set of standards for these “compelled” mediations that call for more information to be imparted about mediations.

Jean Sternlight focused her attention on online dispute resolution (ODR), arguing that ODR should be designed to take into account human psychology. That requires an imaginative approach to determining whether and how to incorporate technology into dispute resolution. She suggests that “computers are not likely the best tool for helping humans think through how they want to respond to a dispute, and how they might creatively work things out with a fellow disputant.” She concludes that ODR may best be used for disputes that involve wants that are simple and predictable, such as small online purchases.

I’m looking forward to a research-filled 2020!

Perceptions of Trust-Building in Family Mediation

Jennifer Shack, November 26th, 2019

A small study of family mediation in Spain paints a picture of what parties and mediators believe promotes the parties’ trust in the mediator and points out differences in perspectives between the two groups. Identification of these differences can lead to improved training and professional practice, according to the researchers (Joan Albert Riera Adrover, Maria Elena Cuatrero Castaner, Juan Jose, Montano Moreno). They discuss this in their article, “Mediators’ and Disputing Parties’ Perception of Trust-Building in Family Mediation” (Negotiation and Conflict Management Research, 2019).

For the study, the researchers recruited mediators from a single mediation provider organization. The mediators notified the parties of the research project at the outset of the mediation. If the parties consented to participate in the research, a researcher would meet with the parties at the end of the third joint session and had them complete a survey. Mediators also completed a survey at this time. In all, 31 mediators and 54 parties participated in the research over the course of a year. The mediators were primarily lawyers with an average of 1-6 years’ experience .

The researchers found eight factors which the parties were significantly more likely to say built trust with their mediator than compared to the mediator group. These were:

  • The mediator is familiar with legal aspects relating to the dispute
  • The mediator suggests an alternative or a way out of the dispute
  • The mediator provides candid and frank input about the dispute
  • The mediator does not linger too long on the dispute but advances toward its settlement
  • The mediator is appointed by an authority, such as a reputed judge
  • The mediator shows an interest in the parties’ mutual concerns and focuses on their common goals
  • The mediator highlights the rules of mediation
  • The mediator talks to the parties about informal matters as opposed to just talking about the dispute

Most of these should not be surprising. Indeed, for all of the above factors except suggesting an alternative and talking about informal matters, a majority of the mediators agreed with the parties about their importance for building trust. However, it does reinforce the notion that trust is about more than just rapport. Parties in this study trusted mediators who focused on resolution and presented alternative options to the parties.

It should be noted that there were numerous other factors for which a large majority of both mediators and parties said built trust. These included the mediator’s listening skills, fairness, impartiality, demeanor and capacity to understand the dispute. These all should be familiar to anyone involved in mediation, as they are generally considered necessary for trust-building.

This research is unique in that it matched up mediator and party perspectives on trust. It can help mediators to know what they should be emphasizing as they attempt to build trust. However, it was limited by a small sample size and lack of qualitative follow up to help elucidate the mediators’ and parties’ thinking.

The Psychological Complications of Resolving Disputes Online

Jennifer Shack, October 28th, 2019

Online dispute resolution (ODR) can take many different forms, but one element is always present: the participants aren’t interacting in person. Jean Sternlight explores the possible psychological impact of this in her new article, “Pouring a Little Psychological Cold Water on ODR” (forthcoming 2020 Journal of Dispute Resolution).

It should be noted that before discussing the psychology of disputes and ODR, Sternlight opines that the term ODR is used too broadly as it’s used for any technology-assisted dispute resolution. Although she doesn’t state what she means by ODR in her article, the way in which she discusses it points to the conclusion that she is focused more on text-based and algorithmic processes rather than video-based processes.

Starting from the premise that “human disputes are intimately connected to human psychology,” Sternlight states that ODR should be designed to take into account human psychology and that requires an imaginative approach to determining whether and how to incorporate technology into dispute resolution. Even given this, however, she says that we should consider the possibility that humans are better suited than computers to resolve many disputes.

Sternlight explores the psychology of dispute resolution through four areas: the psychology of perception and memory, the psychology of human wants, the psychology of communication, and judgment and decision-making. Perception and memory often differ among those involved in a dispute. In in-person disputes, mediators and lawyers currently take on the role of overcoming parties’ beliefs that their perception is correct and the only possible version. Sternlight questions whether a computer or avatar can have the same effect, as research has found that simply receiving a message on a computer or reading a book aren’t sufficient to shake one’s belief that theirs is the only right view.

