Resources / Study / Innovation for Court ADR

Just Court ADR

The blog of Resolution Systems Institute

Posts Tagged ‘research’

Use of Joint Session to Open Mediation Influenced by Lawyers and Geography

Dee Williams, October 18th, 2022

Historically, mediations would begin with a joint introductory session with all parties discussing the case together along with the mediator, and the parties having the opportunity to discuss their issues and interests directly in a guided conversation. Mediations would either continue in joint session or move into separate caucuses, depending on the course of the conversation and the preferences of the mediator. In the last 10-20 years, however, it has become increasingly uncommon for mediations to begin jointly.

In “Joint Session or Caucus? Factors Related to How the Initial Mediation Session Begins,” by Roselle Wissler and Art Hinshaw (Ohio State Journal on Dispute Resolution, September 2022), the authors report the findings of the first study to examine the relationships between the way in which mediation opens and a wide range of factors. It found that although many mediators suggest tailoring the structure of mediation to the needs of an individual case, the likelihood of mediation beginning with a joint session is instead tied to whether the parties are represented by an attorney, whether the mediator has a law degree and where in the US the mediator resides.

Wissler and Hinshaw note that there is significant disagreement as to whether joint opening sessions are still needed. Some possible benefits of such a session include that it would provide: a chance to explain to parties the process and the issues at hand and make sure all are on the same page, a chance to open channels of communication and foster understanding between opposing parties via face-to-face communication, and a chance for the mediator to observe the dynamic between the parties and establish a rapport. There are also some who argue that the existence of mediation-informed lawyers and pre-session discussions between parties and mediators, as well as the changing landscape of mediation proceedings (which frequently includes more “impersonal” civil and commercial cases with little or no pre-existing relationship), obviate the need for these sessions.

Many mediators and lawyers, rather than advocating for or against joint opening sessions, suggest tailoring the structure of the mediation to the needs of an individual case. They indicate that joint opening sessions may be helpful in situations where litigants may not be well informed about each other’s positions and/or when there exists a continuing relationship between parties. On the other hand, joint opening sessions may not be recommended if the relationships between parties are highly contentious, or when violence or abuse is involved.

Study

To examine the factors involved in how mediations begin, Wissler and Hinshaw conducted a survey among civil and family mediators with publicly available contact information in eight states across the US. They limited participation to those who had mediated civil or family disputes (outside of small claims or probate) involving only two parties within the US in the last four months. Out of 5,510 mediators who received an email invitation, 1,065 (19.3%) responded. Respondents were asked to focus on their most recent concluded mediation in their responses. Both family and civil mediators’ cases mainly came directly from lawyers or court mediation programs/judges.

Findings

Wissler and Hinshaw found that joint opening sessions have not been replaced by pre-session communication, as there is no correlation (or in civil cases, there is a slight positive correlation between pre-mediation communication and…) between whether litigants are present in pre-session communications and whether the mediation begins in joint session. Joint opening sessions have also not been obviated by litigants being more informed (either by the mediator in pre-session communication or by their lawyers) about the mediation process and the issues at hand. In general, issues discussed in pre-session were more likely to be brought up in the mediation session proper, not less likely – so these communications are not taking the place of communication in a joint opening session.

Similarly, the findings suggest that the way mediation begins is not strongly related to dispute characteristics (such as disputants’ prior experience with litigation; the presence of non-monetary issues in the case; or the presence of abuse, harassment, or violence between disputants). Joint session was more likely when litigants had the goal of speaking face-to-face (90% vs 70% in civil cases, 92% vs. 54% in family cases) or preserving their relationship (86% vs 63% in family cases), suggesting that it is more likely to occur when litigants have goals that are in line with a desire to communicate directly with the opposing party.

Several sets of findings address the hypothesis that lawyers generally do not wish for joint opening sessions. Mediation was less likely to begin in joint session when the mediator had a legal background or a history as a neutral evaluator (59% vs 77% in civil cases), or when one (67%-82%) or both (57%-72%) of the disputants was represented by an attorney, compared with when neither disputant had an attorney (88%-95%). It was also less likely to begin in joint session in cases referred from lawyers (33%) compared with any other source, and less likely to begin in joint session when mediators said the lawyers were the parties with the most influence over how mediation began (17%).

