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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.

Can Judges Provide Access to Justice Through Settlement Conferences?

Jennifer Shack, April 30th, 2019

This following isn’t new research (it was published in 2016), but it does present a framework for examining access to justice in ADR processes.

In research he conducted in Quebec, Jean-Francois Roberge found that judicial settlement conferences offer parties a sense of access to justice (SAJ). He also determined that particular factors were linked to parties having a more positive perspective of the process. These included judge behaviors and process characteristics. He discusses this research in “’Sense of Access to Justice’ as a Framework for Civil Procedure Justice Reform: An Empirical Assessment of Judicial Settlement Conferences in Quebec (Canada),” (Cardozo Journal of Conflict Resolution, 2016).

Roberge had two objectives for his research. The first objective was to assess parties’ perceptions of the quality and value of the settlement conference. The second research objective was to identify the factors that had a determining influence over the degree of SAJ the users had.

Background

To explore the capacity of settlement conferences on participant sense of access to justice, Roberge developed a “Sense of Access-to-Justice Index,” which is based on the Hague Model Measuring Access to Justice, but tailored to settlement conferences. The SAJ Index contains what Roberge calls the three pillars of SAJ:

  • The user’s feeling of fairness of outcome and process
  • The user’s feeling of usefulness of the process (particularly cost-effectiveness)
  • The user’s sense that professional support was available from the judge-mediator

Each of these is made up of subcomponents. The user’s feeling of fairness of outcome and process is based on the quality of the outcome and quality of the process.  The quality of the outcome is based on four types of fairness:

  • Distributive fairness –does the outcome match the parties’ capacity, limits and needs?
  • Reparative fairness – does the outcome compensate for loss (both financial and non-financial)?
  • Functional fairness – does the outcome resolve the problem?
  • Transparent fairness – is the outcome substantiated and comparable to outcomes in similar situations?

The quality of the process is based on:

  • Fairness of process – decision-making process is coherent and impartial and allows the parties to be heard, considered and involved
  • Informational treatment – transparent communications lead to an enlightened decision
  • Interactional treatment – sincere communications respect the parties’ status and dignity

Usefulness of the process is focused on different types of cost:

  • Financial costs
  • Psychological and emotional costs (stress, negative feelings)
  • Opportunity costs (especially to business and reputation)

The feeling of professional support depends upon three approaches judges use to help parties obtain justice and the presence of participatory justice:

  • Risk manager – the judge assesses the strengths and weaknesses of each party’s case
  • Problem-solver – the judge identifies the needs and interests of parties
  • Justice facilitator – the judge develops a relationship of cooperation and trust between the parties

Participatory justice is the involvement of the parties in the “process to define and settle their dispute in a way that generates a feeling of justice for them. Collaboration, respect, proactiveness, and creativity are all statistically significantly correlated with the concept of participatory justice.” (p. 346)

The Study

The judges who conducted the settlement conference had been trained in facilitative mediation and integrative problem-solving. Questionnaires were distributed to parties and lawyers directly after the settlement conference. The questionnaires consisted of 67 items that explored the parties’ and lawyers’ SAJ, utilizing the theoretical framework discussed above. They were completed by 380 parties and 360 lawyers.

Findings

SAJ Score

Roberge developed a 100-point scale for each of the three areas of SAJ (the participants’ feelings of fairness, usefulness and professional support). The aggregated SAJ score for all respondents was 83 (averaged across the three areas), with usefulness (89) and support (88) being higher than fairness (71). Parties on average scored their experience lower than lawyers, particularly in terms of fairness. Parties scored a 65 on fairness, while lawyers scored a 77.

There were discrepancies between other groups in the survey as well.  Defendants were significantly more positive than plaintiffs. Those who reached agreement were  more positive in their ratings than those who did not. There was also a significant difference in assessment based on costs. The higher the costs incurred, the lower the assessment. Further, those who lost more than $10,000 in opportunity costs or spent more than 100 hours resolving the problem gave lower assessments of the process.

