Just Court ADR http://blog.aboutrsi.org The blog of Resolution Systems Institute Mon, 18 Jul 2016 21:30:14 +0000 en-US hourly 1 Tough Love http://blog.aboutrsi.org/2016/research/tough-love/ http://blog.aboutrsi.org/2016/research/tough-love/#respond Mon, 18 Jul 2016 20:55:56 +0000 http://blog.aboutrsi.org/?p=1679 A recent study out of Columbia University suggests that nice mediators finish last. Inspired by the familiar trope of bickering siblings setting aside their differences to unite against a stern parent, researcher Ting Zhang created simulations in which student participants attempted to reach resolution using text-based chatrooms. Zhang added a further twist to the experiment by introducing computerized participants and/or mediators in some of the sessions (though all participants were told they were interacting with other humans). The participating students were randomly assigned a hostile mediator, a neutral mediator or a nice mediator. Across all of these different scenarios, however, the data showed that agreement was more likely when the participants teamed up against a hostile mediator, and that the quality of the agreements reached was similar to those reached with a nice mediator.

As Professor Jeanne Brett points out in a Scientific American article about the study, the simulated nature of this study prevents it from capturing the true emotional investment the parties make when heading into a mediation session, and therefore, these results should be taken with a grain of salt. Further, Zhang and her co-researchers themselves stipulated that the study was limited in its ability to conclude exactly what “mean” behaviors were more effective than others, as well as how the degree of hostility affected the participants. The context is limited as well. The students were able to negotiate separately from the mediator, something that is not done in a traditional mediation setting. Further, the students did not have a relationship with one another and would not have one in the future. As previous researchers have discovered, context matters.

In considering this research, we should also be cognizant of outcomes. The Zhang study looked only at probability of agreement and the content of those agreements. Other outcomes, which may be negatively affected by hostile mediator strategies, can have a more lasting effect on the parties. In a study of small civil claims in Maryland, mediators who used strategies that may be considered to be “nice,” such as reflecting the parties’ interests and emotions, were more likely to leave the parties with an increase in self-efficacy and their sense that the court cares about them. Conversely, mediations involving neutrals who used strategies that were more directive (though not necessarily hostile) — like offering opinions or advocating for their own solutions — resulted in parties being less satisfied, and less likely to say the outcome was working or that they changed their approach to conflict.

From our perspective as court-connected dispute system designers, we should think about how mediator hostility might have a negative impact on traditionally underserved participants. A recent survey conducted by the National Center for State Courts found, among other things, that people both prefer ADR to the court system, and perceive that people of color and disadvantaged socioeconomic backgrounds face worse outcomes in the traditional court system and within the justice system as a whole. While the use of more stern mediation skills might offer neutrals an effective tool in working with the parties in certain limited situations, I think it’s important to balance that against the broader consequences of how such behavior could work to deny these disputants meaningful access to justice.

Many parties are drawn to mediation as a facilitative and collaborative alternative to the more rigid and top-down venue of traditional litigation. Part of this preference, especially for people of color, can stem from a distrust of and disconnect from authority. If mediators start adopting hostile behaviors, they risk coming off as overly authoritative and paternalistic, alienating those people who look to ADR as an oasis of justice in a desert where they traditionally have been deprived. While I think this research is fascinating and hope it inspires further experimentation with new techniques, I also believe that we should consider the big-picture consequences before tough love becomes a part of the court-connected mediator’s repertoire.

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Maryland Research Offers Insight into What Works (And What Doesn’t) in the Mediation Room http://blog.aboutrsi.org/2016/program-evaluation/maryland-research-offers-insight-into-what-works-and-what-doesnt-in-the-mediation-room/ http://blog.aboutrsi.org/2016/program-evaluation/maryland-research-offers-insight-into-what-works-and-what-doesnt-in-the-mediation-room/#comments Wed, 29 Jun 2016 18:08:41 +0000 http://blog.aboutrsi.org/?p=1670 I had the honor of presenting at the Maryland Judiciary’s ADR Research Symposium a couple of weeks ago. The purpose of the symposium was to inform judges and court personnel of the results of a six-year research project examining ADR programs and processes. It reminded me of just how well Maryland has planned and implemented its ADR system. Because it serves as a model, I’d like to provide a little background about this before discussing the research.

Maryland has done a number of things right: it got people from around the state on board with ADR early on and brought in experts to help figure out the best way to approach program development; created a statewide ADR organization (MACRO); provided continuous funding for programs and MACRO; and funded research to both assess the impact of the ADR programs and determine what works best. When the judiciary decided to institute ADR statewide, it funded and worked with MACRO, which provided grants and technical support to courts (and other organizations) to develop new programs. MACRO began the process with a workshop that brought together experts from around the country and Maryland court personnel to discuss best practices for developing and implementing programs.

