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Archive for the ‘Research’ Category

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.

Victim Youth Conferencing Program in Nebraska Showing Promise

Jennifer Shack, July 22nd, 2019

A statewide victim youth conferencing (VYC) program in Nebraska has proven to be successful at promoting participant satisfaction, attaining reparations agreements and ensuring youth fulfillment of those agreements. The program was launched in March 2015 as a pilot in three jurisdictions covering four counties and was expanded statewide in January 2018. Services are provided by Nebraska Office of Dispute Resolution-approved mediation centers. Referrals to the program came at three stages: pre-court referrals from the County Attorneys’ offices after a school-based incident, court diversion referrals from the County Attorney and Courts pre-adjudication, and referrals from the court post-adjudication.

The evaluation of the VYC program looked at the program’s goals to determine whether they were being met, as well as other aspects of the program, including who was served by the program and how the process was working in each of the centers providing the services. In terms of outcomes, the program had the following goals: 95% of conferences will end with a reparations agreement, 95% of agreements will be fulfilled and 97% of participants will report being satisfied with the process. The program exceeded the first goal and came within a percentage point or two of attaining the other two goals. All conferences held ended with a reparations agreement. Youth completed 94.2% of those agreements and partially completed 5.8% of them. Ninety-five percent of participants were satisfied with the process.

In addition to being satisfied with the process, 89% of participating youth and 70% of participating victims believed that the VYC made the justice system more responsive to their needs. Further, 94% of victims agreed that it was helpful to talk directly with the person who was responsible for the harm, and 77% of victims said that meeting that person reduced any fear that he/she would commit another crime against them. The youth held similar opinions: 88% said it was helpful to talk directly with the victim and 94% said that after the meeting they had a better understanding of the full impact of the crime on others.

The program also had longer-term goals of reducing recidivism, “closing the gap in disproportionate minority contact with courts,” increasing safety in communities and sustaining capacity for VYC statewide. The program’s effect on recidivism proved hard to assess. The evaluator found that the 38 youth who participated in the initial pilot, 16% recidivated in the succeeding 12 months, compared to 24% of the 17 youth who did not. However, the data was insufficient and unreliable, so she did not determine that participation in the program caused the reduction in recidivism. The hope is that later evaluations can address this, as well as the other goals mentioned above.

Participants Are Highly Satisfied with Nevada’s Child Protection Mediation Program

Jennifer Shack, July 1st, 2019

Last month, I talked about a new evaluation of child protection mediation in Michigan. I’m following this up with a 2017 evaluation of child protection mediation in Nevada. Both evaluations were of several programs taking place throughout the respective states, but their focuses are quite different. Where the Michigan study primarily examined time to permanency, the Nevada study focused much more on participant experience in the mediation and process issues.

The Nevada study, “Process Evaluation of Nevada’s Statewide Dependency Mediation Program,” by Shamini Ganasarajah, et al, of the National Council of Juvenile and Family Court Judges, found high levels of satisfaction with mediation and agreement, as well as a possible impact on whether scheduled hearings after mediation were cancelled. 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.

The study looked at mediation in seven counties. In these counties, mediation can be used at any point of the case. However, most cases used the mediation program at the termination of parental rights (TPR) stage, which is at the end of the case. (This finding regarding the timing of mediation is skewed somewhat by one county using mediation almost exclusively at the TPR stage.) Time in mediation averaged two hours.

Those who participated in mediation were asked to complete post-mediation surveys. For the purposes of this study, these people were divided into program participants (these are natural parents and foster parents) and system stakeholders (the attorneys and case workers involved in the case). During the study period (July 2016 through April 2017), participants completed 113 post-mediation surveys and stakeholders completed 267. In their responses, 84% of the participants and 98% of the stakeholders expressed satisfaction with the mediation program. Their satisfaction was statistically related to whether they reached agreement in the mediation.

The participants (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, natural mothers or natural fathers.

The evaluators analyzed whether there was a relationship among the participants’ responses. One that stood out was 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.

The stakeholders (attorneys and caseworkers) were also highly positive about the mediation, with all or almost all believing the process was fair, that they had an opportunity to express their opinion, were treated with respect, were listened to and were able to be a part of finding answers to the problems discussed.

Interestingly, both participants and stakeholders were most likely to mention communication as what was most helpful about the mediation. Both groups were also most likely to say that parties being unable or unwilling to compromise was the reason no agreement was reached.

Also interesting was that the mediators reported agreements in 84% of cases, while the stakeholders reported that agreement resulted from only 71% of their mediations. There is no explanation as to why. The study also found that hearings were cancelled after 51% of the mediations were held. The evaluators recommended further examination of the relationship between mediation and vacated hearings.

Other recommendations included expanding the use of mediation to all stages of the case, as most mediations occurred at the TPR stage; assessing implementation of domestic violence screening protocols; and enhancing mediator training to include additional strategies for effectively listening to participants and stakeholders and making them feel heard.