THE EFFECTIVENESS OF THE

DISPUTE SETTLEMENT CENTRE OF

VICTORIA IN MEETING CLIENT

NEEDS: IMPLICATIONS FOR

PRACTICE

Glenice Fox Doctor of Juridical Science Faculty of Law Monash University

Community mediation and the DSCV

• Role of community mediation in development of mediation

• Dispute Settlement Centre of Victoria (DSCV) ▫ Transition from neighbourhood-based to

institutionalised

• As DSCV principally developed to serve the needs of disputants in the community assessing its effectiveness in fulfilling that purpose is essential

Aim of the research

To measure DSCV effectiveness based on client reports of: • Agreement rates and durability of agreements

• Client satisfaction and durability of client satisfaction

• Attitudinal and behavioural shifts experienced

• Mediation as alternative to legal action

Methodology:

• Quantitative and qualitative

• Two questionnaires ▫ Mailed August 2007 to July 2008

▫ 2 month (138 responses)

▫ 12 month (110 responses)

• Limitations: ▫ Small sample sizes

▫ Client self-report

Agreement and client satisfaction

rates • Agreement rates of more than 77% in both

questionnaires

• More than 90% were satisfied with the service (2 month questionnaire)

• 74.6% would use mediation again (2 month questionnaire)

• 77.1% would use mediation again (12 month questionnaire)

Client satisfaction and procedural

justice • ‘Procedural justice’ valued more highly than an

agreement being reached ▫ That is, clients valued a fair process above reaching an

agreement in mediation

• Clients reported mediation helpful regardless of whether agreement was reached

Durability of client satisfaction

• 60.9% reported their level of satisfaction (or dissatisfaction) with session did not change 12 months after mediation: ▫ 74.3% remained satisfied (48.5% ‘very satisfied’)

▫ 25.7% remained dissatisfied (13.6% ‘very dissatisfied’)

• Where a change in satisfaction reported: ▫ 19.3% experienced an improvement

▫ 20.2% experienced a deterioration

Durability of agreements

Providing an alternative to legal action • Agreement Durability: ▫ 60.9% indicated the agreement reached had worked well (2

month q’naire)

▫ 68.2% indicated the agreement reached had held (12 month q’naire)

• Alternative to Legal Action: ▫ 42.8% indicated they had used or considered taking legal

advice/legal action prior to mediation (2 month q’naire )

▫ 22.7% indicated they had used or considered taking legal advice/legal action since mediation (12 month q’naire )

Attitudinal and behavioural shifts

• Changed feelings about the problem (2 month q’naire ): ▫ Where agreement reached had not worked, less than 15%

reported their feelings had changed positively ▫ Where no agreement was reached, less than 33% reported

their feelings had changed positively

• Changed feelings about the problem (12 month q’naire ): ▫ Regardless of whether or not agreement reached, 20%

reported their feelings had changed positively

• Improved relationship (12 month q’naire): ▫ Less than 33% reported their relationship with the other

party remained positive or had improved since mediation

Attitudinal and behavioural shifts

(cont.) • Improved conflict-handling skills (2 month q’naire):

▫ Less than 21% reported an improvement in their personal conflict handling skills

▫ If those that expressed support for using mediation to resolve disputes are included, the combined percentage is 43.5%

• Improved conflict-handling skills (12 month q’naire): ▫ Less than 23% reported an improvement in their personal

conflict handling skills

▫ If those that expressed support for using mediation to resolve disputes are included, the combined percentage is 48.2%

Client satisfaction and procedural

justice • DSCV informed by qualitative-justice and

quantitative-efficiency purposes

• A high quality of justice through a democratic and empowering process

• A high number of disputes resolved contributing to a reduction of pressure on courts

• Procedural justice is valued more highly by clients than agreement being reached

Statistical analysis: value placed on

procedural justice • Clients’ willingness to use mediation again is not

related to whether agreement was reached

• Process variables (eg helpfulness of staff before the session, helpfulness of mediators, fairness of process, participants ability to say what was important to them) and helpfulness of mediation in the outcome, regardless of whether agreement was reached, are more indicative of satisfaction than an agreement being reached

