Evaluating Mediation: Improving the Measurement of Procedural FairnessBy Sarah Gordon I. IntroductionMediation has been said to be particularly intriguing because the process involved is in stark contrast with courtroom procedures based on authority and imposition of judgment. [1] In the United States, the mediation process is typically a voluntary, confidential, and participatory one in which a third-party neutral facilitates conversation between parties, regardless of whether or not the mediation is court-connected. [2] Despite the existence of variations on this process, this type of a process is what is customarily meant when referring to mediation and what I will be referring to throughout this paper. The underlying philosophy focuses on the “psychological value of choice and the disadvantages of coercion.” [3] Although mediation programs approach the resolution of disputes differently than courtroom adjudication, the values of justice and equality are not forgotten. Mediation merely focuses on whether or not these values are achieved from the perspective of the individual disputants, as opposed to the perspective of the “reasonable” man. For example, the fact that a judge (i.e., the reasonable man) would otherwise have imposed a certain resolution is irrelevant as long as the disputants determine that it is a mutually acceptable agreement for the resolution of their individualized dispute. If a mediation program is not achieving the goals it set out to accomplish, then there is no value in its continued functioning. Although I would think this true for almost any program or endeavor, it is particularly true for mediation programs. Furthermore, “[i]f policy-makers and program administrators are to understand the impact and quality of mediation programs, provisions should be made for periodic evaluation and ongoing monitoring of the program.” [4] From an administrative standpoint, there is often a lot of time and monies involved in maintaining a successfully run program. If the goals of a program are not being accomplished, it wastes the time of the disputants it is aimed to help and may leave them feeling more frustrated than before they started. Therefore, it is extremely important that programs implement some type of evaluation in order to avoid wasting time and money.[5] In addition, evaluations can provide a means for altering aspects of the program that are unsuccessful or need improvement. Determining whether a mediation program is or is not “successful” is extremely important, [6] but in order to make this determination one must first define “success.” I would contend that success should be defined as accomplishment of the goals of the program, [7] regardless of whether those goals are high rates of settlement, mediator neutrality, client participation, fairness regarding the outcome or process and/or client satisfaction regarding the outcome or process. Therefore, how one evaluates the success of a program should depend highly on the goals of the particular program at hand. Despite having a consistent underlying basis, mediation programs often have overarching goals that make each program distinct. This assertion highlights the importance of clearly defining goals when designing programs. [8] Procedural fairness is typically considered a contributing factor to client satisfaction, which is often used as a criterion for measuring the success of mediation. [9] Therefore, it has been suggested that when measuring the success of mediation it is important to examine disputants’ perceptions regarding procedural fairness. [10] Because the focus of mediation is on providing a participatory process that is distinct from that of courtroom adjudication [11] and the factors associated procedural fairness are consistent with the underlying goals of mediation, [12] it is not surprising that procedural fairness is of concern. This is not to suggest that disputants’ perceptions with regard to procedural fairness constitute the entire realm of whether of not a program is successful, but rather an integral part of program evaluations. Because it is so closely tied to the basic principles of mediation, it should be a goal of almost every program to ensure that the mediation process is procedurally fair; thus, it is the focus this paper. Some researchers suggest that because the mediator is perceived as a court representative, particularly in cases where mediation is court-encouraged, disputants are highly concerned with procedural fairness. [13] Perceptions regarding procedural fairness have been shown to be related to the trust, loyalty, and respect that are accorded to a mediator, [14] which should all enhance the mediation process. Additionally, perceptions of fairness have been shown to increase adherence to agreements [15] and lead to increased perceptions regarding the fairness of the outcome. [16] It appears that when the process is perceived as fair, disputants are more likely to come to some sort of mutually acceptable resolution, thus, increasing settlement rates. These are just a few more reasons why the majority of programs, particularly court-annexed programs attempting to reduce their docket, should be concerned with procedural fairness. The focus of the current paper in on the evaluation of mediation programs, specifically the success of court-annexed mediation programs as measured by perceptions of procedural fairness. Section II of the current paper discusses research regarding the underlying factors of procedural fairness. Section III addresses the perceived problem with regard to mediation evaluations. Section IV furthers the discussion in section III, by providing and critiquing specific examples of evaluations of procedural fairness. Section V suggests how to remedy the problem by looking at the goals of one particular mediation program. Section VI uses the information discussed in section V to develop a measure of procedural fairness for that program and discusses concerns regarding the practicality of such a measure. And lastly, Section VII concludes by suggesting how to move forward with the suggestions made herein. II. Procedural Fairness in MediationProcedural