Just Court ADR http://blog.aboutrsi.org The blog of Resolution Systems Institute Fri, 15 Apr 2016 16:49:38 +0000 en-US hourly 1 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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Designing Access Part Two: “Dynamic Triage” in RSI’s Foreclosure Mediation Program in Rockford, Illinois http://blog.aboutrsi.org/2016/program-evaluation/designing-access-part-two-dynamic-triage-in-rsis-foreclosure-mediation-program-in-rockford-illinois/ http://blog.aboutrsi.org/2016/program-evaluation/designing-access-part-two-dynamic-triage-in-rsis-foreclosure-mediation-program-in-rockford-illinois/#respond Tue, 15 Mar 2016 17:58:07 +0000 http://blog.aboutrsi.org/?p=1637 Welcome back to my series of blog posts showcasing how RSI uses our expertise in dispute system design to improve access to justice in the three foreclosure mediation programs we administer. If you’re wondering how this series came to be, check out my introduction to the series. In my previous entry, I discussed how we at RSI leveraged the data we collected to improve participation in our foreclosure mediation program in the 19th Circuit Court of Lake County, Illinois. By looking at “apples-to-apples” comparison of data among six programs in Illinois, we saw participation went up when judges referred people to the program, and when we only required people to complete a phone screening rather than an in-person information session. The 19th Circuit made these changes, and while it has only been a couple of months since that happened, we are already starting to see more people being able to access the program.

Building off that previous discussion about using data to drive program improvements, my focus in this entry is a different tool in the program administration toolbox: thoughtful, dynamic triage. In our early conversations about ADR and ATJ, Richard Zorza encouraged me to explore the question of triage, which he framed by asking “[h]ow do we develop legitimate and accurate protocols to decide where and how ADR fits into the dispute resolution process?  There will be types of cases in which it is appropriate for all cases, others for none, and others for some.  Developing those rules, testing them, and figuring out how to collect the data and apply them as early as possible in the process is critical.” He reiterated the importance of testing the rules a court system develops for determining which cases are ripe for ADR by speaking of “dynamic triage.” He suggested that “[t]riage need not be to a single in-out decision.  Circumstances may change, so triage needs to be dynamic, with the decision under regular and perhaps constant review.”

RSI’s 17th Judicial Circuit Foreclosure Mediation Program, serving Winnebago and Boone counties and based in Rockford, Illinois, provides a wonderful example of dynamic triage in action. Since the program’s inception, homeowners facing foreclosure have been able to go online to enter information about their case and apply to enter the mediation program. Housing counselors from HomeStart, a local HUD-approved agency and program partner, step in to assist homeowners who stop before they finish filling out their application. Program Coordinator Kristen Sanchez explains that “the website is one of the best parts of our program. Counselors can monitor where homeowners are in the process and help them right where they get stuck.”

Once the housing counselors receive the information, they evaluate whether a homeowner is likely to qualify for a loan modification. Those who do not qualify still receive housing counseling services, but they do not enter the mediation program. The thinking behind this sorting rule was to use limited mediation resources efficiently by targeting those cases that were most likely to reach an agreement where people kept their homes. And it worked! In the first year and a half of the program’s life, 61% of those cases that have gone to mediation have ended with the homeowners keeping their houses. This is significantly higher than any other program in Illinois.

Of course, having a dynamic triage process, where sorting rules are evaluated and reconsidered on an ongoing basis, means that court programs can evolve in response to new understandings of when certain services are appropriate. In the Rockford-based program, RSI and the court recognized that there are benefits to holding mediation sessions even when a homeowner will not qualify for a loan modification. For example, even when homeowners do not get the outcome they hoped for in mediation, Kristen says that they still feel like mediation allows them to “get a fair shake at trying to save their home. They also understand what their options are and, more importantly, why certain things are happening. They have an opportunity to be heard.”

It is this sense of procedural justice where mediation’s value lies for homeowners who ultimately end up moving out of their homes. In the 17th Circuit, more than 90% of those who didn’t reach agreement to keep their home reported being satisfied with the mediation process and described it as fair. This pattern is seen in foreclosure mediation programs across Illinois. Other programs have also showed that for those people facing foreclosure who want to relinquish their homes, mediation can help them to explore different relinquishment options and reach agreements that allow them to avoid a foreclosure even if they do not wind up staying in their homes. These agreements can bring closure and peace of mind to parties as well and avoid the costly consequences of foreclosure for both parties and communities.

Based on these findings, RSI and the court have been working on recommendations changing the triage model to one in which homeowners without a high likelihood of receiving a loan modification nonetheless have the opportunity to go through mediation to enjoy its procedural justice benefits.

Keep an eye out for the final installment in this series, where we’ll take a look at the importance of bringing together housing counselors and legal service providers to promote access to justice.

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Foreclosure Mediation Still Going Strong in Illinois http://blog.aboutrsi.org/2016/foreclosure-mediation-2/foreclosure-mediation-still-going-strong-in-illinois/ http://blog.aboutrsi.org/2016/foreclosure-mediation-2/foreclosure-mediation-still-going-strong-in-illinois/#comments Fri, 04 Mar 2016 17:50:11 +0000 http://blog.aboutrsi.org/?p=1631 In the last two years, the six programs currently funded by the Office of the Illinois Attorney General have helped 476 homeowners save their homes. Almost 100 more relinquished their homes voluntarily, allowing them to make a fresh start. Combined, this means that the programs helped about 1/3 of participating homeowners – and their communities – to avoid the negative consequences of foreclosure.