Factors Influencing SAJ

Roberge also looked at which factors influenced different aspects of SAJ, based on the participants’ answers to the 67 items on the questionnaire. The factors listed below are verbatim and were presented in the article without explanation. I tried to glean what they each mean from elsewhere in the article, which proved difficult. Any wording in parentheses is my understanding of what those items mean based on Roberge’s discussion of the factors.

The following had the most influence on the participants’ feelings of fairness, listed by order of how much influence each had:

  • Active judge for a fair solution for the parties (judge who helps the parties find a solution that appears to them to be fair and adapted to their needs)
  • Facilitative judge towards a sense of justice
  • Communication that allows to create trust (communication process that creates trust)
  • Unbiased process in favor of a party
  • Judge listens to needs and interests of the parties
  • Communication that allows justification
  • Process compliant to ethical norms
  • Active judge for a solution based on needs

Factors influencing participants’ sense of usefulness:

  • Communication that allows to create trust (communication process that creates trust)
  • Negotiated solution less risky than trial
  • Process that allows involvement of the parties
  • Negotiated solution faster than trial
  • Process that allows consideration of the parties
  • Communication that allows justification

Factors influencing participants’ sense of professional support:

  • Active judge for a fair solution for the parties (judge who helps the parties find a solution that appears to them to be fair and adapted to their needs)
  • Judge listens to needs and interests of the parties
  • Facilitative judge towards a sense of justice
  • Judge looks for a solution based on needs
  • Process compliant with ethical norms
  • Judge listens to legal positions

Conclusion

While the article is somewhat frustrating in that Roberge never fully describes the factors influencing participant perspectives on their experience in the settlement conference and doesn’t provide a list of the questionnaire items used to develop the factors, it is an interesting take on measuring access to justice for a legal process. It is more common, at least in the US, to break down his determinants of a sense of access to justice into individual elements: access to justice, cost and procedural justice. Pulling them all together creates a more global conception of access to justice, one in which justice is not accessed unless the process provides procedural justice and limits psychological and emotional costs.

Ohio Civil Stalking Mediation Pilot Shows Promise for the Future

Jennifer Shack, February 28th, 2019

In recent years, the Courts of Common Pleas around Ohio have been experiencing a sharp increase in civil stalking petition filings. In response, the Supreme Court Commission on Dispute Resolution decided to start a pilot mediation program for ten jurisdictions. The 18-month pilot ended in December. I was privileged to be asked to assess the pilot program so that the Commission on Dispute Resolution could make an informed decision about whether to continue the program and expand it statewide. Though data collection proved problematic, there was enough information to determine that mediation could be useful and safe for these cases, and that referral to mediation can significantly increase the number of settlements and decrease the number of full hearings held.

Civil stalking cases generally involve a pattern of behavior that isn’t serious enough to be criminal. The vast majority of cases involve people with a current or past relationship of some sort. In the Ohio pilot, almost half of the cases in which the relationship between the parties was reported, involved neighbors. Others were co-workers, former in-laws and ex-romantic partners.

Mediation in the Ohio pilot was voluntary, with referral generally occurring when the parties arrived for the full hearing. The counties differ as to who conducts the mediations, with some referring cases to independent mediators and some being mediated by a judge not associated with the case. For all cases, mediation is conducted in a shuttle format, with the petitioner and respondent in different rooms.

The reported number of mediations for the ten pilot programs ranged from 0 to 14, for a total of 52 mediations combined. The agreement rate for the 52 cases was 71%. Agreements tended to call for there to be no contact between the parties, with 12 of 15 containing only terms that were meant to keep the parties apart. Three, which involved neighbors, attempted to address the underlying causes of the conflict between the parties. They included terms such as keeping pets from the other party’s property, keeping common areas clean and removing lighting that encroached on the other party’s property.