fairness involves individuals’ perceptions of whether the process employed to attain an outcome was fair. [17] Many different researchers have set forth criteria that more specifically define the concept of procedural fairness. [18] Although numerous factors have been identified over the years as important to examining the concept of procedural fairness, there is consistency in the criteria used to judge whether a dispute resolution process, such as mediation, is fair. A review of the literature suggests that there are generally four underlying factors: voice, neutrality, respect, and voluntariness. A. Voice One theory of what influences perceptions of procedural fairness has to do with the amount of control parties feel they have over the presentation of information or evidence. [19] Thibaut and Walker suggest that individuals are willing to give up the actual act of decision making so long as they are able to maintain control over the process. [20] They refer to this idea of caring about how things are done, rather than about the actual outcome, as “process control.” [21] “Process control” is also referred to in the literature as “voice.” Voice can be described as the ability to express one’s opinion regarding how the process will function; specifically with regard to the parts of the process the individual feels are relevant to him or herself. [22] One author describes the opportunity for voice as a meaningful opportunity to tell one’s story. [23] Therefore, voice can be described as the ability to express one’s opinions regarding any accounts of the issue that brought them to mediation and about any proposed resolutions to the situation. Two types of voice have been identified: value-expressive and instrumental. [24] Value-expressive voice is the expression of one’s opinions for the sake of having them heard, and not necessarily acted upon. [25] It has been suggested that, regardless of the ultimate decision, it is the opportunity for self-expression alone that is viewed as procedurally just. [26] In fact, parties have identified the opportunity for voice as being equally as important as their control over the final resolution. [27] This expression has been viewed as an end in and of itself. [28] Instrumental voice on the other hand, is the expression of one’s ideas with intentions of having those ideas acted upon. [29] Disputants’ perceptions regarding how well the information presented reflects his or her own position has been shown to be related to disputants’ perceptions of fairness. One author indicated that mediation often paints an inaccurate picture because of the disputants’ desires to present only that information that is beneficial to his or her own side. [30] Because mediation merely encourages participation and does not compel participation or information sharing, disputants who highly value instrumental voice may not find their needs met by mediation, due to the fact that their ideas, about gaining information that accurately portrays their side of the situation, may not be shared by the opposition. It is an individual’s intentions in expressing their “voice” that distinguishes these two types of voice from one another. [31] Voice has been recognized as an important construct because it has been found to be positively related to individual’s justice judgments. [32] This concept of voice is just one of many factors that can affect one’s judgment regarding whether the process of mediation was fair and just. [33] B. Neutrality People are more likely to perceive a process as fair if they feel that the third party has listened to, cared about, and understood the issues central to them. [34] Neutrality is sometimes termed “bias suppression,” and refers to the impartiality of the third party neutral. [35] In situations that do not involve a neutral, this principle applies to decision makers and/or authority figures. Any inclination that the neutral is treating the opposing party better will negatively affect perceptions of procedural fairness, particularly because of the voluntary nature of mediation. [36] In fact, it has been shown that even when a neutral shows bias in one’s favor, that individual perceives the process as being less fair than if the neutral had behaved neutrally. [37] C. Respect People value being treated with dignity and respect. [38] The consistency of the process can often act as a sign of respect. [39] It has been pointed out that although mediation does not guarantee consistency in the application of the rules, it does provide the consistent opportunity to develop the rules. [40] Furthermore, the rules developed in any given mediation should be applied consistently throughout that specific mediation. The ethical and moral norms of society that are relevant to the process can also affect perceptions of respect and, thus, perceptions of procedural fairness. Some research suggests that being treated in a manner that is consistent with everyday expectations regarding social relations and norms is more important than formal due process. [41] These concepts are integral to one’s perception of fairness. Because people expect to be treated with respect and violations of this expectation will likely result in negative perceptions of fairness, this assertion is consistent with the discussion regarding perceptions of fairness being tied to expectations in section III. [42] D. Voluntariness Voluntariness, as used in the context of procedural justice, does not only refer to whether or not the meditation is court-mandated or freely attended. In addition, voluntariness refers to the free exchange of information and the parties’ ability to participate at any level they desire. Some have discussed the previously mentioned concept of voice in a framework that minimizes the focus on control. [43] One such concept has been referred to in the literature as “representativeness,” but is better described as disputant access and input at all levels. [44] Mediation is well suited for achieving this end, as the process virtually always encourages participation throughout. [45] Mediation is centered on the concept of disputant input; disputants are encouraged to actively engage