Just Court ADR http://blog.aboutrsi.org The blog of Resolution Systems Institute Thu, 20 Oct 2016 21:07:53 +0000 en-US hourly 1 Getting the Story Right with Data to Make the Right Decisions http://blog.aboutrsi.org/2016/program-evaluation/getting-the-story-right-with-data-to-make-the-right-decisions/ http://blog.aboutrsi.org/2016/program-evaluation/getting-the-story-right-with-data-to-make-the-right-decisions/#comments Thu, 20 Oct 2016 21:07:53 +0000 http://blog.aboutrsi.org/?p=1694 I’m a data geek. I love poring over data and running analyses to see what story unfolds. On the national level, data can tell us the story of our rise as an industrial power and how that changed how people lived and worked. On a local level, it can tell the story of how the closing of a factory affects the fabric of a community and the institutions that bind it. For foreclosure mediation programs, the data can tell the story of how homeowners are affected by changes to the program. Thus, I was eager to find out how changes to the court rules in the 19th Judicial Circuit of Illinois at the beginning of this year would play out. What story would the data tell?

I’m pleased to say that the story is a happy one. I’ll go back to the beginning. Of the six Illinois Attorney General-funded foreclosure mediation programs, the 19th Circuit’s program, in Lake County, struggled the most to get homeowners to use its services. While other programs had participation rates of 16% and above in the first year, the 19th Circuit program’s was just 7%. The obvious first question was why. There were a number of possible explanations. The program had different, in some ways more stringent, requirements for entry. Latino homeowners were underrepresented, so maybe there was a cultural issue involved. Then there was the fact that housing counseling services, which were a requirement for entering the program, were not centrally located and therefore physically inaccessible to many prospective participants. Maybe it was the fact that the homeowners had to initiate the process and there was no ongoing outreach to inform homeowners newly facing foreclosure that they had an option to mediate. The low participation rate could be caused by any one of these, or a combination.

To fill out this story, we dug deeper into the data. The first question we asked was what was causing the low Latino participation rate? One hypothesis was that the low participation rate was due to a difference in culture. Latinos, perhaps, were less likely to trust a governmental program or believed that a free program was not a good one. There are a number of ways we could have tested that theory. The best would have been to survey Latino homeowners to find out if they were uncomfortable participating in the program. This was not something we had the funds to carry out, however. So, instead, we looked to the 16th Circuit’s program in neighboring Kane County. There, the difference in participation rates between Latinos and whites was insignificant. Because these two communities were demographically similar, we concluded that culture was not the cause of the low participation rate.

We then asked Woodstock Institute to develop some heat maps for us, showing where the highest rates of foreclosure were and where Latinos were most concentrated in the county. The maps showed that both were concentrated in the northwest corner in the county, while the required housing counseling services were being provided in the southern part. In a county with little public transportation, this showed that a more probable explanation for the low Latino participation rate was the inconvenience of the services.

Another issue pointing to inconvenience was that the 19th Circuit program was the only one of the programs that required homeowners to attend an evening group informational session at the courthouse and then call the housing counseling agency to set up an appointment before they were permitted entry into the program. The other programs had simpler steps to entry: complete an online application, call the program for an intake session, or simply show up for their first pre-mediation session.

While there was no direct evidence that the 19th Circuit’s entry requirement was a contributing factor to its low participation rate, we were gathering more information that supported the hypothesis that it was. First, outreach was not a large contributing factor, as other programs with much higher rates of participation were not conducting outreach; the 19th Circuit was, with no appreciable rise in participation. Second, my evaluation of the six programs demonstrated that the level of participation was tied to the mode of entry. So, based on this information, we recommended to the court that it revise the program’s rules to remove the informational session requirement and instead have homeowners contact the program coordinator. This is the model used in the 16th Circuit, which had a 23% participation rate in the first year. The court agreed, and the program’s new rules went into effect in January 2016. Now it was time for the full story to unfold.

The story is that the programmatic changes that focused on ease of entry had a significant impact. In the first six months of 2016, the participation rate for the 19th Circuit program was 16% – a more than 100% increase in participation rate from 2014 and a rate that is more in line with other programs. The broader story is that if homeowners facing foreclosure have to put a good deal of effort into getting help, they’re going to be put off. The easier it is for them, the more likely they are to give the program a try.

This same story has played out in other programs as well. In the 20th Circuit, the program ended a requirement to complete a detailed financial questionnaire in order to participate. Over the next year, participation rose from a low of 11% to 19%. The increased ease in entry is most likely not the only reason for the increase in participation, but it was a contributing factor.

It’s so important to get the story right, both for the individual program and for programs that might come later. Following a storyline that puts cultural differences at the center would have led to a very different set of changes than understanding the story as one in which homeowners were deciding whether to participate based on their assessment of whether the benefits outweigh the costs. In following that story, the court and RSI removed hurdles to entry. As the next chapter unfolds, it appears that removing the hurdles shifted the balance between the benefits and costs for many homeowners and more homeowners are now keeping their homes as a result.

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“Uniform Family Law Arbitration Act” Update http://blog.aboutrsi.org/2016/people-events/uniform-family-law-arbitration-act-update/ http://blog.aboutrsi.org/2016/people-events/uniform-family-law-arbitration-act-update/#respond Mon, 17 Oct 2016 17:07:16 +0000 http://blog.aboutrsi.org/?p=1690 The Uniform Family Law Arbitration Act has been finalized by the Uniform Law Commission and the full version with commentary is now available. You can find the final version of the act and other information on it here.

