Community mediation centers have long recognized that parties feel seen and benefit from working with mediators who are from diverse backgrounds. Despite this, they have found it difficult to develop mediator rosters that reflect the communities they serve. The Center for Conflict Resolution (CCR) in Chicago is undertaking an innovative project to address this issue. The staff of CCR has engaged RSI to develop a guide to support other community mediation center staff in their efforts to increase equity in their mediator rosters, and to assess their implementation outcomes. Funding for this project has been generously provided by the American Arbitration Association-International Centre for Dispute Resolution Foundation (AAA-ICDR) Foundation.
Ongoing DEI Assessment
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Over the past year, CCR has been working with an external diversity, equity and inclusion (DEI) partner to audit its mediator mentorship program (MMP). The MMP is an intensive, three-month training program that prepares participants to meet CCR’s performance-based evaluation standard. Participants then provide a minimum 18 months of mediation services through CCR’s programs. CCR’s primary goals are to increase the demographic diversity and inclusivity of its recruitment, selection, training and retention processes. Meeting these goals has required a comprehensive and holistic retooling of the program. For example, CCR staff are experimenting with new models for meeting program requirements, establishing new communication practices, and creating ways to accommodate different types of mediation skill sets. Measuring the success of these changes is critical; CCR is also developing new survey instruments and tools to determine impact.
RSI is assessing CCR’s progress in meeting its DEI goals, to document lessons learned and share what CCR staff would recommend to other organizations.
Project Outcomes
RSI will communicate findings from our assessment of CCR’s efforts in two main ways: 1) a guide for community mediation centers, and 2) an evaluation report.
Through interviews with key CCR staff, review of audit documents, and analysis of demographic data, RSI will create a reference guide for community mediation centers to learn from CCR’s approach. The guide will include instructions and templates for engagement techniques, methods for measuring demographic data, and forms for screening and interviewing. Along with these materials, we will discuss how CCR staff members implemented changes and addressed challenges.
Our collaboration will also culminate in a final evaluation report, which will focus on insights from CCR’s new survey instruments. RSI will analyze survey data to determine which areas of the retooled program saw the most success and which areas require further refinement. Both the guide and the report will be disseminated widely, through CCR’s website, RSI’s website, the National Association for Community Mediation’s virtual library, conference presentations and social media. Ultimately, our goals are to understand existing exclusionary practices or biases within mediator programs and break down barriers to diversity, equity and inclusion in mediation practice.
We plan to share the guide for community mediation centers and our CCR evaluation in mid-2025. Follow RSI’s blog, newsletter and social media for the latest updates.
Last month, RSI welcomed Heather Fogg as RSI’s new Chief Executive Officer. Heather comes to RSI with an extensive background in court-connected alternative dispute resolution and research. Her expertise includes directing court mediator excellence programs; managing a state court’s ADR data collection tool; and designing and delivering restorative justice practices across a diverse range of sectors. Heather has guided the evaluation, design and data analysis of grant-funded ADR programs; coordinated workshops and training sessions for court ADR program managers, mediation trainers and mediators; and led and mentored scores of researchers and ADR practitioners. For more details on Heather’s background, read her bio on RSI’s website.
RSI CEO Heather Fogg presented with James Doyle at the Center for ADR’s 2024 Annual Conference in Maryland in June. The topic for their presentation was “Ethical Strength Training: Reps and Sets for Everyday Mediator Ethics.”
Recently, Heather sat down for a Q&A to help us begin to get to know the person behind the resume, including what led her to a career in ADR, what motivates her, and some of the aspects of conflict resolution she is passionate about.
How were you first introduced to alternative dispute resolution, and what drew you to it as a career?
I first learned about alternative dispute resolution when leading discussion sections for a course in Criminal Justice 101. The text we used had a brief section about restorative justice, referred to as victim-offender mediation. The process was described as a chance for the people most directly impacted by what happened to come together with a mediator to talk about: 1) what it was like for each of them, and 2) what they each needed in order to make things better. That made so much sense to me — focusing the problem-solving and decision-making on those who were the most familiar with both how the event itself, as well as any effort to resolve it, would affect them personally. I’ve been fascinated by this approach to engaging with conflict and addressing harm among people ever since.
It’s also deeply personal for me. People have broken into two of my homes and two of my cars (all four instances at different times and states). I know the fear, grief and anger those experiences brought to me and my family. I know the challenges we faced in trying to understand the criminal and legal system to make the aftermath of those experiences better. I have no idea why people chose our house or my car, or what conditions in their lives brought them to make this choice. I can see how having an expanded variety of options to meet directly with one another through alternative dispute resolution can bring a different kind of closure, accountability and healing to people who seek them. That’s part of why I have focused my work on seeing what’s possible when we create these opportunities for people who want them.
What appealed to you about working at RSI specifically?
So many things! One thing that has been very important to me is that whatever I’m choosing to give my time and attention is actionable, implementable and purpose-full (yes, you’re seeing that correctly; I wrote it that way intentionally). That’s something I see in everything RSI does, from gathering resources to be shared broadly, to answering compelling research questions, to providing direct services where they might be sorely needed.