in discussion and share their thoughts and feelings about each other and about proposed solutions. [46] Correctability is also a term related to voluntariness; which refers to the ability to fix something if a party perceives it as a problem. Although mediation does not provide a formal appeals process, the voluntary nature of mediation creates an opportunity to walk away if an individual feels as though the process is unfair. [47] Therefore, although correctability with regard to an appeals process is not necessarily available, disputants are free to fix anything they perceive as a problem through discussion or termination of the mediation. Disputants are not bound to decisions made by anyone but themselves. III. The ProblemThe current measurement of procedural fairness results in limited to no information regarding why individuals perceive a particular mediation process as fair or unfair, due to the extremely limited nature of the information elicited. There have been repeated attempts to measure procedural fairness. [48] An examination of the research indicates that some measures used to determine individuals’ perceptions of fairness ask participants questions such as, “Were you satisfied with the process?” [49] Often times, mediation evaluations more directly ask the question, “Did you feel the process was fair?”—or some variation thereof. These types of questions, although better than nothing, do not elicit any information regarding why an individual may or may not perceive the process as fair; they merely provide a general sense of whether or not an individual felt that they were afforded a fair process. Upon learning that a number of evaluations have been submitted suggesting that disputants felt the process was unfair, what is it that a program administrator should change to improve upon the existing process? This is where the problem with current forms of evaluation becomes very clear. The lack of clarity regarding what needs to be changed in order for disputants to perceive the process as more fair is a direct consequence of inadequate measurement. Evaluations indicating that a mediation program is perceived as unfair can be extremely upsetting for an administrator and, in extreme cases, can result in the termination of funding for a program.[50] However, it is important to point out that perceptions of unfairness do not necessarily reflect a failure of the program. The research demonstrates that fairness perceptions appear to be governed by an expectation matching proposition.[51] Essentially, when expectations are not met, the situation is likely to be perceived as unfair; whereas, met expectations tend to result in higher perceptions of fairness. [52] For example, a disputant who expects the mediator to render a decision at the end of a mediation will likely perceive their experience in mediation as unfair, particularly if no acceptable agreement is reached. [53] From a practical perspective, there are many law school graduates that do not fully understand the concept of mediation, let alone the average layperson hailed into court to resolve a dispute. Therefore, particularly when the court has compelled (or constructively compelled)[54] disputants to participate in mediation, they often have no concept of what to expect. Furthermore, the expectations they do possess are often associated with courtroom adjudication. It becomes clear through this discussion that it is not unlikely that disputants will come to mediation with unrealistic expectations, one of which is that the mediator will render a binding decision with regard to their altercation. [55] This is just one example of how disputants’ expectations with regard to mediation can result in decreased perceptions of fairness that are not necessarily indicative of the success of a given program. It follows that a disputant’s perception that the process is unfair should only be an indicator that the program needs improvement if the disputant’s expectations match the goals of the program being evaluated. It seems a lofty endeavor to seek high perceptions of fairness from individuals whose expectations differ from the purpose of the program being evaluated. Certainly, it is impossible to know the expectations of all disputants or to pretend that they are in some way consistent across the board. However, it is possible to influence the perceptions of disputants. Thus, it is the contention of this paper that, by shaping disputant expectations, administrators can increase perceptions of their program’s fairness. For example, including information about the mediation process and the specific goals of a given program with the letter instructing disputants that they must attend mediation, can work to more closely align their expectations with the goals of the program. This method provides disputants the opportunity to more knowledgeably enter the mediation process and helps to avoid serious violations of the expectation matching proposition. Further, it may increase the efficiency of court-annexed programs by decreasing the number of failed mediations due to disputants’ misperceptions regarding the process. In order to accurately shape disputants’ perceptions and evaluate the success of a mediation program, it is imperative to have a clear sense of the program’s goals. For the purposes of evaluation, a measure should be narrowly tailored to the goals and purposes of each specific program. This paper aims to improve on the measurement of procedural fairness for the purpose of evaluating mediation programs by presenting a method for revising measures of procedural fairness to tap aspects specific to the program being evaluated. IV. The Inadequacy of Current MeasuresResearch regarding the existing measurement of procedural fairness revealed a wide spectrum of evaluation methodologies. The most detailed evaluations involve diligent academic research that have implemented comprehensive mediation evaluation systems for the purpose of empirical assessment. [56] Others, more practically, involve the problem at hand: mediation programs that are attempting to evaluate themselves by asking anywhere from two to five questions. Preliminary research appears to indicate that these programs, along with a few academic empirical studies, are merely asking whether or not disputants felt the process was fair. 57 Unfortunately, many of the programs contacted for evaluation forms do not have any form of mediation evaluation in place. 