EVALUATION OF THE DISTANCE FAMILY MEDIATION PROJECT

Report on Phase III of the Technology-Assisted Family Mediation Project

March, 2013

Prepared for: Mediate BC Society

Prepared by: Catherine Tait Catherine Tait Consulting Victoria, British Columbia

Acknowledgements
I would like to acknowledge and extend thanks to the Distance Family Mediation Project team members who participated in the evaluation. Their contribution of time and insights were essential for this report. Participants included the Project Mediators, the Mediation Advisor, the Family Justice Services Liaison (FJSD) Liaison, and the Project Coordinator: Mediators: Christine Bahr Peter Baines Jane Henderson, Q.C. Carole McKnight Ayne Meiklem Andrea Perreaux Eugene Raponi, Q.C. Ronald Smith, Q.C. Mediation Advisor: Nancy Baker FJSD Liaison: Colleen Shaw Project Coordinator: Susanna Jani

Thanks, too, to the Project clients who took the time to complete the client survey and provide important insights into the experience of distance mediation from the point of view of the families involved. I would also like extend my thanks to the author of the Phase II evaluation report, Colleen Getz. The Phase II report was the very useful starting point for this research. I drew on many of the results presented in that report as a basis for comparison to results for Phase III, and based many of the interview and client survey questions used in this evaluation on those developed for Phase II. Finally, I would like to acknowledge and thank the Law Foundation of British Columbia for funding the Technology-Assisted Family Mediation Project and this evaluation, and Mediate BC Society and Family Justice Services Division, Ministry of Justice for their guidance and support throughout the evaluation.

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Evaluation Highlights
INTRODUCTION AND BACKGROUND The Technology-Assisted Family Mediation Project referred to also as the Distance Family Mediation Project was an ambitious, multi-phase project which spanned the course of six years, from 2007-2012. While driven by a number of objectives, its primary vision was to demonstrate the potential of using technology to bring quality mediation services to families throughout British Columbia. This report presents the evaluation results for the third and final phase of the Project. Phase III provided mediation services to families undergoing separation or divorce, throughout British Columbia, using information and communication technologies (ICTs) such as the telephone and webbased conferencing platforms. The Project was operated by the Mediate BC Society in 2011 and 2012. British Columbias Ministry of Justice, Family Justice Services Division (FJSD), was a key collaboration agency. Services were provided by a mix of private practice and public sector family mediators. In most cases mediation parties were separated from each other and the mediator by some degree of physical distance, leading to the term distance mediation. Interest in distance mediation arose originally in part because a shortage of family mediation services outside the more populated areas of the province prevented access to services for many families. The Project had two prior Phases. Phase I investigated and confirmed the feasibility of using ICTs to conduct appropriate, safe and effective family mediations. Phase II field tested the use of ICTs to deliver actual mediations to families residing in remote and rural areas of BC. In almost all cases mediation was conducted using the telephone. All mediation services in Phase II were offered free of charge. Mediate BC embarked on Phase III by again offering distance mediation services to families, but changing some key elements for this Phase: Distance mediation services were made available to families throughout the province, including those living in populated and urban areas, Fees were charged for services provided by private practice mediators participating in the Project, and The use of a wider range of ICTs, including a web conferencing platform selected for the Project, was encouraged.

The overall objective of this Phase of the Project was: to enhance the effectiveness and accessibility of family mediation in British Columbia by further developing the distance mediation approach.

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Questions related to four specific objectives were investigated for the evaluation of Phase III. Information for the evaluation was gathered from the following sources: A review of program documents and practice guidelines developed during the pilot Project; Records regarding inquiries and actual mediation cases maintained by Project team members; A written and on-line survey of clients who participated in Phase III mediations; Telephone and in-person interviews conducted with Project team members, and External data regarding the demographic profile of British Columbians.

PHASE III EVALUATION FINDINGS Objective One: To further increase knowledge about distance mediation through its application to a wider range of family mediation cases. This objective was fully achieved. Phase III of the Project received 153 inquiries which resulted in 46 completed mediation cases. Many potential cases did not proceed because the parties were not interested in mediation, declined the service, pursued other means to resolve their issues or failed to attend appointments. Landline telephones, cell phones, web conferencing and email were used in Phase III cases. Because web conferencing provides real-time visual contact between distant parties it had a marked impact on the qualitative experience of distance mediation, especially when compared to the audio-only experience of telephone. Mediators found assessing safety issues at a distance to be effective for all of the technologies used, though expressed a preference for video-enabled technologies. Mediators suggested that cases more suited to distance mediation include those where the parties are comfortable with technology, low conflict cases and, conversely, high conflict cases, as there is less emotional charge if the parties are not together in the same room. The client survey also lends support to the particular usefulness of distance mediation in high conflict cases. Most of the advantages of distance mediation identified in Phase II improved access to service, efficiency and convenience were confirmed in Phase III. Additional advantages focussed on the face-to-face simulation of web conferencing and the ease of use and the creation of a business-like tone with the telephone. Clients, more than mediators, noted the advantage of being physically separate from the other party. Fewer disadvantages were cited in Phase III, particularly because the use of web conferencing overcame some of the limitations of an audio-only ICT. However, while web conferencing has some advantages over the telephone for conducting mediations, it also introduces some new disadvantages, notably the potential for technical glitches or difficulties.

Project mediators felt that distance mediation compares favourably to traditional face-to-face mediations, a view shared by close to 80% of the client survey respondents who had had previous experience with mediation. FJSD mediators were unanimous that joint meetings conducted at a distance with ICTs are better, more effective and less time consuming than shuttle mediation. Full or partial settlement of issues was achieved in 85% of Phase III cases. This compares well with settlement rates for other family mediations where ICTs are typically not used. Just over half of the Project mediators felt that the difficulty of achieving an agreement was about the same for distance mediation as for in-person mediation. Some others felt that parties commitment could be a bit less in distance mediation. Between 60% and 70% of the client survey respondents were satisfied or very satisfied with the mediation process, outcomes and their ability to speak freely and openly during mediation. They also gave positive ratings to the reliability, effectiveness and ease of use of the ICTs used in their mediations. Mediators also gave positive reviews to the ICTs; they were particularly positive about the effectiveness of web conferencing. Mediators gave positive reviews to Project training and tools, and expressed the view that distance mediation should only be conducted by experienced family mediators.

Objective Two: To improve the effectiveness and accessibility of mediation for all British Columbian families by making distance mediation available province-wide and offering a support structure and services through the Society [Mediate BC]. This objective was fully achieved. About a third of client survey respondents would not have been able to use an alternative service to resolve their issues if the distance mediation service had not been available. This supports the conclusion that offering technology-assisted distance mediation improved access to mediation services in BC. Clients were more likely to come from small and mid-sized communities, live outside the Southwest region, be younger and better educated, and have mid-range incomes, than the British Columbian adult population as a whole. Parties to mediation cases (versus parties to cases that did not proceed) were more likely to have access to nearly every form of ICT used in the Project. However, a high proportion of parties who did not participate also had access to ICTs. The most common reason that clients chose distance mediation is that they and the other party lived in different communities. Other reasons included a desire to avoid travel or in-person mediation, the flexibility to access distance mediation outside working hours, reduced fees for the Project mediations, environmental reasons and a preference for communicating using technology. Particular ICTs were often selected for individual cases because the technology was available to both parties and the mediator and/or the parties were familiar with the ICT. About 75% of client survey respondents had access to a computer, 70% had high speed internet and 63% had

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a webcam. Nearly everyone had experience with email, and two thirds had experience with a web based meeting platform. Telephone was used more frequently than web conferencing only for distance mediation among 40-49 year olds. Those with lower incomes made use of web conferencing and telephone/cell phones in nearly the same proportion, while the telephone was used much less frequently among those of higher incomes. Most clients who used web conferencing for their distance mediation had both prior experience with web conferencing and the necessary equipment, but some lacked one or both of these and still proceeded with distance mediation using web conferencing. This suggests that some clients find ways to access equipment that they lack, and are willing to try new technologies. The Project Coordinator played a key role in implementing the Project, in promoting its services and supporting the mediators who participated. The Mediation Advisor role also supported clients and mediators. Mediators suggested that a private practice distance mediation service model could include a distance mediation practice group and/or special roster, technical support, inquiry support and an adjunct, independent distance legal advice service for clients.

Objective Three: To work collaboratively with stakeholders in the family justice system to make distance mediation available to British Columbians and to integrate it with available legal services. This objective was mostly achieved. The Project and Mediate BC generally, promoted awareness of the Distance Family Mediation service widely with the public, family service agencies and the legal and dispute resolution communities. Project activities such as the blog and Twitter feed proved popular and gained recognition for the Project. Just over half of those who contacted the Project had first heard about Project services through a Family Justice Counsellor and about 10% first heard of the service through a friend or family member. Other sources included the Project pamphlet or advertisements, Legal Aid, other Family Justice Services Division staff, a lawyer or the Court. This result, combined with the intensive promotion and information sharing activities of the Project supports the conclusion that the Project achieved its goals to collaborate with family justice stakeholders. Most clients who participated in the Project were not represented by counsel. Project mediators confirmed that they recommended obtaining independent legal advice to every unrepresented client they served. Nearly two thirds of unrepresented client survey respondents recalled receiving such a recommendation. While about two thirds of clients responding to the survey had, or intended to, obtain legal advice, several did not intend to engage a lawyer some because they could not afford to do so. A recommendation to incorporate a distance legal advice component was made by some mediators and clients; this could be one means to further the objective of enhancing linkages to legal advice services.

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Mediators found that team meetings were highly useful for information exchange within the team. Mediators participation in the other activities such as the Project blog and Twitter feed served to sustain their already keen interest in distance mediation and the Project.

Objective Four: To develop and test a financially sustainable, province-wide distance mediation service delivery model which includes a user-pay feature. This objective was partially achieved. A discounted Project fee rate applied to the seven mediations conducted by private practice mediators in Phase III. Because a very limited number of paid mediation cases were completed, Phase III was not a strong test of a financially sustainable distance mediation model. The discounted fee rate represented 25% to 100% of the mediators usual fees, depending on the mediator. Two out of four private mediators in the Project would be willing to offer distance mediation services at Project rates in the future and a third may be willing to do so. Most clients surveyed indicated that they saved time and money by participating in distance mediation, and most who had paid a fee for service felt it was reasonable. A question remains regarding how features of a private practice distance mediation model (including technical support, inquiry support and legal advice for clients) could be financially sustained on an ongoing basis.

In conclusion, the Technology-Assisted Family Mediation Project was an ambitious and successful project that clearly demonstrated the benefits of using technology to bring mediation services to families. Perhaps the greatest achievement of the Project is its contribution to the body of knowledge regarding the practice of distance mediation. It achieved this through the real life test of technology assisted mediations, and the subsequent dissemination of knowledge gained through the publication of the Projects Practice Guidelines1 and the dedicated information sharing with the wider legal and dispute resolution communities. The future for the practice of distance mediation is positive and the results of this and the Phase II evaluation confirm that mediation can be provided safely, effectively and competently at a distance.

Mediating from a Distance: Suggested Practice Guidelines for Family Mediators, Second Edition, Mediate BC Society, Vancouver, British Columbia, November 2012, which can be accessed at: http://mediatebc.com/PDFs/114-Family-Mediation---FAQs/Guidelines_Mediating-from-a-Distance-%28Second-editi.aspx

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Contents
Evaluation Highlights .................................................................................................................. iv
Introduction and Background ................................................................................................................... iv Phase III Evaluation Findings...................................................................................................................... v

Chapter One: Introduction .......................................................................................................... 1

Introduction ............................................................................................................................................... 1 Evaluation Scope and Objectives ............................................................................................................... 3 Methodology and Data Sources ................................................................................................................ 4

Chapter Two: About the Project ................................................................................................. 8

Process Flow .............................................................................................................................................. 8 Project Requirments and Scope................................................................................................................. 9 Project Team ............................................................................................................................................ 10 Features of the Project Service Model .................................................................................................... 11 Use of ICTs ............................................................................................................................................... 13 Deliverables and Outcomes ..................................................................................................................... 13

Chapter Three: Increased Knowledge About Distance Mediation ....................................... 14

Introduction ............................................................................................................................................. 14 1. Are technology-assisted mediations completed over the course of the Project? ............................ 15 2. How effective is assessment for violence and mediation capacity when ICTs are used in family mediation? ......................................................................................................................................... 19 3. Which ICTs appear to be best suited to distance mediation generally? Which are better suited to different parts of the mediation process? ......................................................................................... 25 4. Are particular types of family cases more suited to technology-assisted mediation than others? .. 27 5. What are the advantages and disadvantages of using ICTs? ............................................................ 29 6. How does technology-assisted mediation compare with other approaches when distance is a factor? ................................................................................................................................................ 33

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7. How does technologyassisted mediation compare with existing dispute resolution approaches? 34 8. Can the broader benefits of mediation be realized when ICTs are used to conduct mediations? ... 37 9. Are the parties generally satisfied with their experience in mediation with ICTs? ........................... 39 10. Are Project mediators generally satisfied with their experience with ICTs in mediation? ............... 44 11. Do project tools support competent, safe and appropriate methods of technology-assisted family mediation? ......................................................................................................................................... 47 12. What added skills or training should mediators acquire? ................................................................. 49 13. What are the primary lessons learned regarding the use of ICTs in family mediation? ................... 51 Summary .................................................................................................................................................. 53

Chapter Four: Improved Effectiveness and Access to Mediation .......................................... 56

Introduction ............................................................................................................................................. 56 14. What is the demographic profile of the Projects clientele? ............................................................. 57 15. What factors appear to encourage, or barriers prevent, parties use of technology-assisted mediation services? ........................................................................................................................... 61 16. What influences the selection of particular ICTs? ............................................................................. 66 17. In what ways does the Mediation Advisor role support the provision of distance mediation? ....... 71 18. In what ways does the Project Coordinator role support the provision of distance mediation? ..... 72 19. Do mediators or clients identify other supports that would be helpful in a distance mediation service model? ................................................................................................................................... 73 Summary .................................................................................................................................................. 75

Chapter Five: Collaboration with Stakeholders and Integration with Legal Services ........ 77
Introduction ............................................................................................................................................. 77 20. Do stakeholders in the family justice system direct clientele to the Project? .................................. 77 21. Do Project clients access independent legal advice? ........................................................................ 79 22. Do the opportunities for information exchange increase mediators interest in providing or making referrals to distance mediation? ....................................................................................................... 82 Summary .................................................................................................................................................. 83

Chapter Six: Financially Sustainable Distance Family Mediation Service ........................... 84

Introduction ............................................................................................................................................. 84 23. To what extent do fees paid by clients cover the cost of mediator services? .................................. 85 24. To what extent are clients willing to pay for distance mediation services?...................................... 85 25. To what extent are mediators willing to provide distance mediation services at Project rates? ..... 86 Summary .................................................................................................................................................. 87

Chapter Seven: Conclusions ...................................................................................................... 88

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Chapter One: Introduction

INTRODUCTION

The Technology-Assisted Family Mediation Project2 was an ambitious, multi-phase project which spanned the course of six years, from 2007-2012. While driven by a number of objectives, its primary vision was to demonstrate the potential of using technology to bring quality mediation services to families throughout British Columbia. This report presents evaluation results for Phase III of the Project, which was operated by the Mediate BC Society from May 2011 through June 2012. During Phase III the Project provided mediation services to British Columbian families undergoing separation or divorce through the use of information and communication technologies (ICTs) such as the telephone and web-based conferencing platforms. British Columbias Ministry of Justice, Family Justice Services Division (FJSD), was a key collaboration agency in the Project. In most cases mediation parties were separated from each other and the mediator by some degree of physical distance, leading to the term distance mediation. The overall objective of this Phase of the Project was: to enhance the effectiveness and accessibility of family mediation in British Columbia by further developing the distance mediation approach.3 Interest in distance mediation arose in part because a shortage of family mediation services outside the more populated areas of the province prevented access, in practical terms, to mediation services for many families. This problem led Mediate BC4 to embark on the Technology-Assisted Family Mediation Project to explore avenues for bringing dispute resolution services to those who could not normally access them. The Project has had two prior Phases. Phase l, completed in 2007, investigated and confirmed the feasibility of using ICTs to conduct appropriate, safe and effective family mediations in BC5. Phase II, which ran from May 2009 to February 2010, field tested the use of ICTs to deliver actual family mediations. Services were provided by a mix of private and public sector family mediators to families living in remote and rural areas of British Columbia; all mediation services were provided free of charge. A total of 23 cases were completed and the ICT used to conduct mediations was the telephone in nearly

2 3

Referred to also as the Distance Family Mediation Project. Mediate BC Society, Project Application: Phase 3: Technology-Assisted Family Mediation Project, submitted to the Law Foundation of British Columbia, May 20, 2010, unpublished. 4 Known as the BC Mediator Roster Society when the Project began. 5 The results of this research are contained in: Colleen Getz, Closing the Distance with Technology: Report of Phase 1 of the Technology-Assisted Family Mediation Project. Victoria: British Columbia Mediator Roster Society, December 2007, which can be accessed at: http://mediatebc.com/PDFs/1-2-MediationServices/Closing_Distance.aspx

all cases. The evaluation of Phase II6 concluded that the Project had demonstrated that it is possible to provide family mediations that are safe, appropriate and effective using ICTs, and that there is a demand for these services among families living in remote and rural areas of BC. One surprising outcome of Phase II was the suggestion that distance mediation may offer advantages over traditional mediations where parties have difficulty being in the same room together. Distance mediation also allows parties to participate in mediation sessions from the comfort and privacy of their homes, and the lack of face-to-face interaction helps to bring the emotional tone of mediation down to a business-like level. These findings, along with the generally positive results of Phase II, raised the possibility that distance mediation may have appeal for families in all parts of British Columbia, not just those who cannot access mediation services where they live. Phase II also left some questions unanswered, or only partially answered, due in part to the small number of mediation cases completed, the limited client group targeted and the reliance on one form of ICT in that Phase. Questions of interest that remained at the end of Phase II included7: What potential is there for the use of ICTs that were not used in Phase II? Do demographic differences effect how families choose and use ICTs? What techniques and practices would provide parties involved in distance mediation with access to legal advice as needed before, during and after the distance mediation process? How do settlement rates in distance mediation compare to those for traditional mediation? What skills are required of mediators when conducting distance mediations? Are some kinds of disputes better suited, or not suited, for distance mediations? What level of demand exists throughout British Columbia for distance mediation? What support and services could Mediate BC offer to support the growth of distance mediation?

Mediate BC embarked on Phase III of the Project to examine these and related questions by once again offering distance mediation services to families, but changing some key elements of the Project for this Phase: Distance mediation services in Phase III would be made available to families throughout the province, including those living in populated and urban areas, Fees were charged for services provided by private practice mediators participating in the Project, and The use of a wider range of ICTs, including a web conferencing platform selected for the Project (Cisco WebEx Meeting Centre8), would be encouraged.

Colleen Getz, Evaluation of the Distance Mediation Project: Report of Phase II of the Technology Assisted Family Mediation Project, Victoria: British Columbia Mediator Roster Society, May 2010, which can be accessed at: http://mediatebc.com/PDFs/1-2-Mediation-Services/Distance-Mediation-Project---Evaluation-Report.aspx and http://mediatebc.com/PDFs/1-2-Mediation-Services/Distance-Mediation-Project-Evaluation-Report---App.aspx. 7 Mediate BC Society, Project Application, p.10 8 See http://www.webex.com/ for more information about WebEx. The name of the platform used in the Project has since changed to WebEx Meetings.

A goal of 50 completed mediations9 was set for the Phase with the hope that a larger sample of mediations and clients would strengthen the reliability and validity of the pilots results. Accordingly, work to prepare for Phase III began in September 2010, and the Project began offering distance mediations in May 2011. Details of the Phase III project design are described more fully in Chapter Two.

EVALUATION SCOPE AND OBJECTIVES

As with Phase II, Phase III of the Technology-Assisted Family Mediation Project was a pilot, designed to test innovative ways to deliver family mediation services using ICTs. The evaluation of this Phase, therefore, is similar to that of Phase II: it takes more of a formative than a summative approach, focussing on aspects of the Project design as well as outcomes, and in particular considers the learnings of mediators, project administrators and clients. While considerable attention is given to the effectiveness of mediating with ICTs, questions related to the model and tools provided to support the delivery of distance mediation are also examined. This evaluation has been guided by the Phase III evaluation framework, developed in consultation with the Project Coordinator, FJSD, and Mediate BC. The framework addresses the four specific objectives of Phase III, and identifies 25 evaluation questions which include a number that were also examined in the Phase II evaluation. Like Phase II, the Phase III of the Project delivered mediation services to families using ICTs provided by a mix of private and public sector mediators. However, Phase III differed from the prior Phase because the scope of target clients was expanded, fees were charged for private mediator services and the ICTs used included a web based meeting platform. Where possible, the results of Phase III are compared to the Phase II results with a focus on these factors. The specific objectives of Phase III examined in this evaluation are: 1. To further increase knowledge about distance mediation through its application to a wider range of family mediation cases. 2. To improve the effectiveness and accessibility of mediation for all British Columbian families by making distance mediation available province-wide and offering a support structure and services through the Society [Mediate BC]. 3. To work collaboratively with stakeholders in the family justice system to make distance mediation available to British Columbians and to integrate it with available legal services.

