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Early Resolution Triage Program for Family Cases Increases Efficiency without Reducing Satisfaction

Jennifer Shack, February 3rd, 2020

In Anchorage, Alaska, an Early Resolution Program for family cases has reduced time to resolution, reduced staff time spent on cases and had no impact on the number of post-disposition motions to modify, according to a recently completed evaluation. The program includes triage, dispute resolution and attorney assistance with documents. Stacey Marz reports on her study in, “Faster and as Satisfying: An Evaluation of Alaska’s Early Resolution Triage Program” (Family Court Review, 2019).

In the Early Resolution Program (ERP), cases involving two self-represented litigants are reviewed by a staff attorney to determine if they are appropriate for the program. The staff attorney generally screens out cases involving: current or serious domestic violence incidents; issues that require evidentiary findings; a pending child abuse or neglect case; or a non-parent who is asserting a custodial claim.

If a case is appropriate, the parties are notified of the opportunity to participate. If they agree to do so, they are either provided two unbundled lawyers who work collaboratively (and only on dispute resolution), a court mediator or a settlement judge to help them resolve the case. If the parties reach agreement, they go to court to finalize their divorce approximately three weeks after entering the program. There, a staff attorney completes the final documents, including the findings of fact and conclusions of law, parenting plan, divorce decree, and child support order. The judge reviews and signs all the documents, which are then copied and distributed in the courtroom. The judge then grants the divorce and the parties leave with all the documents.

For the evaluation, Marz looked at 299 ERP cases from 2011 to 2013 that resolved through settlement and compared them to a control group of 392 cases closed before the ERP was implemented. These cases followed a traditional court track involving an initial status conference, a pre-trial conference and a trial or settlement conference. For the study, the pre-ERP cases were screened the same way as cases filed after the implementation of the ERP in order to make them comparable.   

Marz found a high rate of resolution for ERP participants, with 80% reaching agreement in a three-hour dispute resolution session. In addition, ERP cases were able to close more quickly. The time from filing to closure for ERP cases was a median of 42 days as compared to a median of 104 for cases in the control group.

As a proxy for party satisfaction with the process, Marz also looked at the number of motions filed per case to modify the judgment. The assumption is that parties file motions to modify soon after the final judgment if they are unhappy with the outcome. She found no significant difference between the two groups: for the ERP group,.18 motions were filed per case within two years of disposition, compared to .22 motions per case for the control group. According to Marz, this indicates that concerns that the ERP process was too quick and parties didn’t have enough time to think about the issues were not supported.  

The last item Marz examined was the number of processing steps staff undertook for each case. For cases undergoing ERP, there are 28 to 30 processing steps, taking a total of 240 minutes (4 hours). The number of steps for the average non-ERP case is 49, taking a total of 1,047 minutes (17.45 hours). Marz notes that the reason for this increased efficiency is two-fold: First, once the staff attorney screens and accepts a case into ERP, the file stays with the attorney, eliminating many case-processing steps that occur in typical cases. Second, there are great efficiencies in scheduling multiple cases during the same ERP hearing block, especially when most cases resolve in one court event.

The evaluation indicates that the Early Resolution Program in Anchorage has increased efficiency in cases involving self-represented litigants without inducing parties to enter into agreements that aren’t sustainable.

Research Year in Review

Jennifer Shack, December 19th, 2019

This year we learned about the efficacy of a variety of dispute resolution programs, explored party trust in mediators, and considered ways to assess and improve the party experience in dispute resolution processes.

Program evaluations

The theme of evaluations of ADR programs is that participants like them. This includes the multiple studies I summarized for our Mediation Effectiveness Studies database. Each of the studies that looked at the participant experience found high levels of satisfaction and, in comparative studies, the level of satisfaction was greater for those going through mediation than those who did not.

Nevada and Michigan provided us with insights into their child protection mediation (CPM) programs. The evaluation of Nevada’s statewide program found that family members were highly positive about all aspects of the mediation. All of them thought the process was fair. Almost all said they were able to voice their opinions, were treated with respect and were able to be a part of finding answers to the problems discussed. Almost 90% said the others really listened to them. For all practical purposes, these responses did not vary based on whether they were foster parents or natural parents. The study also found that there was no difference in satisfaction rate based on the stage at which mediation occurred, but that satisfaction was higher when mediation resulted in agreement as compared to when it did not.

Child protection mediation participants in Michigan were also highly satisfied with their experience in mediation. In the two counties with experience data, participants said that they had the opportunity to express themselves, gained a better understanding of the issues, felt respected and felt the process was fair to them. In a statewide comparison between those family members who participated in mediation and those who did not, through who went through CPM gave slightly higher ratings on case resolution, staff courtesy and courtesy of the judge.