58 This paper encourages the use of evaluations to gain important feedback about mediation programs. Further, it encourages the application of the principles laid out in this paper to construct meaningful evaluations. It is important to recognize that many programs are not conducting evaluations. Of the major cities/counties in Ohio, where this research was conducted, only two mediation programs contacted indicated that they conduct any form of evaluation: The Domestic Relations Court of Franklin County Mediation Program (“DRMP”) (Columbus, OH) [59] and the Summit County Court of Common Pleas Mediation Program (“SCMP”) (Akron, OH). [60] Summit County indicated that although they have an evaluation form available, it was something they previously administered and is now only provided upon disputant request. [61] Unexpectedly, none of the other major cities and/or programs indicated that they conduct any form of evaluation, [62] including Lucas County (Toledo, OH) [63], Hamilton County (Cincinnati, OH) [64], Mahoning County (Youngstown, OH) [65], and Cuyahoga County (Cleveland, OH). [66] This lack of available evaluations creates an opportunity for programs to employ the strategies suggested herein, in order to begin evaluating their programs in a way that elicits valuable information. [67] Therefore, it is important to point out that programs that have not implemented some sort of evaluation should do so, [68] and should do so in accordance with the suggestions made here. Some of the academic research conducted on mediation does exactly what is being suggested here, particularly empirical studies with methodological concerns. One example of this is a study that was conducted by Roselle Wissler. [69] Although this study focused on the comparison of mediation and adjudication rather than on the evaluation of mediation programs in general, the author did have disputants evaluate the mediation process. The types of procedural items that were included elicited valuable and detailed information. The evaluation provided in that study included the following items: [70] ITEMS RELATED TO PROCEDURAL FAIRNESS
The questions above are a sampling of the items provided to the disputants in Dr. Wissler’s study. This type of an evaluation taps different aspects of the procedure that may contribute to a disputant’s ultimate perception of fairness. In other words, when asking disputants to evaluate whether or not the mediation process was fair, Dr. Wissler’s study did not merely ask the extent to which disputants felt the process was fair. Unfortunately, Dr. Wissler indicated that she was unaware of any evaluation process that existed prior to or after the completion of her study. [71] Although this may not be indicative of the norm, it would not be surprising to find that mediation programs evaluated with good empirical methods are only evaluated as part of short term studies, rather than as a tool for the constant improvement of programs. This, therefore, begs the question: if mediation programs implement their own form of evaluation, what type of feedback are they eliciting? Of the programs contacted that implemented their own form of evaluation, limited information was available. Unfortunately, as previously indicated, the research turned up more non-existent evaluation systems than flawed ones. However, the DRMP and the SCMP both had evaluation processes that, at least in part, suffer from the problem this paper is aimed at remedying. This is not to criticize either program, as it appears they are ahead of the game with regard to collecting information that can help them to improve their programs. A. Domestic Relations Court of Franklin County Mediation Program ("DRMP") The DRMP presents the following procedurally oriented items after the completion of all domestic mediations:[72]  The DRMP even goes a step further by following up with a telephone survey three to six months after the mediation. The procedurally oriented items include: [73]  Although this two-part survey could potentially elicit some information about the neutrality of the mediator and the amount of time provided for a disputant to express his or herself, slightly tweaking the items to be more targeted could go a long way in attaining information more useful for improving the program. In fact, this evaluation could be improved dramatically without even increasing the number of items. The next section will discuss exactly how to go about improving an evaluation survey. B. Summit County Court of Common Pleas Mediation Program ("SCMP") The SCMP, upon request of a disputant, presents the following free-response [74] items after the mediation: [75] SELECTED SCMP ITEMS RELATED TO PROCEDURAL FAIRNESS
These were the only items that could even loosely be associated with the construct of procedural fairness. Although the free response answer format provided here has the potential to gain valuable information about why a disputant feels a certain way, it simultaneously runs the risk of gaining no valuable information, because disputants are free to list something inconsequential to the goals of the mediation program being evaluated. In this case, no direction is provided to disputants with regard to gaining feedback about the goals the program is trying to accomplish, whether they be procedurally based or not. As can be seen by the items presented above, the information available about whether or not these mediation programs are accomplishing their goals with regard to procedural fairness is limited. Certainly, knowledge about whether or not a party felt the process was fair is not worthless, but knowing why a party felt that way is much more enlightening. Unfortunately, neither survey appears to fully tap the underlying factors that contribute to one’s perception of procedural fairness. V. Remedying the Problem: Evaluating Program Specific GoalsFor accurate