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Just Court ADR

The blog of Resolution Systems Institute

Looking at Process and Outcome to Improve an Effective Program

jenshack, August 28th, 2018
I recently had the great pleasure of evaluating Washington D.C.’s Child Protection Mediation Program. The court was interested in getting a better understanding of the issues involved in the process, such as whether the timing of mediation should be changed and whether the process was working for the participants. Therefore, the evaluation was a comprehensive examination of the outcomes and impact of mediation, as well as the program process from referral to completion of mediation.

To conduct the evaluation, I interviewed parents and judges, observed mediations and court hearings, developed post-mediation surveys and analyzed court files and program data. RSI Executive Director Susan Yates and I also conducted focus groups with groups of professionals who participate in mediation (guardians ad litem, parent’s attorneys, Assistant Attorneys General and social workers) as well as with program mediators. The results of the evaluation, Improving an Effective Program: A Comprehensive Evaluation of the Superior Court of the District of Columbia Child Protection Mediation Program, pointed to the program effectively achieving its goals, but needing to address some issues surrounding the program process.

Mediation in this program is mandatory and is supposed to occur within 30 days of the initial hearing. The goals for mediation, as expressed by the attorneys, social workers and judges, are to:

  • Make progress on the legal issues in the case and reach agreement on the stipulation (an agreement as to the facts of the case that takes the place of trial)
  • Help parents to understand their situation and their responsibilities going forward
  • Increase professionals’ understanding of the case, the parents and the family’s situation
  • Enhance communication among the professionals
  • Provide parents with an opportunity to talk about their concerns and be heard
The court and professionals agree that mediation at this early stage of the case brings all those involved in the case together at an opportune time to discuss the issues involved and progress that should be made at a time when they normally would not be focused on the case. This allows them to exchange more information, update services and visitation, and ensure that professionals are being held accountable for their tasks. Additionally, mediation is seen as a unique forum for parents to be important in the process and to speak about their concerns and be heard. When mediation is conducted early in the case, the exchange of information and parents’ input help professionals make better decisions. Mediators assist in this process by facilitating the discussion, clarifying and summarizing the points being made, reframing position statements in a more positive way, and, at times, supporting the professionals’ goals for the parents.

The results show that the program is generally achieving its goals. Of significance, parents who mediate are twice as likely to stipulate before trial as those who don’t mediate. Further, it is likely that they are more compliant with services, although limitations to the data make it impossible to state this with certainty. Limitations to the data also made it difficult to draw conclusions about mediation’s effect on time to permanency. The evidence, however, points to mediation not having an effect on the time it takes for a child to have a permanent home.

Other results indicate that the percentage of mediations ending with a signed stipulation declined from 2013-2014 to 2017, from 44% to 25%. This was most likely due to a policy change at Child and Family Services Agency in 2015, which judges and professionals said led to only the most challenging cases being brought to court. Despite this, approximately half of the mediations in 2017 ended with some progress on the stipulation.

Importantly, both parents and professionals are gaining understanding through mediation. Almost all parents who completed surveys after mediation said they better understood the points of view of the others at the mediation, as well as what they had to do next. The vast majority of professional participants who completed surveys believed that they gained understanding of others’ points of view and the parents’ situations. In their survey responses, almost three-quarters of parents said they trusted that those involved in their case wanted to do what was best for their children. Parents who were interviewed shed light on the effect of mediation on their level of trust in the professionals. Half of the parents interviewed trusted the professionals before they participated in mediation. Mediation for them was an opportunity to see once more that they could trust them. Of the other half, three entered mediation lacking trust in at least one of the professionals and nothing in mediation led them to change their minds; while for a two, mediation did change their minds from seeing the professionals as being against them to learning they could be trusted.

More than three quarters of the parents were satisfied with the mediation and 83% believed it was helpful to them. Both parents and professionals believed they had an opportunity to talk about what was most important to them and that they were understood. Most parents believed the mediator and, more importantly, the professionals, treated them fairly and with respect. All professionals believed that the mediator treated them fairly and with respect.

Despite the success the program has in achieving its goals, the program process can be improved. One such opportunity lies in the timing of mediation. There was general agreement among professionals that mediation shouldn’t take place within 10 or 15 days of the initial hearing because enough time needs to elapse in order to make the most effective use of mediation. Mediation too soon means that not enough time has elapsed for new information to be available or for parents and professionals to have started taking the steps required of them in the initial case plan. Without these, discussion in mediation is less productive. On the other hand, there was little interest in extending the deadline much beyond 30 days because some of the benefits of mediation are lost if it takes place too late. Generally, almost all professionals thought mediation around 30 days was an ideal time. Despite this, about 1/3 of mediations were scheduled either within 15 days or after the 30-day deadline. It was recommended that the court increase the deadline to 40 days so that more mediations could be held after 15 days had elapsed, but still not too late to keep the case moving forward.