The Projects definition of a completed mediation is the same as that used in Phase II, which is: a file in which all the participants, including the mediator, signed an Agreement to Mediate and attended at least one mediation session. Mediate BC Society, Distance Family Mediation Project, Phase 3: Project Map, March 28, 2011, unpublished, p. 22.

4. To develop and test a financially sustainable, province-wide distance mediation service delivery model which includes a user-pay feature. Chapters Three through Six of this report each address one objective and related evaluation questions. METHODOLOGY AND DATA SOURCES

Information examined during the Phase III evaluation was collected and/or provided by Project team members and the clients themselves. The Project Coordinator, Mediation Advisor and FJSD Liaison were instrumental in recording information regarding the inquiries received by the Project; they also created and supplied a number of Project documents, and participated in interviews with the evaluator. Mediators tracked their distance mediation cases using Case Notes forms developed for the Project, and provided their views and insights through interviews with the evaluator. Many clients responded to the invitation to participate in a survey about their distance mediation experience, sent to them after their cases concluded. The following table outlines each type data source and the data collection method and analysis approach taken for each. Further detail on each source is provided below Table 1-1.

Table 1-1

Data Sources, Collection and Analysis

Data Collection and Analysis Approaches Content review to obtain qualitative data Completed by Mediation Advisor and Family Justice Counsellors; analysed to obtain quantitative and qualitative data Completed by mediators; analysed to obtain quantitative and qualitative data Interviews (telephone and in person) to obtain qualitative data Interviews (in person and telephone) to obtain qualitative data On-line and mail survey to obtain qualitative and quantitative data Accessed to obtain demographic data

Data Source Project documentation Project Inquiry Forms

Mediator Case Notes forms Project Coordinator, Mediation Advisor and FJSD Liaison Project Mediators Mediation clients External data sources (Statistics Canada and BC Stats)

A. Project Documents

The project documentation reviewed for this evaluation provided valuable information on: the Project design, intended workflows and distance mediation model; Project objectives and activities; and tools provided to the mediators to support them in their distance mediation cases. Review of this material informed the development of the evaluation framework, and provided information needed to answer the evaluation questions related to Objectives Three and Four above, regarding the support structure and service delivery model tested in the Project. Specific materials reviewed included: the Law Foundation of BC funding submission and Project Activity Reports, Project Map, inquiry and referral pathway diagrams, Mediating from a Distance: Suggested Practice Guidelines for Family Mediators10, training materials, Think Tank notes, template letters and forms, technology instructions, policy documents and social media materials (blog and discussion forum entries). In particular the Evaluation of the Distance Mediation Project: Report on Phase II of the Technology-Assisted Family Mediator Project, by Colleen Getz, was an important source of information. Where feasible and appropriate, the current report compares the outcomes and experiences of Phase III to those of Phase II.
B. Project inquiry forms

In total the Project received 153 inquiries from individuals seeking information about, and potentially, services through the Project. An inquiry form was completed by either the Mediation Advisor or the FJSD mediators11 for each inquiry received. The form recorded information about both parties, including their particular issues; the ICTs each party could access; whether the case met the criteria for inclusion in the Project; referrals made to Project mediators, other services and independent legal advice; and comments about client interest in or barriers to participation. Client demographic information was also recorded for those cases that were accepted into the Project and proceeded to mediation. Inquiry data proved to be a rich source of information about both potential and actual Project clients, and illuminated evaluation issues related to the characteristics of cases and clients who participated, and those who did not participate, in the Project. It was an especially important source of information regarding the reasons why many who inquired about distance mediation ultimately did not participate in the Project.
C. Mediator Case Note Forms

A total of 46 distance mediation cases were completed in Phase III. Mediators recorded information about each case, including the technologies used during each stage of mediation, the results of violence and capacity screening and of mediation itself, referrals for independent legal advice and the time per
10

June 2010 and July 2012, accessed at: http://mediatebc.com/PDFs/1-14-Family-Mediation--FAQs/Mediating_From_a_Distance_2nd_Edition_Nov-2012.aspx 11 Family Justice Counsellors, see below.

case, on Case Notes forms. These forms were submitted to the evaluator directly. Data from this source was particularly important for answering questions about the effectiveness of screening using ICTs and of the technologies themselves, in mediation cases. It also provided quantitative evidence regarding the settlement rates achieved during the Project, and the qualitative information regarding mediators views of the advantages, disadvantages, effectiveness and reliability of the particular technologies used.
D. Project Coordinator, Mediation Advisor and FJSD Liaison

The Project Coordinator, Mediation Advisor and FJSD Liaison supported Project clients and mediators, and undertook many other activities to develop and implement the Project in this Phase. Interviews were conducted with each of them to gain their views on the project design features, and factors that influenced the outcomes of the Project, such as client access to ICTs.
E. Project Mediators

In-person or telephone interviews were conducted to obtain in-depth information from the mediators about their experiences during Phase III. Questions delved into screening for violence using ICTs, the effectiveness and reliability of particular technologies for various phases of mediation cases, comparison of distance mediation to shuttle and in-person mediations, and the usefulness of various practice supports and training provided throughout the Project. Private mediators were also asked about the Project fees and the user-pay model. Seven of the Projects completed mediation cases were conducted by private practice mediators, and 39 by Family Justice Counsellors. This report does not distinguish information provided by Family Justice Counsellors and private practice mediators unless the distinction is relevant to the question under discussion.
F. Client Survey

A client survey with 30 questions was developed to obtain the views of the clients themselves. The Agreement to Mediate form signed by all clients included a section regarding the client survey, and clients were encouraged to participate in the survey by the mediators. The survey was available on-line or could be completed in hard copy. For clients with a known email address, an invitation to participate in the online survey was initially sent, followed by up to three reminders. If the client had not responded after the third reminder, they were sent a hard copy of the survey with a stamped return envelope. For clients where an email address was not available, a hard copy of the survey was mailed to their physical address, followed by up to three subsequent mail-outs. In total, 51 clients responded to the survey which gave a response rate of 54%, the same response rate achieved in the Phase II evaluation. The survey consisted of a mix of closed-ended and open-ended questions, and provided information about the clients themselves, why they had chosen to participate in distance mediations, their views of the mediation process, outcomes and technologies used, and their use of independent legal advice. They were also asked about the benefits of mediating at a distance, and for those who had worked with private mediators, about the fees paid for the service received. 6

Although 54% is a very good response rate for a client survey, the numbers of clients involved (51) is still small and the results must be viewed as indicative of the experience of this particular Project client group. Inferences about a wider population of distance mediation clients should not be made based on a sample of this size.
G. External Data Sources

Information was drawn from Statistics Canada and BC Stats regarding the demographic profile (age, education, income and residence by geographic area) of the adult population in British Columbia. This data was used to assess the degree to which the Project had attracted clients from all areas of the province, and to determine how similar the Project clients were to the adult population of BC as a whole. The next Chapter provides an overview of the Phase III Project design and processes. Chapters Three through Six each address a specific objective of the Project, discussing related evaluation questions and results.

Chapter Two: About the Project

This Chapter describes Phase III of the Distance Family Mediation Project. Important features of the Project, as well as the general flow of cases through the intake and mediation processes, are outlined to provide context to the subsequent chapters which provide the evaluation results.

PROCESS FLOW

This section describes the flow of clients through the Project, from initial contact through to mediation itself.
A. Initial Contact

Clients may have come to the Project by any of a number of means: some were referred by their lawyer or other legal professional; some read about the Project services on the internet or in a pamphlet, poster or advertisement; others learned about the Project when they approached a Family Justice Centre, Justice Access Centre or Mediate BC for assistance. Project promotional materials and Mediate BC encouraged potential distance mediation clients to contact the Mediation Advisor. Clients who sought service through FJSD were encouraged to consider distance mediation if their circumstances warranted it in these cases, clients were directed to Family Justice Counsellors working on the Project by other Family Justice Counsellors throughout the Division. Cross referrals between the Mediation Advisor and Project Family Justice Counsellors also occurred, matching clients with the type of mediation that would best suit their case characteristics and financial circumstances12. For all inquiries, the Mediation Advisor or Family Justice Counsellor explained the Project to the potential client and discussed whether it might meet their needs. Recommendations to obtain independent legal advice were also provided, and where appropriate, clients were referred to services outside the Project.
B. Assessment and Agreement to Mediate

Once initial contact was established, and after confirming that a client was potentially interested in pursuing distance mediation, clients were screened by the Mediation Advisor or Family Justice Counsellor to ensure that their case was suitable for mediation and met the mandatory requirements for the Project (see below). If their case met these criteria and the clients expressed interest in

12

See sections below on the Project Team and the features of the service model for information regarding differences between service provision by private practice mediators and Family Justice Counsellors.

continuing, the case was screened for family violence issues and capacity to mediate. ICT options, and the suitability of the clients using them, were also discussed at this time. When this screening and discussion confirmed the appropriateness of the case for the Project, the clients were either referred to a mediator by the Mediation Advisor or, if the assessment had been conducted by a Project Family Justice Counsellor, they continued working with them. The case was then given a Project case number. The Mediation Advisor conducted only high level safety and capacity screening; accordingly, mediators receiving these referrals conducted further, in-depth screening of both parties for family violence issues and capacity to mediate, as well as discussing ICT use with them more thoroughly. Mediators were required (by both the Project and their professional standards of conduct) to assess for the appropriateness for mediation by screening for family violence and to assess parties for their capacity and readiness to mediate. Screening for family violence issues was done by the mediator with each party individually, in most cases with the use of some form of ICT. Based on the outcome of this screening the mediator would determine whether the case was, in fact, suitable for mediation within the Project. Once the mediator and both parties were satisfied that their case was appropriate, clients were asked to sign an Agreement to Mediate to participate in Project mediation services. Cases did not proceed to mediation until the agreement was signed by both parties. Clients who were screened out, or decided that distance mediation was not for them, would be referred elsewhere for other services.
C. Distance Mediation Sessions and Outcomes

Mediators worked with the clients to select ICTs to be used in their case and scheduled individual premediation sessions to review issues, the Agreement to Mediate, and ICTs to be used for mediation; joint mediation sessions were then scheduled. One or more mediation sessions were conducted using ICTs (different technologies could be used at different stages throughout this process). If the clients issues were partially or fully resolved, mediators could document the areas of agreement for the parties in a written agreement or Memorandum of Understanding (depending on the mediators qualifications), again recommending that they obtain independent legal advice. Regardless of the outcome, mediators recorded information about the case on Case Notes Form submitted to the evaluator, and provided client contact information for the client survey.

PROJECT REQUIREMENTS AND SCOPE

To be accepted into the Project, potential cases were required to meet all of the following criteria: The issues requiring resolution are consistent with the Projects definition of family mediation; The mediation meets the Projects definition of distance mediation; The clients have access to at least one type of ICT which is potentially appropriate for family mediation; 9

The issues to be resolved are appropriate to mediate using ICTs; and The mediation concerns a matter that would come within the jurisdiction of British Columbias courts. Generally, this requires one party and when a child is involved, the child to be resident in the province: o For non-child issues: one of the parties has to be ordinarily resident in BC for at least one year before the proceeding began: and o For child issues: the child must be habitually resident in BC13

The Project applied the following definitions14 when considering the case criteria: Family mediation: Mediation of issues relating to the reorganization of the family after separation or divorce, and parenting, financial support and property matters connected to separation or divorce; ICT: Any range of a range of information and communication tools, including regular landline and cell phones, teleconferencing, videoconferencing, email, text messaging, custom text-based applications and web conferencing; Distance mediation: Any mediation using information and communication technologies, in which one or both parties are not present in the same room as the mediator.

The results regarding the number and type of cases meeting and not meeting the mandatory Project requirements are examined in Chapter Three. The Project broadened the scope of clients served in Phase III, with a goal to make dispute resolution services available to families throughout the province regardless of where they resided, their socioeconomic status, cultural background or disability. The intent was for service to be provided to parties located anywhere in the province by mediators who also were located anywhere in the province, thereby increasing access to mediation services.

PROJECT TEAM

The Project team consisted of a number of individuals in a variety of roles. Eight experienced family mediators participated: four private practice mediators from the Mediate BC Society roster of family mediators, and four Family Justice Counsellors employed by the British Columbia Ministry of Justice, FJSD. The mediators were located in the Lower Mainland, on Vancouver Island and in the interior of BC. Five of the mediators had previously provided services in Phase II of the Project.
13 14

Mediate BC Society, Project Map, p. 22 Mediate BC Society, Project Map, p. 10

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The private practice mediators accepted cases on a full range of family issues including child custody, access and support, spousal support and property division. Family Justice Counsellors accepted cases with children involved, and provided mediation on the same range of issues as private practice mediators, except that property division mediation was limited to property of $25,000 value or less. Family Justice Counsellors provided dispute resolution services without charge, as is their usual practice, whereas private practice mediators applied the Project fee schedule to their Project cases. Support for the Project was provided by a Project Coordinator, Mediation Advisor and FJSD Liaison. Their roles were as follows: Project Coordinator: The Project Coordinator was responsible for overall implementation and management of the Project. Activities included creating the design for the Project, promoting the Project with the public and stakeholders, and supporting the mediators distance mediation practice through training, facilitation of information exchange, and providing technical support when needed. Mediation Advisor: The Mediation Advisor works within the Vancouver Justice Access Centre and was Mediate BCs primary contact person for clients seeking services under the Project. She provided potential clients with information about the mediation and the Project, helped to determine if the case met the Project requirements, and provided clients with referrals to mediators within the Project and other services, including independent legal advice, as appropriate. FJSD Liaison: The FJSD Liaison was a Senior Program Analyst within FJSD who coordinated the work of the Family Justice Counsellors within the Project, liaised with the Project Coordinator and Mediation Advisor, collaborated on the development of Project policies and documents, and supported the Family Justice Counsellors by providing FJSD-specific policies and tools as well as technical support.

The effectiveness of the support provided by these roles is examined in Chapter Four.

FEATURES OF THE PROJECT SERVICE MODEL

The Project service model is described in the Project Map and the Project funding submission. Key features of the service model that are particularly relevant to the evaluation were the emphasis on the provision of effective screening for clients entering the Project, on making referrals for independent legal advice, and on the use of a fee schedule to support a financially sustainable distance mediation service.

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Mediators were required to screen all Project clients for family violence issues and capacity to mediate, in accordance with Mediate BCs Standard of Conduct or, for Family Justice Counsellors, FJSDs Manual of Operations and policies. Mediators assessed cases for the appropriateness of mediation, to be satisfied that: a) there is not now nor has there been any abuse; b) if there has been abuse, a fair and safe mediation is still possible;

Ensuring mediation takes place in a safe environment is as critical when using ICTs as it is when mediations take place face-to-face. Project Map

c) if there has been abuse, any vulnerable participant can be protected in the mediation process and all of the necessary safety measures to do this are put in place for the mediation.15 The effectiveness of safety screening conducted in the Project is examined in Chapter Three. The Mediation Advisor and mediators were also expected to recommend that parties not represented by counsel obtain independent legal advice. These recommendations were to be made throughout the mediation process, to make the participants aware of the value of consulting other professionals in order to make fully informed decisions.16 The requirement to recommend independent legal advice to clients is in keeping with Mediate BCs Standards of conduct and FJSDs policies. Chapter Five presents results regarding the provision of such recommendations, and clients actions to obtain legal advice. The Project also strove to work collaboratively with stakeholders in the family justice system, to make services known and therefore accessible to potential clients, and to integrate services with available legal advice. Stakeholders directly involved in the project were Mediate BC and FJSD. Other stakeholders relevant to the Project included the legal community, private lawyers, Legal Services Society and the Justice Institute of BC and other organizations serving families in BC. The Projects collaboration with stakeholders is examined in Chapter Five. The Project implemented a fee schedule for mediations conducted by private practice mediators to test a user-pay contribution model that could sustain affordable distance mediation services. In Phase III of the Project introduced a sliding-fee model based on parties net annual income and household size. The Project rates applied to the first 10 hours of mediation. Part way through the Project timeframe, the sliding scale was replaced by a single, discounted fee to be paid by both parties. This change was implemented in part in response to mediator concerns about the complexity of applying the sliding scale to individual cases. The use of fees, and mediator and client reactions to the Project rates, are examined in Chapter Six.

15 16

Mediate BC Society, Project Map, p. 19 Mediate BC Society, Project Map, p. 20

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USE OF ICTS

A particularly important feature of the Project was the use of ICTs to conduct mediation cases. As the definition above suggests, the Project accepted the use of a wide variety of ICTs. Also, a multi-media approach was permitted, where more than one ICT could be used within the conduct of a single mediation file. The Project encouraged the use of ICTs beyond the telephone, which had been heavily used in Phase II, and selected a web conferencing platform as the favoured ICT for Phase III. Like many web conferencing platforms, the platform allows participants to have both audio and video connections, making distance mediation more akin to face-to-face mediation than is possible with telephone or text alone. It also allows participants to share documents onscreen, a useful tool in the context of mediation cases. While the web conferencing platform was identified as the Projects favoured ICT, use of other ICTs was permitted as well, and mediators were responsible for assessing clients needs, circumstances, skills and preferences when selecting ICTs to use in each case. It should be noted that while the Project did use WebEx Meeting Centre17, this report provides no evaluation of WebEx as a product and is not an endorsement of WebEx. The use, advantages and disadvantages of ICTs, and client and mediator satisfaction with ICTs, are examined in Chapter Three; the factors related to the use of particular ICTs, and the process to select ICTs for mediation cases, are examined in Chapter Four.

DELIVERABLES AND OUTCOMES

As stated in the Project Map, Mediate BCs vision of success for the project is that distance mediation is confirmed as a viable, accessible and affordable dispute resolution option for British Columbian families. In addition, the Project had three concrete deliverables to produce in Phase III: a goal of 50 completed distance family mediations, a revision of Phase IIs Suggested Practice Guidelines for Family Mediators18 which documented the teams learnings, and this evaluation report.

A further indicator of success will be the confirmation that technology can bring the power of mediation to families who need it

Project Map

17 18

Note that one Project mediation was conducted using a web conferencing platform other than WebEx. Mediate BC Society, Practice Guidelines, 2010.

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Chapter Three: Increased Knowledge About Distance Mediation

INTRODUCTION

The first objective of the Distance Family Mediation Project, Phase III, is: To further increase knowledge about distance mediation through its application to a wider range of family mediation cases. The wider range of family mediation cases alludes to the greater geographic reach of the Project in Phase III. In contrast to Phase II of the Project, Phase III did not require that one or both parties to a dispute live in remote or rural communities; the services of the Project mediators in Phase III were available to resolve any case as long as at least one party lived somewhere in British Columbia. It was hoped that the greater catchment area would generate more mediation cases from which to learn about the practice and effectiveness of distance mediation. The further increase knowledge about distance mediation refers simply to the continued process of acquiring experience with, and therefore knowledge and insights into, conducting mediation at a distance using ICTs. An important change with Phase III was the more widespread use of a web conferencing platform which provides both visual as well as audio connection between the participants. Nearly all of the cases in Phase II were conducted using telephone alone so the increased knowledge expected in Phase III also refers to the knowledge gained about distance mediation conducted using a web-based platform. There are 13 evaluation questions associated with this objective. Many of these questions entail a comparison to the results of the same or similar questions from the Phase II evaluation. The questions are: 1. Are technology-assisted mediations completed over the course of the Project? 2. How effective is assessment for violence and mediation capacity when ICTs are used in family mediation? 3. What advantages and disadvantages of using ICTs are observed during Phase III?

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4. Of the ICTs used by the Project, which appear to be best suited for distance mediation generally and which are better suited to different parts of the mediation process? 5. Are there particular types of family cases that lend themselves more to the application of technology-assisted mediation methods than others? 6. How does technology-assisted mediation compare with existing dispute resolution approaches (e.g., shuttle mediation) when distance is a factor? 7. How does technology-assisted mediation compare with existing dispute resolution approaches? 8. Can some broader benefits of mediation be realized when ICTs are used to conduct mediations? 9. Are the parties generally satisfied with their experience in mediation with ICTs? 10. Are Project mediators generally satisfied with their experience with ICTs in mediation? 11. Do the policy/procedural tools developed for the Project support and promote competent, safe and appropriate methods of technology- assisted family mediation? 12. What additional skills or training should mediators acquire to use competent, safe and appropriate methods in technology-assisted family mediation? 13. What are the primary lessons learned regarding competent, safe and appropriate use of the ICTs in family mediation?

The remainder of this Chapter examines the findings and results for each of these questions.

1. ARE TECHNOLOGY-ASSISTED MEDIATIONS COMPLETED OVER THE COURSE OF THE PROJECT?

In Phase III, the Project intended to offer technology-assisted family mediation services to any family in British Columbia regardless of where they may reside, their socio-economic background status, cultural background or disability19. This section reviews the inquiries received by the Project and the number of cases that ultimately resulted. It also looks briefly at the ICTs used to conduct mediation cases to confirm that cases were technology assisted.