measurement, and in order to tailor the measure to the program at hand, it is imperative to know the goals of the program that is being evaluated. The factors outlined in section II [76] have been shown to generally underlie the concept of procedural fairness. However, all of these factors may not be salient to every program. Additionally, there may be other procedurally based factors that relate specifically to the program being evaluated. For example, confidentiality is not specifically mentioned as a factor that generally underlies one’s concept of procedural fairness. However, confidentiality is directly related to the underlying factor of respect and will, therefore, likely influence disputants’ perceptions of procedural fairness. Because improving the measurement of procedural justice requires specific knowledge of the program being evaluated, it is important to have a specific program in mind when developing a measure. This paper demonstrates how to remedy the problem by creating a procedural fairness measure for the evaluation of the Franklin County Small Claims Court Mediation Program (“FCMP”). It is clear that the FCMP is concerned with procedural fairness. The mediation training manual associated with the program states on the first page that, “[a]n important goal [of the program] is for the parties to have a positive experience in the mediation process regardless of the results.” [77] As expected, the FCMP’s perception of what is procedurally fair is, in many ways, consistent with the factors outlined above. However, the intricacies and purpose behind the mediation program are important considerations when developing a measure of procedural fairness. The orientation training manual provides new mediators with a relatively clear sense of the purpose of the program. The training manual embraces five factors underlying procedural fairness in the mediation process: neutrality, voluntariness, confidentiality, facilitation, and participation. Each of these factors is discussed in detail below. A. Neutrality The FCMP training manual indicates that the mediator should have no personal interest in the dispute. [78] The mediator’s role is not to judge, or even advise, but rather to facilitate settlement negotiations while remaining neutral. [79] The sample introduction in the manual suggests that the mediator indicate it is not his or her role to decide who is right or wrong or to advise either party as to what he or she should do. [80] Furthermore, the manual points out that neutrality includes all aspects of a mediator's demeanor: speech, body language, facial gestures, positioning, and eye contact. [81] This goal relates to the discussion on neutrality in section II, but focuses more directly on what mediator behaviors are likely to make a disputant feel as though he or she has been listened to, cared about, and understood. Further, it focuses on the importance of the impartiality of the mediator. [82] B. Voluntariness Mediation, according to the FCMP, is a voluntary process. [83] Interestingly enough, there is no mention of the voluntariness factor in the sample introduction. It does, however, mention in the overview that, with rare exception, no one will be required to engage in mediation. Additionally, it mentions that no one will ever be unduly pressured into an agreement. [84] This goal directly relates to the factor of voluntariness that was outlined above. [85] In addition, the FCMP appears to recognize the importance of correctability, from the standpoint that it values the ability of disputants to make their own decisions about participation in the process. C. Confidentiality The FCMP also provides for a confidential process in which disputants can communicate safely. [86] The purpose of this goal is to help facilitate open dialogue by making disputants aware that the information shared cannot be used against them in a subsequent lawsuit or other proceeding if the dispute is not resolved in mediation. [87] The sample introduction suggests that the mediator request that everyone in the room agree that what is said in the room will be considered confidential. This goal ties in with the underlying factor of respect to the extent that the FCMP wants disputants to share freely without fearing that information, shared in a mediation that does not result in agreement, will be used against them by someone purporting to be neutral. D. Facilitation According to the FCMP goals, the mediator is the facilitator of communications. [88] The mediator can span the barriers that exist between the disputants with regard to their communication. [89] The ability to clarify and improve understanding of the disputants’ communication is a critical component of the mediation process. [90] The sample introduction suggests that the mediator indicate that his or her goal is to help the participants work through the dispute together to come up with a solution that is satisfactory to everyone. [91] It further suggests that the mediator indicate that his or her job is to listen to the participants’ concerns and to identify the issues that need to be addressed. [92] Facilitation appears to be related to the underlying factors of both voice and neutrality. Voice and neutrality underlie facilitation to the extent that the goal of the mediator is to facilitate the free-exchange of information between disputants (i.e., voice) without demonstrating a bias in favor of either disputant (i.e., neutrality). E. Participation Another goal of the mediator is to help the disputants to communicate. [93] The sample introduction suggests that mediators ask parties to speak with the mediator about the issue that brought the party to the table. [94] The concept of participation is most directly related to the concept voice. Encouraging disputants to share information without compelling participation, allows them the perfect opportunity to express their voice. From an empirical standpoint, participation may be tied up with the concept of facilitation, in that both are tied to the underlying concept of voice. However, for the purposes of this paper they will be treated as two distinctly different constructs. The next step