The procedural justice numbers

• The association between clients’ overall satisfaction rating of the service and agreement being reached was on the borderline of being statistically significant with a P-value of .05

• Where agreement was reached 95.2% rated the service as satisfactory

• Where no agreement was reached 83.9% rated the service as satisfactory

Research findings about the value of

procedural justice • The findings of this study are consistent with the

research literature which has found that many of the indicators of client satisfaction go to the important ‘dignity factors’

Client ratings of the session

• Client ratings (2 month questionnaire): ▫ 89.8% agreed the mediators were helpful

▫ 89.1% agreed they felt at ease with both mediators

▫ 84.8% agreed the mediation process was fair

▫ 87.9% agreed they were able to say what was important to them

What was helpful

• Structured and controlled process and professional strategies used to facilitate communication and settlement

• One client observed: They were in command — kept the focus on

the dispute and didn’t permit any rudeness or negative behaviour. When [the] other party went off on tangents they quickly intervened and brought the focus back to the dispute

What was helpful (cont.)

• The mediators’ general demeanour, care and supportiveness (eg. being warm, welcoming, friendly, pleasant, patient etc.)

• One client explained: They were easy to talk to and they remained

professional while being friendly

What was not helpful

• A lack of impartiality and fairness • One client stated:

I agreed to mediation having been assured it was unbiased. It wasn’t. The unsought opinions of one mediator swayed the whole proceedings. After approximately 6 hours I caved in and agreed to conditions that are now a huge inconvenience. I just didn’t want to be abused or attacked again. I am still frightened — and angry that I just didn’t continue with the matter in court

Helpfulness in hindsight

(12 month questionnaire) • 70.9% agreed that mediation had helped the situation

regardless of whether or not agreement was reached • As a result of mediation there was a resolution or partial

resolution and/or the conflict eased • One client explained: For me personally — Yes — during the crisis time of

the situation — mediation helped us get back on track — I was extremely impressed with the professional handling of both mediators

• The agreement broke down after 6 months but the comment suggests mediation helped at a crucial time

Helpfulness in hindsight (cont.)

• The process facilitated communication ▫ including the opportunity to speak, be heard, to

listen, to gain a better understanding of perspectives, to identify or clarify issues and possible resolutions

• One client observed: Yes, both parties were willing to give up the time

to come, both parties were able to have a say in a controlled context. So felt safe, and although problem wasn’t resolved at mediation, the groundwork was in place for resolution later

Improvement suggestions by clients

Findings are generally very positive but some improvements are suggested: ▫ Intake practices could improve and/or parties’

preparedness and understanding enhanced

▫ Standards of practice and ethics of mediators could improve

▫ Mediation should possess more ‘law-like’ qualities

Balancing qualitative–justice and

quantitative-efficiency purposes

• Seeking to achieve both can be contradictory

• Trying to achieve high numbers may impact on delivery and quality

• Emphasis on efficiency and allocation of fewer resources could result in process adjustments that make it less effective or less satisfying

• Institutionalisation of the DSCV may contribute to an emphasis on efficiency

What the findings mean: implications

for practice • Taking the focus off efficiency is difficult

• However, procedural justice is a priority of the system for clients

• This means the mediation process must be democratic and empowering

• Emphasis should be accorded to the core principles and values that support the delivery of a fair process

Suggested strategies for the DSCV to

promote procedural justice • Continue to affirm its core principles and values

• Ensure there is a continuing connection between those principles and values and the reality of how mediation is practised

• From a practice perspective, this includes: ▫ attention to client feedback

▫ increasing knowledge of the Practice Standards under the NMAS

The NMAS Practice Standards

• Embody many of the values underpinning the facilitative model practised by the DSCV

• Are they aspirational or binding?

• If they are not binding, what implications does this have for the value of obtaining national accreditation and the ‘professionalisation’ of mediation?

• Can play an important role in assisting the DSCV to continue to deliver procedural justice

Achievements and challenges ahead

• The findings support the effectiveness of the DSCV in achieving qualitative-justice and quantitative-efficiency purposes

• Qualitative-justice is a priority of the system from a client perspective

• A focus on efficiency and numbers of disputes resolved in either policy or practice may impact on quality

• A challenge is to ensure that both purposes are achieved