Process Design Considerations in Assessing the Merit of “Parenting Time Expeditor” Programs in Ontario. by Hilary Linton - July 2002. Background In an effort to reduce the number of court cases dealing with disputes between parents over time with their children, the state of Minnesota has introduced legislation permitting judges to refer such parents to “parenting time expeditors” for mediation-arbitration.1 The role of such expeditors is to resolve, either by mediation or by arbitration if necessary, disputes that are brought before the court because of ambiguities or gaps in existing orders and judgments.2 The legislation provides for the selection or appointment of the expeditor, payment of fees, training and educational requirements of expeditors, the steps involved in the process, exemptions from the rule, confidentiality, immunity of expeditors, and in what circumstances a jurisdiction may introduce a mandatory parenting time dispute resolution process as a pre-requisite to bringing a motion.3 The goal of the legislation was to reduce the number of adversarial, costly, disruptive and time consuming motions coming before the courts over parenting time issues. 1 Statutes of Minnesota Chapter 518, “Marriage Dissolution”. 2 “The purpose of a parenting time expeditor is to resolve parenting time disputes by enforcing, interpreting, clarifying and addressing circumstances not specifically addressed by an existing parenting time order and, if appropriate, to make a determination as to whether the existing parenting time order has been violated. A parenting time expeditor may be appointed to resolve a one time parenting time dispute or to provide ongoing parenting time the dispute resolution services.” Section 518.1751.1b(a) 3 Section 518.1751 is reproduced as Appendix A. In Ontario - This paper will address some process steps that would be helpful in: (a) Assessing whether similar legislation or privately offered program would improve the mechanisms now available to parents who have disputes around parenting time; (b) Designing an appropriate alternative dispute resolution (“ADR”) program or legislation; and (c) Evaluating the success of the program. ADR Options There are six broad categories of ADR options: (a) Preventive options to pre-empt disputes; (b) Negotiated solutions reached without third party intervention; (c) Facilitated methods such as mediation; (d) Fact finding methods, which use a third party to make findings of fact, and may be binding or non binding; (e) Advisory methods, using a neutral third party to make recommendations or give an opinion as to the likely judicial outcome; and (f) Imposed methods, such as arbitration.4 The parenting time expeditor role, which is that of a mediator and arbitrator combined; offers the opportunity to use of each of these methods where appropriate. (i) How does one determine which ADR option is most appropriate? Or whether ADR is appropriate at all? Consider the three basic ways we resolve disputes: by a determination of rights, by a contest of power, or by the reconciliation of interests. Ury, Brett and Goldberg suggest four criteria for assessing which method is best:5 (ii) What are the transaction costs of each method? These include time, money, energy spent, resources used and destroyed, and opportunities lost. (iii) Which results in the most satisfactory outcomes? (iv) Which has the most positive long term impact on relationships? (v) Which produces the most durable solutions? Those designing the process must decide which overall approach they want to be the “driver”; will the new process be primarily rights-driven, or will it be primarily interests-based? This decision will reflect the objectives of the stakeholders.6 Using the above criteria as a guide, the following steps can be taken to assess whether a parenting time expeditor program might offer a “better” dispute resolution mechanism. 4 Constantino, p. 37-40. 5 Ury, Brett and Goldberg, p. 10-11 6 Macfarlane, p. 614. A. Diagnosis and Needs Assessment The first stage of the process is intended to identify needs that are not addressed within current dispute resolution processes and to determine and address the concerns of the providers and users of the service. 7 1. Decide whom to involve in the process. Research shows that process design is more likely to be effective and successful if the critical stake holders are involved in assessing currents needs and designing the new program.8 If the program is intended to be court-annexed, this may include lawyers, judges, court staff, legal aid, women's and men's groups, the Children's Lawyer's Office, and mediators. If the program is intended to be associated with a community centre or community mediation program, stakeholders may include the staff and board members, local police, community leaders and local resident, tenant and business groups. They may need education about the range of ADR-based conflict resolution mechanisms along with some basic principles of design: (a) put the focus on interests; (b) provide “loop-backs” to interest-based mechanisms when parties are in a power-based or rights-based process; (c) provide low-cost “rights” and “power” back-ups if the interest-based processes fail to resolve the dispute (for example, mediation followed by arbitration); (d) build in consultation before and feedback after to preclude future disputes; (e) arrange procedures in a low-to-high cost sequence, such as encouraging negotiation before mediation, and mediation before arbitration; (f) provide the motivation, skills, and resources necessary to enable the process to work optimally for all involved. 