19

Mediate BC Society, Project Application, p.7

15

The Project had a goal of 50 completed mediations. To achieve completed mediations the Project received inquiries that met the Projects mandatory requirements, which then translated into mediation cases that were completed using one or more ICTs. Each of these aspects, or indicators, has been assessed through a review of data contained in the Projects Inquiry spreadsheet and mediator Case Notes forms.
A. Inquiries received, criteria met and cases completed

In Phase III, the Project received 153 inquiries, 89 of which met the Projects mandatory requirements. These inquiries resulted in 55 cases which were assigned Project case numbers, and a total of 46 completed mediation cases. The Project received nearly 50% more inquires in Phase III than in Phase II, and double the number of completed cases. A similar proportion of the inquiries met the mandatory case requirements in both Phases. See Table 3-1.

Table 3-1

Inquiries Received, Requirements Met, and Cases Assigned and Completed

Phase II Number 103 64 31 23
20

Phase III Number 153 89 55 46 % of Inquiries 58% 36% 30%

% of Inquiries 62% 30% 22%

Inquiries received Inquiries meeting mandatory requirements Case numbers assigned Cases completed

Sources: Inquiry/Intake Spreadsheet, Case Notes

The increased number of inquiries in Phase III may be due to one or more factors including: The relaxation of the remote or rural residence requirement in Phase III; this may have encouraged a broader range of families to inquire about the Project services; intensive promotional activities in Phase III; greater awareness of the Project in general; and / or a longer intake period (the intake period in Phase II was 9 months May 2009 to January 2010; in contrast, Phase IIIs intake period lasted 13 months, from May 2011 through June 2012)21.

In both Phases roughly 60% of the inquiries met the mandatory requirements. The key difference between the requirements for cases in Phase II and Phase III relates to the location of the parties. Phase
20 21

Getz, p.16 Phase II received an average of 11.4 inquiries per month while Phase III received an average of 11.7 per month. The additional 4 months that Phase III ran likely resulted in about 45 - 50 additional inquiries in Phase III.

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II required that at least one of the parties was in a remote, non-urban area22 and 15% of inquiries failed to meet this criteria23. In Phase III only two inquiries actually failed to meet the mandatory criteria. Thus it appears that relaxing the residence requirement in Phase III allowed some additional cases to proceed. Data regarding whether a potential case met mandatory requirements was not recorded for 62 cases in Phase III. Notes recorded on inquiry sheets shed some light on why many inquiries did not proceed to the point where an assessment against the criteria was made. As seen in Table 3-2, a common reason is that one or both parties were simply not interested in mediation; in other cases, parties were pursuing other means to address their issues. Safety issues were disclosed in five cases.

Table 3-2

Themes where Mandatory Criteria Assessment was Not Recorded in Phase III
One or both parties not interested in mediation Nothing noted Inquiry only Parties prefer in-person mediation Safety issues disclosed Taking case to court Parties resolved issues themselves Party not comfortable with technology Pursuing another option Total
Source: Inquiry/Intake Spreadsheet

18 17 7 6 5 4 3 1 1 62

Of the 91 inquiries where the assessment result was recorded, 89 met the mandatory criteria and two did not. One failed to meet the requirement that the case be within the jurisdiction of a British Columbian court and the child reside in British Columbia. The other failed to meet the definition of a family mediation case because the dispute, which involved reorganization of the family, was not due to separation or divorce. Of the 89 inquiries that met the mandatory requirements, 55 were assigned a case number by the Project Coordinator and referred to a mediator. Thirty four cases that had met the Project requirements did not proceed to this stage. Again, notes recorded on the inquiry sheets shed some light regarding
22

Party 2 never responded to any attempted contact letters, phone by Family Justice Counsellor. Party 1 persevered for a year to no avail. Mediator Inquiry Comment

Getz, p. 7. In Phase II, another requirement was that neither party needed an interpreter to participate in mediation; in Phase III this was not a requirement, though the Project Map (p. 23) indica tes that a careful caseby- case consideration would be undertaken for such inquiries. Phase III inquiry data indicates that interpreters were not required in any of cases reviewed against the mandatory requirements. 23 Getz, p. 16

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why these cases did not proceed (see Table 3-3). In 10 cases, contact with the second party was not established. Failure to attend a follow-up appointment or calls, or an outright decision not to pursue distance mediation were other common reasons that cases did not proceed. Three cases were screened out due to safety issues. Two cases did proceed to mediation, but after the cut-off date for the pilot Project.

Table 3-3

Notes for Inquiries that met Project Requirements but were not Assigned to Mediator
No contact by/with second party Party(ies) withdrew or failed to attend appointments Service was declined by second party Safety issues identified screened out Parties did not want mediation Case proceeded but too late for pilot Need to resolve related issue first Parties reconciled Nothing noted Total
Source: Inquiry/Intake Spreadsheet

10 6 7 3 3 2 1 1 1 35

Of the 55 cases that were assigned a Project case number, distance mediation was begun in 47 cases and completed in 46 cases. Reasons, noted by mediators, that cases did not proceed to distance mediation after case number assignment are listed in Table 3-4.

Table 3-4

Cases Accepted where Mediation Did Not Occur: Mediator Comments

Parties withdrew or failed to attend appointments Pursued in-person mediation Parties did not connect with mediator Screened out for safety reasons Total
Source: Mediator Case Notes

5 2 1 1 9

In summary, Phase III of the Project received 153 inquiries which resulted in 46 completed mediation cases. Thus, for every three inquiries, slightly more than two did not proceed to distance mediation a very similar result to that seen in Phase II. Many potential cases did not proceed because the parties were not interested in mediation, declined the service or failed to attend appointments; in other cases, parties pursued other means to resolve their dispute (court, in-person mediation, resolving issues 18

themselves). A few cases were not suitable because they involved safety issues. There was only one instance where discomfort with technology was noted as a reason that the party did not want to proceed; however, this may reflect some self-selection on part of people who make inquiries of a technology-assisted mediation service to begin with.
B. ICTs Used

Four technologies were used in the distance mediation cases in Phase III: landline telephones, cell phones, web conferencing and email. Many cases used more than one technology in different stages of the case, or simultaneously for particular sessions (for example, combined use of web conferencing and telephone). The use of web conferencing sets this Phase of the pilot apart from Phase II, where telephone and email were the technologies used in all but one case24. Because web conferencing provides real-time visual contact between distant parties it has a marked impact on the qualitative experience of distance mediation, especially when compared to the audio only experience of telephone. The parties decisions to use particular technologies, and their effectiveness, are explored in more depth later in this report.

2. HOW EFFECTIVE IS ASSESSMENT FOR VIOLENCE AND MEDIATION CAPACITY WHEN ICTS ARE USED IN FAMILY MEDIATION?

In Phase II, mediators conducted safety screening during pre-mediation meetings which occurred by telephone or teleconference. The evaluation report for that Phase suggested that while the mediators could conduct screening interviews competently using the telephone, the absence of visual cues made the task more difficult for them, and they expressed a preference for in-person meetings for safety screening25. Phase III allowed mediators to conduct safety screening with audio and video provided through web conferencing. This section reviews the Phase III results for safety screening, the mediators comments regarding screening with various technologies, and client survey data relevant to safety issues.
A. Results of Safety Screening

During Phase III, safety issues may have been disclosed during the initial inquiry, or in response to high level screening questions posed by the Mediation Advisor26, or through the safety screening performed by the mediators themselves. As noted above, safety issues were disclosed or identified in a total of

24 25

One case in Phase II made use of Skype, WebEx, Windows Live Video, chat, telephone and email. Getz, p. 22 Getz, p.29 26 In February 2012, the intake model for private mediations changed so that the high level safety screening was no longer performed by the Mediation Advisor. After that change, private mediators became fully responsible for conducting safety screening once clients were referred to them (Source: Project Activity Report, March 31, 2012, unpublished).

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nine potential cases that were not ultimately assigned to mediators, and in one case that was referred to a mediator where the mediator screened the case out of the Project due to safety concerns. No safety issues were identified for 73% of the clients27. However, mediator records show that some safety and capacity to mediate issues were identified during the screening process for some of the cases that did proceed to distance mediation. Past safety issues were identified for 15% of the clients. Verbal abuse, power imbalance and emotional safety concerns were noted for 4% of clients. In those cases the mediators made accommodations to ensure continued safety during the mediation process, for example, by using the telephone instead of web conferencing, and caucusing separately with clients to review comfort levels and any concerns. Mediators also referred two parties to appropriate services to address safety issues. Table 3-5 indicates the safety and capacity to mediate screening outcome for the 92 clients who participated in distance mediation cases:

Table 3-5

Results of Mediator Safety Screening

Parties Screened 67 14 5 2 2 1 1 92 % of Parties 73% 15% 5% 2% 2% 1% 1% 100%

No safety issues identified Past safety issues only Result of safety screen not recorded Some safety issues referred to appropriate agency Incidents of verbal abuse noted Power imbalance but no safety issues Emotional safety concerns so client prefers distance mediation Total
Source: Mediator Case Notes

These results indicate that screening did occur, and that some safety and capacity to mediate issues were identified for approximately 20% of the clients, who eventually went on to participate in distance mediation. While this is a small sample of clients with safety concerns, clearly the mediators in these cases were aware of their clients issues and felt that distance mediation remained an appropriate service for these clients.

27

Note that this is a higher percentage of clients without safety issues than reported in a longitudinal study of FJSD clients who had received in-person mediation services; this difference might be something worthy of further investigation. See Dispute Resolution Longitudinal Study Phase 3 Final Report, Focus Consultants, March 2008.

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B. Safety Screening Approaches

During interviews conducted for the evaluation, mediators were asked to describe their approach to safety screening, any challenges they encountered and how they dealt with them, and to comment on the effectiveness of conducting safety screening at a distance using ICTs. FJSD policy requires Family Justice Counsellors to conduct safety screening for all mediation clients. A formal assessment tool is used that consists of 22 questions in total, 10 of which address family violence and safety issues directly. For in-person mediation, clients are given the opportunity to complete the assessment tool themselves prior to meeting with a Family Justice Counsellor for an intake interview, and then review their responses in person with the Family Justice Counsellor. In the Distance Family Mediation Project, Family Justice Counsellors sent the assessment tool to some clients in advance and reviewed their responses with them using the telephone or web conferencing. Family Justice Counsellors reported that they always used the assessment tool, sometimes supplemented by additional questions, to conduct the safety screening. The Mediation Advisor conducted some high level screening before responsibility for in-depth screening was passed on to the mediators. She used a set of six standard questions and usually conducted the screening by telephone. The private mediators reported that they used less formal approaches to screening for safety issues that is, they do not use a formal assessment tool, but instead: One uses many of FJSDs assessment tool questions, and works through them in a conversational way; Another always does a pre-mediation meeting and asks questions to determine the degree of the clients comfort with the mediation process, whether there are any safety issues, and the appropriateness of technology. This is the same screening as with face-to-face mediation; Another uses an informal approach when building rapport with the client and gathering information; this mediator asks questions about safety and if it appears that there are issues, probes further; and Another poses questions about the clients circumstances and watches for red flags.

As mediation cases progressed from intake to actual mediation, all of the mediators continued to assess parties for safety and capacity to mediate issues that may not have emerged during the screening. Techniques that mediators used to assess safety and capacity issues during mediation included: remaining alert to behaviours that indicated client discomfort or feelings of intimidation, (such as withdrawal or backing off), observing clients tone of voice and (when using web conferencing) body language, and watching for major shifts in position for no apparent reason. When these situations arose, mediators reported that they would check in with the clients individually, to further assess the situation.

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C. Technologies Used

Mediators made use of telephone, cell phone, web conferencing, email and in-person meetings to conduct safety screening for clients in this Phase of the Project. (Email was used only to send the Family Justice Counsellor assessment tool to clients). Different technologies were sometimes used to screen the two parties in a case. Table 3-6 indicates the technologies used for safety screening, as a percentage of the total cases (n=46).

Table 3-6

Technologies used to Conduct Safety Screening

Safety screening technologies used: Telephone Web conferencing In person Email (document sharing only) Cell phone Telephone + web conferencing % of cases 72% 54% 11% 11% 9% 6%

Source: Mediator Case Notes Percentages sum to more than 100% as more than one technology was used in several cases

D. Effectiveness of Safety Screening using ICTs

Mediators were asked to rate the effectiveness of the technologies they used at different stages of their cases. Ratings for the technologies used for safety screening were given using a 1 to 5 scale, with 1 = very poor and 5 = excellent; average ratings by ICT used are shown in Table 3-7. All technologies received an average rating of greater than 3, indicating general overall satisfaction with the effectiveness of the technologies used. Highest ratings were given to cell phones and the combination of telephone and web conferencing, though these results should be viewed with caution due to the limited number of ratings given for these technologies.

The added layer of technology between the mediator and the client is a hurdle to get by in order to get information from the parties. Its a hurdle but not a wall. Mediator Interview Comment

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Table 3-7

Ratings for Technologies used to Conduct Safety Screening

Safety screening technologies used: Cell phone Telephone + web conferencing Web conferencing Email (document sharing only) Telephone 28 In person
Source: Mediator Case Notes

Average rating 5.0 4.5 4.3 4.2 4.0 3.5

# of ratings 4 2 24 5 32 2

Comments recorded in mediator Case Notes submitted when cases closed indicated that mediators found assessing safety issues at a distance to be effective for all of the technologies used, though a preference for video-enabled technologies was occasionally noted. As one mediator noted, web conferencing was more effective than telephone for screening as the mediator could observe the clients reactions to questions and then probe further. Interviews conducted with the mediators towards the end of the Project also explored the effectiveness of safety screening at a distance, specifically using telephone and web conferencing. The mediators comments include: Safety Screening by Telephone: If the clients had not completed the assessment tool beforehand, screening by telephone took longer than it would in person; It is not as easy to establish rapport for discussing sensitive issues on the telephone as it is in person; Though the telephone is not the best, it is a start; It is harder to assess what is normal for a client by telephone and there is a need to be extra vigilant; Very similar effectiveness compared to face-to-face, and [this mediator] always does screening by telephone; Telephone is adequate, but face-to-face is better; Using the telephone misses the visual cues;
28

The relatively low rating given to in-person screening was due in part to one case where the screening did not indicate capacity issues that later emerged during the mediation sessions. In this case one party was screened in person and the other by telephone.

23

Telephone is good for screening but does not provide quite the same richness of information as web conferencing or in person.

Safety Screening through Web Conferencing: Screening through web conferencing is not too bad but face-to-face is always best the web conferencing platform just gives a head shot, but is superior to telephone; Web conferencing is close to face-to-face as the mediator can see the clients reactions. Web conferencing is really good. In general, at a distance: Violence screening is tough as many factors are at play cultural, gender differences; it is tricky in person too; just a bit more difficult at a distance because non-verbal cues are harder to pick up on. Safety issues and power imbalances are always hidden and it is part of the mediators job to get at these things obliquely. About half of the mediators did not encounter any challenges in screening the distance mediation clients for safety issues in the Project. The others did encounter some challenges, either during the screening, or later during mediation, largely because of the circumstances of the individuals involved, as opposed to any difficulties relating to the use of technology. Strategies they employed to address these challenges include: Stopping to explain the purpose of the screening and why it is important, if the screening became awkward; Reverting to an even more distant technology (i.e. to telephone rather than web conferencing) to reduce the intensity of the interaction between the clients (once mediation began); and Recommending clients obtain legal advice.

E. Client Views

The client survey posed questions about safety issues and their impact on the clients decision to pursue distance mediation. Three clients (6%) who completed the client survey indicated that they had safety concerns prior to starting mediation. Two of these clients answered additional questions related to safety issues. Both indicated that the option of using technology was an important factor in their decision to proceed with mediation because it reduced their safety concerns somewhat (1 response) or considerably (1 response). Both also elaborated with comments that not being in a face-to-face situation with their former partner helped to reduce their feelings of stress. In response to another survey question, one client noted that she participated in the mediation using an ICT, while the other party was participating in person with the mediator the first client felt this created 24

an uneven power dynamic, and that at times she felt intimidated by her ex-husband but the mediator was not able to perceive when she was withdrawing from the conversation. While this experience was reported by only one client, it highlights the need for mediators to be extra alert to cues that clients give when they are at a distance.

3. WHICH ICTS APPEAR TO BE BEST SUITED TO DISTANCE MEDIATION GENERALLY? WHICH ARE BETTER SUITED TO DIFFERENT PARTS OF THE MEDIATION PROCESS?

In Phase II of the Project, the ICTs used were largely limited to telephone and email. In Phase III it was hoped that mediators would make more use of web conferencing, which offers both audio and visual contact as well as document sharing. With that approach in mind a web conferencing platform was adopted by the Project team as a favoured technology for this Phase. Licences for the platform were acquired for the team, and training and support for the use of web conferencing was provided by the Project Coordinator and, to some extent, by the FJSD Senior Program Analyst for the Family Justice Counsellors. To give mediators added experience using the platform, all team meetings (which occurred twice a month after the initial training period) were conducted using web conferencing. This section reviews the use of web conferencing and other ICTs at various stages in the distance mediation cases. Mediators recorded the ICTs that they used for each of five stages of their mediation cases during the Project. Table 3-8 shows how often each ICT was used in each stage, and the percentage of the Project cases that each ICT was used for in any given stage. Percentages sum to more than 100% as more than one technology may have been used per case in each stage.

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Table 3-8

Technologies Used by Stage of Mediation Case

Stage of Mediation Case ICT Type Used Cell phone Email In person Telephone Telephone + email Telephone + web conferencing Web conferencing Web conferencing + email Web conferencing + in person Initial Contact 5 11% 9 20% 2 4% 39 85% 2 4% 0 0% 11 24% 0 0% 0 0% Safety Screening 4 9% 5 11% 5 11% 33 72% 0 0% 2 4% 25 54% 0 0% 0 0% Pre-Mediation 4 9% 10 22% 3 7% 23 50% 3 7% 2 4% 30 65% 0 0% 0 0% Mediation 6 13% 6 13% 2 4% 23 50% 1 2% 1 2% 21 46% 2 4% 1 2% Post-Mediation 4 9% 25 54% 1 2% 17 37% 2 4% 0 0% 5 11% 3 7% 0 0%

Source: Mediator Case Notes

These results show that a wide range of technologies were used in every stage. They also show that the most commonly used technologies changed depending on the stage: At initial contact, the telephone was heavily favoured and used in 85% of cases (96% if cell phone is added to the telephone category); For safety screening, the telephone was used in 72% of cases (81% with cell phones), followed by web conferencing in 54% of cases (email was used only for document sharing); For pre-mediation meetings, web conferencing was the most favoured, used in 65% of cases, followed by telephone in 50% of cases (59% with cell phones); For mediation itself, telephone and web conferencing had similar levels of use, at 50% and 46% of cases respectively; and For post mediation, email was the most favoured ICT, used in 54% of cases, followed by the telephone in 37% of cases (46% with cell phones).

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During interviews, mediators were asked when email and web conferencing in particular are best suited for use in distance mediation cases. Mediators commented that email is particularly useful for setting up and re-scheduling appointments, sending documents, laying out the ground rules for the use of web conferencing, and ensuring that the Agreement to Mediate and fee structure are in place. For web conferencing, mediators all agreed that it best suited for use in the mediation sessions, but individual mediators also found it effective for initial interviews and safety screening. Mediators also commented that, for follow-up or to touch base with clients individually between sessions, they would often simply call them on the telephone.

4. ARE PARTICULAR TYPES OF FAMILY CASES MORE SUITED TO TECHNOLOGY-ASSISTED MEDIATION THAN OTHERS?

In Phase III, Project mediators dealt with a wide variety of family mediation cases. Some were simple there were a limited number of issues to resolve and/or the parties were low conflict and the process was easy to manage. Other cases were more challenging the issues were numerous and/or complex and the parties entrenched in their positions. In one case, the clients were not only physically distant from each other, they also came from very different cultural backgrounds. Mediator records indicate that: Cases averaged 2.8 issues each, and ranged from single issue cases to one case that had seven issues; Child and parenting issues were the most common issues to be resolved. The percentage of cases with each type of family issue was: o Access: 61% o Child Support: 57% o Parenting: 57% o Custody / guardianship: 52% o Spousal support: 13% o Property division, over $25,000: 13% o Property division, under $25,000: 0% o Other issue: 24% At least 5 cases involved one or more parties who were high conflict, very angry or very entrenched.

Mediators were asked to comment on the types of cases that seemed to be more, or less, suited to distance mediation using ICTs. They responded that cases more suited to distance mediation include:

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Cases where the parties are both comfortable with technology; Low conflict cases, because they are generally easier and any added complexity due to the technology is not a big concern; and, conversely High conflict cases, as there is less emotional charge if the parties are not together in the same room. Taking that concept further, one mediator expressed the view that telephone mediation can be especially helpful due to the absence of visual cues that convey the parties reactions to the each other.

Although these parties were high conflict and challenging the use of technology served to dilute the charge somewhat. Mediator Case Notes Comment

The client survey lends support to the particular usefulness of distance mediation in high conflict cases. Twenty-two percent of survey respondents indicated that their desire (or that of the other party) to not be together in-person was one of the reasons that they had opted for distance, rather than face-to-face, mediation. Mediators commented that the following types of cases may not be as suitable for technology-assisted mediation: Cases with more than two parties, as managing the technology connections would become more challenging as the number of participants increases; Cases where one or both parties lack the capacity to express themselves using ICTs; Cases where the issues are more emotional than legal because the mediator is less likely to be familiar with counselling services in the parties communities; Volatile family violence cases if the parties live in the same community but not close to the mediator. In such situations, the mediator would likely have less direct knowledge of local resources and the context of the community29; Cases that are unsuited for mediation in general for example, where a party is willfully uncooperative, or where there is active family violence; and Very complicated matters with many complex documents to be shared and reviewed together this could be awkward to manage via technology.

