Due to COVID-19, courts across the country have suspended in-person operations. In response, courts are in the process of transitioning their in-person court ADR programs to video or telephonic services. Courts that are currently working on implementing online dispute resolution (ODR) programs may find that Michigan’s experience with ODR can provide helpful insight for their own state’s programs.
In August 2019, I reported that the Michigan Supreme Court had launched MI-Resolve, a free ODR tool, in 17 Michigan counties. In January 2020, the Michigan Supreme Court Administrators Office of Dispute Resolution released Considerations in Implementing Court ODR Systems. Written by Doug Van Epps, Director of the Michigan Supreme Court’s Office of Dispute Resolution, and Michelle Hilliker, the Office’s Financial and Statistical Management Analyst, this guide focuses on a variety of considerations that may assist courts when assessing how to design, implement and evaluate an ODR system. All the considerations identified are either issues the Michigan Supreme Court Office of Dispute Resolution encountered when implementing MI-Resolve or lessons the Office learned from discussions with court administrators and ADR professionals across the country. Curious to learn more about what the process of launching an ODR program is like, this month I reached out to Doug Van Epps and Michelle Hilliker with a few questions.
NW: For those unfamiliar with MI-Resolve, can you explain how it works? What is the user experience like?
DVE & MH: MI-Resolve is a mirror image, with refinements, of the experience a person involved in a conflict would have in contacting a dispute resolution center (DRC). Traditionally, a person calls a DRC, shares their story and the DRC contacts the other party to see if they would like to mediate. Sometimes the parties resolve the matter without a mediator, but more often, the case is assigned to a mediator, and the parties meet face-to-face. The matter is resolved about 75 percent of the time.
In MI-Resolve, after the parties have written a few sentences outlining their conflict, they directly negotiate with each other. If the matter is the subject of a pending court case or if there have been no communications for a number of days, a mediator is automatically assigned. The parties communicate through email-style messages on the platform, and the system alerts the parties when a new message is available to read. At any point, the parties and mediator can elect to have a Zoom videoconference off the platform, or meet face-to-face. During negotiation and mediation, documents and photographs can be exchanged on the platform as well as offers and counter-offers. Caucus is as easy as one party or the mediator sending a message that is seen only by that party and the mediator. Upon reaching an agreement, parties sign electronically, and the mediator uses the system to prepare the appropriate court forms for the court in which the dispute is pending.
NW: What types of cases are using MI-Resolve and how did you decide which cases to start with?
DVE & MH: More than anything, we consider MI-Resolve to be a response to the burgeoning Access to Justice crisis in the United States, where a significant portion of the population simply cannot afford lawyers and are terrified of courts and the legal system. So we began with the cases in which lawyers are rarely present, e.g., small claims, landlord/tenant, minor general civil, and neighborhood disputes. Importantly, MI-Resolve is accessible without having to file a case in court. We are hoping that the system will help people resolve their issues “upstream” before conflicts get to the flashpoint of parties having to file in court.
NW: Overall, how long did it take for MI-Resolve to launch?
DVE & MH: We started with a vendor’s platform that served a different purpose than our intended use. It included only two parties: a defendant having received a traffic citation, and court staff that would negotiate plea bargain proposals. Extensive modification of the platform was necessary to create a system that allowed for a plaintiff and defendant in other court actions, and a mediator. The modification process took approximately one year, however after that, new sites have come online in less than one month.
NW: Are you finding that using ODR is increasing or decreasing court costs?
DVE & MH: As has been historically the case with evaluating the cost savings of ADR systems and processes, it will likely be difficult to calculate cost savings of ODR systems. Court ODR operates in an environment where there are tremendous fixed costs: salaries of judges, magistrates, referees, administrators, clerks, are all fixed, as are utilities and many other costs. Unless ODR is used to the point that staff reductions result, direct savings to courts may be difficult to calculate. That said, in the online traffic citation systems, if a significant number of citations are plea-bargained, direct savings may result from funding units’ paying fewer police officer overtime costs to attend hearings.
NW: What would you say is the greatest savings from ODR?
DVE & MH: The greatest savings may be to the public in avoiding taking time from work to go to court, pay for parking and possibly childcare, and transportation, among other costs. We do hope to gauge these savings in a future evaluation of the system.
NW: What resources were most helpful to you all when working on MI-Resolve?
DVE & MH: Our very best resource was having one highly enthusiastic DRC executive director who spent countless hours with us discussing, implementing, and then testing the new configurations, helping to evaluate how the system managed disputes online. No less important, however, was our having a Deputy State Court Administrator who tirelessly worked to secure funds for the program through the legislature. It didn’t hurt at all to also have a State Court Administrator who, as a sitting judge, had previously referred hundreds of cases to his local DRC.
NW: Is there a court rule for ODR yet? If not, is one in the works?