9 7 Macfarlane, p.584-585 8 Constantino, p.76. 9 Constantino, p.46. 2. What are the disputes about? The nature of the dispute will determine, in part, the optimal resolution process. Parenting time disputes can be, for example, highly emotional disputes that repeat over and over, escalating the conflict each time. Such disputes are optimally resolved in an interests-based process. They can also be technical disputes turning on the interpretation of an order or case law. They often are urgent disputes, brought before a court on the eve of a holiday. The mediation-arbitration aspect of a parenting time expeditor may offer a useful combination of rights-based, power-based and interest-based dispute resolution methods for such disputes. It also permits the incorporation of all six basic ADR methods where appropriate.10 10 See footnote 4. 3. Are there any kinds of disputes that should, for policy or other reasons, be resolved in a particular way? Are there certain parenting disputes that should require judicial decisions, such as those involving allegations of abuse of a spouse or children? 4. What are the options now available to disputing parties, and what are the costs and client satisfaction ratings of each option? This will involve reviewing any evaluations of mediation programs in the provinceís family courts,11 the Family Information Sessions at various courts , dispute resolution officer programs, private mediation services, lawyer negotiations and court motions. B. Design Six basic principles guide the design of an ADR process:12 1. Develop guidelines for whether ADR is appropriate; 2. Tailor the ADR process to the particular problem; 3. Build in preventative methods of ADR; 4. Ensure disputants have the necessary knowledge and skill to use ADR; 5. Create systems that are simple to use, easy to access, that resolve disputes as early as possible and use the fewest possible resources; 6. Permit disputants to maintain maximum possible control over the choice of ADR method and selection of neutral. Considering these principles, the design process can then follow these steps: 1. Conflict analysis Considering the underlying causes of a dispute will help determine the best mechanism for resolving it. Moore's “circle of conflict”13 identifies five kinds of conflicts: value conflicts, which arise when disputants have different criteria for evaluating behavior, different goals, different ideologies, religions or ways of life; relationship conflicts, caused by strong emotions, poor communication, and repetitive negative behaviour; data conflicts, caused by mis-information, different views on what is relevant, and different interpretations of data; interest conflicts, caused by perceived or actual competition over substantive interests, procedural interests or psychological interests; and structural conflicts, caused by destructive patterns of behavior, unequal distribution of resources, unequal power, geographical factors that hinder cooporation, and time constraints. Each of these sources of conflict could cause a parenting time dispute. The interventions used by a parenting time expeditor will vary depending upon the source of the conflict. Moore suggests different techniques for each type of conflict. Parenting time conflicts are also prone to rapid escalation. Such conflicts are readily susceptible to the transformations that typically occur when a conflict escalates: the issues proliferate, the focus of criticism shifts from criticism of behaviour to criticism of character; tactics shift from light to heavy; motivation shifts from seeking a desired outcome to seeking revenge; and the number of parties, particularly family members, increases.14 The training of the expeditors will require an understanding of the different approaches best used for different types of conflict at various stages of escalation. 11 For example, the recent evaluation by Professor Desmond Ellis of the mandatory “family information sessions” at Toronto's Superior Court of Justice, “The Impact of Mandatory Family Information Sessions on the Use of Court Resources by Divorcing Parents”, A report prepared for the Attorney General of Ontario by Desmond Ellis Ph.D. of the “La Marsh Research Centre on Violence and Conflict Resolution.” 12 Constantino p.120-121 13 Moore p.60. 14 Rubin, p.125-127. 