The biggest complaint among the professionals in the focus groups was that mediations didn’t start on time. A review of the data found that most of the time, the delay is due to either a professional or parent arriving late. The mediation was often further delayed because a parent’s attorney needed to speak with his or her client. The recommendation to address this was to require that parents and their attorneys arrive 30 minutes before the scheduled time for mediation.

After speaking with the professionals and mediators in focus groups, it became clear that everyone could benefit from opportunities to learn from each other as well as others, and that many wanted this to happen. The focus groups became an opportunity for the participants to find out how their peers were approaching issues in mediation, and to find out what was possible. The focus group participants talked about wanting to gain more information or to explain to others what their own role is. Mediators mentioned areas of uncertainty for them. Professionals discussed areas in which they felt mediators could improve. All of this points to a need for an ongoing education program for both professionals and mediators, which was recommended.

The mediation program was first put in place in 1998 as a pilot. It has evolved over time, but hadn’t been comprehensively evaluated in more than a decade, and those evaluations were outcome-oriented, meaning that the process hadn’t been examined in a methodical way. This evaluation demonstrated that looking at both outcomes and process were essential to assessing the program and determining what could make it better.

For a quick take on the evaluation, see the Executive Summary.

For a full discussion and all statistics, see the Full Evaluation.

U.S. District Court for Eastern Michigan Launches Pilot Mediation Program for Pro Se Prisoners

Nicole Wilmet, August 27th, 2018

In June, the U.S. District Court for Eastern Michigan launched a two-year pilot mediation program for pro se prisoners. The Early Mediation Program for Pro Se Prisoner Civil Rights Cases will offer mediation as an alternative to litigation for pro se prisoners who have filed federal civil rights lawsuits against the Michigan Department of Corrections (“MDOC”). In its press release, the court reports that, in 2017, Michigan prisoners filed 248 civil rights suits in the U.S. District Court for the Eastern District of Michigan. Among these cases, 97% of prisoners were pro se litigants.

Under the new pilot program, the District County Clerk’s Office notifies pro se prisoners about the pilot program when they file. After filing, court staff attorneys screen the prisoners’ civil rights cases. As the court explains, screening eliminates about half of the lawsuits filed due to prisoners’ not stating a legal claim, suing the wrong party, or seeking damages from someone who is entitled to legal immunity. If a case makes it through this screening, prisoners are required to watch an orientation video about the program. They also receive a packet from the court that contains additional information about the program, as well as information on how to file a motion to be excluded from the program. After screening, prisoner civil rights suits are stayed for 90 days and then referred to mediation.

As the court expounds, prisoners who choose to participate in the mediation program will participate in mediation via video conferencing from prison. Meanwhile, the mediator, prison officials, and a state lawyer will interact with prisoners during mediation from the Theodore Levin U.S. Courthouse in Detroit. If parties are able to reach a settlement during mediation, the parties’ agreement will be added to the record and the court will enter an order dismissing the case, but will retain jurisdiction to enforce the terms of agreement. If parties do not settle the case within 90 days, the case will proceed forward in the litigation process.

With respect to neutrals, the court notes that 40 lawyers who have completed Paul Monicatii’s mediator training curriculum will serve as the program’s mediators. These mediators will be participating in the program without compensation.

Those interested in learning more about the program may read more about it here or contact David Ashenfelter, Public Information Officer for the U.S. District Court for Eastern Michigan, at David_Ashenfelter@mied.uscourts.gov to obtain a copy of the press release.

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.

My Favorite Resource Featuring Raeshann Canady

Nicole Wilmet, August 2nd, 2018

Our series, My Favorite Resource, features interviews with our court ADR friends across the country to learn about their favorite resource. This month, Resource Center Director Nicole Wilmet spoke with Raeshann Canady the Court Division Administrator for the Eighth Judicial District Court Clark County, Nevada, to learn about her favorite ADR resource.

NW: What is your favorite ADR Resource?

RC: I have two favorite ADR resources.  One is a training manual I received while taking an advanced mediation training with Ken Cloke, “Advanced Mediation Training: Maintaining Dialogue and Overcoming Impasse,” and one is the Resolution Systems Institute newsletter.

NW: Why do you value these particular resources?

RC: Both resources include information about research related to mediation.  Incorporating evidence-informed decision making into my practice is very important.

NW: How did you first learn about these resources?

RC: I learned about both resources from a faculty member at UNLV’s Saltman Center for Conflict Resolution.

NW: For those unfamiliar with these resources, what is one part of this resource that you wouldn’t want someone to miss? 

 RC: Don’t miss Ken Cloke’s discussion about research on “priming” and don’t miss the research-related section of RSI’s newsletter.

If you have a favorite resource you would like to share in an upcoming edition of our Court ADR Connection newsletter, please reach out to our Resource Center Director and Court ADR Connection Editor, Nicole Wilmet at nwilmet@aboutrsi.org!

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.