in the process of developing a new measure of procedural fairness is to write items that are tailored to program goals and underlie the concept of procedural fairness. This method helps to ensure that the feedback received from the evaluation is specific and useful with regard to knowing whether or not a program is perceived as procedurally fair, as defined by the program. Also, by writing items specific to the program at hand and providing response options, the party is directed to provide the valuable feedback that can be empirically analyzed. VI. Measuring Procedural Fairness for the FCMPPairing the research regarding the factors underlying procedural fairness with the goals of the FCMP provides a solid basis for the development of a measure that accurately evaluates procedural fairness—a measure that will provide feedback specific to the FCMP. Each item should be written to reflect something concrete that the program administrator can use to understand why disputants feel a mediation process is fair or unfair. A hypothetical measure is presented below:  For ease of understanding, I listed and organized the items by factor. However, from an empirical standpoint, the items should not be administered in the order presented or with the factor titles. Furthermore, some of the items are worded in the reverse to prevent reliance on evaluations that were not read by disputants prior to circling responses. It is important to remember that this only intended to measure procedural fairness and is in no way meant to be a comprehensive evaluation of the FCMP. Practicality is a concern for almost all program administrators. Therefore, I propose two different ways of approaching mediation evaluation: empirical and practical. The first, and arguably the most comprehensive, method would be to use something similar to what is presented above. The items are structured in a way that is conducive to statistical analysis, [95] which over time, could provide extremely useful information regarding the effectiveness and efficiency of a program. Further, because the survey is intended to be given after the mediation, many believe that the outcome of the mediation influences perceptions of fairness regarding the process. Therefore, the author suggests that, if being used to empirically predict disputants' overall satisfaction, the researcher/assessor control for perceptions of fairness regarding the outcome. [96] It is important to note that even empirical methods are only as good as those interpreting the results. [97] The second method is the more practical method. Despite the value of empirical analysis, some program administrators do not have the time or resources to engage in such an endeavor on a regular basis. [98] In fact, program administrators likely fear disputant irritation with long evaluation forms after the termination of a mediation. Therefore, the author suggests that evaluations consist of at least one item narrowly tailored to the programs goals. For example, rather than providing disputants with the hypothetical measure above, administrators should select one item from each factor. This would alleviate the practicality concerns that come with administering a fifteen item survey that only taps one aspect of the mediation; yet, it would preserve the quality of the information elicited by directing disputants to provide feedback about the goals of the program being evaluated. The practical knowledge that can be gained simply by reading over results is too often minimized, and apparently rarely used. This is particularly true when items are tailored from empirical research and rigorous examination of the goals of the program. VII. ConclusionThis paper suggests that program administrators do several things to increase the utility of the information they receive from their evaluations, specifically with regard to procedural fairness. First, program administrators should specifically identify the goals of the program so that evaluations can be narrowly tailored to them. Second, disputants should be advised about these goals prior to being hailed into mediation in order to avoid violating their expectations. Third, goals that relate to the concept being evaluated, in this case procedural fairness, should be identified. Fourth, items should be constructed that are narrowly tailored to the identified goals, and that elicit valuable feedback that can be used to improve the program. Fifth, if practical, evaluations should be empirically analyzed over time in order to identify trends in disputant perceptions. Lastly, the information gleaned from these evaluations should be used to improve the program. Some academic research exists that evaluates procedural fairness with regard to the factors identified here. Unfortunately, mediation programs that are not the subject of some form of academic empirical assessment do not appear to be implementing detailed forms of measurement. In fact, the odds seem to indicate that the majority of programs are not eliciting any form of formal feedback. Therefore, this paper suggests that programs lacking any form of evaluation develop and implement one immediately. Further, it suggests that this be done in accordance with the principles laid out above. [1] Craig A. McEwen & Richard J. Maiman, Small Claims Mediation in Maine: An Empirical Assessment, 33 ME. L. REV. 237 (1981). [2] See, e.g., Nancy A. Welsh, Making Deals in Court Connected Mediation: What’s Justice Got to do with It?, 79 WASH. U. L.Q. 787 (2001); McEwen & Maiman, supra note 1; Roselle L. Wissler, Mediation and Adjudication in Small Claims Court: The Effects of Process and Case Characteristics, 29 Law & Soc’y Rev. 323 (1995); Hea Jin Koh, “Yet Shall I Temper So Justice With Mercy” Procedural Justice in Mediation and Litigation, 28 Law & Psychol. Rev. 169, 172 (2004). [3] Bruce J. Winik, Therapueutic Jurisprudence and the Civil Commitment Hearing, 10 J. CONTEMP. LEGAL ISSUES 37, 57 (1999). See also, Model Standards of Conduct for Mediators at http://www.abanet.org/dispute/documents/ model_standards _conduct_april2007.pdf (2005) (these standards were jointly developed by the American Arbitration Association (AAA), the American Bar Association (ABA) and the Society of Professionals on Dispute Resolution (SPIDR) and list self-determination as the first standard of mediation) [hereinafter “Standards of Conduct”]. [4] Sarah R. Cole, Craig A. McEwen & Nancy H. Rogers, Mediation: Law, Policy, Practice § 6:14 (2nd ed. 2006). [5] Id.