2. What is the goal of the program? The outcome objectives should be well defined at the beginning, so that the process can mirror the objectives and the evaluation of the program will have a standard by which to measure the program's success. The goals should be clear, simple, realistic and measurable.15 The objectives may be cost-related; saving money by having fewer cases in the court system, for example, is the first goal of the mandatory mediation process for civil cases in Ontario.16 The goal may be process-related; a short-term process goal might be to provide a dispute resolution process for separated parents that enables them to settle issues and feel fairly treated at the same time. A longer-term process goal may be to enable parents to experience conflict in a positive way, thereby developing the insight and skills to work through future disputes on their own. Goals can be outcome-based; to provide a process more likely to produce mutually satisfactory outcomes, or outcomes that result in less disruption in the lives of the children who are most affected by their parents' inability to resolve their own conflicts. Such a goal would be considered “transformative”; to transform the relationship between the parents so that the parents and the children benefit in the long term. Or simply to produce results that are fairer overall, given that the parenting time expeditor is a specialist in the field and, in the case of repeat disputes, has a familiarity with the parties that arguably will result in better and more workable determinations. A last possible goal is to bring about systemic change. The introduction of mandatory mediation information meetings in Saskatchewan had this objective: “To improve access to justice services and to find more satisfying and less adversarial ways for parties to achieve resolution of their disputes”. 17 15 See page 11, “Evaluation of the program”, where the relationship between the goals of the program and its evaluative methods are discussed. Without objectives that are clear, realistic, simple and measurable, a program’s success will be difficult to evaluate. 16 The purpose of introducing the mandatory civil mediation pilot project was to “reduce cost and delay in litigation and facilitate the early and fair resolution of disputes.” Rule 24.1.01 of the Ontario Rules of Civil Procedure. 17 Macfarlane, p.596. 3. What are the details that need to be addressed in the design of the program? If the intended program is court-annexed, the details will be in the proposed legislation; if it is a community-based program, they will be set out in the contract between the parties and the expeditor. A community-based program would necessarily be voluntary; a court annexed program may be mandatory. Some of the likely issues will be: (a) Range of interventions: The Minnesota legislation describes the expeditors as mediator-arbitrators. There are many other possible dispute resolution options that could be considered; the Law Society of Upper Canada has a glossary of dispute resolution processes that defines 29 different terms, many with several sub-categories! One of the categories is mediation-arbitration. (b) Confidentiality; (c) Screening; the Minnesota legislation amounts to mandatory mediation-arbitration, with an “out” for cases where spousal violence is alleged or the judge believes it has occurred or is likely to occur.18 Abuse victims may choose to participate if there are no face-to-face meetings and if they have received legal advice. This is one screening option. (d) What is the role of counsel? Do parties need to have independent legal advice? (e) What is the legal status of the process? Is it an arbitration under the Arbitration Act? What are the rules of fairness and evidence to be applied? What is the process for appealing a decision of the expeditor? Are any legal standards to be applied by the expeditor, such as the “best interests of the child” standard that is prevalent in Ontario family legislation?19 (f) What is the process to be followed by the expeditor? Is he or she to use varying dispute resolution methods in a particular order, or spend any specific amount of time on each case? What is the time frame for the meeting after a case is referred or ordered? (The Minnesota law requires the meeting to take place within five days .20) If the expeditor must make a decision, what is the time frame for doing so? What are the limits of the expeditor's jurisdiction? For instance, under the Minnesota legislation, the expeditor may not make a decision that is inconsistent with an existing parenting time order, but may make decisions that interpret or clarify an order, including developing a specific schedule when the order only provides for “reasonable access”21 . Must the expeditor provide written reasons? What are the remedies if a party fails to comply with an expeditor's order? (g) Fees: Will fees be fixed by tariff, as with the OMMP 22 , or left to the discretion of the expeditor, provided that the court considers the means of the parties and the fees charged by proposed expeditors when appointing an expeditor? 