Evaluation and Policy Decisions in Alternative Dispute...

Evaluation and Policy Decisions in Alternative Dispute Resolution:

Partnerships Across the State

J A M I E L . W A L T E R , P h . D .D i r e c t o r o f C o u r t O p e r a t i o n s , A d m i n i s t r a t i v e O f f i c e o f t h e C o u r t s

J O N A T H A N S . R O S E N T H A L , E s q .D i r e c t o r o f t h e M e d i a t i o n a n d C o n f l i c t R e s o l u t i o n O f f i c e ( M A C R O ) , A d m i n i s t r a t i v e O f f i c e o f t h e C o u r t s

J u l y 1 2 , 2 0 1 6

T e x t M D C O U R T S t o 2 2 3 3 3

ADR

What words come to mind when you think of alternative dispute resolution?

Text reply to….

Research

What words come to mind when you think of research?

Text reply to….

Why Research?

1. Significant investment in ADR in Maryland’s court system.

2. Lack of comprehensive, state-level studies that examine a variety of ADR practices and the full costs and benefits

3. Scarcity of empirical studies which directly connect different outcomes to different ADR strategies

Study of MD Court ADR

ADR Landscape

Emerging ADR Practices in Maryland

Efficiency and Effectiveness

Impact, Costs, and Benefits

http://mdcourts.gov/courtoperations/adrprojects.html

Research Support

Grant from the State Justice Institute

Support from Court Administration

Court Professionals and Judge served on advisory group

How many court affiliated ADR programs exist in Maryland?

Court of Special Appeals

Circuit Court

General Civil (14)

Domestic (24 child access, 20 child welfare, 18 marital property)

Juvenile (8)

District Court

Civil (16 day of trial, 7 pre-day of trial)

Criminal (12)

Orphans’ Court (2)

Circuit Court Domestic ADR

Child Access Mediation (24)All jurisdictions

Marital Property Mediation (18)All except: Baltimore, Calvert,

Harford, St. Mary’s, Wicomico Counties,

Baltimore City

Settlement Conferencing (16)Anne Arundel, Baltimore, Calvert,

Caroline, Carroll, Cecil, Garrett, Howard, Kent,

Montgomery, Prince George’s, Somerset,

Washington, Wicomico, Worcester Counties,

Baltimore City 2013

Circuit Court Facilitation and Child Welfare

Mediation Programs

2013

Facilitation (6)Anne Arundel, Baltimore,

Carroll, Montgomery, Somerset, Wicomico Counties

Child Welfare Mediation

CINA only (1): Allegany CountyTPR only (3): Harford, Howard,

Worcester Counties

Remaining 16 offer both processes

Circuit Court Civil Non-Domestic Mediation &

Settlement Conference Programs

2013

Mediation (14)Allegany, Anne Arundel,

Baltimore, Calvert, Charles, Frederick, Howard, Kent,

Montgomery, Prince George’s,Queen Anne’s, Talbot,

Worcester, & Baltimore City

Settlement Conferencing (14)Anne Arundel, Baltimore, Calvert,

Caroline, Carroll, Cecil,Charles, Howard,

Kent, Montgomery,Prince George’s, Queen Anne’s,

Worcester Counties, & Baltimore City

2013

Community Conferencing (8)

Anne ArundelBaltimore City

Baltimore CountyDorchester

Montgomery Prince George’s

Queen Anne’sTalbot

Circuit Court Delinquency Programs

Orphans’ Court

2016

Mediation (3)

Baltimore and Prince George’s

Counties

2012

Mediation (15)Anne Arundel, Baltimore, Calvert,

Carroll, Charles, Frederick, Harford, Howard, Montgomery, Prince George’s, St. Mary’s,

Somerset, Washington, Wicomico Counties, Baltimore City

Settlement Conference (11)Anne Arundel, Baltimore, Carroll,

Frederick, Harford, Howard, Montgomery, Prince George’s, Somerset, Wicomico Counties,

Baltimore City

Peace Order Mediation (5)Anne Arundel, Calvert, Charles, Montgomery, St. Mary’s Counties