DVE & MH: Michigan didn’t need any additional court rules to implement MI-Resolve. Our 30-year old Community Dispute Resolution Program provided a substantial time-tested framework on which to build the system, and Michigan Court Rules authorized judges to have case referral relationships with our 17 centers. Our initial vision was that litigants could voluntarily use the system. As a result of the COVID-19 crisis and the expected backlog of cases and likely influx of new cases, it’s likely we’ll be piloting the system to accommodate mandatory use by the courts.
NW: What was it like to train mediators to use ODR? Have there been any difficulties you have encountered?
DVE & MH: After the DRC administrative staff select their mediators, training is conducted online using Zoom. Three classes are provided. The first two were created for the DRC system administrators: a one-hour session that includes an overview of the platform, and a two-hour session focused on recruiting qualified mediators, the administrative functions of the system, and assigning mediators to cases. The final three-hour session is for the mediators and covers how to use the system and considerations for writing agreements.
The mediators mediating on the platform must be comfortable with technology and have excellent writing and grammar skills. We have found that individuals that have the most confidence using technology have an easier time on the platform. We have had just a few mediators who, after going through the training, decided that they are not comfortable mediating online and prefer to continue their work as an in-person mediator.
NW: If you could go back, what do you know now that you wish you had known before you started working on MI-Resolve?
DVE & MH: We by far underestimated the amount of time we would be spending designing, implementing, and testing the system. This was likely due to the fact that Michigan was the first statewide project using a network of dispute resolution centers the vendor developed. Court Innovations was very amenable to building the system to our specifications, so our significant investment of time and resources in the design, testing, and implementation phases resulted in a product we believe will provide a great service to Michigan residents.
NW: What were the biggest obstacles you faced when launching MI-Resolve?
DVE & MH: We have not had any significant obstacles. The challenge going forward lies chiefly in marketing the system to courts and the public, just as we encountered three decades ago in launching face-to-face mediation services. We have not yet moved to piloting mandatory ODR as some states are doing, but that is also a likely option for us, particularly as we quickly move to expand the service to all our DRCs to manage what may be a backlog of pending cases, and an influx of new cases as a result of the COVID-19 pandemic. Our vendor is working hard to bring all of our DRCs up months earlier than originally expected.
NW: What surprised you the most when working on MI-Resolve?
DVE & MH: We didn’t encounter any particular surprises. We weren’t quite sure how mediators trained in the traditional face-to-face facilitative mediation model might take to the system, but so far, the mediators participating in the training sessions have expressed a high degree of enthusiasm.
NW: The two of you have created a terrific resource, Considerations in Implementing Court ODR Systems. Of all the considerations you identify, which would you consider to be the most important?
DVE & MH: Undoubtedly, like every other publication of the last 35 years suggesting how ADR programs are best begun, the notion of having a high level “cheerleader” is important. Michigan’s Chief Justice Bridget McCormack and former State Court Administrator Milton Mack, Jr. have been exceptionally strong supporters of online dispute resolution as a means of addressing Access to Justice considerations. Their support has been key to our moving forward and creating enthusiasm among the local trial courts, online legal services providers (MichiganLegalHelp.org) and others.
Second, courts need to determine whether they just want to dispose of cases, or actually help people resolve disputes. While the experience of e-commerce is often cited as a touchstone for courts to draw on in building online systems, e-commerce systems are focused on disposition, not necessarily case resolution. Most, if not all, have binding arbitration as the final step in their processes. Anyone who has ever stepped a foot into a courtroom knows that just because a case is disposed or closed does not mean that a dispute is resolved. MI-Resolve breaks with the e-commerce systems in that it aims to actually help people communicate and develop a resolution they can live with and move on with their lives.
NW: For courts considering launching ODR due to COVID-19, how might your resource Considerations in Implementing Court ODR Systems be most helpful to them?
DVE & MH: As we write, we are very deeply involved in our office’s efforts to provide guidance on how to provide court services during “stay at home” executive branch orders, and how to prepare for managing the significant backlog of cases and predicted significant influx of new filings when courts “re-open” their doors in the weeks ahead. Courts may be operating with reduced staff, backlogs of paper and e-filed pleadings, and budget holds, among other things. Our best counsel may be to promote ODR systems as part of the solution to addressing both any backlog and influx of cases. The caveat here is that there are many factors to consider in designing, implementing, and testing ODR systems, and that time and financial resources are needed to implement a quality system.
We can also share that all DRCs, whether having implemented MI-Resolve or not are open for business during the COVID-19 pandemic and are successfully mediating cases online through Zoom. To assist in their efforts to quickly train mediators, our office developed the following resource: “Using Zoom to Conduct Online Mediation: Considerations and Resources for Community Dispute Resolution Program Centers.”