29

Project Guidelines recommended that mediators research and become familiar with supports and resources available in clients communities.

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5. WHAT ARE THE ADVANTAGES AND DISADVANTAGES OF USING ICTS?

In Phase II, mediators observed many advantages and disadvantages of using technology in the provision of distance mediation. For this evaluation question, the results of Phase II are compared to the observations of mediators, and clients, in Phase III.
A. Advantages

Table 3-9 lists the advantages observed by mediators in Phase II, and compares them to advantages cited by mediators and clients in Phase III. Mediators (8 in total) provided their observations through interviews and in the Case Notes they submitted for each case. Clients who completed the survey (51 in total) were invited to provide comments on the advantages of using ICTs for mediation. More than one response was often provided by the mediators and clients alike.

Table 3-9

Advantages of Using ICTs

Number of Observations in Phase III Mediators Clients 8 29 4 2 0 5 3 2 1 0 12 13 1 2 8 7 9 0

Advantage Observed in Phase II : Improved access to mediation services, without the need for travel More timely More economical More efficient Promotes a less emotional, and more professional or businesslike atmosphere More logistically convenient, for both parties and mediators Enables participation in the comfort of home or familiar surroundings Greater appeal of physical separation (e.g., some parties either preferred or could not be in the same room together) Modeled or enabled distant communications outside of mediation, either between the parties or between the parties and their children Text communications provided a record or a statement of positions/interests
Sources: Mediator Interviews and Case Notes; Client Survey

30

30

Getz, p. 30

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These results affirm the observations of advantages seen in Phase II with the exceptions of the modeling of distant communication and text communications providing a record (texting/instant messaging was not used in Phase III). There also was a general concurrence between mediators and clients in the advantages they cited, except that clients were more likely than the mediators to note the advantage of being physically separate from the other party. Phase III mediators also cited new advantages that had not been observed in Phase ll. Many of these advantages arise from the use of the web-based platform, but also relate to the use of telephone and email:
In Phase II we had to work very hard to overcome the loss of visuals; in Phase III with the visuals there was an aha this can really work! Mediator Interview Comment

Web conferencing visuals provide cues or information to the mediator and to parties about what is going on (8 comments); Web conferencing visuals simulate a face-to-face experience, allowing clients to see each other and convey emotions (3 comments); Web conferencing allows document sharing (4 comments); Web conferencing allows for communication on all channels (i.e. audio and visual) (2 comments); Web conferencing allows the mediator and the parties to see themselves, allowing them to learn about, and possibly adjust, their own reactions (1 comment); Telephone allows parties to hear each other and speak directly to each other (5 comments); Telephone is easy to use and familiar for everyone (4 comments); Cell phones are mobile and allow participation from almost anywhere (1 comment); Telephone promotes a business-like tone and can be useful when parties cannot easily face each other (3 comments); Email is easy to use, provides a quick and efficient way to communicate with parties (4 comments); Email provides a written record between the mediator and parties (2 comments); and ICTs are tools to be used when parties cant be in the same room with each other, for any reason (1 comment).

Clients also noted further advantages that had not been cited in Phase II: Distance mediation is useful in situations where party safety is a concern (4 comments); Use of technologies avoids travel and therefore provides environmental benefits (2 comments); and Mediating through ICTs eliminates the need to travel after mediation sessions, when the parties could be in an emotional state (1 comment).

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The Project Coordinator noted a number of ways that distance mediation may improve access to mediation. It may allow clients to access a mediator located in another community with whom they want to work (e.g., someone who has an expertise in a particular type of issue). Distance mediation also allows clients living in very small communities to maintain their privacy by not using the services of a local mediator (if there is one), or avoid conflicts of interest in situations where one party has a preexisting, personal relationship with the only mediator in town. Finally, the Project Coordinator noted that some web conferencing platforms have closed captioning capability, or will provide a sign language interpreter, which may make distance mediation an option for clients with hearing disabilities.
B. Disadvantages

Phase II also identified a number of disadvantages of conducting mediations using ICTs. One of the reasons that a third Phase of the pilot Project was implemented was to see if some of the disadvantages observed in Phase II could be mitigated through the use of different ICTs, practices and strategies. Many of the disadvantages observed in Phase II seemingly arose because the telephone was the only I dont feel that there are any disadvantages. technology used to conduct mediations in all but one case. As the results shown in the Table 3-10 indicate, many of the disadvantages of Client, Survey Comment using the telephone for distance mediation continued to be observed in Phase III, though not always by all mediators. Some Phase II disadvantages were overcome, or at least not experienced by all mediators, in Phase III with the use of web conferencing. Web conferencing appears to offer advantages over the telephone in the provision of non-verbal cues and improving the mediators ability to elicit a response, use figures and illustrations, control the emotional climate, achieve buy-in and commitment, share documents, read personalities and address power imbalances. Happily, no mediators were aware of technology-enabled harassment in this Phase and none noted problems apportioning equal time to parties. Mediators noted some strategies that they used in Phase III to mitigate some disadvantages31 seen in Phase II: Give parties timelines to work on to improve buy-in; Use more charisma in communication with clients to make up for not being face-to-face with them; Do more checking in with clients, make more of a point of drawing people in; in short, use more exaggerated strategies to keep people involved; Normalize the process and build rapport with humor; Call each party five minutes before the session and link them in to help them get onto the web conferencing platform if there is a problem they are already on the telephone;

31

Many strategies to mitigate the disadvantages of mediating at a distance are documented in the revised Practice Guidelines developed as part of the pilot project at the conclusion of Phase III. See Question 13 for further description of the Guidelines.

31

Give clients a walk-through test run of web conferencing during the intake interview or set up another five minute test if intake occurred by telephone; and Research local resources if clients are located in another community; for example, contact the Family Justice Counsellor in that community to obtain information about local resources.

Table 3-10

Disadvantages of Using ICTs

Mediators Experience in Phase lll: Web Conferencing Telephone Experienced by some, not by Experienced others Experienced by some, not by Experienced others Not experienced Not experienced Experienced by some, not by others Experienced by some, not by others Experienced by some, not by others Experienced by some, not by others Not experienced Not experienced Experienced by some, not by others. Not experienced Not experienced Experienced by some, not by others Experienced by some, not by others Experienced by some, not by others Experienced by some, not by others Experienced Experienced by some, not by others Experienced Not experienced Experienced

Disadvantage Observed in Phase II Reduced/absence of non-verbal cues More difficult to elicit a response from passive participant Technology-enabled harassment (e.g., harassing phone calls or email) Slower to build rapport/trust Facilitated drifting away, or made it easier to avoid contact Less direct knowledge of local resources/supports for distant parties Limited ability to caucus with some platforms In audio-only medium, no ability to note down figures or use illustrations More difficult to handle emotional climate Less buy-in or commitment to process/solutions More challenging to apportion equal time to parties In some mediums, difficult and more time consuming to share required documentation More difficult to read personality characteristics and address power imbalances
Source: Mediator Interviews and Case Notes

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Experienced by some, not by others

Experienced

If web conferencing has some advantages over the telephone for conducting mediations, it also introduces some new disadvantages that were not seen in Phase II, notably the potential for technical

32

Getz, p. 30

32

glitches or difficulties (noted by five mediators) and presenting a steep learning curve for the mediator (one mediator). Some disadvantages were noted with the use of email. For example, some parties did not accept the boundaries for using email in the context of mediation and forwarded emails they had received from the other party to the mediator. As well, the tone of an email message can be misread, and sometimes it takes time for parties to respond to emails. Disadvantages of cell phones were also noted by mediators. While cell phones permit a party to participate from almost anywhere, this can be a disadvantage if they choose a location with distracting background notice or a public location that does not provide sufficient privacy. Cell phone reception can also cut out, and batteries die. Clients were also asked to comment on disadvantages through the client survey. Eleven out of 51 clients (21%) who participated in the survey noted that they saw no disadvantages to using information and communication technologies for mediation. Other clients noted a range of potential or actual disadvantages including: 6. HOW DOES TECHNOLOGY-ASSISTED MEDIATION COMPARE WITH OTHER APPROACHES WHEN DISTANCE IS A FACTOR? Potential for technical glitches to disrupt the mediation (5 comments); Lack of visual cues for telephone mediation (4 comments); Parties and the mediator need to know how to use the technology and be comfortable using it (4 comments); Mediation through technology loses some of the richness of a face-to-face encounter (4 comments); Technology allows a party to cut out or avoid contact (2 comments); and Potential for reduced confidentiality depending on the setting (2 comments).
An internal evolution happens when persons meet face-to-face; there is something more real and dynamic. It can be more difficult in some ways, but it makes people face what is happening Client, Survey Comment

In their regular mediation practice, Family Justice Counsellors33 often use a shuttle mediation process when distance prevents parties from coming to a Family Justice Centre for in-person, joint mediation sessions. (Shuttle mediation is also used for cases where safety concerns indicate the parties should not engage in mediation together.) In shuttle mediation cases, the Family Justice Counsellor talks to one party by telephone, and then conveys information from that call in a second, separate call to the other
33

One private mediator in the Project also uses the type of shuttle mediation described here.

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party, and then vice versa, until the parties reach, or do not reach, agreement. In shuttle mediation of this sort the Family Justice Counsellor does not engage with both parties on the same call. In contrast, in distance mediations conducted within this Project, the mediators and both parties mediated together, at the same time, connected by whatever ICT they had agreed to use34. Family Justice Counsellors were asked to compare the effectiveness of distance mediation to that of shuttle mediation. They were unanimous that joint meetings, conducted at a distance with technology, are better, more effective and less time consuming than shuttle mediation. In particular they find the role of speaking for the parties, of condensing, consolidating and then conveying the views of one party to the other, to be challenging and draining. They are concerned that they may emphasize the wrong things, or put an incorrect interpretation on what they have been told. They also feel that the message loses its emotional impact when conveyed by the Family Justice Counsellor and sometimes the loss of the emotional content makes it harder for the parties to gain an understanding of the other partys point of view. Family Justice Counsellors commented that, in contrast to shuttle mediation, distance mediation allows them to work with the parties simultaneously, facilitating their communication with each other. The direct communication parties actually speaking directly to each other empowers them in the mediation process, and promotes better buy-in regarding the mediation outcomes. The Family Justice Counsellors were also asked if they had used technology-assisted mediation for Project cases where they would have used shuttle mediation otherwise. They answered yes, for cases where distance separates the parties or where it is difficult for them to be together in person, but no for cases where family violence is a factor. In cases with violence, shuttle mediation would still be used to prevent any contact virtual or otherwise between the parties during mediation.

7. HOW DOES TECHNOLOGY ASSISTED MEDIATION COMPARE WITH EXISTING DISPUTE RESOLUTION APPROACHES?

This evaluation question is considered in three parts. First, the settlement rates achieved in the Project are compared to those achieved in other forms of family mediation. Second, mediators views of technology-assisted mediation compared to traditional mediation are explored. Finally, client satisfaction with their Project mediation is compared to their satisfaction with prior mediations they have participated in.

34

In a very few Project cases, the mediator did change the format to something more akin to traditional shuttle mediation, due to scheduling difficulties or to manage inappropriate interactions between parties.

34

A.

Settlement Rates

Project mediators recorded the outcome of each case on the Case Notes Form when the case concluded. Outcomes could include agreement on all issues, agreement on some issues, no agreement, or another outcome (such as case adjourned to allow parties to obtain independent legal advice). Full or partial settlement may have resulted in a formal written agreement or Memorandum of Understanding signed by both parties, or an informal agreement between them. Using this definition, full or partial agreement was achieved in 39 out of the 46 cases where mediation occurred a settlement rate of 85%. In Phase II of the Project, settlement was achieved in 70% of the cases35. It is tempting to consider attributing the increased settlement rate for Phase III to the use of a webbased platform, which provides both audio and visual connections, to conduct many of the Project mediations. Web-based platforms were not generally used in Phase II (only one case made use of audiovisual conference technology), and the mediations were conducted using telephone. A closer examination of the results for Phase III, however, indicates that the settlement rate for those cases using telephone36 as the principle technology for the mediation stage was similar to the settlement rate where web conferencing37 was the principle mediation technology: 80% vs. 88%. Given the low case numbers involved, this difference between these settlement rates should not be considered indicative of an actual difference in the success rates between the two technologies. The Phase III settlement rate does compare well with settlement rates for other family mediations where ICTs are typically not used. As cited in the Phase II report, the rate of agreement for Family Justice Counsellor cases is approximately 75%38, and the rate for Family Mediation Practicum Program was 71% for its fast-tracked cases39. The settlement rates achieved in this Phase confirm the effectiveness of technology-assisted mediation. The views of mediators and clients also confirm this finding.

35 36

Getz, p. 32 Includes cases that used telephone alone (16 cases) cell phones (1 case), telephone combined with email (1 case) and telephone combined with in-person (1 case). 37 Includes cases that used web conferencing alone (24 cases), web conferencing combined with email (1 case), web conferencing and cell phone (1 case) and web conferencing and telephone (1 case). 38 Based on results of a study by Focus Consultants, Assessment of Dispute Resolution Prevalence and Case Outcomes: Final Report, Victoria: Family Justice Services Division, BC Ministry of Attorney General, March 31, 2008, (unpublished). 39 Justice Services Branch, Evaluation 0f the Family Mediation Practicum Project , BC Ministry of Attorney General, June 2005. Under the practicum program families received mediation services at no charge if they participated in cases where mediators wishing to gain experience in family mediation provided service under the supervision of senior family mediators. (This was a program of the Mediate BC Society. Mediate BC Society has replaced the Family Mediation Practicum Program with the Regional Mentoring Program, currently in a pilot phase.)

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B. Mediator Views

When mediators were asked to compare technology-assisted mediation with the traditional face-to-face mediations they have conducted the past, they offered the following positive comments, with just a few reservations: Web conferencing is as close to face-to-face as possible. In some ways, web conferencing is better than face-to-face because parties cant speak over each other, as the platform doesnt allow it; they must speak one at a time. Web conferencing compares favourably to face-to-face mediation and [this mediator] would stay away from telephone as much as possible; however there will be times when the telephone is necessary. Distance mediation allows access to mediation for more people, such as those who as cant get away from work, dont feel comfortable being with the other party, and those who Distance mediation compares live in remote locations. favourably to face-to-face Distance mediation allows parties to participate in mediation mediation. In person it may be easier to get to the agreement, from the comfort of their home. but it can be done at a distance Time zone differences can mean that everyone is participating if there is an agreement to be had at different times of day (e.g., early morning, after work). This could not happen in face-to-face mediation. Mediator, Interview There is reduced emotional charge compared to being in the Comment same room. Sometimes in distance mediation there is less commitment to what was agreed to in previous sessions maybe due to less exchange of energy. Distance mediations can take a bit more time than face-to-face mediations (3 comments). Face-to-face mediations are generally conducted over the course of a single day (in this mediators practice) but with distance mediation, there is usually more than one session with email follow up. This gives the parties some time to reflect between mediation sessions. Face-to-face offers greater opportunity and time for discussions about counselling and mediation readiness. Caucusing individually with clients during mediation is a bit more awkward with the technologies used. The mediator has to pay attention to a lot more things in distance mediation and this takes greater concentration. Because the mediator is able to see themselves on the web conferencing platform, he/she can learn about their own reactions, which he/she would never have been able to do in face-to-face mediation. Other than difference in the medium, the mediator still does all the same things as with face-toface mediation there are many similarities.

36

One mediator still prefers face-to-face mediation in some cases, perhaps due to her own comfort level as she has greater experience with face-to-face. Its a bit easier to generate greater rapport in face-to-face situations, through things like the small talk while walking to the office with the parties; sharing the same physical place with the parties also helps. Distance mediation compares favourably to face-to-face mediation.

Mediators were also asked whether they found it as easy to achieve agreement between the parties using ICTs as it is with face-to-face mediation. Five mediators felt that the level of difficulty was about the same using either approach. One felt that it was easy to get an informal agreement, but perhaps more challenging to get the parties to send a signed agreement back. Another agreed that the parties commitment could be a bit less, but in the end the two approaches produced similar results. Mediators recorded the time for each case on the Case Notes forms. On average, mediators spent 4.0 hours in mediation sessions and an additional 3.2 hours on non-mediation activities per case. For most cases (72%) mediators felt that the mediation time was about the same as it would have been in traditional mediation; 18% felt that the time was longer by 1 to 2 hours. Comments regarding the amount of non-mediation time were recorded for only 13 cases. For those cases, mediators felt that about the same amount of time was spent in non-mediation activities in 18% of cases, while the time was felt to be 1 to 2 hours longer in 63% of cases, and 3 to 5 hours longer in 19% of cases.
C. Client Views

In the client survey, clients were asked to indicate whether they had participated in another mediation prior to the Project mediation that they were involved in. Eighteen (35%) of those responding to the survey indicated that they had prior experience with mediation. Another question asked this group to compare their satisfaction with the Project mediation to their satisfaction with the other mediation(s) in which they had participated. Fourteen (78%) indicated that their satisfaction the Project mediation compared favourably or very favourably to their prior mediation experience.

8. CAN THE BROADER BENEFITS OF MEDIATION BE REALIZED WHEN ICTS ARE USED TO CONDUCT MEDIATIONS?

In addition to potentially resolving disputes, the mediation process is often credited with creating further benefits for the parties involved, such as developing conflict resolution skills and communication skills that can be used after the mediation concludes. This evaluation did not attempt to directly test whether these benefits had in fact developed. Rather, we asked mediators about their impressions of the potential for broader benefits to arise from distance mediation, and we asked clients about improvements in communication skills resulting from mediation.

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A. Mediator Views of Broader Benefits

During interviews at the conclusion of the Project, mediators were asked if they believed that broader benefits are as likely to result from technology assisted mediation as from face-to-face mediation. Mediator views were varied, with the private sector mediators being less inclined to believe that broader benefits accrue even in face-to-face mediations, because the time spent in mediation is simply too short to overcome a history of poor communication. Family Justice Counsellors were more likely to expect that broader benefits could develop in mediation generally, and in distance mediation specifically, particularly when using a web-based platform. One mediator pointed out that the ability of clients to see themselves on screen can be educational and transformative. In one case a party said she had observed her own behaviour through the visuals on the web conferencing platform and decided that she didnt like what she saw. She resolved to adopt a more open and reasonable attitude in further mediation sessions. However, in another case, a mediator specifically noted that the use of the teleconference medium limited the opportunities for working with the parties to improve communications between them.
B. Improved Communication among Parties

Clients who responded to the client survey were asked, Did you learn better ways to communicate with your former spouse as a result of participating in mediation? Thirteen (25%) said yes, and 17 (33% said somewhat; only two (4%) answered no. These results are an improvement over those from Phase II, where only 8% answered yes, 54% said somewhat, while 33% said no. It is possible that the greater use of web-based platforms that provide visual feedback in Phase III led more clients to feel that they had learned better ways to communicate with their former spouses.

Our mediator was successful with teaching us techniques to communicate effectively Client, Survey Comment

Survey respondents were also invited to provide comments in response to this question. Three clients indicated that they already had good communication with their former spouse while three felt that their former spouse was uncooperative and unwilling to communicate during the mediation. Another two commented specifically that they had learned better communication skills through the mediation process.

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9. ARE THE PARTIES GENERALLY SATISFIED WITH THEIR EXPERIENCE IN MEDIATION WITH ICTS?

This evaluation question focusses on the clients experience in two ways. First, it considers the clients satisfaction with the mediation provided through the Project as a process for resolving disputes. Second, this question considers the clients experience with using ICTs during for mediation.
A. Client Satisfaction with Mediation

In both Phases II and III, the client survey created for the evaluation asked clients how satisfied they were with the mediation process and outcomes, apart from their views on the ICTs used to conduct mediation. When asked how satisfied they were with the outcome or result of their mediation, 59% of the Phase III clients who gave a rating40 were satisfied or very satisfied, similar to the 52% reported for Phase II41. Clients were asked to rate their satisfaction with the mediation process, apart from their impressions of the mediation outcome. Of the 51 clients who responded in Phase III, 36 (70%) were satisfied or very satisfied; this compares to 76% in Phase II. Clients were also asked whether they felt that they had been fully able to express their thoughts, feelings and concerns during mediation. In Phase III, 34 (67%) said yes to this question, while 14 (27%) said somewhat and 4 (8%) said no. In Phase II, 80% of clients answered yes42. Clients were also invited to provide comments for this last item. One respondent who had answered no to this question commented that she had expressed her thoughts to the mediator, but felt that nothing was getting through to the other party. Three other comments expressed some reservations; for example, I knew I could not share my thoughts but that was due to [the other partys] personality, not due to the process or It seemed more about pushing for an agreementpart of each mediation session should include feed-back about how each is feeling about what is said. The remaining four comments were positive; for example, Our mediator provided a good environment that encouraged me to express my thoughts and feelings throughout the process and I felt comfortable enough with the process and mediator to communicate fully.