When it comes to human wants, people are complex. We don’t always know what we want, and when we do, we often have many different wants, or our wants may change over time. Further, each person may have different wants in the same circumstances. Because of this, Sternlight suggests that “computers are not likely the best tool for helping humans think through how they want to respond to a dispute, and how they might creatively work things out with a fellow disputant.” She concludes that ODR may best be used for disputes that involve wants that are simple and predictable, such as small online purchases.

Communication is another area in which computers may not provide the best forum, although Sternlight does say that computers may make communication easier by enabling fast and low-cost exchanges, and by allowing for the anonymity that some prefer. However, many ODR platforms rely on check boxes and limited exchange of textual information. This does not permit disputants to communicate fully their broad range of beliefs and concerns nor learn about those of the other party. Textual communications also make it difficult to build trust or rapport among disputants.

Sternlight also believes that human mediators, lawyers or friends are more effective than computers in helping humans deal with their emotions and other judgment and decision-making issues. She notes that a trusted person is more likely than a computer to move a disputant off an unreasonable position, even if both convey the same information.  Humans can build rapport and trust and tell persuasive stories, whereas being provided information on a chart or in text will not be as useful.

Sternlight acknowledges that online processes may have their place in dispute resolution, but to do so requires a system design that takes into account human psychology. To figure out how best to approach the resolution of disputes online, Sternlight says that empirical research is required of both online and in-person dispute resolution.

While some readers may not agree with Sternlight’s message, she does offer a thoughtful counterpoint to the current enthusiasm for ODR.

Recent Additions to RSI Database of Mediation Studies

Jennifer Shack, September 27th, 2019

I’ve slowly been adding to RSI’s database of mediation efficacy studies – those studies of court ADR that look at mediation outcomes, participant experience and the effect of mediation on cost and time. The database contains almost 100 studies and can be filtered by case type, variables examined, state and whether it compares mediated cases to those that weren’t mediated. The entire database can be downloaded as an Excel spreadsheet as well.

The following is a list of the latest studies I have added to the database.

Impact of Mediation on Criminal Misdemeanor Cases

In this study of criminal misdemeanor cases in Maryland, mediated cases in one county were compared to non-mediated cases in a similar county. The study of 206 cases examined the impact of mediation on later judicial actions in the case, as well as whether the parties returned to court within a 12-month period. The study also included interviews with the parties at the outset of mediation and three months after the case concluded in order to find out their perceptions on whether the issues involved in the case were resolved and to determine whether they experienced attitude changes regarding the conflict or the other party as a result of their experience with mediation or court.

The study found that mediation reduced later court activity in the case, as well as the probability that the parties would return to court. Parties who mediated were also more likely to believe that the issues were resolved and to be satisfied with the process. There was no difference in attitude changes.

Impact of Alternative Dispute Resolution on Responsibility, Empowerment, Resolution, and Satisfaction with the Judiciary: Comparison of Short- and Long-Term Outcomes in District Court Civil Cases

For this study of the effect of mediation on party attitudes and post-disposition activity, small claims cases were randomly offered the option to mediate on the day of trial. Parties in both the mediation group and the traditional group were interviewed before and after their process, and then again 3-6 months later.  The study found that those who went through mediation were more likely to feel they were able to express themselves and to feel the issues were resolved. In the long term, they were more likely to believe the outcome was working, to be satisfied with the outcome and to be satisfied with the judicial system. Those who reached agreement in mediation were less likely to return to court for an enforcement action in the 12 months after their case was closed than those who didn’t reach agreement in mediation (including those who reached agreement on their own and those who went to trial).

The Mediation Center of the Pacific Economic Impact and Social Return on Investment Analysis for the Fiscal Year 2016

This study uses social impact return on investment (SROI) to determine the overall economic impact of a statewide network of community mediation centers in Hawaii during the 2016 fiscal year. The SROI analyzes the economic impact of the centers’ services on two factors: the short-term (within a one year period) direct economic impact based on the fair market value of services delivered along with any immediate cash awards or amounts avoided as a result of the mediation centers’ services, and the longer-term economic impacts in the areas of community health costs, social support costs, law enforcement costs, taxation revenues, property valuation effects, and other community cost changes. The analysis found that for every $1 spent to provide services, the community receives $8.76 in immediate and long-term financial benefits.

Saving Homes, Building Understanding: An Evaluation of the Eight Foreclosure Mediation Programs Funded by the Illinois Attorney General (Note: this evaluation was published by RSI.)