District Court Volunteer Day-of-Trial

Programs

District Court Volunteer Pre-trial Mediation

Programs

2013

Mediation (7)Anne Arundel, Calvert,

Harford, Montgomery, St. Mary’s, Wicomico Counties, Baltimore

City

2013

Mediation (12)Anne Arundel, Calvert,

Carroll, Cecil, Kent, Harford, Montgomery,

Queen Anne’s, Somerset, Washington, Worcester

Counties, Baltimore City

District Court Criminal Mediation Programs

c

Emerging ADR Practices in Maryland

Community Conferencing

Program description and recidivism

Collaborative Law

National context, plus interviews, and surveys of court personnel and CL attorneys in Maryland

Barriers

Empirical Research Scope

Cost Benefit/ Comparison

IMPACT OF ADRCriminal

Day of TrialCivil

Efficiency & Effectiveness

WHAT WORKS IN ADR?Day of Trial

Family

Short term Short termLong term Attitudes Enforcement

Actions

Long termParticipant

report

Preparing for the Research Project:“Who ya Gonna Call?”

Early design and planning stage should include:

o Judges

o Court administrators

o ADR Practitioners

o ADR Service Provider Partners

o Other Court Personnel

o State’s Attorney’s Offices

o Other Justice Partners

Maryland ADR Research Jurisdictions

Landscape

Collaborative Law


Landscape

Collaborative Law



Landscape

Collaborative Law


District Court Day of Trial Comp


Landscape

Collaborative Law



District Court Strategies


Landscape

Collaborative Law




Family Strategies


Landscape

Collaborative Law




Family Strategies

Criminal


Landscape

Collaborative Law




Family Strategies

Criminal

Circuit Court Civil-General

H O W W E G A T H E R E D A N D M A D E S E N S E O F T H E D A T A

Methodology

Methodology

Compare treatment cases to similar control cases when possible

Use regression analysis to isolate impact of ADR

Hold constant

complexity of case, familiarity with ADR, attitude, animosity, demographics, police involvement, etc.

Data Collection Overview

Surveys with participants before and after ADR or trial:

Satisfaction

Sense of closure or justice

Change in attitude


Observation:


Observation:

Mediator’s strategies

Participant’s responses

Time in joint or caucus sessions

Follow-up Surveys

Follow-up survey 3 – 6 months later:

Final status of case

Further cost or impact to participant

Changes in attitude or ability to communicate with other party

Current interactions with other party

Further violence or police intervention

Long-term archival data

Archival data review six to twelve months later:

Further court action

appeal, re-litigation, modification, pursuit of judgments, etc.

Family Court Cases

WHAT WORKS?

Family CourtFactors: Mediator Strategies

Reflecting Strategies:• Reflecting

emotions & interests

• Clarifying what topics participants want to work on

Directing Strategies:• Introducing &

enforcing guidelines

• Explaining one participant to another

• Advocating for one participant’s ideas

Eliciting Strategies:• Asking

participants for their ideas of solutions

• Summarizing solutions

• Asking how solutions might work for them

Telling Strategies:• Sharing opinions• Offering solutions• Advocating for one

participant‘s ideas• Assessing legal

positions and options.

Reflect Direct Elicit Tell

Findings: Mediator Strategies,

Participants are MORE likely to:• Say the other

person listened & understood

• Become more able to work together

• Develop more personalized agr.

Participants are LESS likely to:• Dismiss the other’s

perspective• Reach agreement

Participants are LESS likely to:

• Report the mediator listened to them and respected them

Participants are MORE likely to:• Reach an

agreement• Say the other


• Become clearer about their desires

• Say the underlying issues came out


This strategy was not statistically significant in any positive or negative outcomes.

Reflect Direct Elicit Tell

When Mediator Strategies are Combined

Reflecting and Eliciting strategies combined:

Positive shift in participants’ reported ability to work together

Say that the other person listened and understands them better

Indicate that the underlying issues came out

Reach a personalized agreement

Reflect Elicit

Directing Strategies,

Participants are MORE likely to:• Say the other



• Develop more personalized agr.