40 41

Ratings were provided by 44 respondents. Getz, p. 20 42 Ibid. Breakdown of the other response categories was not reported for Phase II.

39

B. Client Satisfaction with ICTs in Mediation

The client survey asked clients to comment on the ICTs that they had experience with prior to participating in the Project, the technologies that they used during their discussions with mediators and in mediation, and their satisfaction with those technologies. The question about prior use of ICTs revealed a surprisingly high degree of experience with ICTs among the clients who responded to the survey. Nearly all had prior experience with email, and just over half had participated in teleconferences. Regarding web-based platforms, two thirds had experience with Skype and nearly 20% had prior experience with WebEx. See Table 3-11.

Table 3-11

ICTs used by Clients before the Project

ICTs that Clients had Used Prior to the Project: E-mail Teleconferencing WebEx Meeting Centre Skype 43 Other ICTs Total
Source: Client Survey

Number of Responses 50 29 10 34 5 51

% of Respondents 98% 57% 20% 67% 10%

Clients who responded to the survey reported which ICTs they had used in their discussions and/or mediations sessions with their mediator (more than one response was permitted). Telephone and email were the most used ICTs, followed by web conferencing. As more than one response was permitted, the percentages sum to over 100%:

43

Other ICTs that clients had used prior to the Project include: Live Meeting, FaceTime, and GoToMeeting.

40

Table 3-12

ICTs used in discussions and mediations reported in Client Survey

Technologies Used: Dedicated (or landline) telephone Cell phone Teleconferencing Email Web conferencing Other Total clients responding
Source: Client Survey

Number of Responses 30 16 8 31 27 3 49

% of Respondents 61% 33% 16% 63% 55% 6%

Clients were asked to rate the technologies they used in mediation in terms of how easy they were to use. Most (84%) found the technologies to be easy or very easy to use:

Table 3-13

Client ratings of ICTs: Ease of Use

ICTs: Ease of Use 1 (very hard to use) 2 3 4 5 (very easy to use) Don't Know Total
Source: Client Survey
44

Number of Responses 1 0 5 14 29 2 51

% of Responses 2% 0% 10% 27% 57% 4% 100%

The reliability of the ICTs used was given slightly less positive ratings, with 70% giving better than a neutral rating. Just over a quarter gave the ICTs reliability a neutral rating or less:

44

This response was given by a client who reported using only web conferencing.

41

Table 3-14

Client ratings of ICTs: Reliability

ICTs: Reliability 1 (very unreliable) 2 3 4 5 (very reliable) Don't Know Total

Source: Client Survey

Number of Response(s) 2 3 8 15 21 2 51

% of Responses 4% 6% 16% 29% 41% 4% 100%

Another survey question asked if the client had experienced any difficulties in their discussions and/or mediation sessions because of the ICTs they used. Fifty-three percent had not experienced difficulties, but 45% had45. Clients described the difficulties as: Equipment problems computer, microphone or webcam malfunction; connection failure; audio problems or volume issues (11 comments; 5 noted that they were easily resolved or that they found a workaround, such as using the telephone for audio); Platform problems trouble downloading the web conferencing software; the platform would not load; the platform caused computer or visuals to freeze; trouble connecting to the platform (6 comments; 2 noted that issues were resolved or a workaround found); and

We are at the mercy of 3 peoples internet connections and other hardware Client, Survey Comment

Situational problems both parties in the same location created feedback and delay; client not at home and unable to call the mediator; too much background noise; one party simply not comfortable with using technology (4 comments).

Despite the fact that some difficulty was reported by nearly half of the survey respondents, clients remained generally satisfied with the technologies they used; 86% found the technologies to be satisfactory or very satisfactory overall (see Table 3-15).
45

2% did not know if they had difficulties.

42

Table 3-15

Client ratings of ICTs: Overall Satisfaction

ICTs: Overall Satisfaction 1 (very unsatisfactory) 2 3 4 5 (very satisfactory) Don't Know Total
Source: Client Survey

Number of Response(s) 1 1 2 16 28 3 51

% of Responses 2% 2% 4% 31% 55% 6% 100%

An open-ended question invited survey respondents to comment on the strengths and weaknesses they observed in their mediators ability to manage discussions using technology. Clients who completed this question expressed a range of views including that: Technology had no impact on the discussions (3 comments); Technology created some minor issues or detracted from the mediation for example, the use of telephone meant that the parties could not see facial expressions and body language; the mediator was learning how to use the technology with them, or didnt know how to deal with minor technical issues (6 comments); The mediator handled the technology competently (3 comments); and The technology improved the mediation by making the mediation easier to manage (compared to in person), allowing the mediator to be a bit removed from the personal dynamics between the parties (noted as a strength) (3 comments).

In one case, a party noted that they participated via telephone while the other party participated in person with the mediator; in their view, this created an unequal situation as the client could not see the mediator and was lacking visual cues that the other party could see.
C. Overall Satisfaction

An indication of the clients overall satisfaction with distance mediation is whether they would use it again and whether they would recommend it to others. In response to the question, If another issue arose, would you choose a distance mediation process for help in resolving it? nearly three quarters (73%) said yes while only 10% said that they would prefer in-person mediation. In Phase II, 80% had

43

answered yes46. When asked if they would recommend that others choose a distance mediation process for help in resolving an issue, 90% said yes compared to 84% in Phase II47.

Table 3-16

Responses to If another issue arose, would you choose a distance mediation process for help in resolving it?

Number of Response(s) Yes No, I would prefer an in-person mediation process, if possible No, I would not choose mediation of any kind Don't Know Total
Source: Client Survey

% of Responses 73% 10% 2% 16% 100%

37 5 1 8 51

10. ARE PROJECT MEDIATORS GENERALLY SATISFIED WITH THEIR EXPERIENCE WITH ICTS IN MEDIATION?

This section reports on the mediators views regarding how easy to use, reliable and effective different ICTs are. It also reports on mediators overall level of satisfaction with using ICTs in mediation.
A. Ease of Use, Reliability and Effectiveness of ICTs

Mediators were asked to rate each ICT they used regarding its ease of use, technical reliability and overall effectiveness. They did this using a 1 to 5 scale, with 1 = very poor, and 5 = excellent. Mediators gave a rating to each ICT used for each stage, of each case, they conducted. The following table reports the average ratings given across all stages of mediation and all cases, for telephone, email, web conferencing and cell phone48.

46 47

Getz, p. 21 Getz, p. 21 48 The use of computer based video conferencing and the combinations of web conferencing, telephone and email had too few ratings to be reported reliably.

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Table 3-17

Mediator Ratings of ICT Ease of Use, Reliability and Effectiveness

Number of ratings 128 47 82 23 Average Rating Reliability 4.3 4.8 4.3 4.9

ICT Used: Telephone Email Web conferencing Cell phone

Ease of Use 4.8 5.1 4.7 5.0

Effectiveness 4.1 4.4 4.6 4.8

Source: Mediator Case Notes Form data

Overall, all of the ICTs received high ratings from the mediators for their ease of use, including the web conferencing platform, which was the least familiar of the ICTs that the mediators used. Ratings for technical reliably were slightly lower than for ease of use, but still very high, with the highest ratings for cell phones. Effectiveness ratings were moderately high, though slightly lower than the ratings for ease of use and reliability. During interviews, mediators were asked to comment on email and web conferencing in particular, regarding their ease of use for both themselves and for clients, their reliability and their effectiveness. Email Mediators found email easy to use, though one mediator commented that care was needed to ensure that information was shared equally between the parties, and that both parties are copied on answers to questions. Mediators also indicated that, for the most part, clients are comfortable with email. One mediator noted that it sometimes took a long time for parties to respond to emails and speculated that the clients may not be as used to communicating via email as mediators are. Mediators also found email to be technically reliable and without glitches, except for the possibility of using an incorrect email address. Regarding the effectiveness of email, several mediators noted that it is best used for setting up appointments and sending documents. As one Family Justice Counsellor put it, email is good for cutting down on telephone tag. FJSD does not allow dialogue with clients via email, and Family Justice Counsellors cannot, for example, answer questions using email. One Family Justice Counsellor found that some clients would try to engage in dialogue via email and she had to remind them that she could not do this. Private mediators described using email in more situations to answer questions and for sending summaries of parties positions to them between mediation sessions and found email to be an effective tool.

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Web conferencing Most of the mediators found the web conferencing platform easy to use once they had learned the functions. One commented that web conferencing can be a challenge for the convener (i.e., mediator) until everyone is into the site. Another commented they used the telephone in conjunction with the web platform if there were audio issues or if the clients had trouble with their microphones. Another found the platform to be relatively easy but not wholly intuitive and found setting up meetings, and the methods to protect privacy of the users, a bit awkward. The mediators commented that most of the clients had no trouble with web conferencing and were comfortable with the platform. The mediators emailed the clients a link for signing in and most had no difficulty getting onto the platform. Sometimes the mediators gave the clients a walk-through of the system to orient them to its features. As well, the Project Coordinator had prepared a set of written instructions for clients which mediators could provide and these were helpful. However, a few clients experienced difficulties with connecting to the program, or had trouble with feedback and echo when using laptops, or their computer lacked speakers. Reverting to telephone for audio was a useful back-up strategy if this occurred. WebExs Client Support provided assistance in at least one case, which was very helpful. For the most part, mediators found web conferencing to be technically reliable as well, with few glitches. Problems such as freezing screens, or cutting out of the audio, or visuals appearing upside down, were very infrequent. One mediator had a problem using child support calculation software on the platform desktop but quickly resolved it through trial and error. Positive comments included good sound quality and not being cut off if the mediation exceeded the scheduled end time. Most of the mediators found web conferencing to be a very effective way to conduct mediation: Two commented how quickly they and the clients adapted to the platform and soon didnt notice that it was there; Some commented that the visuals of web conferencing made it as close to a face-toface situation as possible, though one mediator remains of two minds regarding the value of the visuals as he is quite comfortable with using conference calls for mediation; Others remained enthusiastic about the visuals of the web platform they could see both parties, and the parties could see each other. The visuals provided important information about the clients reactions to the mediation proceedings; Two noted that having the visuals also helped them to concentrate, with less chance of drifting away; and The mediator can also see himself/herself which allowed them to see the cues that they themselves were giving to clients.

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The web conferencing platform was also regarded as an excellent way to share documents during mediation, allowing the mediators to upload calendars for childrens times, or go to the web for information. One of the ways in which web conferencing was not ideal for mediation in this Phase was that the particular version of the platform used did not allow breakout sessions for caucusing individually with the parties49. Additionally, one mediator commented that the audio is voice activated so the camera shifts to whoever is speaking; the mediator who noted this would prefer that the mediator control the camera.
B. Overall Satisfaction

During the evaluation interviews, the mediators were asked to rate their overall level of satisfaction with their experience of using ICTs in mediation in Phase III. Six out of eight gave a rating of highly satisfied. Two mediators rated their satisfaction slightly below highly satisfied, more akin to quite satisfied. These mediators have a few reservations and see room for improvement in a few areas. Overall though, the mediators were enthusiastic in particular about the innovation, functionality and improvements that web conferencing had provided in this Phase. They were gratified to learn through their own experience that effective mediation can be provided at a high standard with the use of a webbased ICT.

11. DO PROJECT TOOLS SUPPORT COMPETENT, SAFE AND APPROPRIATE METHODS OF TECHNOLOGY-ASSISTED FAMILY MEDIATION?

During Phase III of the Distance Family Mediation Project, a number of tools were developed or provided to support the Project mediators in their distance mediation practice. These tools included:
49 50

Practice Guidelines50, developed and published at the conclusion of Phase II, that detailed the lessons learned in that Phase and resulting distance mediation practice suggestions; Phase III Project Map; Tips on Video and Web Conferencing; Inquiry/Intake form for the Mediation Advisor and Family Justice Counsellors use; Process flow charts outlining procedures and timelines for submitting documentation; Agreement to Mediate template, specifically designed for use in the Distance Family Mediation Project; Instructions and guidelines for the use of the various web conferencing platform features51;

Other web conferencing platforms, and other versions of the platform used, do have a breakout feature. Mediate BC Society, Mediating from a Distance: Suggested Practice Guidelines for Family Mediators, 2010.

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FJSD policy document, focussing on policies relevant to the Project52; Information bulletin outlining the difference between a formal agreement and a Memorandum of Understanding, for use with clients; Email templates for invitations to meetings and mediation via web conferencing; and A Project wiki that housed pages on safety screening, articles on online dispute resolution and other related resources for the mediators.

Mediators were asked whether they referred to the Practice Guidelines in particular throughout their cases in Phase III. About half of the mediators commented that they referred to the Guidelines throughout the Project, while the others referred to them mainly at the start of Phase III. A few commented that the training they received, and the support provided by the Project Coordinator, really replaced the need to refer to a written set of Practice Guidelines53. All found the Guidelines to be well written and helpful to have on hand. Project mediators were also asked what additional tool and materials, beyond written Practice Guidelines, would be useful for mediators undertaking technology-assisted mediation. They mentioned several items that were provided in this Phase: Hands-on technical support; Distance Mediation Practice Group to share experiences, best practices and ideas for overcoming problems; Instructions on how to use the technology, for the mediators use; Practical examples of using the technology (scenarios); and Instructions for the technology that can be sent to clients.

A common theme in the comments was the important role played by the Projects regular team meetings. As one mediator put it, this is when real learning occurred and prompted the suggestion above regarding Practice Groups. See Question 22 for further discussion of team meetings.

51

Produced by the Project Coordinator and FJSD Liaison: How to Join a Meeting (for clients), How to Customize a WebEx Initiation, How and When to Share your Desktop, Files and Applications, How and When to Grant Client Privileges and Controls and WebEx Functionality and Ways We Can Use it. Mediators were also provided with WebEx User Guides and information about accessing WebExs knowledge base and other resources . 52 Distance Mediation Project - Family Justice Services Division Policy Considerations, Project Decisions and Best Practices, Family Justice Services Division, Ministry of Justice, October 2011, unpublished. 53 See Question 18 for further comments about the role the Project Coordinator played in this Phase.

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12. WHAT ADDED SKILLS OR TRAINING SHOULD MEDIATORS ACQUIRE?

Five of the eight Phase III mediators had experience with distance mediation gained through their participation in Phase II of the Project. In the view of the Project Coordinator, much of the learning from Phase II transferred from the experienced distance mediators to the new members of the team through their interactions in team meetings. The base of experience gained in Phase II meant that training for Phase III was more focussed than it would have been for mediators completely new to distance mediation. To prepare for Phase III all the Project mediators attended online presentations/training sessions presented by the Project Coordinator and others, in the following areas54: Session 1: General Orientation Session 2: ICTs for Conducting Mediation Session 3: ICT Training: One-on-one session with the Project Coordinator Session 4: Applying the Standards of Conduct (documenting agreements, recommending independent legal advice, limiting practice to areas where trained, screening for safety and capacity) Session 5: Screening for Safety and Capacity Session 6: Practice Guidelines for Distance Mediation

Numerous additional one-on-one practice sessions with the Project Coordinator were also held. Mediators were asked to comment on the skills and training that a mediator should have in order to conduct mediation using ICTs in a safe and appropriate way. The Project team also participated in a Think Tank at the end of the Project during which the team discussed a number of training questions. A consistent theme in the Project mediators comments was that mediators should be seasoned, experienced and comfortable with conducting in-person mediations before they move into providing technology-assisted mediations. Reasons given for this included:

My fear is that novices will see this as a marketing tool and a place to get their feet wet safely - that it is not! Mediator, Interview Comment

54

Phase 3 of the Distance Family Mediation Project Syllabus for Project Team Preparation Sessions, Mediate BC Society, February 2011, unpublished.

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With the addition of technology there is much for the mediator to pay attention to. Experience with in-person mediations will allow the mediator to manage the added technology layers more comfortably; Different physical arrangements of the parties for example, together but in a location distant from the mediator give rise to added concerns regarding safety. Judgment and experience will help the mediator weigh such issues as they arise; Mediators need to have confidence in their judgement in order to deal with unexpected issues that arise at a distance; Because cues from clients are somewhat reduced when using ICTs, mediators need experience in tuning in to client emotions; and Learning how to handle a mediation and technology at the same time would be very stressful.

The concern that distance mediation not be offered by inexperienced mediators led some to the thought that creating a special distance mediation roster (for private practice mediators), with experience and training requirements, would be a way to provide potential clients with a pool of skilled and experienced distance mediators to choose from. Additional suggestions, regarding the skills that distance mediators should have, included: Comfort with, and a thorough understanding of, the being used so that the technology doesnt get in the way during mediation; The ability to conduct an in-depth client assessment, as distance may make it more difficult to pick up on subtle client cues about violence and/or capacity issues; Multi-tasking skills; An ability to teach others (i.e., clients) how to use technology; and Flexibility and an ability to deal on the spot with the unexpected, particularly as the mediator does not have the same degree of control over the mediation environment at the clients end, as they do in in-person mediation.

Topics for distance mediation training that were suggested include: The principles of mediating at a distance that would apply regardless of the platform used including topics such as how to put others at ease using technology, how to engage clients and develop rapport, and how to address cultural differences, at a distance; Specifically, how to screen for violence and capacity issues at a distance; Training on mediation with different categories of technology (e.g., telephone, web based); Training on the use, functions and applications of specific technologies and platforms in distance mediation; and Mock mediation sessions on the selected platforms, to walk through each part of a mediation session using the technology.

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13. WHAT ARE THE PRIMARY LESSONS LEARNED REGARDING THE USE OF ICTS IN FAMILY MEDIATION?

As part of the evaluation of Phase II of the Project, mediators were asked what primary lessons they had learned about the competent, safe and appropriate use of ICTs in family mediation. For the evaluation of Phase III, mediators, the FJSD Liaison and Project Coordinator were asked to review the primary lessons for Phase II and comment on whether they held true in Phase III. Results comparing Phase II and Phase III are shown in Table 3-18. For the most part, those interviewed agreed that the lessons learned remained the same in both Phases, though they had some comments and ideas to add. Those interviewed suggested three more key lessons learned from Phase III: A picture is worth a thousand words: The visual component provided by web conferencing makes distance mediation much more effective in many cases than if provided by telephone alone; Pick up the telephone: There is still a place for telephone in distance mediation when it is the only technology available that all are comfortable with, and in situations where even the visual presence, if not the physical presence, of the other party can cause distress or intimidation for a participant; and Mediator, be flexible!: Distance mediators need to be prepared to learn new things and be ready to address the unexpected.

A key output of Phase III was the development of a revised version of the Practice Guidelines55, originally developed at the conclusion of Phase II. The revised version incorporates many new suggestions regarding the use of web conferencing technologies in distance mediation, and includes a checklist for mediators to assess their on-screen presence in video and web conferencing mediations. The revised Practice Guidelines contains a wealth of detailed information that is not repeated here, regarding the learnings of Project mediators during Phase III, and can be accessed on Mediate BCs website at: http://mediatebc.com/About-Us/News/Just-Released!-Second-Edition-of--Mediating-from-a.aspx .

55

Mediating from a Distance: Suggested Practice Guidelines for Family Mediators, Second Edition, Mediate BC Society, Vancouver, British Columbia, November 2012.

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Table 3-18

Lessons Learned in Phase II and Phase III

Phase II Lesson Learned 1. The walls have ears ensure that the parties are alone, and that they arent recording a session. Phase III Comments This remains true. Added comment: It can be difficult at a distance to enforce conditions in the clients home space, for example, that children are not nearby. These requirements need to be clearly spelled out. This remains true. Added comments: The technology used makes a difference it is easier to build rapport using web conferencing than by telephone alone If meeting by phone alone you may never really build that rapport Different rapport building skills are needed when using the telephone instead of meeting in person, e.g., more verbal skills This remains true. Added comments: For some cultures, the concept of keeping it real may not be part of the strategy used in mediation and negotiation.

2.

Take time to build trust building rapport and trust can take more time when using an ICT, but it is worth the effort; some level of trust must be present, not only between the mediator and the parties, but also between the parties.

3.

Keep it real the power of authenticity, and the necessity of it, is magnified when using an ICT; remember that the parties may have a more difficult time correctly understanding and interpreting what you say when theyve never met you. Plan alone time as caucusing can be more difficult in distance mediation, think through how to conduct a caucus meeting and discuss your methods with the parties in advance. Always have a plan B in case the technology fails, always have a back up modality that will suffice in its place; ensure that the parties know what plan B is. Pitch to the lowest common denominator choose the technology with which the least technically-oriented person is most comfortable.

4.

This remains true.

5.

This remains true. Added comment: Have an alternative plan ready for each session. It is not enough to have the plan; you must also be prepared, and remember, to use it. This remains true. Added comment: But dont be opposed to introducing a new technology as some parties may feel comfortable after trying it out.

6.

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Phase II Lesson Learned (continued) 7. Mediator, know thy equipment! dont let an ICT detract too much from the issues; if not totally up to speed on the technology, a mediators focus can get divided or taken away; as one mediator commented, technology has its own interests, and it can be a very demanding party! 8. Mediator, know thyself! as a mediator, its important to know what youre comfortable with in using different techniques and technologies; reflect on who you are as a mediator, and what you bring to the distance mediation process.