Are there any “big questions” related to court-based ADR that interest you in particular?
There are so very many; I’m struggling to name just a few! And admittedly, some may not be so big. I’m very curious about some of the more practical and logistical aspects of court-based ADR, such as: What impacts will changes in technology continue to have, and how will our standards of practice continue to change to meet them? How does the setting where court-based ADR takes place impact how people react and respond within it? And what can we as ADR practitioners learn from the variety of ways people interact with conflict, in order to support them well?
You recently presented at the Center for Alternative Dispute Resolution’s Annual Conference. Can you tell us a little about the topics and how/why you decided to present on them?
Heather Fogg, right, and Kendra Jobe co-presented “Take Two Sessions and Call us Next Time: How Might our Prescriptions for Conflict Engagement Miss the Mark?” at the Center for ADR Conference in June.
I am very fortunate and grateful to Marvin Johnson and Linda Sternberg of the Center for ADR for inviting me to present, and lucky to have incredible friends and colleagues, Kendra Jobe and James Boyle, to develop topics with me. Kendra and I have been working together for years, and one thing we often talk about is the great variety of approaches and processes we’ve learned within the umbrella of ADR — from restorative practices, to group facilitation, to different mediation frameworks. Rather than framing it as though there might be only one “best way” to practice, we invited practitioners to consider: How does the process (or framework within a process) you are the most enthusiastic about fit your own worldview, personality or perspective on conflict? The range of responses and reflections that practitioners offered, as well as the practical tips, techniques and strategies they shared, made the conversation very rich and informative.
The Maryland Standards of Conduct for Mediators is also near and dear to me. In a mediator ethics session, James and I invited mediators to consider how our ethical practice doesn’t come up only when a specific dilemma surfaces, but also in the everyday decisions and actions we take as mediators throughout the mediation process. It’s been important to me to think of any set of standards we use as a constant reminder about why I wanted to become a mediator in the first place: to hold a process where those most directly impacted by the outcomes would have full say and decision-making in what will happen next. I would like mediators to consider that such standards give us guidance in everything we do, say, don’t do or don’t say … and not just when we see a specific dilemma (that may make us suddenly remember to reread them and consider our role).
Is there a book on conflict resolution that you always find yourself recommending (and why)?
This is a wonderfully dangerous question to ask me because one of my favorite things to say is, “I just read {insert book title}, and now I’d love to talk with you about it!” My favorite books about any subject are those that invite the reader to upend their understanding and really look at something from a wholly different perspective. Among my favorite books to do just that in the conflict engagement field are “Justice As Healing: Indigenous Ways” by Wanda D. McCaslin; any of the number of books written by Rupert Ross; “The Outward Mindset” and “Anatomy of Peace,” both by the Arbinger Institute; and “The Conflict Pivot: Turning Conflict into Peace of Mind” by Tammy Lenski.
Have you had a chance to think about any short- and long-term goals for RSI at this point?
One of the things I like that I’m learning about with RSI is the goal to be intentionally reaching more people around the country. I would like to see us have a relationship with at least one court-connected ADR person in every state. So, if you’re reading this now, and you know someone in another state who we should be introducing ourselves to, drop me a line and help us connect (hfogg@aboutrsi.org). I would like RSI to connect with more people around the country who are interested in court ADR as much as we are!
Is there something you’ve learned since starting at RSI that surprised you?
One thing that has really stood out to me is how RSI has such a strong reputation for advancing court ADR that people regularly come to RSI with questions they’re pondering and ideas about how RSI can help them answer them. The depth of relationship and expertise that it shows about RSI is something I feel honored and proud to join.
What keeps you inspired and going when things get tough?
Oddly enough, it’s watching the animals* who live with me squabble, full-on fight, and then get over it, and often even snuggle immediately with each other again. It reminds me that maybe we can follow their example and find our way through conflict without permanently shutting one another out as well. (*Note, I live with seven indoor cats and three delightfully loud parrots. Knowing we can all successfully live together through our conflicts and spats … gives me hope.)
Last year, RSI began the pilot phase of a research project to examine how mediator behaviors might affect parties’ trust during mediation. During this exploration phase, our research team has been observing small claims and eviction mediations and marking down mediators’ communication behaviors, in a process referred to as coding, for the Trust Project. We gathered pre- and post-mediation surveys from the parties, and we interviewed the mediators involved.
From left, Rackham Foundation’s Ava Abramowitz, RSI Director of Research Jennifer Shack and Behavior Analysis Trainer Kenneth Webb gave a presentation on the early findings of RSI’s Trust Project at the American Bar Association Section of Dispute Resolution 2024 Spring Conference in April 2024.
After coding 22 mediations and completing a thorough review of our piloted data collection instruments, RSI has successfully completed our pilot phase. We are excited to share that we will soon be expanding the project and are looking for mediation organizations and/or individual mediators who would like to partner with us.
Method Adapted for Mediation
The Trust Project is based on behavior analysis (BA), a research method that codes for particular communication behaviors and connects them to desired outcomes. This method has been used successfully in negotiations and sales. BA examines the particular behaviors used as well as the sequences of behaviors that occur, to determine their effects on specific desired outcomes. In this instance, RSI is interested in changes in trust between the parties and changes in trust in the mediator. We are also interested in mediation results and participant perceptions of the mediation and the other party.