Since then, the judiciary has continued to fund ADR, which led it to request that the financial outlays be justified through research on the impact of ADR. After obtaining a grant to help fund the research, Maryland developed what is undeniably the most ambitious research project for ADR ever undertaken. They brought in experts to help plan and design the research. And once the research was completed, those involved in the research presented the findings and engaged the judiciary in how best to move forward with the findings.

All of this shows just how much can be accomplished with court ADR when good planning and administration, strong judicial support and proper funding converge.

The Research

Maryland researched five areas of ADR: family, day of trial (small claims), civil, criminal, and collaborative law. As the civil and criminal research has yet to be published, I’m going to be discussing the research into “what works” in family and day of trial mediation, the two areas for which this was studied. Two main themes emerged from this research:

  1. Greater use of caucus leads to poorer outcomes overall.
  2. The greater use of reflecting and eliciting strategies generally led to positive outcomes, while the greater use of directive or offering/telling strategies generally led to negative outcomes.


In both family and day of trial programs, researchers observed mediations and coded both mediator and participant statements and actions. This included time spent in caucus as compared to joint session. In both programs, greater percentage of time spent in caucus had a negative impact on the participants. In family cases, when mediators spent relatively more time in caucus, the participants were more likely to say that the mediators respected them and did not take sides. However, they also felt more hopeless about their situation and were less likely to believe they could work with the other parent.

In day of trial cases, the greater the percentage of time spent in caucus led to a number negative outcomes: participants were more likely to say that the mediator controlled the outcome and pressured them into solutions. Greater use of caucus also increased the participants’ sense of powerlessness and lowered their satisfaction with the process and outcome. Longer-term outcomes were also negative. Participants in mediations with relatively greater time spent in caucus were less likely to report self-efficacy (they believe they could make a difference) and to say that the court cares about resolving conflict. They were also more likely to return to court in the next 12 months for an enforcement action.

The research controlled for other possible causes for the outcomes, including participant behaviors. However, it did not explore what happened in caucus as opposed to joint sessions. It therefore could be how caucus was conducted rather than the fact of caucus itself that led to the outcomes.

Mediator Strategies

The effect of particular mediator strategies was examined for family and day of trial cases. To define the strategies, the researchers conducted factor analysis to group particular mediator behaviors according to how often they occur together. They arrived at four strategies:

  • Reflecting – reflecting emotions and interests; family also includes clarifying topics, reflecting what participants say, open-ended questions
  • Eliciting – asking participants to suggest solutions and summarizing solutions that have been offered
  • Offering/telling – offering opinions, advocating for their own solutions (day of trial), offering legal analysis, introducing topics (family)
  • Directing (family only) – introducing and enforcing guidelines, explaining one participant to another, advocating for one participant’s ideas

It appears from the findings that the most beneficial strategies are reflecting and eliciting, while directive and offering/telling strategies are more detrimental than helpful, at least when used relatively more than the other strategies. Reflecting strategies in family mediations, for example, led parents to become more able to work together and to believe the other parent listened and understood. In day of trial mediations, reflecting strategies led to a greater sense of self-efficacy and a belief that the other person took responsibility. Reflecting strategies in both settings, however, lowered the probability of settlement. Eliciting strategies, on the other hand, increased the probability of settlement and had similar effects on the participants as reflecting strategies.

Offering/telling and directing strategies were not related to any positive outcomes. For day of trial mediations, offering/telling was related to a decline in the belief that the outcome was working and to decreased satisfaction with the outcome. Participants were also less likely to report that they changed their approach to conflict. Directing strategies in family mediation led parents to be less likely to say the mediator listened to them and respected them. Further, they made parents more likely to return to court.

Concluding Thoughts

The Maryland research is providing long-sought insight into the black box that is mediation. Most of the previous observational research about what happens in mediation suffers from methodological problems or examines and/or only links behaviors to the probability of settlement. That being said, there still is need for more research. The effect of caucus in civil cases is still unknown. And it would be beneficial to understand what differences exist between mediations in which parties are represented as compared to those in which they are not. On the second day of the symposium, one of the sessions was to ask what else could be done with the research that has already been done. Hopefully, further analysis will provide us with even more insight.