Phase III Comments (continued) This remains true. Added comment: Also know how to troubleshoot simple technical issues for the clients, such as ensuring they have their microphones and webcam turned on, or are selecting the right link.

This remains true. Added comments: Establish and keep to boundaries for helping the parties technically, for example, stay away from reconfiguring their computers

Source: Getz Phase II Evaluation report, p. 25; Phase III Project Team interviews

SUMMARY

The following are the key findings with respect to the evaluation of Objective One: Phase III of the Project received 153 inquiries which resulted in 46 completed mediation cases. Many potential cases did not proceed because the parties were not interested in mediation, declined the service, pursued other means to resolve their issues or failed to attend appointments. Landline telephones, cell phones, web conferencing and email were used in Phase III cases. Because web conferencing provides real time visual contact between distant parties it has a marked positive impact on the qualitative experience of distance mediation, especially when compared to the audio-only experience of telephone. Mediators found assessing safety issues at a distance to be effective for all of the technologies used though a preference for video-enabled technologies was noted. Mediators commented that email is particularly useful for handling the logistics of a case, while web conferencing is best suited for use in the mediation sessions, initial interviews and safety screening.

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Mediators indicated that cases more suited to distance mediation include cases where the parties are both comfortable with technology; low conflict cases, because they are generally easier and any added complexity due to the technology is not a big concern; and, conversely high conflict cases, as there is less emotional charge if the parties are not together in the same room. The client survey lends support to the particular usefulness of distance mediation in high conflict cases. Cases which may not be as well suited to technology-assisted mediation include those with more than two parties, cases where the issues are more emotional than legal, volatile family violence, cases that are unsuited for mediation in general, and complex cases involving numerous participants and the exchange of many lengthy documents. Most of the advantages of distance mediation identified in Phase II improved access to service, efficiency and convenience were again noted in Phase III. Additional advantages identified in this Phase focussed on the plusses afforded by the ICTs used the face-to-face simulation of web conferencing, the ease of use and the creation of a business-like tone with the telephone. Fewer disadvantages were cited in Phase III, particularly because the use of web conferencing in some cases overcame some of the limitations of an audio only ICT. Mediators employed a variety of strategies to overcome the disadvantages that remained. Project mediators felt that distance mediation compares favourably to traditional face-to-face mediations, a view shared by close to 80% of the client survey respondents who had had previous experience with mediation. The project achieved an overall settlement rate (full or partial settlement of all case issues) in 85% of the cases. Just over half the client survey respondents indicated that they had learned better ways to communicate with their former spouse through distance mediation, at least to some degree. Family Justice Counsellors were unanimous that joint mediation sessions, conducted at a distance with technology, are better, more effective and less time consuming than shuttle mediation. Between 60% and 70% of the client survey respondents were satisfied or very satisfied with the mediation process, outcomes and their ability to speak freely and openly during mediation. They also gave positive ratings of reliability, effectiveness and ease of use of the ICTs used in their mediations. These views were echoed by the mediators, who also gave positive reviews to the ICTs; they were particularly positive about the effectiveness of web conferencing to conduct mediation.

54

Mediators gave positive reviews of the training and tools they were given to use in the Project, and were in general agreement that distance mediation should only be conducted by experienced family mediators. All of the lessons learned in Phase II were confirmed in Phase III, and new lessons regarding the use of web conferencing and the telephone as tools for distance mediation were identified.

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Chapter Four: Improved Effectiveness and Access to Mediation

INTRODUCTION

This Chapter reviews the results for six evaluation questions related to the second objective of the Project, which is: To improve the effectiveness and accessibility of mediation for all British Columbian families by making distance mediation available province-wide and offering a support structure and services through the Society. One focus of this objective is improving access to mediation through the expansion of services throughout the province including to larger communities and major urban areas in Phase III. The first evaluation question related to this objective addresses the demographic profile of Project clients and allows for an assessment of whether, in fact, a wider segment of the population accessed Project services in this Phase than in Phase II. A second question explores the factors that encouraged or discouraged client decisions to use technology-assisted mediation services, and the selection of particular technologies for the cases conducted in the Project. These aspects are examined because access to technologies may have impacted potential clients ability and willingness to participate in distance mediation. Objective Two also focusses on the role of supports and services provided during the Project, and how they serve to increase the provision and effectiveness of distance mediation services to families with issues to be resolved. Findings and results for the following evaluation questions are addressed in this Chapter: 14. What is the demographic profile of the Projects clientele? 15. What factors appear to encourage, or barriers prevent, parties use of technology-assisted mediation services? 16. What influences the selection of particular ICTs? 17. In what ways does the Mediation Advisor role support the provision of distance mediation? 18. In what ways does the Project Coordinator role support the provision of distance mediation?

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19. Do mediators or clients identify other supports that would be helpful to build into a distance mediation service model?

14. WHAT IS THE DEMOGRAPHIC PROFILE OF THE P ROJECTS CLIENTELE?

Demographic information was collected for most of the parties who participated in Phase III cases, including their location, age and broad income level. While Phase II sought clients from remote and rural British Columbian communities, Phase III accepted cases where at least one party lived anywhere in British Columbia, without restriction regarding the size of community. This section compares the demographic profile of Phase II and III clients, and also compares the Phase III client profile to that of British Columbia generally.
A. Location

In Phase II, 93% of clients resided in British Columbia56. In Phase III, 81 (86%) clients resided in British Columbia, 10 (11%) resided elsewhere in Canada, 1 (1%) resided in the United States, and 2 (2%) resided in other countries. With the relaxation of remote and rural residency requirement, Phase III saw a large shift of the client base away from smaller communities. Of the 81 Phase III clients residing in British Columbia, only 18 (22%) came from small communities (under 10,000 population); in Phase II, 83%57 of Project clients came from communities under 10,000 population. As Table 4-1 indicates, Phase III clients from British Columbia still tended to come from small and medium sized communities in greater numbers than the overall distribution of the BC population might suggest. Relative to the BC population as a whole, large centres are underrepresented in the Phase III client base. This is not a surprising result in the client survey, about half of the respondents indicated that they would have had to seek assistance from resources outside their community if they had not participated in the Project (see question 15). This suggests that part of the appeal of distance mediation is overcoming the lack of resources available in smaller communities, and thus, the Project continued to attract clients from these locations.

56 57

Three parties resided out of province. Getz, p. 15 Getz, p. 15. This percentage is based on a total number of clients that includes the 3 from out of province.

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Table 4-1

Location of Project Clients and BC Population by Size of Community

Project Clients in BC Number of Clients Percentage 5 6% 11 14% 40 51% 23 29% 79 100%

Community Size Rural area Small (under 10,000) Medium (10,000 100,000) Large (over 100,000) Total

% of BC Population 12% 7% 32% 49% 100%

Sources: Inquiry Sheets; BC Stats, British Columbia Development Region, Regional District and Municipal Population Estimates 2006-2011

The distribution of Phase III clients by region is compared to that of the British Columbia population overall in Table 4-2. Relative to the overall population, the Vancouver Island/Coast region was overrepresented among the Projects clients, while the representation of Thompson/Okanagan, Kootenay and Northeast regions was close to that of the overall provincial population. All other regions, including the Mainland/Southwest were underrepresented among the clients.

Table 4-2

Location of Project Clients and BC Population by Development Region

Project Clients in BC Number of Clients Percentage 29 36% 34 42% 12 15% 3 4% 0 0% 0 0% 0 0% 1 1% 79 100%

Development Region Vancouver Island/Coast Mainland/Southwest Thompson/Okanagan Kootenay Cariboo North Coast Nechako Northeast Total

% of BC Population 17% 60% 12% 3% 4% 1% 1% 2% 100%

Sources: Inquiry Sheets; BC Stats, British Columbia Development Region, Regional District and Municipal Population Estimates 2006-2011

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Again, it is possible that the underrepresentation of the Mainland/Southwest region is due to the ready availability of resources in the major urban area of the province. The underrepresentation of the more rural areas of the province the Cariboo, North Coast and Nechako regions may simply be a reflection of the low populations there generally. Certainly Project records indicate that services were promoted throughout all areas of the Province58. Of course, all Project cases had two parties. In most cases, parties to the same dispute lived in different communities, often very distant from each other. However, in 7 out of the 47 cases (15%), the parties lived in the same community. In only 2 of these 7 cases did the parties live in small communities where in-person dispute resolution resources might not be readily available. This confirms that distance between the parties, and the lack of local resources, are not the only reasons that some clients opted for technology-assisted mediation.
B. Age, Education and Income Levels

The average age of Phase III clients when their cases began was 37 years59. Clients in Phase III tended to be younger than those in Phase II. Seventy-six percent of Phase II clients were over age 35, and 43% were over 45. In Phase III, 54% were older than 35, and only 15% were older than 45. The distribution of clients by age in Phase III is compared to that of British Columbias adult population in the following table. Project clients were more likely to be under the age of 50 than the general adult population, but that is perhaps understandable due to the nature of family dispute resolution which often involves separating couples who have children living at home.

Table 4-3

Age Profile of Project Clients and BC Adult Population

Project Clients Number of Clients Percentage 15 18% 36 44% 25 30% 6 7% 82 100%

Age Group 20 29 years 30 39 years 40 49 years 50 years and older Total

% of BC Adult Population 15% 13% 15% 57% 100%

Sources: Inquiry Sheets; BC Stats accessed at: http://www.bcstats.gov.bc.ca/StatisticsBySubject/Demography/PopulationEstimates.aspx

58

Project Activity Reports to the Law Foundation, September 2010 March 2012, Mediate BC Society, unpublished. 59 82 out of 92 clients supplied date of birth information.

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The educational attainment of Project clients was also compared to that of the British Columbian population. Project clients were somewhat better educated than the general adult population, with a smaller proportion having grade 12 education or less, and greater proportion having college or technical school training. Project clients were about as likely to have undergraduate or graduate level university education as those in the general population. See Table 4-4. Clients of this Phase were also more likely to have higher levels of education than the clients in Phase II. In Phase II, 42.5% of the clients had at least a grade 12 education or better, and 30% had a college or university education60. In Phase III, 88% had at least grade 12, and 67% had college or university education.

Table 4-4

Educational Attainment of Project Clients and BC Adult Population

Project Clients Number of Clients Percentage 10 11% 18 20% 34 37% 14 15% 9 10% 85 100%

Educational Attainment Less than Grade 12 High school completion College / technical school University undergraduate University graduate level Total

% of BC Adult Population 20% 28% 28% 18% 7% 100%

Sources: Inquiry Sheets; Statistics Canada - 2006 Census.

The income level of Project clients was recorded in broad categories only. Data for clients was compared to income information available from Statistics Canada regarding tax returns for the 2009 tax year. This data suggests that Project clients are somewhat more likely to have incomes of between $50,000 and $100,000 than BC tax filers in general and slightly less likely to have incomes below or above that level. See Table 4-5. Just over 70% of Project clients had annual incomes of $50,000 or less; this is similar to the result in Phase II, where 67% had an income of less than $50,000 per year61. The high proportion of clients in this income group may be one reason why only a small number of Project cases were completed by private mediators where fees applied.

60 61

Getz, p. 17 Getz, p. 17

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Table 4-5

Income Levels of Project Clients and BC Tax Filers

Project Clients in BC Number of Clients Percentage 60 71% 24 28% 1 1% 85 100%

Annual Income Less than $50,000 $50,000 - $100,000 More than $100,000 Total

% of BC Tax 62 filers 74% 21% 5% 100%

Sources: Inquiry Sheets; Statistics Canada Neighbourhood Income and Demographics, 2009

In summary, demographic information collected about Project clients indicates that the clients in Phase III were more likely to come from small and mid-sized communities, live outside the Southwest region, be younger and better educated, and have mid-range incomes, than the British Columbian adult population as a whole. Compared to Phase II, clients in this Phase were much more likely to come from mid and large sized communities, confirming the conclusion that expanding the geographic reach of the Project allowed clients from a greater number of British Columbian communities to access distance mediation services.

15. WHAT FACTORS APPEAR TO ENCOURAGE, OR BARRIERS PREVENT, PARTIES US E OF TECHNOLOGY-ASSISTED MEDIATION SERVICES?

A total of 153 individual inquiries were received by the Distance Family Mediation service in Phase III. These inquiries ultimately narrowed down to 55 cases that were assigned Project case numbers, and 46 cases (equal to 30% of inquiries) where mediation occurred and concluded. Phase II also experienced a large drop off from inquiries to cases, and ended up with the same proportion of cases that proceeded (30%). Because Phase II was aimed at a target group located in small, rural areas of British Columbia, there was a concern that this group might in some way be at a disadvantage for participating in technology assisted distance mediation. However, at the end of Phase II, it was unclear whether digital divide factors, such as cultural background, broadband availability,

62

Note that tax filer data does not provide information on those who have not filed a tax return in a given year. In 2009, approximately 3.4 million adults in BC filed tax returns and 1.0 million did not.

61

age, disability, income, geography and education had an impact on the participation rate in the Project63. This evaluation question examines factors that motivated people to proceed with cases, and those factors that may have discouraged or prevented participation. Information drawn from the client survey results, as well as the inquiry data and interviews conducted with the Mediation Advisor, the FJSD Liaison and mediators who received inquiries, shed light on this question.
A. Reasons for Non-Participation

As was seen in Chapter Three, question 1, the reasons that parties ultimately did not proceed to a case within the project included: one or more parties to a case were not interested in mediation, declined service or failed to attend appointments; some parties pursued other means to their resolve dispute (court, in person mediation, on their own); and safety issues meant some cases were screened out. In only one instance was discomfort with technology noted. Data from the Inquiry Sheets indicated the ICTs that potential clients and clients had access to, should a case proceed. This information was analysed to compare the availability of ICTs for parties where cases completed (n=90 parties), to that for parties where cases did not proceed or complete (n= 87 parties)64. Table 4-6 reports these results; percentages sum to more than 100% because parties often had access to more than one type of ICT.

Table 4-6

Percentage of Parties with Access to ICTs

Distance Mediation Case Completed Yes No 68% 58% 76% 80% 86% 72% 2% 6% 6% 9% 83% 82% 63% 57% 79% 60%

ICT Available to Party Cell phone Telephone Computer at home Computer at work Computer elsewhere High speed internet Webcam Microphone /sound
Source: Inquiry Sheets

63 64

Getz, p. 20 Although 46 cases (with 92 parties) completed mediation, information regarding available ICTs was not recorded for 2 parties. For inquiries that did not result in completed mediation cases, information regarding available ICTs was recorded for only 87 parties; many inquiries did not progress to the stage where this question was asked of potential clients, and in many cases there was no contact at all with the second party to a dispute.

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This data indicates that, in fact, parties to disputes that completed (versus parties to cases that did not proceed) were more likely to have access to nearly every form of ICT used in the Project; so, lack of equipment may have prevented some cases from proceeding. However, this data also indicates that a high proportion of parties who did not participate in the Project did in fact have access to ICTs. Thus, this factor alone does not explain why potential cases did not proceed. Of course, ideally, for a case to proceed using ICTs, both parties must have access to the same technology. Because of the way the data was recorded on the Inquiry Sheets, an analysis of the match between parties ICTs for each technology would be very difficult. However, this was attempted for the technologies needed for a case to proceed using web conferencing. In these cases, parties would ideally have: a computer at home65, high speed internet, webcam, microphone and sound, and a telephone or cell phone as back up for the audio. These are the results: 30 instances were found in the inquiry data where both parties had all of the ICTs needed for web conferencing; 24 of those cases proceeded and completed (80%); However, in 6 of the cases that proceeded, telephone, not web conferencing, was the principle technology used; and Another 8 cases proceeded and completed where one or more parties lacked some element of the ideal set-up for web conferencing, yet web conferencing was the principle technology used, suggesting that parties acquired or found access to the technology they needed in order to use the web platform.

In interviews, the mediators, the Mediation Advisor and the FJSD Liaison were asked to comment on possible reasons why some inquiries did not lead to actual distance mediation cases. A lack of computer equipment or comfort with using such technology was suggested by many. However, as some pointed out, a telephone or a cell phone are usually readily available and most people are very comfortable using the telephone. Some speculated on other factors that could potentially have discouraged participation. One mediator suggested that cultural factors may possibly play a role that some cultures may feel that using technology is a not an appropriate way to settle disputes. One suggested that language may be a barrier, and that telephone or Voice over Internet Protocol (VoIP) technologies may not render the spoken word clearly enough for those who have acquired English as a second language. Another suggested that distance itself may reduce the parties motivation where parties live far away from each other, they are already more detached and may not feel a pressing need to resolve their issues.

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Computers at work or elsewhere do not usually offer the same private setting as a home computer.

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B. Reasons for Participation

Notes recorded on the Inquiry Sheets sometimes indicated the reasons why parties were potentially interested in pursuing mediation through the Project. Of the 166 parties66 where this information was recorded, 62% indicated that distance between the parties was a Client, Survey motivating factor. Nine percent indicated that there was no local Comment service that they could access, 3% said that they wanted to avoid inperson contact with the other party and 4% said they were comfortable with technology. The remainder indicated simply that they wanted to resolve their dispute, wanted mediation service or an alternative to court.
Ease of access - although that may seem insignificant - if it did not exist I would not have been able to mediate at all.

A question in the client survey asked why the respondents had decided to participate in distance mediation instead of in-person mediation. Respondents were permitted to select more than one reason (see Table 4-7). Results indicate that by far the most common reason that clients chose distance mediation is that they and the other party lived in different communities (76%). The desire to avoid travelling to attend in-person mediation, to save time or money, or for environmental reasons, were selected by 42%, 38% and 12% of respondents respectively. So clearly, physical distance between the parties, or between the parties and the mediator, remains a strong motivation for accessing distance mediation. Other reasons were selected as well. Nearly a quarter (22%) indicated that they or the other party did not want to mediate in person. A fifth (20%) indicated that they could not attend, or perhaps could not travel to, an in person mediation session during working hours, and 14% were motivated by reduced fees for the Project mediations. Ten percent indicated that they have a preference for communicating using technology. Compared to the reasons for interest expressed at the inquiry stage, clients who completed the client survey were more likely to have been motivated by a desire to avoid in-person contact with the other party, the flexible hours of service, the reduced Project fees, and their own comfort level with technology.

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This includes many parties who made inquiries but did not ultimately proceed to distance mediation; 92 parties actually participated in distance mediation cases.

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Table 4-7

Reasons Clients Chose Distance Mediation instead of In-Person Mediation

Client Survey Responses: The other party and I live in different communities I wanted to avoid travelling to save time I wanted to avoid travelling to save money I wanted to avoid travelling for environmental reasons I did not want to see the other party in person The other party did not want to mediate in person I couldn't go to an in-person mediation during working hours The mediator fees for this project were less than the normal fees I prefer to communicate using technology - it is the norm for me Total Respondents

Responses 38 21 19 6 6 5 10 7 5 50

% of Responses 76% 42% 38% 12% 12% 10% 20% 14% 10%

Source: Client Survey Percentages sum to more than 100% as more than one technology was used in several cases

C. Distance Mediation was the Only Service Option for Some Clients

One measure of how effective the Project has been in improving access to mediation services is to consider the number of clients who did not have access to any other dispute resolution service. The client survey asked people what they would have done if distance mediation through the Project had not been available. Of the 51 clients who completed the survey, 9 indicated that they would not have received help at all, and another 9 indicated that they did not know what they would have done. Therefore, it is likely that about 35% of clients would not have accessed, or been able to access, an alternative service to resolve their family issues if the distance mediation service had not been available67. While the numbers involved are small, the responses to this item on the client survey support the conclusion that offering technology-assisted distance mediation improved access to mediation services.

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FJSD does provide shuttle mediation, via telephone, to clients separated by distance whose cases meet its service criteria. See Chapter Two for a description of FJSDs case criteria; 15% of Project cases either included issues that FJSD does not mediate or were otherwise out of scope for FJSD services. See also Chapter Three, Question 6 for a comparison of shuttle mediation to technology-assisted distance mediation.

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16. WHAT INFLUENCES THE SELECTION OF PARTICULAR ICTS?

As was seen in Chapter Three, a range of ICTs were used in Phase III distance mediation cases including telephone, cell phones, web conferencing, email and various combinations of these. But what factors influence which technologies were used in particular cases? Mediators were invited to describe how they went about selecting ICTs to use, and their thoughts on the processes they used. They also recorded the reasons that ICTs were selected on the Case Notes forms completed for each case. Finally, the inquiry data, combined with the Case Notes data about the types of technologies used, shed some light on the question of client characteristics and the choice of ICTs.
A. Mediators Views on Selection of ICTs.

On the Case Notes forms, mediators were asked to identify the principle ICT used for each case and why that technology had been used. Their responses are presented in Table 4-8 (multiple answers were permitted).