I also discussed an evaluation I conducted of the Civil Stalking Pilot Mediation Program in Ohio.  While there wasn’t enough survey data to determine how satisfied participants were with their experience, we did find that almost ¾ of these cases reached agreement, with most of the agreements being for the parties to have no further contact.

Switching to restorative justice, we learned that participants in Nebraska’s Youth Conferencing Program also have high rates of satisfaction. In addition to being satisfied with the process, most participating youth and victims believed that the victim youth conferencing VYC made the justice system more responsive to their needs. Further, almost all of the victims agreed that it was helpful to talk directly with the person who was responsible for the harm, and most said that meeting that person reduced any fear that he/she would commit another crime against them. The youth held similar opinions: most said it was helpful to talk directly with the victim and almost all of them said that after the meeting they had a better understanding of the full impact of the crime on others. In addition to providing a positive experience to participants, youth conferencing led to a high rate of agreement completion, with almost 95% of the youth ending with full compliance.

Research

From a study of one restorative justice program in Nebraska, we move to a compilation of forty years of research on victim offender mediation (VOM). The research found that victims receive multiple benefits from VOM. Victims who participate in VOM as compared to those who went through the traditional process received more restitution, had less fear of re-victimization and were less likely to remain upset after the process. Additionally, participation in VOM leads victims to feel empowered and to have a more humanized view of the offender.

Offenders were also found to receive benefits from the VOM process. These included being more empathetic toward victims of their crimes, being held directly accountable to victims (which is a core need for many offenders), being able to deal with their feelings and seeing victims change their feelings toward them, feeling empowered, and avoiding jail or court.

Other benefits accrue to the courts and community. Some studies found that VOM led to a higher rate of agreement completion than the traditional process. Many studies, but not all, found that VOM led to a lower recidivism rate than the traditional process. A few studies also found VOM to be cost-effective. Short-term, VOM lowers costs by being less expensive than court. Long-term, lowered recidivism and lower incarceration rates lead to cost savings. One study found as well that mature programs were more cost-effective than those that were just started up, and another found that those involving community mediation centers were more cost-effective.

Two of the studies I summarized were about trust in the mediator. We learned that participant trust in the mediator is the same whether mediation is in person or via a sophisticated video conferencing tool, in which sensitive microphones and special cameras that pan and zoom are used to help participants follow the flow of the conversation. We also learned that mediators and parties have similar perspectives on what mediator behaviors and characteristics engender trust in parties, with the exception of eight factors for which the parties were significantly more likely than the mediators to say built trust with mediator. These were:

  • The mediator’s familiarity with legal aspects relating to the dispute
  • The mediator suggests an alternative or a way out of the dispute
  • The mediator provides candid and frank input about the dispute
  • The mediator does not linger too long on the dispute but advances toward its settlement
  • The mediator is appointed by an authority, such as a reputed judge
  • The mediator shows an interest in the parties’ mutual concerns and focuses on their common goals
  • The mediator highlights the rules of mediation
  • The mediator talks to the parties about informal matters as opposed to just talking about the dispute

We also looked at research focusing on access to justice. A study of judicial settlement conferences in Canada examined what factors were related to parties’ sense of access to justice, as indicated by their sense that the process was fair and useful, as well as their sense that the settlement judge provided professional support. These included: the judge being active in helping the parties to reach a resolution that is fair and suited to their needs; communication that creates trust; the judge facilitates a just process and a process that complies with ethical norms.

Two of my summaries were of articles that used research to argue for changes to how we approach disputes resolution. Nancy Welsh argued that transparency is essential to help to equalize the knowledge of one-shot users and repeat players, allow for public oversight, and make it less likely that mediators would engage in unethical behaviors. She then noted that mediation is now often imposed on parties through contracts and mandated by the courts. For these mediations, there is a greater responsibility to ensure that the processes are fair and effective. Thus, Welsh argues for a new set of standards for these “compelled” mediations that call for more information to be imparted about mediations.

Jean Sternlight focused her attention on online dispute resolution (ODR), arguing that ODR should be designed to take into account human psychology. That requires an imaginative approach to determining whether and how to incorporate technology into dispute resolution. She suggests that “computers are not likely the best tool for helping humans think through how they want to respond to a dispute, and how they might creatively work things out with a fellow disputant.” She concludes that ODR may best be used for disputes that involve wants that are simple and predictable, such as small online purchases.

I’m looking forward to a research-filled 2020!

Perceptions of Trust-Building in Family Mediation

Jennifer Shack, November 26th, 2019

A small study of family mediation in Spain paints a picture of what parties and mediators believe promotes the parties’ trust in the mediator and points out differences in perspectives between the two groups. Identification of these differences can lead to improved training and professional practice, according to the researchers (Joan Albert Riera Adrover, Maria Elena Cuatrero Castaner, Juan Jose, Montano Moreno). They discuss this in their article, “Mediators’ and Disputing Parties’ Perception of Trust-Building in Family Mediation” (Negotiation and Conflict Management Research, 2019).