If you want to learn more about the act, the American Bar Association Family Law Litigation Committee is sponsoring a telephonic “roundtable” about it on November 4, at 12:00 pm – 1:00 pm Eastern. The roundtable is free and open to anyone, including non-ABA members, but you have to register for it using the following link: https://form.jotform.com/62504543364150.

The speakers for the roundtable have all been deeply involved in the creation of the model act. They include Barbara A. Atwood, Chair of the Family Law Arbitration Drafting Committee, Uniform Law Commission; Kaitlin A. Dohse, Legislative Counsel, Uniform Law Commission; and Linda H. Elrod, Reporter for the Family Law Arbitration Drafting Committee, Uniform Law Commission.

The Uniform Law Commission describes the need for the act and its intended results as follows: “States’ laws vary when it comes to arbitrating family law matters such as spousal support, division of property, child custody, and child support. The Uniform Family Law Arbitration Act standardizes the arbitration of family law. It is based in part on the Revised Uniform Arbitration Act, though it departs from the RUAA in areas in which family law arbitration differs from commercial arbitration, such as: standards for arbitration of child custody and child support; arbitrator qualifications and powers; protections for victims of domestic violence. This Act is intended to create a comprehensive family law arbitration system for the states.”

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Designing Access Part Three: Transitions, Continuity and Communication http://blog.aboutrsi.org/2016/program-management/designing-access-part-three-transitions-continuity-and-communication/ http://blog.aboutrsi.org/2016/program-management/designing-access-part-three-transitions-continuity-and-communication/#comments Fri, 19 Aug 2016 22:01:22 +0000 http://blog.aboutrsi.org/?p=1685 Welcome to the final blog post in a series 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, as well as the posts highlighting our work in the 19th and 17th Judicial Circuits of Illinois.

This last post will look a little bit different than I anticipated, in large part because it will also be my final post as RSI’s Director of ADR Programs before I take on a new position as Counsel for Innovation and Technology at the Lawyers Trust Fund of Illinois. In my upcoming role, I will continue to work to promote access to justice, this time focusing on using technology and process improvement in the legal aid context. As you might imagine, transitions and continuity have been on my mind quite a lot, especially because of how close RSI’s programs are to my heart and how passionately I feel about their ongoing success.

At RSI, we think carefully about transitions and work hard to promote continuity during times of change. Current Resource Center Director Eric Slepak will begin his tenure as Director of ADR Programs after I leave today, and the two of us have been working closely together over the past two months to minimize the impact of this transition on our programs. RSI is lucky to have Eric, and I know the programs at RSI will be in great hands.

Still, it’s obviously difficult for everyone when things change. In my very first blog post at RSI, I explored the way seeing a program through fresh eyes can reconnect administrators and mediators to the experiences of first-time participants. Now I am thinking about how transitions impact program participants and what we can do to support people through change. All of the programs we administer at RSI – including our soon-to-launch Child Protection Mediation Program in Kane County, Illinois – involve collaboration among many interdependent individuals and organizations. The intersecting relationships among these stakeholders strengthen the programs, but they also pose challenges during times of transition.

In Kane County’s Foreclosure Mediation Program, for example, RSI’s Mediation Program Manager Kevin Malone and Mediation Program Assistant Mariah Heinz work closely with the 16th Judicial Circuit Court’s paralegals, administrators, judges and clerks. The program brings together Northern Illinois University School of Law Professor Alan Boudreau and a rotating cadre of law students in his clinic, who provide legal information and sometimes representation to homeowners facing foreclosure in the program. Additional legal services are provided through Prairie State Legal Services, Administer Justice, and the Court’s Lawyer in the Lobby Help Desk, staffed by volunteers from the Kane County Bar Association. We also work with three different housing counseling agencies: Consumer Credit Counseling Services of Northern Illinois, Neighborhood Housing Services of the Fox Valley, and the Joseph Corporation. Mediators for the program are paid through Dispute Resolution Institute, an organization that received funding through the Illinois Office of the Attorney General at the same time we did to develop and manage foreclosure mediation programs in Illinois.

What does all of this collaboration mean? First, it means that the program is surrounded by experts in each of the different program components. It also means that there many different people working on the 16th Circuit Foreclosure Mediation Program at any given moment. If one of those people leaves, then it can be challenging not only for the people they serve, but for the people they work with as well if the communication chain connecting that person to others in partnering organizations is severed.

So what solutions are available to us? As I think about RSI’s own transition from me to Eric and the transitions we have watched our partners face, I keep coming back, in true RSI fashion, to communication. RSI’s Foreclosure Mediation Program in Kane County has been an excellent model of communication through change. Mediation Program Manager Kevin Malone has led regular stakeholder meetings to discuss the program’s progress, successes, challenges and changes since the program’s inception. These inclusive conversations bring together all of the many people and organizations involved in the program that I described above. Having this communication infrastructure in place allows the program to adapt to change quickly and bring everyone together at the same time to strategize about improving the program.

I have been fortunate to be able to follow this model in my specific position, communicating in-depth with Eric and introducing him to the people he will be working with in the future to make sure that our ties to other entities remain strong before I go. I look forward to continued communication with RSI as my relationship with this wonderful organization evolves alongside its program offerings!

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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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