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Lessons Learned from Foreclosure Mediation http://blog.aboutrsi.org/2016/uncategorized/lessons-learned-from-foreclosure-mediation/ http://blog.aboutrsi.org/2016/uncategorized/lessons-learned-from-foreclosure-mediation/#comments Tue, 14 Jun 2016 16:50:33 +0000 http://blog.aboutrsi.org/?p=1655 It is heartening to see that titles of two recent publications include the phrase “lessons learned” as they explore Illinois’ experience with foreclosure mediation. That phrase reflects Resolution Systems Institute’s perspective that we should consistently seek the lessons from current mediation programs to apply to the next ones to be developed. Not surprisingly, RSI staff wrote one of these articles!

These pieces – the one by RSI and the other by the Woodstock Institute – outline four and twelve “lessons learned” respectively. The publications are:

The Woodstock study looks at the experience in Cook County – the densely-populated northern Illinois county that includes Chicago. RSI’s article draws on our experience with, and evaluation of, six foreclosure mediation programs in Illinois, three of which we operate. These programs are scattered throughout the state and serve counties that are a combination of rural, suburban and small city populations.

The goals of the publications are somewhat similar. RSI’s article offers recommendations on how the growing problem of student loan debt might be addressed by extrapolating from our foreclosure mediation experience and evaluation. The Woodstock study extrapolates from the Cook County experience to suggest how any future crisis confronting the courts might be addressed.

It is especially interesting to see where the lists of lessons converge and diverge. Some of the convergence may be because RSI and the Woodstock Institute share a love of data. In fact, Woodstock has provided RSI with data that has helped us to tailor outreach efforts and service sites to the areas hardest hit by foreclosure. On the other hand, differences between the two organization’s missions may explain some of the difference in emphasis in the lessons learned. The mission of the Woodstock Institute (WI) is to “create a just financial system in which lower-wealth persons and communities and people and communities of color can achieve economic security and community prosperity.” The mission of Resolution Systems Institute is to “strengthen access to justice by enhancing court alternative dispute resolution.” Indeed, if you read the full text of the publications, you will see that the details of the lessons may diverge even more than the summary lesson statements indicate.

Similar Lessons

Some of the lessons learned align between the organizations, and these are shared below. The focus of our article was purely on what we learned from administering and evaluating these programs, while Woodstock’s focus was on administration as well as some suggestions about program design. We are therefore limiting this discussion to lessons about program administration, but you can be sure that we will have much to say on the topic of program design in the future.

RSI Lessons

Woodstock Lessons


  • Make entry to programs as easy as possible.
  • Making access to services convenient for people who need them is key.


  • Provide self-represented borrowers with outside help in navigating complicated debt issues.
  • Helping people who are not familiar with a large bureaucracy navigate their way through the system may be important to make sure they stay on track.


  • Continuously evaluate how well cases are moving forward.
  • Establishing a comprehensive, fully-integrated quality control system is essential.
  • Trying something, a pilot program, and being prepared to adapt if it does not work as imagined, is a good first step.
  • Seeking additional input and changing the response is likely to be necessary.

Continual Monitoring

  • Monitor your program.
  • Defining general goals is not enough; the response needs clearly articulated goals and a clear set of components or processes to reach those goals.
  • Tracking progress helps keep the response functioning within the parameters necessary to be effective and to demonstrate the level of output.


Sadly, RSI’s home state of Illinois continues to struggle with one of the highest foreclosure rates in the country. Nonetheless, it’s a good sign when two Illinois institutions spend the time and expertise to reflect on our experience in foreclosure mediation and think ahead about how to respond to the next crisis that overwhelms our court system. Considering lessons learned from different perspectives will help us be better prepared to address the next crisis that affects our economy and society.


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Child Protection Perspectives: Initiating the Conversation http://blog.aboutrsi.org/2016/program-design/child-protection-perspectives-initiating-the-conversation/ http://blog.aboutrsi.org/2016/program-design/child-protection-perspectives-initiating-the-conversation/#respond Fri, 15 Apr 2016 14:25:34 +0000 http://blog.aboutrsi.org/?p=1645 As April is National Child Abuse Prevention Month, we at RSI wanted to shine some attention on the work we are doing related to the development of the new Child Protection Mediation Program in the Sixteenth Judicial Circuit Court of Kane County, Illinois, as well as the other work RSI has done in using court ADR as a tool to address the issues of child abuse and neglect.

While our work at RSI is often about data, when it comes to child protection (a term which is meant to capture the broad array of cases in which children have been removed from their homes due to abuse and neglect), it is hard not to talk about the personal element.  Prior to joining RSI, much of my work had been as an advocate at the intersections of special education, juvenile justice and the child welfare and foster systems. These seemingly independent worlds actually collide frequently, and illustrate some of the many complexities involved in handling cases of child abuse and neglect. When I worked as an intern in the Legal Aid Society’s Juvenile Rights Practice, we were brought in to represent children in criminal matters, but to fully address their needs we had to triage and advocate for them with regards to their educational issues and home situations. When you factor in families whose primary language is not English and/or whose culture differs from American norms, you can really appreciate the juggling that family court judges have to do to accommodate all the interests before them.