Table 4-8

Reasons Technologies were Selected

Reason technology selected: Available to all parties and mediator Parties familiar with this technology Technology is good for facilitating communication Parties preferred technology with audio and video Mediator wanted to try this technology to gain experience with it Technology is good for managing safety Parties preferred technology with audio only
Source: Case Notes

Responses 43 31 24 14 13 6 4

% of Cases 91% 66% 52% 30% 28% 13% 9%

Clearly, the practical necessity of a technology being available to both parties and the mediator was a very common reason particular technologies were selected; party familiarity was another common factor influencing the choice of ICT. Further analysis of the Case Notes data regarding the principle mediation technology used indicates that: Party familiarity was cited as a reason for selecting the telephone or cell phone68 in 16 cases and web conferencing in 15 cases69;

68 69

Includes 1 case using telephone and email and 1 case using telephone and in-person. Includes 1 case using web conferencing and telephone and 1 case using web conferencing and email.

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Where the technology was thought to facilitate communication, web conferencing (or web conferencing and telephone /cell phone) was selected in 14 cases and the telephone in 8 cases; The ICT that mediators wanted to gain experience with was web conferencing in all 13 cases; and Where safety was cited as the reason for selecting the ICT, the ICT chosen used web conferencing in all 6 cases70.

Mediators described the approaches they took to selecting ICTs with the clients. The approaches they used included: Describing the options to the parties, who usually quickly decided on their preference or asked for a recommendation; Checking into the technologies available for both parties; Having a general conversation including questions about the clients use of the internet, computer, and web conferencing platforms, and probing to be sure that everyone was comfortable with the ICTs they use; Offering the client a 10 minute trial with the ICT to see how it felt; Enquiring into the setting in which the client would use an ICT, to confirm confidentiality; and Starting from the assumption that web conferencing would be used, and asking the clients if they had access to or could borrow the necessary technology, while making it clear that the telephone was always an option.

A couple of the mediators commented that clients sometimes selected the telephone just for its simplicity and because a cell phone can be used almost anywhere (i.e., does not have be connected to the internet). In one case, teleconferencing was selected because one party was uncomfortable viewing themselves on video. The mediators all felt that the approach they took to selecting ICTs with the parties was easy and effective.
B. Client Access to, and Experience with, ICTs

In the survey, clients were asked to identify the ICTs they could access for the mediation. They were permitted to select more than one ICT. Results indicate that about three quarters of the respondents had access to a computer, but only 70% had high speed internet, and 63% had a webcam. Interestingly, not everyone indicated that they had access to a telephone or cell phone. See Table 4-9. Survey respondents were also asked which ICTs they had used prior to participating in the distance mediation process. Results presented in Table 4-10 show that nearly everyone had experience with email, and two thirds had experience with Skype. The fact that a client had used Skype would indicate familiarity with a web-based audio-visual platform, somewhat like WebEx. The other technologies that clients had experience with included other audio-visual platforms: Live Meeting, GoToMeeting and

70

Includes 1 case using web conferencing and cell phone.

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FaceTime. In fact, 20% of the survey respondents indicated that they had actually used WebEx before their case with the Project. Fifty-seven percent had experience with teleconferencing.

Table 4-9

Client Access to ICTs Client Survey

Access to ICTs Computer High-speed internet Webcam Dedicated (or landline) telephone Cell phone Telephone conferencing equipment Dedicated video conferencing equipment (i.e., not through a computer) Total
Source: Client Survey

Responses 38 36 32 25 20 5 1 51

% of Respondents 74% 70% 63% 49% 39% 10% 2%

Table 4-10

Clients Prior Experience with ICTs

ICTs that Clients had Used Prior to the Project: Email Skype Teleconferencing WebEx Meeting Centre Other ICTs Total
Source: Client Survey

Responses 50 34 29 10 5 51

% of Respondents 98% 67% 57% 20% 10%

Of particular interest in Phase III was the availability of web conferencing for Project mediations. Mediators were trained in the use of the platform and were encouraged to suggest it to clients so that its effectiveness could be tested in this Phase. The client survey results were examined to determine whether access to the necessary technologies, and prior experience with web conferencing or similar ICT, were consistent with the use of web conferencing for the distance mediation. For this analysis, the ICTs those clients had access to, and those that they had prior experience with, were compared to the technologies they actually used, as reported through the client survey. Twenty-five out of 51 survey 68

respondents indicated that they used web conferencing in the distance mediation case. Of those 25 respondents: Only 21 had a computer with high speed internet access, suggesting that a few arranged access to this equipment for the mediation process; 21 had some prior experience with at least one audio-visual ICT: o 12 had prior experience with Skype; o 7 with both WebEx and Skype; o 1 with Skype, WebEx and GoToMeeting; and o 1 with Skype, WebEx and FaceTime. Four had no prior experience with audio-visual ICT technologies.

This analysis suggests that access to, and familiarity with, web-based audio-visual technologies are important, but not necessary, factors in the selection of web conferencing for the mediation process. While most clients who used web conferencing for their distance mediation had both prior experience with a web conferencing platform and the necessary equipment, some lacked one or both of these factors and yet proceeded with distance mediation using web conferencing.
C. Client Age, Income and Principle ICT Used

It is somewhat of a truism at present that younger people have greater familiarity and comfort with new forms of technology such as web conferencing. Therefore, it could be supposed that younger clients were more likely to makes use of web conferencing, and older clients more likely to use the telephone, in this Phase of the Project. However, data from mediator Case Notes suggests that this was not strictly the case. Although web conferencing was used more often with younger clients, 4 out of 6 clients aged 50 or older also used web conferencing. The group least likely to use web conferencing were the 40 to 49 year olds, and even there, 44% used it (see Table 4-11). Telephone was most popular with clients in the 40-49 age group, and equally popular among those aged 20-29 and over 50.

Table 4-11

ICT Used by Client Age

Percentage of Age Group Using ICT as Principle Mediation Technology: 20-29 30-39 40-49 50+ (n=15) (n=36) (n=25) (n=6) 67% 58% 44% 67% 0% 3% 8% 0% 33% 39% 48% 33% 100% 100% 100% 100%

Principle ICT used for mediation: Web conferencing Cell phone Telephone Total
Source: Case Notes

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Another supposition might be that because web conferencing requires a computer, high speed internet, and webcam that it might be an option only for clients of higher income71. Again, we see that this is not strictly the case in this Project. While a higher percentage of clients with annual incomes over $50,000 used web conferencing, it is also true that nearly half of those with incomes of less than $50,000 also used web conferencing. However, telephone and cell phones were selected almost twice as often by clients having incomes of less than $50,000 than by those with higher incomes.

Table 4-12

ICT Used by Client Income Level

Percentage of Income Group Using ICT as Principle Technology: $50,000 to Over $100,000 Under $50,000 $100,000 (n=1) (n=61) (n=26) 49% 73% 0% 5% 4% 0% 46% 23% 100% 100% 100% 100%

Web conferencing Cell phone Telephone Total

Source: Case Notes

In sum, web conferencing was used most often by younger and older clients and those with incomes over $50,000 per year. However, it was also used to a significant degree by clients between 30 and 50, and by those with incomes below $50,000. Telephone was used more frequently than web conferencing only among 40-49 year olds. Those with lower incomes made use of web conferencing and telephone/cell phones in nearly the same proportion (51% vs. 49%), while the telephone was used much less frequently among those of higher incomes.

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The use of this platform (as well as teleconferencing) was available to clients at no charge platform access and long distance charges were covered through the Project or FJSD.

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17. IN WHAT WAYS DOES THE MEDIATION ADVISOR ROLE SUPPORT THE PROVISION OF DISTANCE MEDIATION?

The Mediation Advisor is a staff member of Mediate BC located in the Vancouver Justice Access Centre. She assisted potential clients with their inquiries by providing information and referrals to the mediators participating in the Project. She described her activities as: Talking with the parties who contacted Mediate BC to inquire about the service; Explaining mediation generally; Explaining the scope of issues that could be dealt with through the Project; Explaining the distance features of the Project and the use of various technologies; Recommending that parties seek independent legal advice; Conducting first/high level screening (until February 2012); Contacting the second party if the first party requested it (until February 2012); Helping to identify whether the case was suited to a Family Justice Counsellor or a private mediator72; For parties seeking a private mediator, providing referrals to the private mediators participating in the Project; Explaining and applying the sliding scale fee rate for the private mediators (until February 2012), and For parties seeking a Family Justice Counsellor, liaising with the FJSD Liaison to connect the parties with a Family Justice Counsellor.

In February 2012, Mediate BC brought the Distance Family Mediation Project into its policy framework for its family mediation services generally. Under this policy framework, the Society does not engage the second party and does not do violence screening those tasks are performed by the mediators themselves after they receive a referral. The Mediation Advisor indicated that she received inquiries from across the province. In total she recorded 56 inquiries, of which 13 became Project mediation cases. Private mediators were asked to comment on the role of the Mediation Advisor in the context of a distance mediation service. Most of the mediators commented that they appreciated the work that had been done to explain the Project to the parties and to set up the connection/referral to them. Eleven parties who had been assisted by the Mediation Advisor completed the client survey, and 9 of these respondents answered questions about the services they received from her:

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Family Justice Counsellors could only deal with cases that involved children. They could not address property issues over $25,000 in value. Private mediators could deal with the full range of issues. See Chapter Two, Project Team section for further information.

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Nearly all recalled that she explained the service, the technologies that could be used, and the fee rates; Most recalled that she helped ensure their case was suitable for the Project and helped them find a mediator; Some recalled that she talked to the other party about the service73; and Five recalled receiving information about obtaining independent legal advice.

Survey respondents were also asked to rate the helpfulness of the service they received from the Mediation Advisor on a 1 to 5 scale where 1 equals very unhelpful and 5 equals very helpful. The average rating given was 4.8, indicating a high level of satisfaction among the clients who responded. An outstanding question remains regarding how the Mediation Advisor role could be supported financially as part of an on-going distance mediation service. Mediators, clients, government, or institutional funders are potential sources to fund such a role; this question was not examined as part of the evaluation.

18. IN WHAT WAYS DOES THE PROJECT COORDINATOR ROLE SUPPORT THE PROVISION OF DISTANCE MEDIATION?

The Project Coordinator was hired on contract by Mediate BC to manage the planning and implementation of the Distance Family Mediation Project. Her activities in Phase III included: Managing the Project overall; Researching and testing potential web conferencing platforms and other suitable technologies for the Project; Training the mediators in the use of the web conferencing platform and providing technical support as needed; Drafting support materials for the mediators; Creating and managing a Project wiki for team members to post, and to access, materials that support distance mediation; Organizing and facilitating regular team meetings; Arranging for presentations to the team and organizing a final Think Tank; Liaising between the Project mediators, FJSDs Project Liaison and Mediate BC; Promoting the Projects service through extensive distribution of emails, letters, pamphlets and flyers describing the service; Promoting the Project through online mechanisms, including the placement of advertisements on LinkedIn, through Twitter, and the creation and management of a LinkedIn discussion group, Facebook page and Project blog;

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This activity was performed by the Mediation Advisor only until February 2012.

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Promoting the Project through presentations and articles; Revising the Phase III Project Guidelines document; Providing information about the Project in response to inquiries from distance mediation professionals and other individuals and organizations in British Columbia and elsewhere, and Writing key Project documents such as the Project Map, the funding submission and activity reports.

Mediators were asked to comment on the support they received from the Project Coordinator. They were very positive about the skill and energy that she personally brought to the role, and commented specifically on the value of the training, technical support and materials provided. When asked about supports provided to mediators, the Project Coordinator indicated that the FJSD Liaison provided invaluable support to the FJCs, including training, technical support and materials specific to FJSD policies and practices. The Liaison also performed an essential function in her liaising with the Project Coordinator, and assisted in coordinating many of the FJCs and private practice mediators joint activities. It was the Project Coordinators view that the seamless coordination between the Projects private and public sector streams could not have taken place without the FJSD Liaisons skilful efforts. Many of the activities undertaken by the Project Coordinator would not continue beyond the conclusion of the pilot project (e.g., writing activity reports), but some conceivably could continue in support of a distance mediation practice or roster (see next section). As with the Mediation Advisor, a question remains regarding how such activities could be funded on an ongoing and sustainable basis.

19. DO MEDIATORS OR CLIENTS IDENTIFY OTHER SUPPORTS THAT WOULD BE HELPFUL IN A DISTANCE MEDIATION SERVICE MODEL?

Team members were asked about supports that should be built into a distance mediation service model. Their suggestions included: Practice group: Mediators were very positive about the support they received from other member of the Project team. The regular team meetings, conducted using web conferencing, were a forum for learning, exchange of ideas and experiences, and discussions of a wide variety of topics related to the provision of distance mediation. Mediators commented that best practices emerged during these
I gained valuable insights from other mediators which were highly beneficial. Mediator, Interview Comment

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meetings, and that the collegial support strengthened everyones confidence. One mediator commented that a practice group, that would replicate the teams experience, would be essential to building competency among mediators practicing distance mediation. Special roster: A roster of qualified distance mediators could provide recurring opportunities for practice sessions, if not actual cases, which would help mediators to retain skills if actual cases are not frequent. Technical support: Technical support was provided during the pilot project by the Project Coordinator and, to some extent, by the FJSD Liaison. For an ongoing service, a hands-on technical support role, providing help desk assistance, was suggested. As well, there appears to be a role for a system administrator, to manage the access to technologies (i.e. licencing), stay abreast of potential security issues and developments or changes to the technology, and manage permissions to use the licenced web based platform(s).

Make this type of service more readily available to people to experience an easier/cheaper/ more accessible way of communicating. Client, Survey Comment

Legal advice and assistance: Clients are encouraged to obtain independent legal advice as part of the Project, and would sometimes need to retain a lawyer to draw up a legal separation agreement. One mediator suggested that having staff lawyers available to perform these functions would greatly benefit clients. Inquiry support: Two mediators suggested that the role of giving information about distance mediation to prospective clients and screening cases for suitability would be beneficial. One suggested that this function would be best handled centrally, as assistants working for individual mediators might not become comfortable performing this function if the number of distance mediation cases is slow to develop.

In the client survey, respondents were asked if they had any suggestions or recommendations about how to improve the distance mediation service. One theme that emerged is the recommendation to expand the program, and promote it, so that more families can access the service (4 responses). Two comments echoed the suggestion made by one of the mediators to provide legal advice assistance as part of the Project or service itself.

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SUMMARY

The following are a summary of key findings for Chapter Four: Clients in Phase III were more likely to come from small and mid-sized communities, live outside the Southwest region, be younger and better educated, and have mid-range incomes, than the British Columbian adult population as a whole. Parties to mediation cases that completed (versus parties to cases that did not proceed) were more likely to have access to nearly every form of ICT used in the Project; so, lack of equipment may have prevented some cases from proceeding. However, this data also indicates that a high proportion of parties who did not participate in the Project did in fact have access to ICTs. The most common reason that clients chose distance mediation is that they and the other party lived in different communities. The desire to avoid travelling to attend in-person mediation - to save time or money, or for environmental reasons - was a related motivation. Other reasons were important for some clients, including a desire to avoid in-person mediation, the flexibility to access distance mediation outside working hours, reduced fees for the Project mediations, and a preference for communicating using technology. It is likely that about a third of the clients who completed the survey would not have been able to use an alternative service to resolve their family issues if the distance mediation service had not been available. Particular ICTs were selected often for individual cases because a technology was available to both parties and the mediator and/or the parties were familiar with the ICT. The client survey results indicate that about three quarters of the respondents had access to a computer, 70% had high speed internet, and 63% had a webcam. Nearly everyone had experience with email, and two thirds had experience with Skype. About 20% had experience with WebEx and 10% with other audio-visual ICTs. Over half had experience with teleconferencing. Telephone was used more frequently than web conferencing in distance mediation only among 40-49 year olds. Those with lower incomes made use of web conferencing and telephone/cell phones in nearly the same proportion, while the telephone was used much less frequently among those of higher incomes. While most clients who used web conferencing for their distance mediation had both prior experience with a web conferencing platform and the necessary equipment, some lacked one or both of these factors and yet proceeded with distance mediation using web conferencing. This

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suggests that some clients find ways to access equipment that they lack, and are willing to try new technologies. The Project Coordinator played a key role in implementing the pilot project, in promoting its services and supporting the mediators who participated. The Mediation Advisor role also supported clients and mediators during the pilot. Mediators suggested that a distance mediation service model could include a distance mediation practice group and special roster, technical support, inquiry support and legal advice for clients. A question remains regarding how such roles and activities could be financially sustained on an ongoing basis.

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Chapter Five: Collaboration with Stakeholders and Integration with Legal Services
INTRODUCTION

The third objective of the Project was stated as: To work collaboratively with stakeholders in the family justice system to make distance mediation available to British Columbians and to integrate it with available legal services. This objective addresses the Projects interest in collaborating with family justice stakeholders to increase awareness about the Project, so that a wide range of clients would seek out the service, thereby improving access to mediation services. It also speaks to the desire to ensure that distance mediation parties are given recommendations to seek independent legal advice, and information about how they can do that. Finally, this objective speaks to the Projects intent to share information, within the team, but also to the wider mediation and legal communities about the practice, and benefits to British Columbian families, of technology-assisted distance mediation. Findings related to the following evaluation questions are presented in this Chapter: 20. Do stakeholders in the family justice system direct clientele to the Project? 21. Do Project clients access independent legal advice? 22. Do the opportunities for information exchange increase mediators and other stakeholders interest in providing or making referrals to distance mediation?

20. DO STAKEHOLDERS IN THE FAMILY JUSTICE SYSTEM DIRECT CLIENTELE TO THE PROJECT?

To build a successful distance mediation service, potential clients must first become aware of the service so that they can take steps to access it. In Phase III, the Project and Mediate BC sought to increase awareness of the Distance Family Mediation service by collaborating with a wide range of stakeholders most notably the Ministry of Justices Family Justice services Division and promoting it with the general public, with agencies that serve families, and within the legal and dispute resolution communities. The Project shared information and connected with individual lawyers, and numerous 77

agencies including the Legal Services Society of British Columbia, BC Notaries, BC Credit Counselling Society, Family Mediation Canada, Clicklaw, Courthouse Libraries of BC, Relationships Australia, New Zealand Department of Labour, Northwest Territories Department of Justice, Alberta Department of Justice and the Canadian Bar Association ADR, Family Law and Collaborative Law subsections. Mediate BC is also collaborating with the Justice Institute of British Columbia regarding a future course for mediators on distance mediation. Promotional activities included: Creation of a Project blog, Twitter feed and Facebook page often Project blog posts were picked up and linked to by other blogs, such as ADRhub.com74 and Mediate.com; Advertising on LinkedIn; Promotion through electronic newsletters within the legal and dispute resolution communities; In-person and remote presentations to Canadian Bar Association sections, the British Columbia Arbitration and Mediation Institute, ADRhub, the Alberta Government Employees Conference on Technology -Assisted Dispute Resolution, and other groups; Articles published in newsletters and magazines of other organizations, such as the Canadian Bar Association, BC Notaries, and Family Mediation Canada. Maintaining a link to the Project on other internet sites and blogs; and Distribution of hundreds of emails, letters, pamphlets and flyers to Public Legal Education and Information agencies, family and community agencies, Members of BCs Legislative Assembly, BC Government Agents, all BC public libraries, court registries and law libraries, marriage counsellors and therapists, employee assistance programs, and other professional groups and individuals serving families in British Columba.

FJSD promoted the service internally, to all Family Justice Centres and Justice Access Centres in the province. In total, the Project received 153 inquiries; the first party to a case who inquired about the service was asked how they had learned about the service. For the 142 parties where this information was recorded, just over half had first heard about the Project through a Family Justice Counsellor, though not necessarily a Family Justice Counsellor on the Project team. About 10% of those inquiring first heard of the service through a friend or family member. Other sources included: Distance mediation pamphlet or advertisement: 8% Legal Aid: 6% Other Family Justice Services Division staff: 6% Lawyer: 5% Court: 3%

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Website of The Werner Institute for Negotiations and Dispute Resolution, Creighton University School of Law.

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Though the numbers involved are small, the variety of sources that gave rise to client inquiries indicates that the Project was successful in informing other agencies and the legal community about the Project, and these sources, in turn, referred clients to the Project. In comparison to Phase II75, a higher proportion of referrals was received in Phase III from Family Justice Counsellors (51% compared to 34%); Project advertisement of promotional materials (8% compared to 2%) and family or friends (10% compared to 4% for Project client or word of mouth in Phase II). Curiously, the proportion of clients who had first discovered the Project through the internet decreased from 8% in Phase II to 3% in Phase III. Of particular interest is the collaboration between Mediate BC and FJSD (FJSD). As service delivery partners the two agencies worked together to ensure that clients were referred either to a Family Justice Counsellor or to a private mediator on the team, as appropriate based on case characteristics and client preferences. Just over a third (56) of all inquiries that came to the Project were handled by the Mediation Advisor (of Mediate BC). A closer examination of these inquiries shows that: 8 out of 56 inquiries (14%) had originated from FJSD, either from a Family Justice Counsellor or another FJSD staff member. Of the 13 inquiries handled by the Mediation Advisor that became Project cases: o 3 had begun with a referral from a Family Justice Counsellor or other FJSD staff member and were assigned to private mediators on the Project team; o 6 had begun with referrals from elsewhere and were assigned to a Family Justice Counsellor.

These data confirm that there was cross referral between Mediate BC and FJSD during the project. Besides FJSD, other referral sources that led to inquiries handled by the Mediation Advisor included the legal community (10 inquiries), and Project promotional and awareness activities (14 inquiries).