Participants are LESS likely to:• Dismiss the other’s

perspective• Reach agreement

ReflectDirect

The greater percentage of mediator Directingstrategies used…

The more likely participants are to file an adversarial motion; and

The more adversarial motions they are likely to file

Family/Custody Cases: Caucusing

More time in caucus:

Mediator respected and listened to them

More hopeless about the situation after the mediation than they did before the session

Less likely to believe they can work with the other parent than they did before the session

District Court Day of Trial

Building Buy-in&

Building Better Processes

Creation of Control Groups

Treatment Cases

Pre-test

Observation & Practitioner Survey

Post-test

Follow-up test

Archival Data Review

Control Cases

Pre-test

- n/a -

Post-test

Follow-up test

Archival Data Review

Comparison of Control and Treatment Groups

CharacteristicBaltimore City

Mediated

Baltimore City

Control

Montgomery

Mediated

Montgomery

Control

TOTAL # Cases

(197)51 63 45 38

Contract 56.9% 41.3% 88.9% 100%

Breach of Lease 2.0% 12.7% 0.0% 0.0%

Detinue 2.0% 4.8% 0.0% 0.0%

Forcible Detainer 13.7% 7.9% 0.0% 0.0%

Replevin 3.9% 0% 0.0% 0.0%

Tenant Holding Over 11.8% 22.2% 0.0% 0.0%

Tort 2.0% 0% 11.1% 0.0%

Wrongful Detainer 7.9% 11.1% 0.0% 0.0%

Both sides

represented0.0% 0.0% 2.2% 0.0%

One side represented 7.8% 6.4% 35.6% 36.8%

Pro-se 92.2% 93.7% 62.2% 63.2%


OUTCOMES

IMPACT OF ADR

Short and Long Term

Impact of DOT ADRFindings: Short Term Outcomes

Participants in ADR (compared to litigation) are more likely to report that:

o They could express themselves, their thoughts, and their concerns.

o All of the underlying issues came out.

o The issues were resolved.

o The issues were completely resolved rather than partially resolved.

o They acknowledged responsibility during the process.

Holds true regardless of agreement in mediation

Impact of ADR Short Term Shifts in Attitude

We measured shifts in attitude from before to after

Compared the shifts in treatment and control groups

Found that those who go to ADR are more likely to:

1. To have an increase in their rating of their level of responsibility for the situation from before to after the intervention.

2.To disagree more with the statement “the other people need to learn they are wrong” from before to after the process.

Impact of ADR Short Term Findings

Finally, participants who developed a negotiated agreement in ADR were more likely to be satisfied with the judicial system than others, while participants who reached negotiated agreement on their own (without ADR) were not more likely to be satisfied with the judicial system than those without negotiated agreements.

This seems to imply that the process of reaching an agreement in ADR is the factor that led to higher satisfaction, rather than just the process of having negotiated a settlement.

56

Impact of ADR: Long Term Participant Attitude

People who participated in mediation are more likely than people who did not participate in mediation to report:

An increase in concern for everyone’s perspective and for the relationship

Issues are resolved and the outcome is working

Satisfaction with the Judiciary

57

Impact of DOT ADR: Long Term Costs to Court

58

The predicted probability of a case returning to court for an “enforcement action”

Is 45% if a case received a verdict

Is 21% if a case has a mediated agreement

Is not affected positively or negatively by an agreement the participants reach on their own.

0

0.05

0.1

0.15

0.2

0.25

0.3

0.35

0.4

0.45

0.5

Verdict ADR Agreement

Probability of Returning to Court

Probability of Returning to Court


OUTCOMES59

Which Strategies Work in ADR?

Short and Long Term

Findings: Mediator Strategies

Offering Solutions:• Mediator offering

an opinion• Mediator offering

solutions• Legal assessment

Direct

Eliciting Strategies:• Asking

participants for their ideas of solutions

• Summarizing solutions

• Asking how solutions might work for them

Elicit

Reflecting Strategies:• Reflecting

emotions & interests

Reflect

60

Which Strategies Work in ADR: Short Term

Reflecting

Positively associated with participants reporting that the other person took responsibility and apologized;

Positively associated with an increase in a sense of self-efficacy (ability to talk and make a difference);

Positively associated with an increase in the sense that the court cares from before to after the mediation.

61


Eliciting

Positively associated with participants reporting that they listened and understood each other in the mediation, and jointly controlled the outcome;

Participants report that the other person took responsibility and apologized;

Negatively associated with participants report that the mediator controlled the outcome, pressured them into solutions, and prevented issues from coming out.