(“Private funders and public executive and legislative bodies frequently demand documentation of program success as a basis for continued funding.”). [6] Id. [7] The American Heritage Dictionary of the English Language (4th Ed. 2006). Success. (defining success as “the achievement of something desired, planned or attempted”). [8] Cole, McEwen & Rogers, supra note 4. [9] Id. at § 6:15 (stating that participant perceptions of fair process and fair outcome have proved “the most common way to attempt to translate quality into something less murky”). [10] See Koh, supra note 2 at 169. [11] See, e.g., Carrie Menkel-Meadow, Access to Justice: The Social Responsibility of Lawyers: When Litigation is Not the Only Way: Consensus Building and Mediation as Public Interest Lawyering, 10 WASH. U. J.L. & POL’Y 37, 43 (stating that proponents of the process believe that the outcomes produced in a participatory framework are often qualitatively better than the outcomes resulting from third-party decision makers, particularly in the eyes of the parties involved). [12] See Section III, infra. [13] Nancy A. Welsh, supra note 2 at 833-834. [14] Nancy A. Welsh, Perceptions of Fairness, in THE NEGOTIATOR’S FIELDBOOK 170 (Andrea K. Schneider & Christopher Honeyman eds., 2006). [15] McEwen & Maiman, supra note 1, at 239. [16] Tom Tyler & Heather Smith, Social Justice and Social Movements, in 2 THE HANDBOOK OF SOCIAL PSYCHOLOGY 595, 604 (Daniel Gilbert et al. eds., 4th ed. 1998); See McEwen & Maiman, supra note 1, at 238. [17] Koh, supra note 2, at 169. [18] See, e.g., Tyler & Smith, supra note 16, at 604; John W. Thibaut, J.W. & Laurens Walker, Procedural Justice: A Psychological Analysis (L. Erlbaum Associates ed., 1975); E.Allen Lind & Tom R. Tyler, The Social Psychology of Procedural Justice (Plenum ed., 1988); Welsh, supra note 14. [19] Tyler & Smith, supra note 16, at 604. See Thibaut & Walker, supra note 18. [20] Thibaut & Walker, supra note 18. [21] Id. [22] Lind & Tyler, supra note 18. [23] Welsh, supra note 14, at 170. [24] B.D. Cawley, Lisa M. Keeping, & Paul E. Levy, Participation in the performance appraisal process and employee reactions: A meta-analytic review of field investigations, 83 J. APPLIED PSYCH. 615-633 (1998). [25] Id. at 615-633. [26] T.R. Tyler, K. Rasinski & N. Spodick, The influence of voice on satisfaction with leaders: Exploring the meaning of process control, 48 J. PERSONALITY & SOCIAL PSYCH. 72-81 (1985). [27] Welsh, supra note 2, at 825. [28] M.A. Korsgaard, & L. Roberson, Procedural justice in performance evaluation: The role of instrumental and non-instrumental voice in performance appraisal discussions. 21 J. OF MANAGEMENT 657-669 (1995). [29] Cawley, Keeping, & Levy, supra note 24, at 615-633. [30] Gerald S. Leventhal, What Should be Done with Equity Theory? New Approaches to the Study of Fairness in Social Relationships, in Social Exchange: Advances in Theory and Research 27, 39-46 (Kenneth J. Gergen et al. eds., 1980). [31] Cawley, Keeping, & Levy, supra note 24, at 615-633. [32] Thibaut & Walker, supra note 18. [33] See, e.g., Id.; Welsh, supra note 14. [34] See Tom R. Tyler, Citizen Discontent with Legal Procedures: A Social Service Perspective on Civil Procedure Reform, 45 Am. J. Comp. L. 871, 887 (1997). [35] Leventhal, supra note 30, at 39-46. [36] Welsh, supra note 14, at 169. [37] See Id. See also, Section III for a discussion regarding expectation matching. [38] Welsh, supra note 14, at 169. [39] Leventhal, supra note 30, at 39-46. [40] Koh, supra note 2, at 172. [41] Welsh, supra note 2, at 826. [42] See Section III, infra. [43] Leventhal, supra note 30. See Tyler & Smith, supra note 16, at 604. [44] Leventhal, supra note 30. [45] Id. See Tyler, supra note 34, at 887. [46] Interestingly enough, it has been shown that the participation of attorneys in mediation processes results in the parties’ being heard a lot less; however, the contrary has also been shown when parties feel their attorney has accurately conveyed their position. Parties may speak less, but because of some large power imbalance feel a larger sense of representation or voice. Conversely, they may speak less and be happier with the outcome, but still feel dissatisfied with the process due to their own lack of participation. Welsh, supra note 2, at 840-841. [47] Id. [48] Cole, McEwen & Rogers, supra note 4 (Participant perceptions of fair process and fair outcome have proved the most common way to attempt to translate quality into something less murky.). See, e.g., McEwen & Maiman, supra note 1; Wissler, supra note 2. [49] E-mail from Marya Kolman, to Sarah Gordon, Franklin County Mediation Service Participant Survey (Dec. 17, 2007, 11:45am EST) (on file with author). [50] Cole, McEwen & Rogers, supra note 4 (“Private funders and public executive and legislative bodies frequently demand documentation of program success as a basis for continued funding.”). [51] See Bennet Cherry, Lisa D. Ordoñez & Stephan W. Gilliand, Grade Expectations: The Effects of Expectations on Fairness and Satisfaction Perceptions, 16(5) J. BEHAVIORAL DECISION MAKING 391-392, (2003). [52] Chris Guthrie & James Levin, A “Party Satisfaction” Perspective on a Comprehensive Mediation Statute, 13 OHIO ST. J. ON DISPUTE REOL. 885, 888 (1998). See Cherry, Ordoñez & Gilliand, supra note 51. [53] Guthrie & Levin, supra note 52, at 888. [54] For example, the following line mimics what can be seen at the bottom of letters requesting voluntary mediation: Failure to attend this meditation could result in legal action being taken against you. Despite being a voluntary process, “[disputants] may not recognize the subtle differences between referral to mediation, compulsion to mediate, and friendly coercion to reach a settlement.” Jacquelin M. Nolan-Haley, Court Mediation and the Search for Justice Through Law, 74 Wash. U. L. Quart. 