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Archive for the ‘Research’ Category

A Possible Way Forward to Addressing the Coming Eviction Crisis

Jennifer Shack, August 5th, 2020

A few changes to a housing court in St. Paul, Minnesota, appear to have reaped dividends in term of fewer evictions and more settlements. The housing court instituted a housing clinic, bringing together financial services, legal services and mediation at the same place to help those coming to their eviction hearings. Along with changes to court rules and forms, the clinic has had a number of positive outcomes for both landlords and tenants. Although only one component to the changes to housing court was to increase access to mediation, the overall concept is instructive to anyone involved in ADR and housing courts.

In “Justice Served, Housing Preserved: The Ramsey County Housing Court” (Mitchell Hamline Law Journal of Public Policy and Practice, 2020), Colleen Ebinger and Elizabeth Clysdale discuss the impetus for reform, the process for identifying and instituting needed changes and the results of those changes. The Chief Judge saw a need to make changes that would improve access to justice and bring together resources for tenants that would address the root causes of eviction. To that end, he sought the assistance of the McKnight Foundation and Family Housing Fund. They, in turn, turned to the National Center for State Courts to facilitate the planning process. Other stakeholders who were included in the planning process included legal services, the local dispute resolution center, a lawyer who represented landlords, the county’s financial assistance program, the city’s housing department, as well as judges and court administrators.

The group agreed on three areas of action: implement a number of procedural changes, improve coordination among government entities, and expand access to mediation and legal services. Procedural changes included changes to forms, such as including information in the summons tenants receive about the eviction hearing that details the financial, legal and dispute resolution services available to them. In addition, the settlement form allowed the parties to check that they had agreed to an expungement, which keeps the eviction from showing up in their credit history, and the court order was changed to include the possibility of immediate expungement. Further, if expungement was contingent on the tenant making payments, both parties were now allowed to file a notice of compliance with the payments, rather than just the landlord. This meant that the tenant had more control over whether the expungement was carried through.

Coordination among government entities was improved by providing office space in the courthouse for financial assistance workers representing two different funding agencies. This allowed them to work together and allowed tenants to apply to both at the same time rather than having to wait to be denied from one to apply to the other. In addition, the court began providing all partners with information on all litigants on the calendar, which allows them to be more prepared to assist the litigants when they come to court.

To expand access to legal services and mediation, the court and partners agreed to  have attorneys available for consultation at all hearings , as well as mediators, who would be particularly helpful in dealing with disputes that were not legal in nature. Further, the judge began promoting these services from the bench to ensure that all litigants knew about their right to access these resources.

After a year and a half, the court’s numbers appear to show an improvement in outcomes. The court has a goal of reducing evictions by 50% in five years. In the first 18 months, evictions declined by 8%, to the lowest eviction rate in 10 years. Settlements increased by 5%, to the highest rate in five years. The impact was highest on expungements, which doubled. On the other end, fears of increased trial numbers and longer court calls didn’t come true. The number of trials as a proportion of cases declined and court call length increased by 10 minutes on average.

Anecdotally, the response has been positive. Judges report that tenants are more prepared for trial, with a better understanding of the process and when and how to raise their legal defenses. Landlords, too, see benefits from the changes. They have said they appreciate having financial services at the courthouse. Financial assistance staff will spend time with landlords and landlord attorneys, developing relationships with them that, Ebinger and Clysdale note, bear fruit outside of the courthouse as well. For example, one of the services reported an increase in inquiries from landlords before they file an eviction, wanting to know if their tenants are eligible for emergency assistance.

Ebinger and Clysdale outline six lessons learned from the program:

  • a collaborative attitude between partners is critical to success
  • small changes, such as a new check box on a settlement form, can provide big dividends
  • state law matters and can have its own impact regardless of changes made at the court level
  • financial service providers are better situated to solving emergencies than individuals left on their own to navigate social services
  • different circumstances require different interventions – some litigants will need legal assistance, some mediation and some financial assistance, thus each partner is necessary for the success of the program
  • as settlements increased, so did settlement failures (e.g., tenants failing to pay arrearages as agreed to in the settlement) – along with a higher rate of settlement agreements was a greater number of affidavits of non-compliance

This approach to eviction cases is similar to the one taken by many foreclosure courts in response to the housing crisis, in which homeowners are offered an array of services (albeit not at the same time and not all at the courthouse) to help guide them through the court process and stave off foreclosure if possible. Evaluation of those programs demonstrated their effectiveness. While the data looks promising for this program, it is still early and more can be learned. It would be wonderful to know more from the tenants about their experience with the process and whether they feel they are being well-served.

New to RSI’s Resource Center

Nicole Wilmet, July 31st, 2020

Did you know that RSI’s Resource Center is the most comprehensive and respected source of information on court ADR anywhere? Housed within the Resource Center is the Research Library which has an extensive annotated collection of court ADR resources such as articles, studies, court rules, statutes and court forms.

RSI’s Resource Center Director Nicole Wilmet regularly adds new resources to the Research Library. These are a few of the resources that have recently been added to the Research Library. 

We hope these resources are helpful to you in your work!


Have a question about these resources or RSI’s Resource Center? Contact RSI’s Resource Center Director

The Effect of Attendance on Litigant Perceptions of Fairness

Jennifer Shack, June 30th, 2020

Litigant attendance at a dispute resolution process impacts their assessment of the fairness of that process, according to research conducted by Donna Shestowsky. The impact of litigant attendance differs for settlement and adjudicative procedures. As she notes in her article, “Great Expectations? Comparing Litigants’ Attitudes Before and After Using Legal Procedures” (Law and Human Behavior, June 2020) [sub. req.], this has implications for how lawyers shape their clients’ perceptions of individual procedures. 