The latest statistical report shows that while the number of foreclosures filed declined in 2015 for the two largest programs – the 16th and 19th Circuits – the participation rate increased. This is particularly so in the 19th Circuit, where the participation rate increased 32% from 2014. This rise is primarily due to the judges ordering cases to mediation.

The 6th and 21st Circuits, which have a one-step entry process, continue to have a much higher rate of participation than the multi-step entry programs. However, their rates of participation have declined. In the 6th Circuit, which started in October 2014, the participation rate dropped from 52% in the program’s first six months to 41% in the second six months. The 21st Circuit’s participation rate dropped from 68% in 2014 to 59% in 2015. In the multi-step entry programs, participation ranged from 10% to 25% in 2015.

In all four multi-step programs, participation rates and program completion rates were higher for those cases ordered into the program than for those in which the homeowner voluntarily contacted the program. In two of those programs, ordered cases were also slightly more likely to end with a home retention agreement.

New program to start

In other foreclosure mediation news, the 1st Circuit will be joining the ranks of Attorney General-funded programs on April 1. Like the 6th and 21st Circuits, it will be a one-step entry program. In each of the circuit’s nine counties, the homeowners who receive a summons will also receive a date and time for them to attend an intake conference.  As with all the Attorney General-funded programs, RSI will be providing the mediator training as well as monitoring and evaluation services for the program.

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In Mediation, As On Broadway, It’s All About The Room Where It Happens http://blog.aboutrsi.org/2016/fun/in-mediation-as-on-broadway-its-all-about-the-room-where-it-happens/ http://blog.aboutrsi.org/2016/fun/in-mediation-as-on-broadway-its-all-about-the-room-where-it-happens/#comments Fri, 26 Feb 2016 16:34:39 +0000 http://blog.aboutrsi.org/?p=1625 If you caught the Grammys last week, I hope you got a glimpse of the live-from-Broadway performance of the opening number from the smash hit Hamilton. One of the show’s many highlights, “In the Room Where It Happens,” is a show-stopping ode to backroom negotiation and the art of compromise that focuses on New York Senator Aaron Burr’s desire to get to the table. Though Burr serves as the foil to protagonist Alexander Hamilton and (spoiler alert) the source of Hamilton’s ultimate defeat, he is not an unsympathetic character; there are many moments throughout where the audience empathizes with Burr’s dreams. Case in point, Burr’s goal of being part of the action mirrors a recurring theme we see parties deal with in ADR: who gets a say in the matter when there are lots of parties involved and/or many different interests at stake?  In other words, who gets to be in the room where it happens?

A couple examples illustrate some of the issues involved. In one, a Charleston, South Carolina real estate development that threatened to disrupt the historical character of its neighborhood led to a contentious showdown between the developers and local residents. The case made its way to mediation after the developers appealed a rejection of their plans by the city’s Board of Architectural Review and the judge ordered the developers and the Board to mediation. Representatives from local neighborhood associations and preservation societies were allowed to participate after voicing concerns, notwithstanding a finding that they had no legal standing in the case. Still, this was not enough for others in the community, who thought the “secrecy” of the mediation discussions was at odds with the public’s interest in their neighborhood. This highlights an internal struggle many of us in the ADR community — particularly those involved in system design — often face as we balance the benefits confidentiality offers in helping parties resolve their issues candidly with the risks of depriving individuals and communities of their access to procedural justice.

A slightly different take on the participation problem occurred in Hawaii. There, a suggested use of the traditional Hawaiian conflict resolution method Hoʻoponopono fell apart as the number of parties and the complexity of their relationships to one another and the case at hand grew. A highly publicized protest of the construction of a telescope on sacred ground resulted in numerous arrests, and 21 arrestees requested the unique ADR process instead of a trial. The judge and prosecutor approved the request, contingent on all parties agreeing to participate. However, as the summer progressed and more arrestees joined the request to participate in Ho’oponopono, the state attorney general withdrew support, believing it would no longer be a constructive option. Part of me wonders if anything could have been done differently to make the Ho’oponopono process workable in this case.

Participation is also an issue we at RSI are pondering as we start up our new Child Protection Mediation Program in Kane County, Illinois. These cases, which invite parties to come together when children have been removed from their parents due to alleged abuse or neglect, by their nature involve many different people: the children, their biological parents, other family members, government agencies, foster parents and attorneys for most if not all parties. As we work to formulate the rules for our program, we have to be mindful of making sure that we not only get all of the relevant parties to the table, but also that all parties have the support they need to adequately address their needs and interests.

Not being in the room where it happens (or being there without the support to advocate effectively for yourself) can be an incredibly frustrating experience. “We dream of a brand new start,” Aaron Burr sings in the song’s final verse, “but we dream in the dark for the most part.” As decision makers who design dispute systems, we hope we can take a page from Burr and Hamilton, and strive to shine a light on those parties and interests that need it most.

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