47, 61-62 (1996). [55] In the author’s experience as a court-annexed mediator she has experienced this expectation on numerous occasions. For example, a disputant once screamed repeatedly that if I, the mediator, did not prosecute, she would take her complaint city-wide. This disputant was informed on at least five occasions during the mediation that the mediator was not the prosecutor and had no authority to engage in prosecutorial behavior. Furthermore, this disputant was reminded that the mediator was a neutral party whose goal was to help the disputants come up with their own resolution that would be acceptable for both individuals. These assertions were to no avail, as it appeared that this disputant’s pre-conceived notion of what was going to occur in the mediation could not be altered. The mediation was ultimately ended without resolution. It is my belief that this individual perceived the process as extremely unfair; however, she did not formally evaluate the mediation. [56] See, e.g., Roselle L. Wissler, supra note 2. [57] See, e.g., E-mail from Marya Kolman, to Sarah Gordon, supra note 49; Fax from Summit County Court of Common Pleas Administrative Assistant, to Sarah Gordon, MEDIATION SURVEY (Dec. 19, 2007, 9:13am EST) (on file with author) [58] This assertion is based on telephone and e-mail based research conducted by the author for the purposes of this paper. Of the domestic relations and common pleas courts of the six major cities/counties in Ohio, only two programs indicated that they solicit feedback from disputants after the completion of a mediation, and only one does so consistently. [59] E-mail from Marya Kolman, to Sarah Gordon, supra note 49. [60] Fax from Summit County Court of Common Pleas Administrative Assistant, to Sarah Gordon, supra note 57. [61] Telephone Conversation between Summit County Court of Common Pleas Administrative Assistant and Sarah Gordon, (Dec. 18, 2007, 3:00pm EST); Telephone Conversation between Summit County Domestic Relations Administrative Assistant and Sarah Gordon, (Dec. 18, 2007, 3:05pm EST). [62] To imply that a comprehensive scan of all potential mediation programs in these counties was conducted would be unfair. However, in almost all cases, both the court of common please and the domestic court were contacted. [63] Telephone Conversation between Lucas County Court of Common Pleas Administrative Assistant and Sarah Gordon, (Dec. 18, 2007, 3:10pm EST). Telephone Conversation between Lucas County Domestic Relations Administrative Assistant and Sarah Gordon, (Dec. 18, 2007, 3:15pm EST). [64] Telephone Conversation between Hamilton County Mediation Services Administrative Assistant and Sarah Gordon, (Dec. 18, 2007, 3:20pm EST). [65] Telephone Conversation between Mahoning County Court of Common Pleas Administrative Assistant and Sarah Gordon, (Dec. 18, 2007, 3:30pm EST). Telephone Conversation between Mahoning County Domestic Relations Administrative Assistant and Sarah Gordon, (Dec. 18, 2007, 3:35pm EST). [66] Telephone Conversation between Lawrence Loeb, Director of Court of Common Pleas Domestic Relations Mediation Services and Sarah Gordon, (Dec. 18, 2007, 3:40pm EST). Telephone Conversation between Cuyahoga County Court of Common Pleas Administrative Assistant and Sarah Gordon, (Dec. 18, 2007, 3:40pm EST). [67] Welsh, supra note 14 (noting that perceptions of procedural fairness are related to the trust, loyalty, and respect that are accorded to a mediator). McEwen & Maiman, supra note 1, at 239 (perceptions of fairness increase adherence to agreements and lead to increased perceptions regarding the fairness of the outcome). [68] Cole, McEwen & Rogers, supra note 4. [69] Wissler, supra note 2. [70] These items came from the measures/interviews that were conducted as part of the study conducted by Dr. Wissler. Wissler, supra note 2. They were not included in the actual text of the study, but were provided to the author by Dr. Wissler. Letter from Roselle Wissler, Research Director, Lodestar Dispute Resolution Program, Arizona State University, to Sarah Gordon. (November 20, 2007) (on file with author). [71] E-mail from Roselle Wissler, to Sarah Gordon, (Dec. 19, 2007, 6:02pm EST) (on file with author). [72] E-mail from Marya Kolman, to Sarah Gordon, supra note 49. Items regarding general satisfaction with the mediation process were removed because research has shown that satisfaction and fairness are distinct constructs. [73] Id. [74] Free response refers to the fact that the disputant is given blank lines on which to present their feelings and/or answer to the question presented. [75] Fax from Summit County Court of Common Pleas Administrative Assistant, to Sarah Gordon, supra note 57. [76] Section II supra page 6. [77] DISPUTE RESOLUTION PROGRAM: MEDIATION TRAINING MANUAL 1 (Eileen Pruett & Patricia Benchia eds., 2005). [78] Id. at 3. [79] Id. at 3. [80] Id. at 13. [81] Id. at 29. [82] Leventhal, supra note 30, at 39-46. [83] DISPUTE RESOLUTION PROGRAM: MEDIATION TRAINING MANUAL, supra note 77. [84] Id. [85] See Section II, supra page 6. [86] DISPUTE RESOLUTION PROGRAM: MEDIATION TRAINING MANUAL, supra note 77, at 3. [87] Id. [88] Id. [89] Id. at 4. [90] Id. at 3-4. [91] Id. at 13. [92] DISPUTE RESOLUTION PROGRAM: MEDIATION TRAINING MANUAL, supra note 77, at 13. [93] Id. at 3. [94] Id. at 14. [95] Internal consistency reliability is a measure of reliability of different survey items intended to measure the same factor. In order to be able to accurately determine the internal consistency reliability of each factor, it is typically suggested that surveys contain a minimum of three items per factor. Cook, Campbell & Stanley, Quasi-Experimentation: Design and Analysis for Field Settings (1979). [96] This can be done by adding outcome fairness to the model and determining whether or not the relationship between procedural fairness and participant satisfaction is still significant. [97] Cole, McEwen & Rogers, supra note 4, § 6:19 (Ultimately, empirical research and data do not themselves evaluate; they only provide evidence to those charged with the responsibility for evaluation and monitoring.). [98] Id. § 6:14. |