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Archive for the ‘Court Mediation Program’ Category

Looking at Process and Outcome to Improve an Effective Program

Jennifer Shack, 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.

Retentions & Reflections: Thoughts from Illinois’ 17th Circuit Foreclosure Mediation Program Coordinator

Just Court ADR, July 6th, 2018

In 2013, RSI received a grant from the Illinois Attorney General to incubate foreclosure mediation in Illinois. This grant was funded by National Mortgage Settlement funds for a period of three years, later extended to five. This grant will be ending August 31, 2018, at which time the program will be taken over by the court. In this post, Sarah Flores, the Program Coordinator for the 17th Circuit Foreclosure Mediation Program, reflects on her experiences in the role.

Prior to becoming the Program Coordinator for the 17th Circuit Foreclosure Mediation Program, I didn’t know a lot about mediation. Before I became a program coordinator, I was a teacher and taught science and reading. As a teacher, I used mediation skills daily without even realizing it. When teachers ask questions, they need to listen and summarize, sometimes mentioning the emotions that students feel around the topic. Teachers have to make each student feel heard and active listening is a way to do this. Mediators do the same thing. They make each side feel heard, acknowledge emotions and summarize. After walking away from teaching, I have fallen in love with mediation in this position. I enjoy the satisfaction of making people feel heard and working through issues. Even though a parties’ issues may not be resolved in the end, they understand what they can do to resolve them.

I really enjoy being able to help people. Homeowners who are in foreclosure typically have not been there before and do not know how the process works or how to save their home. Empowering an individual who may feel helpless and undereducated about the process is one of the most rewarding parts of my job. Many times, even if the homeowner is not going to keep their house, they still are grateful for the program.

My best experience was getting to work with a couple who had given up completely. When they entered the program they were anxious about every step. I answered countless phone calls from them. In the end, they were able to keep their home and they were absolutely delighted with the result. Had they not been in the program, I am not sure that they would have followed through on all the steps to complete the retention process.

One of my worst experiences during my time as Program Coordinator involved working with a difficult homeowner who wanted to keep his home.  Even though I frequently clarified my role as a neutral party, the homeowner incorrectly thought that I could make the lender offer him better deals and that my mediator represented him. The homeowner wanted to negotiate a reinstatement amount, the lender would not negotiate on the amount. After several mediations where the homeowner did not have the funds, but kept stating that he would have them, the homeowner was removed from the program. I believe that had the homeowner been open to more options and better understood how the program worked, a more helpful solution could have been provided. Not all cases are negative, most cases that come through the program are positive and end with positive results.

The one thing I wish I could do is get homeowners to follow through. Although turning in the initial documents can seem daunting, especially to busy or elderly homeowners, it is an important task.  I try to help the best I can, but being a neutral party I can only do so much.

Though my time with RSI is coming to an end, I am glad I have the opportunity to continue doing this work. This is in large part due to the fact that the 17th Judicial Circuit has been an innovator in court ADR for decades. There was a lot of creative work that was done to keep the program financially viable after the grant comes to an end. That creativity shows this work is still valued even after the “foreclosure crisis” is over.

Evaluation of ADR in Michigan

Jennifer Shack, July 2nd, 2018

In 2011, an evaluation of Michigan’s court-connected case evaluation and mediation programs found that both case evaluation and mediation increased the probability of settlement, but that case evaluation significantly increased time to disposition. A newly published follow-up study, The Use of Case Evaluation and Mediation to Resolve Civil Cases in Michigan Circuit Courts: Follow-up Study Final Report (Courtland Consulting, May 2018), came to the same conclusion.

Case evaluation, in which a panel of expert neutrals makes a recommendation as to what the case should settle for, is mandatory for tort and medical malpractice cases. Mediation in most jurisdictions is voluntary, and can be used in conjunction with case evaluation. The study looked at a random sample of 358 cases (221 torts cases, 137 other civil cases) from three jurisdictions to determine what ADR process was used, the means by which the cases were resolved, and the time to disposition for each case.

The study found that for tort cases, there was no statistically significant difference in the form of disposition among the different options: no ADR, case evaluation only, mediation only, or both case evaluation and mediation, with a range of 71% (no ADR) to 92% (mediation) ending in a settlement or consent judgment. For other civil cases, both case evaluation and mediation (and both together) had higher rates of settlement than those cases that did not use ADR (47% for no ADR, 79% for case evaluation and 80% for mediation). The difference appears to be in the higher rate of dismissal/default judgment for cases in which no ADR process was used (49% v 21% for case evaluation and 13% for mediation). For both torts cases and other civil cases, time to disposition was considerably longer when case evaluation was used than when either mediation or no ADR was used.

When compared to mediation, case evaluation started later in the case and averaged longer to disposition from the point at which the ADR process ended. The delay could be attributed to case evaluation being rescheduled more often, although it wasn’t clear whether it was rescheduled without having been held or whether more than one session was needed.

While the findings regarding case resolution and time to disposition were similar to the 2011 findings, the lawyers and judges who responded to a survey about their perspectives on case evaluation indicated they were less satisfied with this process. Judges in particular were less confident in the effectiveness of case evaluation, with the percentage of judges who believed it was effective dropping from 69% to 53%. Attorneys had a much smaller dip, from 49% to 43%. Similar drops were seen in the percentages who would use case evaluation if it wasn’t mandatory. The percentage of judges who said they would use it dropped significantly, from 83% to 66%, while the already small percentage of attorneys who would in 2011 (36%) dropped to 29%.  The attorneys’ opinion of case evaluation was reflected in their comments about the panels. They complained that the panels lacked experience, were unprepared, were biased and did not address the merits of the case.

On the other hand, the judges’ and attorneys’ already high opinion of mediation remained steady. In 2011, 89% of the judges said mediation was an effective way to resolve disputes, compared to 93% in 2018. Attorneys were also much more likely to say mediation was effective than to say that case evaluation was, with 77% and 78% saying so in 2011 and 2018, respectively. While they had a high opinion of mediation, only 53% of attorneys said the mediators were highly skilled.

The comparison results were limited by a couple of factors. The cases that did not go through ADR processes were not similar to those that did. They were commercial cases, which are less complex, involve lower value claims, and require less discovery than other civil cases. Further, mediation was voluntary in most cases. This means the sample of mediation could be skewed by self-selection, in that the parties who decide to mediate could have been more motivated to settle and/or to settle early.

 

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