23 Will they be shared equally by the parties, or will the apportionment be in the court's discretion as is the case under the Minnesota law? 24 (h) How will the expeditor the selected? Will there be co-expeditors in any circumstances? What if the parties do not like the assigned expeditor ? (i) Physical location of the program; what kind of space is required? Should rules be imposed intended to ensure the physical safety of parties? Must expeditors be available at certain hours? Under what circumstances can meetings occur byconference call? (j) How will the roster of expeditors be selected? What are the standards of education and experience required? Will there be standards of knowledge of such issues as power, culture, gender, violence, disabilities, and so on? What kind of ongoing training will be required? What training will be required for the staff? What kind of public education will there be? (k) What other resources will be required? Will translators be available, and how will they be paid? How will intake and administration be handled? Who will collect and keep data and follow up with copies of agreements, decisions, questionnaires or other correspondence? (l) Accountability; if the program is operated outside the court system, to whom will the program be accountable? Will there be a board of directors or advisors? Whose responsibility is it to ensure that the program keeps its mandate and that the expeditors are complying with the expected standards? How will complaints about expeditors be handled? (m) Immunity; will the expeditors be immune from civil actions? 25 Can immunity be guaranteed in a community mediation setting? What kind of releases will be required of the parties? (n) Confidentiality; both the Minnesota law and the OMMP provide for confidentiality of statements made and documents produced that are not otherwise discoverable. 26 What provisions should be made for the expeditors' notes and records? Can the parties gain access to them under any circumstances? Under what circumstances may or must the expeditor refuse to maintain confidentiality? (o) Referrals and promotion: if the program is operated outside the court system, from whom or where will it seek referrals? How will the program being marketed in a way that will make it as successful as possible? 18 518.1751, 1(a), Exceptions. 19 No such standard or guidance is set out in the Minnesota law. 20 518.1751, 3(a) 21 518.1751, 3(c) 22 OMMP tariff set out in O.Reg.451/98 23 518.1751, 2(b) 24 518.1751, 2a 25 518.1751, 5; note that the Minnesota clause provides immunity from claims based on both actions and omissions. 26 518.1751, 4a; Rule 24.1.14 4. Evaluation of the program: Evaluation serves many purposes: to justify the program to funders or users; to do program planning; to improve the program; to address specific problem areas or concerns, such as the impact of the program on identified groups; or to assess aministrative needs. Closely connected with the evaluation purpose is the determination of who may or will make use of the data collected. This could include funders, board members, program administrators, users, staff, volunteers, researchers, and the public. Decisions about what data to collect, how to collect it, how to use it and who should do the evaluation will depend on the goals of the program, the purpose of the evaluation and the resources available. External consultants should be used where objectivity and a lack of vested interest in the outcome is important, a funder requires it, resources are available, or staff and board members lack the necessary skills. Self evaluation is appropriate if none of these factors is present. It also has the advantage of using staff who are familiar with the setting, and have established relationships of trust with each other and the community; it is also less expensive.27 The evaluation standards and process should be created at the outset of the design effort, rather than at the end. 28 It is important that the evaluation goals and methodology be understood and agreed to by the stakeholders and the designers. The evaluation data will be most useful if progress towards meeting goals is measured continuously instead of at the end of a predetermined period. 29 Questions to ask therefore include: 27 Roberts, p.4. 28 Constantino, p.168-169 “Designing the evaluation methodology at the beginning of the intervention ensures that the evaluation is measuring progress continuously in accordance with the system’s defined goals and objectives.” 29 Although the latter is probably more common, particularly for legislated projects such as the OMMP, which conducted its first evaluation at the end of a specified period, and the evaluation of the family information sessions, see footnote 11. 1. How will the evaluation results be used? Who will have access to the data, and how will privacy and confidentiality concerns be addressed? 