Eliciting Participant Solution was the only mediator strategy that had an impact on reaching an agreement, and the impact is a positive one.

62


Racial Match of mediator and participant

Positively associated with participants report that they listened and understood each other in the mediation and jointly controlled the outcome;

Positively associated with an increase in a sense of self-efficacy (ability to talk and make a difference);

Positively associated with an increase in the sense that the court cares from before to after the mediation.

63


CaucusMore likely the participants are to report that the ADR

practitioner controlled the outcome, pressured them into solutions, and prevented issues from coming out;

Negatively associated with participants reporting that they were satisfied with the process and outcome, and that the issues were resolved with a fair and implementable outcome.

Positively associated with an increase in a sense of powerlessness, an increase in the belief that conflict is negative, and an increase in the desire to better understand the other participant.

64

Which Strategies Work in ADR: Long Term

Mediator Offering Opinions and Solutions

Negatively associated with participants’ report that the outcome was working, they were satisfied with the outcome, and they would recommend mediation and

Negatively associated with participants’ report that they changed their approach to conflict.

65


Mediation Experience/Frequency

The number of cases the ADR practitioner had conducted in the previous twelve months was negatively associated with participants returning to court for an enforcement action in the subsequent twelve months

66


CaucusThe long term analysis finds that the more time

participants spent in caucus was associated witha decrease in:

participants’ consideration of the other person;

self-efficacy; and,

a sense that the court cares about resolving conflict from before the mediation to several months later.

And an increase in:

participants’ returning to court within twelve months for enforcement action.

67

District Court Criminal68

IMPACT OF ADR

Short Term

Criminal

Goal

Identify the impact of mediation on judicial resources, law enforcement resources, individual experiences, and conflict resolution

Short and Long Term Impact

Judicial Action:

Jury Trial Prayed, Guilty, Not Guilty, Probation Before Judgement (any court action); compared to Nol Prosse or Stet

Jury Trial Prayed

Supervised Probation or Jail

Resulted in Record

Long Term results show more criminal charges

Circuit Court Civil-General71

IMPACT OF ADR

Civil-General

Compare cases that went to ADR to those that did not

Complex data collection

Goals differ, barriers to ADR are important considerations

Those who settle at mediation are more likely to rate having their voice heard or telling their story as important goals

When Case Concluded

0

2

4

6

8

10

12

14

16

18

20

Within 90Days Filing

Before ADRDeadline

At MediationSession

Within 30Days

Mediation

BeforeSettlement

Conf

Between SC &Trial

After TrialBegan

ReceivedVerdict

Timing – Attend ADR vs. Did Not Attend ADR

Attended ADR Did Not Attend ADR

What Works with Evidenced Based Research and Policy

Policy questions become clear objectives

Involve policymakers and stakeholders with researchers

Be aware of political realities

Keep communication open and appropriate

Foster strong relationships

What’s Next?

77

Where do we go from here?

What questions are left unanswered?

What do YOU want to know?

What’s Next?

Where Do We Go from Here?

Symposium Maryland Judiciary

National Experts

In State Experts

Additional Programs for In State Practitioners and ADR Organizations

Policy Changes

Programmatic Changes Qualifications

Quality assurance

Continuing education

What’s Next?

What Questions Are Left Unanswered?

What’s Next?

What Do YOUWant To Know About Your Programs?

Contact Information

J A M I E W A L T E R , P H . D .

D i r e c t o r o f C o u r t O p e r a t i o n s ,

A d m i n i s t r a t i v e O f f i c e o f t h e C o u r t s

j a m i e . w a l t e r @ m d c o u r t s . g o v

4 1 0 - 2 6 0 - 1 7 2 5

J O N A T H A N S . R O S E N T H A L , E S Q .

D i r e c t o r , M e d i a t i o n a n d C o n f l i c t R e s o l u t i o n O f f i c e ( M A C R O ) , A d m i n i s t r a t i v e O f f i c e o f t h e C o u r t s

J o n a t h a n . r o s e n t h a l @ m d c o u r t s . g o v

4 1 0 - 2 6 0 - 3 5 4 8

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