Over the course of five years, Ava Abramowitz and Ken Webb worked to modify communication behaviors used in the contexts of negotiations and sales for use in mediation — with a lot of input from mediators and researchers. Ava is a former assistant U.S. attorney, longtime mediator and secretary of the Rackham Foundation. Ken is an expert in behavior analysis, coding and training negotiators to improve their practice. He trained RSI’s researchers in behavior analysis. Thanks to generous support from the Rackham Foundation, RSI has the opportunity to conduct this innovative research into the effects of mediator behaviors on party trust.
Watch Michael Lang’s 2021 In Their Voices interviewwith Ava Abramowitz and Ken Webb for more insight into the idea of applying behavioral analysis to mediation — the concept behind the Trust Project!
Mediator Partners Sought
For the next phase of the Trust Project, RSI will observe mediations of small claims, family and larger civil cases, both in person and online. We are looking for partners in this endeavor. Interested organizations and mediators would work with RSI to determine how to effectively recruit parties. Mediators will be asked to complete an initial survey about their background and approach to mediation, to facilitate observations of their mediations, and to complete a survey after each observed mediation. We will preserve confidentiality of the mediations, the mediators and the parties by removing any identifying information from the data.
If you are interested in participating in this impactful research, please contact RSI Director of Research Jennifer Shack at jshack@aboutrsi.org.
Working in the Kane County Eviction Mediation Program for the past three years, I have seen firsthand the challenges self-represented litigants may face. I have also learned a lot by reading RSI’s research on related topics, such as the ODR Party Engagement (OPEN) Project. Recently, I had a chance to speak to members of the Illinois Supreme Court Access to Justice Court Navigator Network at the Kane County Law Library in Geneva, Illinois, about tips I’ve found useful in supporting these litigants. I am sharing them below with the hope that they will be useful to others.
Photo by Edmond Dantes via Pexels
1. Speak and write in plain English.
For native speakers as well as those for whom it is a second language, English can be a difficult language to master. Many self-represented litigants don’t have the language skills to understand the legalese that is often used in the courtroom. Thus, it is important that all court-related communications be written in plain English. Additionally, court-connected mediation programs and other settings involving self-represented litigants should have a staff member accessible to answer questions regarding court/program handouts and policies.
2. Provide translation.
Any paperwork should be readily available in commonly used languages other than English. In Kane County, our primary need is Spanish, but that will vary by jurisdiction. Translation services should also be provided as needed.
3. Be clear that outcomes are not predictable.
To avoid making promises you can’t keep, be sure to use language that does not promise a particular outcome. For instance, one could say “You may apply for a court fee waiver,” rather than “You can get your court fees waived.” This important distinction can prevent confusion down the line as the individual continues to navigate the court/program.
4. Be flexible with scheduling.
Courts/programs can be difficult to access for those who live near or below the poverty line and/or who have inflexible work schedules. For self-represented litigants with little or no income, it may be impossible to physically attend court or afford the devices necessary to attend court virtually. Buses, ride-hailing services and even bicycles cost money and can be time-consuming to use. Being flexible with scheduling allows participants a greater chance of attending, and without the extra burden of costs associated with travel, childcare, calling off work, etc.
5. Be knowledgeable about available resources.
Inability to use technology is another hurdle. Whether it be because the individual lacks the skills or the finances to utilize technology, online dispute resolution (ODR) programs and virtual court may only be an option with extra assistance from the court/program. Extra assistance may come in the form of lending a device, walking the self-represented litigant through connection issues, or referring them to another agency that can help get them connected. Libraries are a great resource for technology assistance and connection.
6. Keep an open mind.
Don’t assume you know anything about any particular self-represented litigant’s life, capabilities, technology access, education, finances, etc. What may seem simple or common to you may not even be an option for them. With that said, self-represented litigants come from all different walks of life, so it is even more important not to assume they are all alike and thus all have the same needs.
7. Be persistent when reaching out to parties.
How do you reach a self-represented litigant? Keep trying! The Kane County Eviction Mediation Program uses phone, text, email and in-person conversations to gather information and assist self-represented litigants face their legal challenges. Everyone has their own preferred communication method, so it takes different forms of communication to reach different people. Attempt contact frequently and through a variety of methods if you really want to reach the individual.
8. Be trustworthy.
Finally, the OPEN Project found that trust can be a big obstacle for courts. OPEN focus group participants were wary of the communications they reviewed. Thus, it is important that all court communications look official and provide solid contact information in case the self-represented litigant needs to ask questions or contact the court/program for other reasons.
Although there can be challenges when working with self-represented litigants, the individual parties can benefit greatly from the support. Mediation and similar programs can provide clarity, control, support, legal assistance, financial resources, housing counseling and other resources to self-represented litigants. They can decrease the amount of time a case remains in court (a benefit to everyone involved) and prevent unnecessary wage losses. Self-represented litigants may need regular reinforcement and assurance, but by providing this service we increase their access to justice.