21. DO PROJECT CLIENTS ACCESS INDEPENDENT LEGAL ADVICE?

One of the goals of Phase III was to ensure that parties who were not represented by counsel when they entered the Project were given a recommendation to seek independent legal advice. While the Project initially set out to create formal linkages with legal advice services, to integrate the distance mediation service with these services, this objective was modified early on. The Projects modified objective focussed on linking clients to legal services through the recommendation that clients seek independent legal advice. Project mediators and the Mediation Advisor were instructed to recommend obtaining independent legal advice to all unrepresented clients, and to provide a referral to an appropriate legal resource if the client needed one.
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Getz, p. 38; Phase II percentages have been recalculated to exclude inquiries where the source of referral was unknown.

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A.

Parties Represented by Counsel

If a mediator or the Mediation Advisor was confident that a party was already receiving legal advice, they may not feel it was necessary to give the party a recommendation to seek independent legal advice. Data collected for the evaluation indicate that some parties did indeed have legal counsel when they entered the Project, while others did not: Mediator records indicate that 10 (11%) parties had legal counsel; Mediator records also indicate that 77 (89%) parties did not have legal counsel when they entered the Project76. 48 clients responded to a question on the client survey asking if they were represented by a lawyer before they began mediation; 13 (26%) said yes; 35 (70%) said no, and 2 (4%) did not remember.

B. Recommendations and Referrals for Legal Advice

In interviews conducted for the evaluation, mediators were asked about the circumstances in which they would recommend that a client seek independent legal advice. They all responded that they make this recommendation for every unrepresented party they worked with. They were also asked about the suggestions they provided for obtaining legal advice their suggestions included Legal Service Societys Family Advice Lawyers/Family Duty Counsel (a free limited legal advice service available in some communities), pro bono legal services generally, private lawyers and Legal Service Societys Family Law Line (which provides limited legal advice by telephone to low income clients). Two mediators also mentioned referring clients to the Canadian Bar Associations Lawyer Referral Service and their Dial-A-Law service (which provides taped legal information over the telephone). Mediators recorded in Case Notes the referrals they made regarding independent legal advice for 55 parties. For 20 parties, the referral was not specified or the mediator commented that they gave the party a general recommendation to obtain legal advice at the start of the case. The remaining referrals made were to: Family Advice Lawyer/Family Duty Counsel: 19 Legal Services Societys Family Law line: 8 Private lawyer: 8 Canadian Bar Association Lawyer Referral Service and Family Law Line: 2

In the client survey, 63% of respondents who were not represented by counsel recalled receiving a recommendation to obtain independent legal advice.
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This information was recorded for 87 out of the 92 Project clients.

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Clients were also asked to rate the helpfulness of the legal advice referral that they received on a 1 to 5 scale where 1 equals very unhelpful and 5 equals very helpful. Of the 39 who responded, 19 indicated that they did not receive a referral for legal advice, while 20 provided a rating. Three said the referral was unhelpful or very unhelpful, 7 gave a neutral rating and 10 said the referral was helpful or very helpful. Mediators were asked about their ability to refer clients to legal advice when the clients live in a different community to the mediator. Strategies that mediators used to deal with this situation included contacting a colleague in the clients community to ask for a recommendation, checking websites for resources available in the clients community, or suggesting the client look for local resources such as a pro bono clinic. While some of the mediators did not find providing referrals to legal advice to be more difficult in the distance mediation than in person, a few admitted that they had problems knowing or learning about the legal resources in the clients communities, or that it could be difficult if the client lives in a small community where few legal resources are available. A list of legal information and legal advice resources available throughout British Columbia was made available on the Projects wiki for team members.
C. Clients Acting on Recommendation and Referral to Legal Advice

According to mediator Case Notes, of the 77 parties who started service with the Project without counsel, four engaged counsel during the time that they were involved in distance mediation. This number seems low, but it is possible that parties chose to engage counsel after their involvement with the Project ended, or that they did not inform their mediator if they engaged counsel during their mediation. The client survey asked clients whether they had obtained legal advice before, during or after their mediation. Forty-two clients answered this question. Fifty-one per cent of the clients who responded to this item had obtained legal advice and a further 15% intended to do so. Thirty-six per cent indicated that they had not obtained legal advice and some of those clients offered the following reasons for not seeking legal advice: Could not afford a lawyer, or cost was a factor: 5 comments Confident in the outcome of the mediation so legal advice was unnecessary: 2 comments Does not want a lawyer: 2 comments Has an amicable relationship with the other party and legal advice not needed: 1 comment

That cost prevents a number of clients from accessing legal advice is a concern. Some legal advice services do exist in British Columbia for families of low or modest income. Access Pro Bono operates a network of legal advice clinics throughout the province, with 27 clinics operating in smaller communities outside urban centres. The Legal Services Society operates the Family Law Line, where lawyers give brief "next step" advice about family law issues over the telephone to low income clients.77 It may be

77

For example, for a household of 4 or fewer members, net monthly household income must be below $3,230.

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that clients were unaware of these services, could not access them, or did not meet the income requirements for service. In summary, most clients who participated in the Project were not represented by counsel. Although mediators indicated that they recommended independent legal advice for all unrepresented parties, some clients did not recall receiving a recommendation. Mediators used various strategies to make referrals for legal advice for clients residing in communities where they themselves did not live, and some admitted that making such referrals could be a challenge. Clients who rated the value of the referrals they received gave mixed ratings. While about two thirds of clients responding the survey had, or intended to, obtain legal advice several did not intend to engage a lawyer for a variety of reasons. Cost limited the willingness of some to pursue independent legal advice. 22. DO THE OPPORTUNITIES FOR INFORMATION EXCHANGE INCREASE MEDIATORS INTEREST IN PROVIDING OR MAKING REFERRALS TO DISTANCE MEDIATION?

The Project offered a number of avenues for information exchange among the mediators on the team, and also with the wider mediation and legal communities. The team held regular bi-weekly meetings conducted via web conferencing. Family Justice Counsellors had their own meetings in addition to the team meetings, to address questions specific to FJSD policies and practices. The Project established a LinkedIn discussion forum, and then a Project blog, a Facebook page and a Twitter account to promote interest in the Project, and to share learnings on a wider basis with mediation and legal colleagues. The Project Coordinator noted that these were primarily created to promote interest in the Project and in technology-assisted mediation generally. The LinkedIn discussion forum was discontinued part way through the Project because it was not being used enough. The Project blog, "BC Distance Family Mediation Blog", was more successful, and had nearly 9,250 views in the year that it operated. In 2011 the Project blog won a runner-up award in the best new blog" category in the CLawBies", or the Canadian Law Blog Awards. The Project Coordinator feels that, in addition to being a possible source of cases for the Project, it was a good public outlet for the Project team to share their thinking and learnings. Twitter was very successful for building collaboration, sharing information, and raising awareness. The Facebook page was not as popular as Twitter or the blog and may not have been the right medium to reach the intended audience. Mediators were asked about their participation in these activities. All of the mediators participated in the team meetings, and were enthusiastic about their effectiveness as a learning and information exchange forum. Team members commented about the energy that they drew from these meetings (see Chapter Four, question 19). Mediators indicated that they interacted with one another informally as well, through email and telephone calls. Participation in the LinkedIn discussion forum was limited, with only two mediators indicating that they periodically went to the forum. The blog was more 82

popular, with mediators on the team reading and contributing to the posts and providing actual articles for the blog. Mediators found that their opportunities to exchange information with each other helped them maintain their interest in providing distance mediation throughout the term of the Project. Some indicated that their interest was not so much increased by these activities as sustained by them, as they had been excited to be part of the Project from the start. Others indicated that the activities did increase their interest in participating in the Project, and in providing distance mediation services more generally, because they learned so much from other team members, increasing their comfort level and confidence in their own skills. Mediators were also asked whether the activities increased their interest in referring clients to distance mediation. Most agreed that they would be more likely to refer clients to distance mediation, and were pleased to have this option available for clients who are distant from the other party or mediation services.

SUMMARY

The following are key findings presented in this Chapter: The Project and Mediate BC generally promoted awareness of the Distance Family Mediation service widely with the public, family serving agencies and the legal and dispute resolution communities. Just over half of those who contacted the Project had first heard about Project services through a Family Justice Counsellor and about 10% first heard of the service through a friend or family member. Other sources included the Project pamphlet or advertisements, Legal Aid, other Family Justice Services Division staff, a lawyer or the Court. Most clients who participated in the Project were not represented by counsel. Mediators confirmed that they recommended independent legal advice for all unrepresented parties, and over 60% of unrepresented clients surveyed recalled receiving a recommendation. While about two thirds of clients responding the survey had, or intended to, obtain legal advice, several did not intend to engage a lawyer some because they could not afford to do so. Project activities such as the blog and Twitter feed proved popular and gained recognition for the Project. Mediators found that team meetings were highly useful for information exchange within the team, and participation in the other activities served to sustain their already keen interest in distance mediation and the Project.

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Chapter Six: Financially Sustainable Distance Family Mediation Service

INTRODUCTION

This Chapter reviews the results for three evaluation questions related to the Projects fourth objective which is: To develop and test a financially sustainable, province-wide distance mediation service delivery model which includes a user-pay feature. This Chapter explores the use of fees for distance mediation services, and the views of clients and mediators about the fee structure used in the Project. Family Justice Counsellors are government employees, and their services are provided free of charge to families with children, with priority given to low income families. The Project fees did not, therefore, apply to them, but were charged by the Projects private mediators. The Project set sliding scale and discounted fee rates to make its services more accessible for potential clients. In Phase III, a sliding scale fee model was implemented at the beginning of the Project under which each client would pay fees scaled with their income level. In February 2012, the Project changed its service delivery model to one in which the private mediators, and not the Mediation Advisor, would have had to apply the sliding scale fees. Private mediators concerns about the sliding scale, including that its administration would be onerous and time consuming, resulted in a new fee structure in which all clients would pay the same reduced Project fee rate, for up to ten hours of mediation. In total, the Project had seven cases where fees applied. This Chapter examines three questions related to user payments and a financially sustainable distance family mediation service: 23. To what extent do fees paid by clients cover the cost of mediator services? 24. To what extent are clients willing to pay for distance mediation services? 25. To what extent are mediators willing to provide distance mediation services at the Project sliding scale rates?

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23. TO WHAT EXTENT DO FEES PAID BY CLIENTS COVER THE COST OF MEDIATOR SERVICES?

Mediators who collected fees for their distance mediation services were asked to track the percentage of their regular fee rate the Project fee represented for each case. In three cases, the Project fee represented 25%-49% of the mediators usual fees; in two cases it represented 50% -74% and in one case, 100% of their regular fees78. Mediators were asked to comment on the appropriateness of the Project fees generally. Two commented that the fees were appropriate for the cases and parties that they had in Project. Another mediator felt that in one distance mediation case a party could have afforded to pay the usual fee, but the discounted rate likely enticed the party into opting for distance mediation. Mediators were also asked to comment on any challenges they may have had in collecting fees from clients who were at a distance. Three out of four reported no difficulties while one had encountered some challenges, commenting that in the future they would arrange to receive payment in advance.

24. TO WHAT EXTENT ARE CLIENTS WILLING TO PAY FOR DISTANCE MEDIATION SERVICES?

The Mediation Advisor was usually the first person that potential clients would talk to regarding Project fees. She indicated that clients were seeking a discount and that even the Projects discounted rates seemed high to some clients, especially those living in rural communities. The sliding scale rate used at the start of Phase III proved to be cumbersome and difficult to explain. The Projects subsequent set rate for a given number of mediation hours was easier to explain and provided families with certainty. In the client survey, clients were asked to comment on whether they had saved time and/or money by participating in the Distance Family Mediation Project. Those who had been through mediation with private mediators were also asked to comment on the reasonableness of the fees they paid. Clients were asked, on the survey, if they had saved time and/or money through their participation in the Project. Those who responded (n=22)79 were mostly in agreement that they had saved both time and money. Nearly three quarters saved money due to the absence of travel costs, and just over a third indicated that they saved money because the fees for the Project services were lower than usual fees. Over half saved time because they did not have to travel to receive Project services. Close to 15% said

78 79

This information was not recorded for one case where fees applied. Some of the clients who answered this item had been served by Family Justice Counsellors.

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that they did not save time or money. See Table 6-1 (percentages sum to more than 100% as multiple responses were permitted).

Table 6-1

Client Views on Saving Time and Money through Distance Mediation

Number of Response(s) 16 8 12 3 3 22 % of Responses 73% 36% 54% 14% 14%

Response Categories: I saved money because there were no travel costs to participate in distance mediation I saved money because the project fees were lower than the usual fees I saved time because there was little or no travel time for the distance mediation I did not save any money by participating in distance mediation I did not save any time by participating in distance mediation Total
Source: Client Survey

Clients who had participated in mediation with the private mediators were also asked about the reasonableness of the fees that they paid, relative to the service they had received. Most of those who answered this question felt the fees were reasonable: two felt that the fees were inexpensive, five felt the fees were reasonable, and two felt the fees were expensive, relative to the service received.

25. TO WHAT EXTENT ARE MEDIATORS WILLING TO PROVIDE DISTANCE MEDIATION SERVICES AT PROJECT RATES?

Some clients who responded to the survey indicated that they had chosen distance mediation because it had lower fees. When asked if they would be willing to provide distance mediation services at the Project rates in the future, two of the Projects private mediators said yes, one said probably, and one said no, as it would be undercutting rates for other clients. One commented that fees for distance mediation should be less than for in-person mediation because there is lower overhead cost involved, no travel costs and because it lowers the threshold for clients to participate.

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SUMMARY

Fees applied to only seven of the 46 completed mediation cases in the Project. Mediators indicated that the discounted fee rate represented 25% to 100% of their usual fee, depending on the mediator. Two to three out of four private mediators in the Project would be willing to offer distance mediation services at Project rates in the future. Most clients indicated that they saved time and money by participating in distance mediation, and most who had paid a fee for service felt it was reasonable.

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Chapter Seven: Conclusions

Phase III of the Distance Family Mediation Project saw 46 distance mediations completed over the course of 14 months. This Phase also targeted an expanded client group to include all families in British Columbia and made use of a wider range of ICTs than it had in Phase II, including extensive use of web conferencing. The overall objective of Phase III, to enhance the effectiveness and accessibility of family mediation in British Columbia by further developing the distance mediation approach, was clearly achieved. The Project also fully achieved two of its specific objectives, mostly achieved the third, and partially achieved the fourth objective, as shown in the summary of findings below:
Objective One: To further increase knowledge about distance mediation through its application to a wider range of family mediation cases

This objective was fully achieved. Knowledge regarding distance mediation was increased in this Phase through the conduct of additional technology-assisted mediations with a wider client group and the extensive use of a web conferencing platform. The expanded target client group of this Phase served to demonstrate that there is a demand for distance family mediations in British Columbia, not just in the remote and rural areas of the province, but in medium and large communities as well. Many Project clients were motivated to use distance mediation to resolve their family issues to bridge the physical distance between themselves, the other party and the mediator. However, a significant number were also motivated to use ICT-assisted mediation to maintain distance between themselves and the other party, where being in the same room would prove too emotionally difficult. The experience with web conferencing in Phase III was revelatory. Mediators were impressed with an experience that approximates face-to-face mediation to the extent that they often forgot that a technological interface was there. Many clients who participated were surprisingly familiar with some form of web conferencing and some others were willing to try it. At the same time, conducting mediation through technology cannot ever be exactly the same as face-to-face mediation. The mediator has several extra things to manage and must respond nimbly to technical problems. The mediator also has much less control over the mediation setting where the parties are, and must ensure that children are not present and that confidentiality can be maintained at the remote locations. Finally, there is still some loss of the richness of an in-person encounter and mediators need strategies to compensate for that loss, including the use of exaggerated rapport building, checking in and monitoring skills. Although lacking the obvious advantages of visual information, the telephone still remains a viable and important option where parties lack the equipment or capacity to use web conferencing technologies. 88

Telephone also has an advantage over web conferencing in situations where even the distance afforded by the internet is not enough for the parties involved telephone can sometimes be useful because it removes visual cues from an interaction, resulting in a more business-like atmosphere. Safety screening remains a critical component of any family mediation, even where the parties live far from each other. About 20% of clients indicated that they had safety issues prior to their mediation; the Project therefore provided distance mediation to a relatively small sample of individuals who had safety concerns. Most Project mediators were confident that screening at a distance was effective, but also noted that discussing sensitive issues with clients is often difficult even in person. Again, more intensive strategies to draw clients out, and to continuously monitor the mediation sessions for possible intimidation, were used by mediators to compensate for the lack of an in-person connection with the clients. Mediators were unanimous in their view that only experienced mediators should engage in technology-assisted family mediation. Overall, both mediators and clients expressed high levels of satisfaction with their experience in the Project with the mediation itself and with the technologies used. The success rate for resolving some or all issues in the cases completed was very high, confirming that distance mediation can be just as successful as face-to-face mediation. The conclusion that Phase III increased knowledge about distance mediation is demonstrated not only by the results of this evaluation, but also by the extensive additions to the Projects Practice Guidelines at the conclusion of the pilot. The additions reflect the increased knowledge and learnings of the team especially with respect to the use of web conferencing for conducting mediation.
Objective Two: To improve the effectiveness and accessibility of mediation for all British Columbian families by making distance mediation available province-wide and offering a support structure and services through the Society [Mediate BC]

This objective was fully achieved. The Project demonstrated a very important benefit of distance mediation the clear improvement in access to service for clients residing where services are limited, and for parties who are separated by physical distance from each other. While the demographic profile of Project clients differed somewhat from that of the general adult population in British Columbia, the Project did attract both younger and older clients and clients with high and low incomes, and greater and lesser educational levels, indicating that distance mediation appeals to a wide range of individuals. The reasons that some potential clients chose to not participate in the Project related largely to their personal circumstances, their lack of readiness to use mediation to resolve family issues, or personal safety issues. Very few seemed reluctant to participate because of the use of technology. Differences in client age, education and income were not strongly associated with the preference for certain types of ICTs over others. While clients tended to use ICTs that they had access to and experience with, some clients proceeded with ICTs where initially they had neither, suggesting a willingness to try new technologies to engage in mediation.

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In many ways, distance mediation with the use of ICTs is a game changer for mediators. It opens up new ways to serve and connect with clients but also requires new skills and competencies. Mediators in this Project benefitted from the training, tools and technical support provided through the Project. They also learned from each other, and gained insights, information and support through their participation as a team of pilot mediators. But technology is always changing and there will be a need for future distance mediators to stay abreast of developments that are not necessarily their forte, such as improvements to a variety of potential web platforms and web security issues.
Objective Three: To work collaboratively with stakeholders in the family justice system to make distance mediation available to British Columbians and to integrate it with available legal services.

This objective was mostly achieved. The Project was promoted widely throughout the legal community, dispute resolution and family service agencies, and with the public. About 20% of those who made inquiries had heard of the Project from one of these sources. A very close collaboration occurred between Mediate BC Society and Family Justice Services Division with mediators from Mediate BCs family roster and from FJSD working together on the Project team. Cross referrals of clients also occurred. Information was provided to, and connections created, with a wide range of legal, dispute resolution, and family serving agencies; the Project achieved its goal of collaboration to promote awareness and understanding of distance mediation. Because many distance mediation clients are unrepresented, they need linkages with another service independent legal advice. Project mediators always recommended that unrepresented clients obtain legal advice and provided referrals to available services. However, only about two thirds of clients surveyed followed through, or intended to follow through, on these recommendations. Some clients identified cost as a barrier to obtaining legal advice. An independent distance legal advice service, as an adjunct to distance mediation, was suggested by some mediators and clients that would serve to further the objective of integration with legal services. A key lesson of this Phase was the tremendous support and learning that mediators drew from each other as they tackled and learned new technologies together and from the Project Coordinator who researched web technologies, and provided training and technical support.
Objective Four: To develop and test a financially sustainable, provincewide distance mediation service delivery model wh ich includes a userpay feature

This objective was partially achieved. This Phase of the Project did develop and use a user-pay feature but there were a limited number of cases where clients paid for the service they received, and hence the Project did not provide a strong test of a financially sustainable distance mediation model. As a result, while the benefits of distance mediation seem clear, the financial sustainability of a user-pay private sector distance mediation service remains as a question. Because the Project set discounted fee rates to make the service more accessible, in most cases the amounts paid were below the mediators normal rates. Nonetheless, some of the mediators indicated a willingness to offer distance mediation services 90

at Project rates in the future. Most clients seemed satisfied with these discounted rates, but their willingness to pay full rates for distance mediation was also not tested. A further question regarding how to pay for Project supports, including technical support, remains.

In conclusion, the Technology-Assisted Family Mediation Project was an ambitious and successful project that clearly demonstrated the benefits of using technology to bring quality mediation services to families. Perhaps the greatest achievement of the Project is its contribution to the body of knowledge regarding the practice of distance mediation, achieved through the real life test of technology-assisted mediations, and the subsequent dissemination of knowledge gained through both the publication of the Practice Guidelines and the dedicated information sharing with the wider legal and dispute resolution communities. The future for the practice of distance mediation is positive and the results of this evaluation support the Phase II conclusion that mediation can be provided safely, effectively and competently at a distance.

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