While no contact agreements may be sufficient for cases involving ex-romantic partners or former in-laws, for those parties who are neighbors, it can be more challenging. For them, creative terms that address the underlying causes of conflict may be more effective in keeping those parties from later returning to court. I therefore recommended that future mediator training include methods for identifying underlying causes of conflict and helping parties to devise creative agreement terms that can address those causes.

Few parties completed surveys. Of the 10 parties who did, most were pleased with their experience and would recommend it to others. Most felt they had input into the outcome and all felt they had the opportunity to talk about most or all of their issues and concerns. In comments, the parties said mediation helped them by giving them voice and by allowing them to resolve their conflict without going to court. One surveyed party, who wanted a protection order, thought the mediation was a waste of time.

Three limited issues were also identified. A few ineligible cases were referred to mediation in one county. Of the ten parties surveyed in other counties, three believed that their mediation agreement was enforceable in court when it was not. Further, two of five parties who were asked whether they felt they could choose whether or not to mediate responded only “somewhat,” indicating that they didn’t have complete self-determination. These parties had been told of the opportunity to mediate by the judge hearing their case, and one indicated it was for this reason that she felt a little pressured to mediate.

In one county, enough information was provided to determine what effect mediation had overall. As cases were referred to mediation when they arrive for the full hearing, we can assume that without referral to mediation, those 44 cases in which the parties arrived at the full hearing would not have settled and would have proceeded to a full hearing. As 19 of the 44 cases were referred to mediation, and only two of those continued to a full hearing, mediation referral had the effect of reducing the number of full hearings from 44 to 27, or by 38%. Further, 11 of the cases referred to mediation resulted in an agreement. With 12 cases settling prior to the full hearing, this means that referral to mediation almost doubled the number of settlements to 23.

The data from the above county indicates that mediation of civil stalking cases can have an impact similar to that of mediation for other types of cases, with about 20% of cases filed being referred to mediation and 11% being settled through the process. It can also safely address the needs of the parties – to have voice and to avoid court. When implementing this type of program, courts should be aware of possible pitfalls, including party misunderstanding of agreement enforceability and the impact of judge referral on parties’ belief that they can choose to mediate.

40 Years of Victim-Offender Mediation Research: Benefits to Victims, Offenders, Courts and Community

Jennifer Shack, January 28th, 2019

Forty years of research into victim-offender mediation (“VOM”) have found that the process provides a number of benefits to victims, offenders, courts and the community, according to Toran Hansen and Mark Umbreit. Their article, “State of knowledge: Four decades of victim-offender mediation research and practice: The evidence” (Conflict Resolution Quarterly, Fall 2018), discusses the research conducted since the first victim-offender mediation program was established in 1974 and points to research that now needs to be done.

Studies cited by Hansen and Umbreit found that victims who participate in VOM as compared to those who went through the traditional litigation process received more restitution, had less fear of re-victimization and were less likely to remain upset after the process. Other research found that participation in VOM led victims to feel empowered and to have a more humanized view of the offender.

A high percentage of victims were satisfied with their experience with VOM and the outcome. A few studies also looked at what led victims to like or dislike VOM. In one study, satisfaction was linked to three variables: whether the victim felt good about the mediator, whether the victim saw the restitution agreement as fair, and whether the victim had a strong desire pre-mediation to meet with the offender.

Another study found that victims were disappointed with their experience if they received an insincere apology from the offender, felt pressure to accept an apology or agreement, had their emotions stifled by the mediator, felt rushed into an agreement by the process or were not adequately prepared for the process. Hansen and Umbreit noted that these could be ameliorated by proper in-person preparation of the victim and offender, a non-directive mediation style, taking time to discuss difficult topics and process emotions and being sensitive to how victims experience the mediation so that they don’t feel revictimized by the process.

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 , being able to deal with their feelings and seeing victims change their feelings toward them, feeling empowered, and avoiding jail or court. Additionally, according to some studies, offenders found VOM to be a more satisfying and fairer than the traditional process.