2. How will the goals of the program best be measured? If, for instance, the goal of the program is to reduce the number of contested access motions the measurement will be quantitative. Other quantitative measures include the numbers of enquiries, referrals, settlements, adjudications, and repeat clients. If the program goal is to provide a satisfactory process for parents with parenting time disputes, the measure will be more qualitative. There can be several data sources for each evaluation objective. They can include interviews with staff, logs of enquiries and materials distribution, records of public relations events, logs of contacts and meetings with expeditors, client intake records, interviews, client satisfaction questionnaires, follow-up telephone interviews, notes or assessment reports of the expeditors by independent third parties, records of expeditor training, and so on. 30 Process goals and how they might be measured include: 31 (i) Measurement of efficiency: • Does the introduction of parenting time expeditors in a court-annexed context reduce the cost of court administration or the number of argued motions? • Does it reduce the legal costs of the parents? • Does it resolve disputes more quickly? (ii) Measurement of effectiveness: • Are fewer disputes occuring with the program in place? • Are there more resolutions in the mediation phase, arguably making the system a more effective and less costly process? • Does the process increase compliance with existing agreements and orders? Perhaps the stakeholders will want to measure whether abused spouses are “safer” using such a process compared to litigation; this would involve recording incidents of violence occurring in such relationships over the period of time that the parties are using an expeditor. Or maybe the goal is to assess the factors that make a case more likely to be resolved in mediation than arbitration. The goals of the evaluation will determine what data is gathered from the participants and when. It will also assist in deciding the amount and type of post-process follow up. For instance, if the goal is to measure the durability of mediated or arbitrated resolutions, a procedure for post-process follow up will need to be created and implemented. (iii) Measurement of satisfaction: (a) With the process: • Does the expeditor process increase the parties' satisfaction? • Is there a greater perception of fairness? • Do the parties feel that the process appropriately addresses power imbalances and cultural differences? • Are there any differences among genders, cultures, abused or non-abused spouses or others, in the levels of satisfaction with the process? (b) With their relationships: • Does the process improve or change parties' perceptions or understanding about their different values, interests andconcerns? • Does it increase trust? • Does it improve the parents' ability to communicate effectively and with reduced conflict? (c)With outcome: • Does the expeditor process result in outcomes that are satisfying to the parties? • Is one gender more satisfied with certain outcomes then the other gender? • Are abused spouses as satisfied as non-abused spouses? • Are certain cultural groups more or less satisfied with the outcomes? (iv) Measurement of functional organization: • Is the structure of the program congruent with the goals and the mission of the court system with which it is integrated, or the community program that is providing it? • Are the procedures easily understandable for the staff providing the service and for the parents using it? • Do the standards and guidelines provide sufficient detail for those who are administering the program and is there a clear process for modifying standards and guidelines in response to feedback from users and administrators? • Are sufficient resources allocated to the program? • Are there procedures in place to evaluate the sufficiency of resources on a continual basis? (v)Measurement of service delivery: • How do parents find out about the program? • Are there restrictions on who can use it? Is the cost of the service to the users appropriate? (vi) Measurement of program quality: The standards of quality against which the program should be measured will depend on which indicators of quality are valued by the program stakeholders. Bush has defined six general quality standards: individual satisfaction; individual autonomy; social control; social justice; social solidarity; and personal transformation. 32 Bush demonstrates how ambiguous each of those standards can be, however, and how each needs to be clearly defined. If, for example, the goal is social justice, what does that term mean to the stakeholders of the program? Bush lists 22 possible meetings, illustrating the need for clarity and detail in the goal-setting process. The kinds of data that can be collected to measure quality might include: (a) Training and education: Who is trained? Who delivers the training? Is the training program appropriate for the target audience ? (b) Selection of neutrals: Are participants satisfied with the method by which the expeditors are selected? (c) Competency of expeditors: Are participants satisfied with the qualifications and the competence of the expeditors? Do they believe that the expeditors are fair and objective? Is there a relationship between the parties' perceptions of fairness on the part of the expeditor and the ratio of mediated agreements to arbitrated decisions? 30 Roberts’ manual identifies some of the types of records that should be maintained, including administrative records, case files, monitoring records and questionnaires. It shows how a community based program can develop appropriate records and also when an external consultant should be used to develop the records, p. 9-16. 