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Limited Participation Reduces Success of Otherwise Promising Texas Pilot ODR Program, Evaluation Finds

Just Court ADR, May 31st, 2022

A newly published study conducted by RSI Director of Research Jennifer Shack and University of California, Davis, Professor Donna Shestowsky highlights both the potential of online dispute resolution (ODR) and the importance of appropriate outreach and education on ODR to maximize participation and, thus, program impact.

Jen and Donna evaluated a pilot program in Collin County, Texas, that used a text-based ODR platform to resolve debt and small claims cases in a single court. By adopting ODR, the court sought to reduce the burden of a growing caseload while providing access to justice through a process that did not require the parties to travel or miss work to resolve their case.

The evaluation produced evidence that ODR can be an effective method of dispute resolution, especially for debt cases. In 73% of cases where both parties used the ODR platform, participants resolved their dispute and avoided trial. The rate is similar to that of cases that had the opportunity to use in-person mediation. Unfortunately, however, the program’s goals were not met, because both sides used ODR in only 24% of cases uploaded to the platform. Findings and recommendations related to these outcomes are discussed later in this summary.

The Pilot Program

The pilot ran from September 2019 through August 2020; thus it was concurrent with the COVID-19 pandemic from March to August 2020. Additionally, because ODR is a rather new practice in this context, some details of the program and the platform’s application were being worked out even as the evaluation took place.

The Modria ODR platform allowed parties to communicate by text one-on-one or with the help of a mediator. Parties were ostensibly required to use the platform before their first hearing. If parties reached agreement, their case was dismissed without a trial. During the 12-month pilot period, 1,874 debt and 274 small claims cases were filed, for a total of 2,148 cases.

When a defendant filed an answer, the civil clerk determined whether the case was eligible for ODR. It was ineligible if one side had multiple parties, if a party was not equipped to use ODR, or (until the second quarter of 2020) if the court did not have email addresses for both parties or their attorneys. If the case was eligible, the clerk uploaded it to the ODR platform, which in turn rejected any cases that contained errors, such as missing information, and sent an error report to the IT department so the errors could be fixed. When email addresses and phone numbers were available, the platform sent an automated email (and after April 2020, also a text) to the parties, instructing them to use ODR. The clerk also set the case for trial and mailed the parties, or their attorneys, a notice of their trial date and informed them they were required to use ODR prior to that date. The notice included a link to the platform.

Once a case was uploaded to ODR, participants had 45 days to negotiate one-on-one via the platform’s chat function. At any time during this window, either side could ask for a mediator. Mediation cost each party $40 and had to be completed within 30 days.

If participants reached agreement on the platform, they were given the opportunity to sign an online agreed judgment form, which was automatically sent to the case management system, and the trial was cancelled. If the participants did not reach agreement, the parties continued to trial unless they otherwise reached agreement before the trial date.

Key Findings

Below are some of Jen and Donna’s main findings and top recommendations from their evaluation. For more details and complete recommendations, read the full report here.

Litigant Use of ODR

  • 49% of cases with answers filed were uploaded to ODR. During the pilot period, answers were filed in 698 cases. These 698 cases form the subset that could potentially have been uploaded to ODR. Of these, 341 cases (49%) were eligible and did not contain errors that barred their upload. These were ultimately offered ODR. According to court staff, the most common reason that cases with answers filed were not uploaded to ODR appears to be that the court lacked email addresses for at least one side of the case.
  • One party completed at least one activity online in 50% of cases uploaded to ODR. In 170 of 341 cases (50%), at least one case participant performed at least one activity on the ODR platform, such as asserting a claim, uploading a file, or using the chat function to communicate with the other side.
  • Both sides completed at least one activity on the ODR platform in about one-fourth of eligible cases. In 81 cases (24%) uploaded to ODR, both sides used the platform. Parties in small claims cases were more likely to use ODR (76%) than parties in debt claim cases (45%).
  • Litigants appeared to be unaware of the ODR program. Litigant survey responses suggested that parties were generally not aware of the ODR program, despite participation being required. Only one survey respondent out of ten indicated having received information about the program. When asked what would make them more likely to use ODR for a similar case in the future, half said more information.
  • Litigants had limited access to information about the ODR program. According to court staff, the only ways litigants received information from the court about the ODR program was through the notice the court mailed to them (or their lawyers) about their court date and through an email or text from the platform when the court uploaded their case, if their side had an email address or cellphone number on file with the court. Both of these events occurred only after the defendant filed an answer.
  • Litigants appear open to online options. Among survey respondents, none of whom had participated in ODR, two out of three indicated that the option to use it in future similar cases was attractive. Similarly, when asked to consider using video mediation to resolve future similar cases, 60% responded favorably. 

Outcomes and Time to Disposition

  • 73% of cases in which both parties used ODR resolved before trial. The percentage of ODR cases that resolved before trial was similar to that of cases that did not use ODR, both before and during the ODR program.
  • Debt claim cases were significantly more likely than small claims cases to resolve before trial. Additionally, debt claim cases in which defendants were represented were significantly more likely to resolve before trial than debt claim cases in which defendants were unrepresented.
  • Time to resolution was, on average, 4.6 months for cases that used ODR. This figure includes cases delayed either because of the court’s closure amid the COVID-19 pandemic or because of an upload error on a court server.