You can also understand why the judges in Kane County, site of one of our three foreclosure mediation programs, asked for our assistance in creating a program to facilitate the complicated conversations needed to give these kids a real shot at a stable, loving home. In 2014, the last year for which data is available, there were some 4,200 allegations of abuse and/or neglect, over 1,000 of which were substantiated. Not all of those cases will come before the court, but many will, and when you multiply that number by the number of issues to be resolved in each one, the need for an open, collaborative forum to address these cases becomes clear.

As RSI’s Resource Center Director, my work is focused on making the court ADR research we and others have developed accessible to others. My goal is to make sure that every court ADR program administrator, judge and stakeholder has the information they need to ensure their program is maximizing its potential to provide access to justice. To be sure, it’s a step removed from the work of my colleague Hanna Kaufman, Director of ADR Programs, or our Kane County courthouse-based Program Manager, Kevin Malone, both of whom are firmly in the trenches (they’ll be writing a post later this month with their perspectives). However, my role as RSI’s “information liaison” allows me to empower courts to address some of our justice system’s biggest problems, and I can think of no more worthwhile problem to address than improving the outcomes of our most vulnerable children.

I am really looking forward to seeing what RSI, the 16th Judicial Circuit Court of Kane County and our other partners can do with this program. One example of the fruits of our work in this field is our 2010 evaluation of Cook County’s Child Protection Mediation Program; we hope that our work in Kane County will similarly enable us to share the insights we gain from administering and monitoring the program with other courts running or trying to develop these types of programs. Additionally, our CourtADR.org Research Library contains many items in this arena, and we expect it to add many more as we further hone our expertise on the subject.

If you are part of a court-connected child protection mediation program, I’d love to hear from you. Just as these programs facilitate the conversations that help repair relationships and prevent further abuse or neglect, I hope that RSI’s outreach will facilitate the conversations that strengthen child protection mediation programs nationwide.

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Model Mediation Surveys Are Now Available http://blog.aboutrsi.org/2016/program-evaluation/model-mediation-surveys-are-now-available/ http://blog.aboutrsi.org/2016/program-evaluation/model-mediation-surveys-are-now-available/#comments Wed, 06 Apr 2016 18:58:21 +0000 http://blog.aboutrsi.org/?p=1641 I’m so happy to introduce the Model Surveys, a toolkit that enables court-connected mediation programs to obtain reliable data. The toolkit includes post-mediation surveys for parties, attorneys and mediators, as well as a mediator report. The surveys are all annotated, with explanations for the rationale for each question and discussion of the wording. The toolkit is rounded out with advice on how to use and modify the surveys.

The whole idea behind the project is that courts and their associated programs often don’t have the necessary resources to obtain good information about program functioning. In RSI’s experience, the courts’ biggest need was for well-designed participant surveys and set out to develop them in collaboration with the ABA Section of Dispute Resolution and with the help of a fantastic group of nationally-known experts in ADR research and program administration.

Participant surveys are essential for obtaining information not only about participant experience, but about mediator quality as well. Unfortunately, it’s not easy to design them correctly. They are deceptively complex to create. There’s a science to them, and if you don’t know the science, you’re not going to write the types of questions that let you obtain good information from them. You need to write clear, unambiguous questions that respondents have the ability to answer. Time and again, we had seen surveys that failed on one or more of these factors.

That’s where the Model Surveys Committee stepped in. Our group worked out every question based on years of experience designing surveys. We then sent the surveys for comment from other experts, and then tested them in the field. The process led us to include some new questions not used before in post-mediation surveys and to omit ones that are commonly used. We found, for example, that the commonly used question, “Was the outcome of the mediation fair?” was not a good question – for a very surprising reason. Some had thought it might not provide any information because no one would sign an agreement they didn’t think was fair. We discovered instead that people who said the outcome wasn’t fair weren’t upset by this; they saw the outcome as the best they could get and were satisfied with it. Therefore, the question wasn’t providing us the information we were seeking and we deleted it.

Although we developed surveys with large civil cases in mind, I’ve worked with several programs to adapt the surveys for other types of cases. In Illinois, they are currently used for foreclosure and family cases, and they will soon be used for family cases in Nevada. Their use is helping to address incipient problems. For example, in one program, survey responses indicated there were issues with neutrality, leading the program to discuss this problem with the mediators. I encourage you to check out the surveys and to reach out to RSI for help in adapting them.

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