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!