For the study, the researchers recruited mediators from a single mediation provider organization. The mediators notified the parties of the research project at the outset of the mediation. If the parties consented to participate in the research, a researcher would meet with the parties at the end of the third joint session and had them complete a survey. Mediators also completed a survey at this time. In all, 31 mediators and 54 parties participated in the research over the course of a year. The mediators were primarily lawyers with an average of 1-6 years’ experience .

The researchers found eight factors which the parties were significantly more likely to say built trust with their mediator than compared to the mediator group. These were:

  • The mediator is familiar with legal aspects relating to the dispute
  • The mediator suggests an alternative or a way out of the dispute
  • The mediator provides candid and frank input about the dispute
  • The mediator does not linger too long on the dispute but advances toward its settlement
  • The mediator is appointed by an authority, such as a reputed judge
  • The mediator shows an interest in the parties’ mutual concerns and focuses on their common goals
  • The mediator highlights the rules of mediation
  • The mediator talks to the parties about informal matters as opposed to just talking about the dispute

Most of these should not be surprising. Indeed, for all of the above factors except suggesting an alternative and talking about informal matters, a majority of the mediators agreed with the parties about their importance for building trust. However, it does reinforce the notion that trust is about more than just rapport. Parties in this study trusted mediators who focused on resolution and presented alternative options to the parties.

It should be noted that there were numerous other factors for which a large majority of both mediators and parties said built trust. These included the mediator’s listening skills, fairness, impartiality, demeanor and capacity to understand the dispute. These all should be familiar to anyone involved in mediation, as they are generally considered necessary for trust-building.

This research is unique in that it matched up mediator and party perspectives on trust. It can help mediators to know what they should be emphasizing as they attempt to build trust. However, it was limited by a small sample size and lack of qualitative follow up to help elucidate the mediators’ and parties’ thinking.

The Psychological Complications of Resolving Disputes Online

Jennifer Shack, October 28th, 2019

Online dispute resolution (ODR) can take many different forms, but one element is always present: the participants aren’t interacting in person. Jean Sternlight explores the possible psychological impact of this in her new article, “Pouring a Little Psychological Cold Water on ODR” (forthcoming 2020 Journal of Dispute Resolution).

It should be noted that before discussing the psychology of disputes and ODR, Sternlight opines that the term ODR is used too broadly as it’s used for any technology-assisted dispute resolution. Although she doesn’t state what she means by ODR in her article, the way in which she discusses it points to the conclusion that she is focused more on text-based and algorithmic processes rather than video-based processes.

Starting from the premise that “human disputes are intimately connected to human psychology,” Sternlight states that ODR should be designed to take into account human psychology and that requires an imaginative approach to determining whether and how to incorporate technology into dispute resolution. Even given this, however, she says that we should consider the possibility that humans are better suited than computers to resolve many disputes.

Sternlight explores the psychology of dispute resolution through four areas: the psychology of perception and memory, the psychology of human wants, the psychology of communication, and judgment and decision-making. Perception and memory often differ among those involved in a dispute. In in-person disputes, mediators and lawyers currently take on the role of overcoming parties’ beliefs that their perception is correct and the only possible version. Sternlight questions whether a computer or avatar can have the same effect, as research has found that simply receiving a message on a computer or reading a book aren’t sufficient to shake one’s belief that theirs is the only right view.

When it comes to human wants, people are complex. We don’t always know what we want, and when we do, we often have many different wants, or our wants may change over time. Further, each person may have different wants in the same circumstances. Because of this, Sternlight suggests that “computers are not likely the best tool for helping humans think through how they want to respond to a dispute, and how they might creatively work things out with a fellow disputant.” She concludes that ODR may best be used for disputes that involve wants that are simple and predictable, such as small online purchases.

Communication is another area in which computers may not provide the best forum, although Sternlight does say that computers may make communication easier by enabling fast and low-cost exchanges, and by allowing for the anonymity that some prefer. However, many ODR platforms rely on check boxes and limited exchange of textual information. This does not permit disputants to communicate fully their broad range of beliefs and concerns nor learn about those of the other party. Textual communications also make it difficult to build trust or rapport among disputants.

Sternlight also believes that human mediators, lawyers or friends are more effective than computers in helping humans deal with their emotions and other judgment and decision-making issues. She notes that a trusted person is more likely than a computer to move a disputant off an unreasonable position, even if both convey the same information.  Humans can build rapport and trust and tell persuasive stories, whereas being provided information on a chart or in text will not be as useful.

Sternlight acknowledges that online processes may have their place in dispute resolution, but to do so requires a system design that takes into account human psychology. To figure out how best to approach the resolution of disputes online, Sternlight says that empirical research is required of both online and in-person dispute resolution.

While some readers may not agree with Sternlight’s message, she does offer a thoughtful counterpoint to the current enthusiasm for ODR.

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