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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!

Introducing the Community Mediation Special Topic

Nicole Wilmet, October 26th, 2018

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

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

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

Top Criteria for Litigant Selection of Dispute Resolution Process

Jennifer Shack, September 28th, 2018

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

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

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

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

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