The state in which the mediation took place had a large impact on likelihood of beginning in joint session, as did the mediator’s history in terms of how frequently they opted to begin in joint session. Out of the states surveyed, mediation is most likely to begin in joint session in Maryland, New York and Illinois and least likely to do so in Utah.

Wissler and Hinshaw note that, taken together, the findings suggest that the recommendation to determine how mediation begins on a case-by-case basis, tailored to the nature of the particular dispute and the needs of the disputant, is largely disregarded.

Connecticut Evaluates Mortgage Foreclosure Mediation Program

Shawn Davis, March 9th, 2015

In October 2014, the Connecticut Judicial Branch released an evaluation of its Mortgage Foreclosure Mediation Program. The Connecticut study evaluates six years of foreclosure mediation program data, dating from the program’s inception in 2008. As RSI prepares the first evaluation of Illinois’ six foreclosure mediation incubation programs, the earliest of which began accepting cases in December 2013, it’s interesting to review Connecticut’s data and how the program has evolved over time.

Given Connecticut’s six year history with foreclosure mediation, the report is able to explore how homeowners who participate in the foreclosure mediation program have fared over time. This information is very valuable, since the long term sustainability of mortgage modifications, such as those offered through HAMP, have often been called into question. (more…)

Introducing RSI’s Foreclosure Mediation Research Intern

Shawn Davis, August 29th, 2014

MJ ScheerPlease join me in welcoming MJ Scheer to the RSI team. MJ is a second-year law student at Loyola University Chicago School of Law who is pursuing a career in appellate civil litigation, mediation, and arbitration. She will be with us for the fall semester, updating RSI’s national foreclosure mediation resources.

MJ has a passion for mediation and a history of studying foreclosure mediation and court-connected mediation programs. Her undergraduate thesis at Northwestern University was a comparison of foreclosure mediation programs in Oregon and Maine and an analysis of the symbolic nature of the state laws and statutes that gave them life. After graduation, MJ received a Master’s in Conflict Resolution from Georgetown University, where she focused her studies and expertise on the intersection of ADR and the law. Additionally, MJ has been certified by the state of Virginia to practice mediation in small claims court in General District Court in the state of Virginia through Northern Virginia Mediation Service (NVMS). At Loyola, MJ is a member of Volume 46 of the Loyola University Chicago Law Journal as a staff member, as well as Loyola’s 2014-2015 Jessup International Law Moot Court Competition.

Here at RSI, MJ will research the changes and updates to foreclosure mediation programs throughout the country. If you have seen RSI’s Foreclosure Dispute Resolution Program Models State-by-State or Foreclosure Mediation Program Funding documents, we are excited to report that updates are around the corner! Also, if you work in the field of foreclosure mediation, we’d love to hear from you, so we can ensure that we are reporting the most relevant and up-to-date information about the work that you are doing. MJ can be reached at intern[at]aboutrsi[dot]org.

RSI Talking about Research and Ethics at the ABA Dispute Resolution Section Conference

Jennifer Shack, March 28th, 2013

If you’re going to the ABA Dispute Resolution Section’s Spring Conference in Chicago next week (April 3-6), I’d like to invite you to a lunch discussion during the Court ADR Symposium on Wednesday. I’ll be facilitating the discussion, “Developing a Structure and Process to Set the Mediation Research Agenda,” which will explore the possibility of taking research about ADR in the court context to a new level through the creation of a national Court ADR Research Consortium. (The ABA requires lunch registration.) (more…)

Clients Choose Mediation Based on Mediator’s Words and Silences

Mary Novak, February 4th, 2013

Recently, I had the good fortune to attend an outstanding webinar by Professor of Social Interaction Elizabeth Stokoe,  hosted by the National Association for Community Mediation (NAFCM). Professor Stokoe performs conversation analysis on interactions between mediators and parties. In her presentation, she discussed four common problems mediators may encounter during intake calls with potential clients who are involved in a neighbor-to-neighbor dispute. The problems can lead to the potential client rejecting the opportunity to mediate.

The four core problems that Professor Stokoe discussed are: (more…)