However, not all the findings were positive. Offenders didn’t always know the process was voluntary and didn’t always understand the mediation process. Some felt pressured to approve an agreement they didn’t agree with and they sometimes felt that victims dominated the conversation. Again, the authors provided ways to address these issues. The mediators should pay attention to power dynamics and speech patterns during mediation. They should ensure that the needs of both the victim and offender are discussed in mediation, and make sure that all participants are aware that final agreements are made by consensus.

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 the traditional court process. 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.

Hansen and Umbreit end by calling for a new generation of research. Older research needs to be replicated and new research is needed to better understand the effects of VOM by race/ethnicity and age, as well as the circumstances under which it works best.

The Research Year in Review

Jennifer Shack, December 20th, 2018

Over the past year, I presented you with new research (and a little old research) that covered three broad areas: evaluations of ADR programs, evaluation of the efficacy of particular ADR processes, and research about particular aspects of ADR that can inform our practice.

Program Evaluations

Shamelessly, I promoted evaluations I completed in Washington, DC and Illinois. In Washington, DC, I found that early mandatory child protection mediation led to a much greater probability that parents would agree to stipulate to the facts of the case, thus precluding the need for a trial. Parents were also likely to be more compliant with services (such as parenting class or addiction therapy) and visitation requirements. Parents who participated left with a greater understanding of their responsibilities in the case and the points of view of the others at the table. Most also felt mediation was helpful to them.

In Illinois, we learned that program design was an important factor in how much impact a foreclosure mediation program had on homeowners facing foreclosure. Those programs in which the homeowners were given a date and time to arrive for their first pre-mediation session led to higher participation rates and to a higher proportion of homeowners facing foreclosure saving their homes. Across all programs, homeowners left their first pre-mediation session with a better understanding of the foreclosure process and felt they were treated with the dignity that the courts were wanting for them.

I also told you about the results of a study of Michigan’s civil case evaluation and mediation programs. It found that, with the exception of tort cases, cases using case evaluation and mediation were more likely to result in settlement than those that went through the traditional court process. Nonetheless, judges and attorneys who were surveyed were less enthusiastic about case evaluation than those surveyed in 2011 had been, indicating that they had less faith in the effectiveness of the process. This was not the case with mediation, for which their high opinion remained steady.

Research on Processes

In 2018, we learned that research on teen courts needs to be improved if we are to learn if it is effective. We also learned that parenting coordination shows promise for reducing post-decree court activity.

A round-up of 35 studies on teen courts that started as an attempt to understand what program characteristics were most effective ended as a plea for more uniformity in how teen court programs are studied. They found that not only do differences among programs make it difficult to understand program effectiveness, but that the methodology and definitions used in the studies themselves make it impossible to draw conclusions.

A review of 13 studies of parenting coordination found that the process shows promise for reducing post-decree court activity for divorce cases involving high-conflict families. The authors, however, noted that the studies suffered from small samples, limited generalizability and weak methodologies. They pointed to the need for better research and the development of an underlying theory of parenting coordination in order to not only better understand the effect of the process, but also to standardize its practice.

Research on Aspects of ADR

Recent research looked at prejudice and bias in mediation, and what influences litigants’ decisions regarding what dispute resolution process to use.

Prejudice and bias were the subject of a 2017 issue of SMU Law Review. Nancy Welsh lamented the lack of self-determination in mediation and looked at social science research to question whether mediation really provides procedural justice in a world of inequality, bias and prejudice. Gilat J. Bachar and Deborah R. Hensler took a slightly different tack in their article. They looked at empirical research on ADR and determined that this research indicates that both women and minority men fare worse in mediation than white men.

Donna Shestowsky continued her research into how litigants end up using a particular process to resolve their disputes. This time, she let us know that litigants are most likely to rely on their attorney when deciding on which process to use. This has important implications for lawyers and litigants, as lawyers don’t always understand their clients’ interests.

I’m looking forward to sharing more research with you in 2019. Happy Holidays, everyone!