31 Constantino, p.172-180. 32 Bush, excerpted in Macfarlane, p. 668. 3. To what will the data from the expeditor program be compared? Once the stakeholders have determined which criteria are relevant to their needs and therefore must be measured, to what will the evaluation results be compared? A baseline of some sort is needed. Possible study designs include the use of a “ true” control group, a non-equivalent control group and a “before and after” design. 33 Using a true control group provides the most statistically defensible results of the three evaluation methods. 34 Doing so may be possible if the expeditor program is introduced by legislation as a pilot project, much as the mandatory mediation program was introduced in Toronto and Ottawa for only some of all civil cases for a trial period. Such a process involves randomly assigning parenting time disputes to the expeditors, gathering standardized information from both groups on characteristics that might affect their performance, and measuring outcomes and characteristics of the disputes in standardized way. Designs using non-equivalent control groups depend on comparisons of two similar groups, although subjects have not been randomly assigned to the two programs. It requires finding similar populations of cases; gathering information from both groups on characteristics that might affect their performance; and measuring the outcomes and dispute characteristics of interest for both groups in a standardized way. If the program is being offered by a community or other private group, gaining access to court data for comparative purposes will be difficult if possible. Perhaps the Ontario Bar Association's family law section would assist in the form of a lawyer, mediator or client survey; this would provide some information but it might not be reliable. If the project is established as a court-annexed program on a trial basis it will be possible to collect the same data on parenting time motions from another court location for the same period of time as the pilot project. Before and after designs rely on identical data that is collected before, during and after the introduction of an expeditor program. The data that is collected may not be comparable, as evaluations take time, and important characteristics of the population of disputes being analyzed may change overtime. However, it is simple and relatively inexpensive and should be considered if resources are scarce. 4. How does the evaluation process take into consideration other factors that may impact on the outcome? The evaluator must be able to identify and, if possible, screen out or make allowances for factors or influences outside the process that might cause the same result. Where such external factors cannot be eliminated from the evaluation analysis, they must be at least recognized and identified at the outset, so that they can be noted in the final analysis. 35 For instance, the attendance of the parties at a Family Information Session, or a pre-expeditor information meeting, may have an impact on the outcome that needs to be taken into consideration in the evaluation of the program. 33 Rolph and Moller, excerpted in Macfarlane, p. 678. 34 Ibid, p.679. 35 Macfarlane, p. 690. Conclusion In a province unwilling to introduce mandatory family mediation, a mandatory mediation-arbitration process such as Minnesota's legislated regime may seem a dramatically bold step. By following the process design considerations set out in this paper, it may be possible to assess whether such a process might represent real progress in resolving the frequent parenting-time disputes that are brought before our courts and, if so, how to structure it so that it has the best possible chance of success. Bibliography • Bush, Robert, “Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments” (1989) 66 University of Denver Law Review, reproduced in Macfarlane. • Constantino, Cathy; Merchant, Christina, “Designing Conflict Management Systems” (San Francisco: Jossey-Bass, 1996) • Ellis, Desmond, “The Impact of Mandatory Family Information Sessions on the Use of Court Resources for Divorcing Parents” (Toronto: Attorney General of Ontario, 2002.) • Macfarlane, Dr. Julie, “Dispute Resolution Readings and Case Studies” (Toronto: Emond Montgomery Publications , 1999) • Moore, Christopher, “The Mediation Process 2nd Edition,” (San Francisco: Jossey-Bass, 1996). • Roberts, Tim, “A Self-Evaluation Manual for Community-Based Mediation Projects: Tools for Monitoring and Recording Data” (Victoria: UVic Institute for Conflict Resolution, 1993) • Rolph, E. and Moller, E., “Evaluating Agency ADR Programs: A User's Guide to Data Collection and Use” (Santa Monica, CA; Rand Institute for Civil Justice, 1994) reproduced in Macfarlane. • Rubin, Jeffrey, “Conflict From a Psychological Perspective” in Negotiation Strategies for Mutual Gain, (Hall L., ed.) (New York: Sage Publications, 1993) • Ury, William; Brett, Jeanne; Goldberg, Stephen, “Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict,” (San Francisco: Jossey-Bass, 1994)