This final evaluation of eight foreclosure mediation programs with very different service delivery models follows up the initial evaluation published in 2015. The programs were assessed on participation rate, the percentage of eligible and participating homeowners who were able to retain their homes, completion rates, the amount of time cases spent in the program, and the experience of participating homeowners at each stage of the process. Each program was evaluated individually and all eight were compared on these measures.

The findings from this evaluation supported those from the first evaluation. It, too, found that participation is greater in programs in which the homeowners are told to appear for their initial session and given a date and time to do so, as well as in programs in which the homeowners learn one-on-one how the program can help them. Homeowners with attorneys are more likely to complete the program, but they do not have a greater probability of saving their home. Homeowners also benefit from a second opportunity to participate. Among other findings are that the programs are providing a just process and are viewed positively by most participants.

Case Evaluation and Mediation in Michigan Circuit Courts: Follow-up Study

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. This follow-up study came to the same conclusion.  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. It found that for tort cases, there was no statistically significant difference in the type of disposition among the different options: no ADR, case evaluation only, mediation only, or both case evaluation and mediation. 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. 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.

Child Protection Mediation in Michigan 2019

This study examines child protection mediation (CPM) at five centers in Michigan (Gaylord, Jackson, Marquette, Petoskey, and Traverse City). The study focuses on descriptive statistics, participant and stakeholder perspectives, and time to permanency.  For participants, data was collected through statewide surveys that asked participants going through the traditional process and those going through CPM how satisfied they were with their experience. Additionally, researchers also interviewed ten stakeholders for the report. Overall, the findings indicate that CPM participants had a positive experience in the process and also gave slightly higher satisfaction ratings in case resolution, staff courtesy and courtesy of the judge than participants going through the traditional process. Moreover, the information gathered by stakeholders indicated that stakeholders were largely supportive of the process. Finally, the study results also indicate that CPM reduces time to permanency.

Process Evaluation of Nevada’s Statewide Dependency Mediation Program

In this study of child protection mediation in seven Nevada counties, the evaluators examined post-mediation surveys to determine not only the participants’ level of satisfaction, sense of fairness and experience of procedural justice, but also whether any variables were associated with more positive responses. They found that most participants had a positive experience. This was correlated with whether the parties reached agreement in the mediation. The evaluators also found that when participants believed others in the mediation had “really listened” to what they had to say, they were more likely to express satisfaction with the mediation regardless of whether an agreement was reached.

Improving an Effective Program: A Comprehensive Evaluation of the Superior Court of the District of Columbia Child Protection Mediation Program (Note: this evaluation was published by RSI.)

In Washington, D.C., child protection mediation is mandatory at the outset of a case. Natural parents, their attorneys, a government attorney, the children’s attorney and the social worker meet with the goals of making progress on the legal issues in the case, services for the parents and children, and visitation. This evaluation looks at outcomes of mediation, the larger impact of participating in mediation on the case, and the program process.

The results of the evaluation show that parents who participated in mediation in 2013-2014 were twice as likely to stipulate to the facts of the case before trial as those who did not mediate. Further, it is likely that they were 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.

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.

Do Parties Trust Mediators When They’re Not in the Same Room?

Jennifer Shack, August 26th, 2019

Trust in an experienced mediator is the same whether a mediation participant interacts with that mediator via video or face-to-face, according to recent research. Susan Nauss Exon and Soomi Lee explain their research in their article, “Building Trust Online: The Realities of Telepresence for Mediators Engaged in Online Dispute Resolution,” (Stetson Law Review, Vol 49, No. 1).

Nauss Exon and Lee’s research focused on the impact of technology on parties’ perception of the mediator as trustworthy and on their trust in the mediator. To determine what that impact might be, they undertook an experiment in which 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. These participants included 36 females and 23 males who ranged in age from 18 to upwards of 36 years and who had education levels from high school diplomas to post-graduate degrees.

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.

The issue of trust in mediation is important as courts move toward greater use of online dispute resolution. This research points to the possibility that trust is not affected by at least some online interactions. However, as Nauss Exon and Lee note, more research needs to be done to see if their findings can be replicated in other contexts and under other circumstances. For example, would the same results apply to video mediation that uses a web cam instead of sophisticated microphones and cameras? When only text is used to communicate among parties and the mediator? Would they apply with a less experienced mediator? In the real world, rather than a simulated mediation? Hopefully, further research will answer these questions.