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Just Court ADR

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Illinois Attorney General Funding for Foreclosure Mediation Ends After Five Impactful Years

Just Court ADR, August 30th, 2018

On August 31, 2018, a five-year grant to develop, operate and evaluate foreclosure mediation pilot programs across Illinois will conclude. Funded by settlements obtained by the Office of Illinois Attorney General Lisa Madigan, this grant allowed Resolution Systems Institute and our partners statewide to assist over 1,000 homeowners in saving their homes and an additional 3,000 homeowners in sitting down with their lenders to get clarity about available options in addressing their foreclosures. We produced a comprehensive evaluation in 2015, and will be publishing a follow-up later this fall, which examine and contrast how different program models affect outcomes – making it a valuable resource not just for Illinoisans, but for ADR program administrators anywhere.

We are truly grateful to AG Madigan, our partners, stakeholders and the Illinois courts who made these outcomes possible.

AG Madigan speaking in 2014 as RSI Executive Director Susan Yates and Former Board President Hon. Morton Denlow (ret.) listen.

Follow RSI on Twitter

Just Court ADR, August 20th, 2018

RSI is on Twitter! You can now stay up-to-date with us and get the latest court ADR news and research in a new way. Same great content, now in 280 characters or less.

Not on Twitter? You can also connect with us on Facebook and LinkedIn.

The Role of Prejudice and Bias in ADR

Jennifer Shack, August 1st, 2018

How can mediation be saved? This is the question that Nancy Welsh attempts to answer in her recent article, “Do You Believe in Magic?: Self-Determination and Procedural Justice Meet Inequality in Court-Connected Mediation,” (SMU Law Review, Vol 70, 2017).Welsh laments the lack of self-determination in mediation and looks 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 take a slightly different tack in their article, “Does Alternative Dispute Resolution Facilitate Prejudice and Bias? We Still Don’t Know” (SMU Law Review, Vol 70, 2017). They look at empirical research on ADR to see if there is evidence that ADR does indeed facilitate bias and prejudice.

In her article, Welsh argues that the promise of mediation to ensure self-determination isn’t being upheld. Instead, she claims that self-determination has been sidelined by judges and lawyers, and calls for reform have fallen on deaf ears. So Welsh turns to procedural justice, which includes having voice, being heard, being treated in an even-handed manner and being treated with dignity, as another way of providing self-determination. If the elements of procedural justice are present, the parties are more likely to have self-determination because they can have an open discussion that leads to an outcome that truly represents the interests of all involved.

The provision of procedural justice, however, is not straightforward. Recent social science research has found that the provision of procedural justice can be impeded by inequality, bias and prejudice. First, one’s experience of procedural justice and how much it influences one’s view of the substantive outcome is affected by one’s status. Procedural justice is more important to those of lower status, who use it to determine if the outcome was fair. Second, one’s ability and desire to have voice is dependent upon one’s status. Third, those with lower status may not be heard by those with higher status. Indeed, research has found that those with higher status are less likely to hear those of lower status due to their prejudices and biases.

Welsh proposes a number of ways to address inequality, bias and prejudice, in the hope that mediation can live up to its promise of providing procedural justice, substantive justice and self-determination. These include: increasing the diversity of the mediator pool and training mediators to recognize and address implicit bias; utilizing pre-mediation caucusing to build trust; encouraging active listening in mediation; promoting the use of online tools for communication (as research has shown that people with lower status are more likely to exercise voice using online media); and empowering mediators to avoid unconscionably lopsided outcomes.

Where Welsh looks to social science research to inform how prejudice and bias may play out in the provision of procedural justice in mediation, Bachar and Hensler examine empirical research to find evidence of prejudice and bias in mediation and arbitration outcomes. They looked at 38 studies conducted over three decades that looked at a variety of case types. They found that the studies arrived at “mixed and contradictory” results and lacked methodological rigor. Therefore, they could draw no robust conclusions from them. However, they believed that the results of these studies indicate that both women and minority men fare worse in mediation than white men. There is no research on racial or ethnic bias in arbitration, but recent research points to women – both parties and lawyers – faring worse than men in the process.

Both articles point to a need for a greater focus on whether inequality, bias and prejudice impact the provision of justice through ADR, and how they may be addressed. This intersection of ADR and prejudice is examined in the two 2017 ADR Symposium issues of SMU Law Review, which are definitely worth the time to read.

Rhode Island Passes Legislation to Extend Foreclosure Mediation

Nicole Wilmet, July 31st, 2018

In May, I reported that the Rhode Island foreclosure mediation program was in jeopardy of ending on July 1, 2018 without legislative intervention. In June, the Rhode Island legislature intervened to extend the state’s Foreclosure Mediation Act.

Enacted in 2013, the Rhode Island’s Foreclosure Mediation Act grants homeowners who face foreclosure the opportunity to meet with their lender and an independent mediator to try to work out a solution to avoid foreclosure. According to the Providence Journal, since 2013 the Foreclosure Mediation Act has helped 679 families stay in their homes. As I reported in May, the House and Senate sponsored two different versions of the bill with the Senate version extending the sunset provision to July 1, 2023 and the House version repealing the sunset provision entirely. In May, the Senate voted and passed their version of the bill while the House Judiciary Committee recommended that their version of the bill be held for further study.

On June 28, 2018, Rhode Island Governor Gina Raimondo signed the Senate version of the bill into law. Under the new law, the Foreclosure Mediation Act’s sunset provision has been extended to July 1, 2023.

Support RSI Through AmazonSmile This Prime Day

Just Court ADR, July 16th, 2018

Today is Amazon Prime Day! Are you participating? If so, you can support RSI through AmazonSmile!

When you support RSI on AmazonSmile, Amazon will donate 0.5% of the price of your eligible AmazonSmile purchase to RSI! You can register to support RSI through AmazonSmile here.

We appreciate and thank you for your support!