This is the fifth 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, discussed their lack of awareness of what options were available to them and noted that litigants were most likely to select a process based on their lawyer’s advice. The research is based on surveys of litigants in three jurisdictions (in California, Oregon and Utah), that offered both mediation and arbitration options to the surveyed litigants. 

For this aspect of the research, 335 litigants completed surveys soon after their case was filed and were interviewed within three weeks after their case ended. Among the questions asked at the outset of their case was how attractive different procedures were to them. These included all the options available to them for their case, which Shestowsky divided into settlement procedures (mediation and negotiation) and adjudicative procedures (trial and arbitration) when analyzing the results. After their case ended, they were asked how fair they thought the procedure was and whether they attended that procedure. 

Shestowsky found that when litigants attended a settlement procedure used to resolve their case, they rated that procedure as fairer than those litigants who attended an adjudicative procedure. However, when litigants did not attend the procedure used to resolve their case, they saw settlement and adjudicative procedures as similarly fair. When comparing attendance within procedures, she found that attendance did not affect fairness ratings for settlement procedures, but that those who attended an adjudicative procedure rated the procedure as less fair than those who did not attend the procedure.

Attendance also interacted with the litigants’ initial perceptions of the dispute resolution processes. Litigants who rated the procedure they used more negatively at the outset of their case saw that procedure as fairer if they attended the procedure than if they did not. On the other hand, Shestowsky found that those who were attracted to a procedure at the outset of their case rated that procedure as less fair if they attended the procedure than if they did not. For litigants who did not attend the procedure, their initial rating of the procedure did not affect their perception of its fairness at the end of the case. 

Shestowsky states that these findings raise questions about the role lawyers play in shaping their clients’ perceptions of individual procedures before they are used, as well as their perceptions after the case ends if their clients do not attend, particularly since litigants said their lawyer’s advice was the most important factor in their selection of the process. She notes that it is possible that some lawyers set up expectations in such a way that litigants who attend a dispute resolution process are let down by the reality of their experience. Alternatively, lawyers who discuss what happened in a procedure that their clients did not attend may paint a picture that is highly satisfactory to those clients. 

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.

Parents See Conflict Reduction and Relationship Benefits from Mediation in Massachusetts

Jennifer Shack, March 2nd, 2020

Custody and parenting time mediation in Massachusetts is providing parents with multiple benefits while facilitating agreements. The most recent evaluation of the Parent Mediation Program in four counties, published by the Massachusetts Office of Public Collaboration in 2019, found that 74% of mediations ended in an agreement. Additionally, parents reported multiple benefits beyond agreement, including a reduction in conflict, better conflict resolution skills, greater civility and better communication.

Services for the program are provided by community mediation centers, who conduct intake with the parents and are contracted to provide one session at no charge to the parents. If additional sessions are needed, the parents agree to pay the center on a sliding fee schedule. For the evaluation, mediators were asked to complete a report after each mediation session. Additionally, mediators asked parents to complete a survey after the last mediation session (150 parents across 80 cases did so) and center staff conducted phone interviews with 94 parents in 70 cases four to ten weeks after mediation ended.

During fiscal year 2019 (July 2018 – June 2019), 141 cases were referred to the centers. Almost 2/3 of these referrals were from the courts and the rest were from the community. During this same time period, 129 mediations were completed. In 74% of these, some form of agreement was reached: 30% full agreement, 34% partial agreement, 16% temporary agreement). In surveys, 93% of parents said they needed to devise a parenting plan, and 77% said that mediation either fully (43%) or partially (34%) helped them with that. In their reports, mediators indicated that mediation led to progress on the parenting plan in a similar percentage of cases, at 80%.

Parents and mediators were asked about other benefits experienced through mediation. In surveys, parents said that conflict between them and the other parent was diminished in about 2/3 of the mediations, an assessment with which mediators agreed – stating conflict was diminished in 69% of mediations. This benefit appeared to last for weeks after mediation for many parents, as 53% of those who were interviewed said that conflict continued to be reduced.

Similarly, more than 2/3 of surveyed parents reported greater civility between them and the other parent. Again, this benefit remained over time, with 50% saying that they and the other parent treated each other with greater civility. Most parents also said that their communication had improved, with 72% of those surveyed saying so and 54% of those interviewed weeks later agreeing.  It’s not surprising, then, that 70% of surveyed parents, and 54% of those who were interviewed, believed their skills for resolving conflict had improved.

While research has shown these benefits to be important for the emotional well-being of the children, this study points to another effect. Nearly half of surveyed parents said that less conflict with the other parent and 33% said better communication with the other parent would help them to financially support their children.

Reduced conflict and better communication did not necessarily lead to greater involvement with their children, however. Roughly half of those who were surveyed said that the other parent’s time with the children decreased and 20% said there was no difference. In interviews, parents continued to see little to no difference in the other parent’s involvement in their children’s lives. Nonetheless, 36% of custodial parents reported that the other parent’s involvement was greater than before.

The many benefits identified by parents were likely one reason they had a positive experience in mediation. Fully 97% said they would use mediation again and 99% would recommend it to others. Large majorities also thought the mediator was fair and unbiased (84%), listened well to their concerns (82%), identified relevant issues (80%) and helped generate ideas (78%).

The full study includes more background information on the level of conflict between the parents (29% had a high level), complications between the parents, demographics and the parents’ custodial status.