Program Costs

It is important to note that workload and cost conclusions are derived from self-reports made during interviews and are inherently subjective.

  • Direct costs to the court to implement ODR were covered by a filing fee. Litigants covered the costs through an extra $5 filing fee the court instituted for all civil cases filed in Collin County except eviction and mental health cases.
  • There were significant indirect costs to the court. Court personnel indicated that they devoted a significant amount of time to ODR prior to its launch. The project manager estimated that the cost in staff time approached six figures and was largely due, in his opinion, to the numerous meetings that involved many court personnel as well as the high percentage of time that he and the responsible IT staff member spent on the project in this phase. Some of this effort laid the groundwork for an anticipated county-wide rollout of ODR.
  • Costs to administer ODR were minimal. After the program’s launch, the time that personnel spent on ODR appeared to drop considerably. No one interviewed reported spending more than a couple of hours per week on the project.
  • ODR did not appreciably change administrative workload. The court administrator and the civil clerk did not perceive an appreciable increase or decrease in their workload. However, it is hard to determine what their workload may have been in the absence of the COVID-19 pandemic, or how much it would have been had greater effort been expended on promoting litigants’ awareness of the program and otherwise attempting to increase ODR use.

Recommendations

Based on the findings of this evaluation, the following recommendations may be relevant for any court considering implementing ODR:

  • Expect to spend significant time and resources to get the program up and running.
  • Notify parties and lawyers about the ODR program early in the process.
  • Educate litigants and lawyers more fully about the program.
  • Conduct outreach to raise awareness of, and promote interest in, the ODR program.
  • Explore video mediation as a dispute resolution option.

Reintroducing Brian Roche, New President of the RSI Board of Directors

Just Court ADR, May 25th, 2022

Welcome to RSI’s Board Member Profile series! Each profile will feature a different member of RSI’s talented and dedicated Board of Directors. We begin this month with Board President Brian Roche, who was elected to the position in April to fill the unexpired term of Raven Moore. Raven stepped down amid increasing demands from her expanding role in the counsel’s office at McDonald’s Corporation, which will take her overseas. (Lucky for RSI, she is able to remain a Board member.)

Prior to being elected Board President, Brian Roche served as Board Vice President since 2015. He has been on the RSI Board since 2010. Brian is a partner in Reed Smith’s Litigation Department, focusing on intellectual property and technology disputes. We asked him to share a bit about how alternative dispute resolution fits into his practice, the importance of RSI’s work, and his goals as Board President.

RSI Board President Brian Roche

Can you tell us a bit about your law practice?

My practice is intellectual property litigation. I focus predominantly on patent, trade secret litigation, high-tech wireless communications, medical devices, electronic securities trading and software, database networking and telecommunications. I’ve been doing this work for about 25 years. It’s been an exciting area, especially as we’ve seen the technology breakthroughs in telecommunications in speed and bandwidth. What has come with that is a lot of disputes with patent holders over who owns the technology, who owns the rights. It has involved some of the largest companies in America trying to protect what they are developing. And people trying to preserve what they have developed against people who say, “Hey, I did it first; I got a patent.” 

How do you use alternative dispute resolution in your practice?

It’s a central part of (intellectual property) litigation in the US today. The courts favor having parties try to resolve the litigation through negotiation. Every court does it differently; some encourage mediation early on, some recognize that it’s not effective early on and encourage it after there’s been more evidence developed in the case before the trial. Others do it right before you go to trial. But these mediations sometimes last a couple days. The mediators tend to be active and retired judges, and retired litigators that used to do what I do now. I have actively been doing ADR since it began. It became a normal thing in the kind of work I do in the 1990s. Before then, it was really unusual.

What attracted you to/made you want to join the RSI board?

I didn’t have much contact with what RSI was doing until a colleague introduced me to the organization, and that was (RSI Board member) Hon. Morton Denlow. He was a federal magistrate at the time, and before that he was a partner with me at this law firm. He was recruiting to try to expand the board to get younger lawyers who were active in law firms. At that time RSI’s board was heavily focused on former and current judges. So he invited me, and I joined.

What’s your favorite thing about being on the board?

What I have really enjoyed is that the mediation RSI focuses on is not between big corporations that have the best law firms and best lawyers in the country working for them, and that can afford to hire the best private mediators. That’s not what RSI’s about.

RSI is about making the legal process that ordinary people occasionally run into better by having a way to have it resolved quickly. They get to participate immediately and don’t have to spend years litigating. That’s really what RSI is trying to do and has been able to do effectively in areas where people in these lawsuits are not regularly in the legal world. If there’s a problem with their mortgage, or a family dispute, such as divorce or child custody. And also small disputes, like with a contractor or a neighbor. Those are the kinds of disputes we believe can really be solved with mediation, if the courts are supporting and encouraging it.

So what’s been exciting about what we’ve done with RSI is we’ve partnered with the courts, predominantly in Illinois to advance mediation as an alternative to full-blown litigation. During the mortgage crisis that began in 2008, seeing what RSI was able to accomplish was remarkable: people who thought they were going to lose their homes found a way to keep their homes through mediation. 

Another of the things that excites me about taking on the role of Board President is working directly with our Executive Director, Susan Yates, who is a national leader in mediation in the courts and a national leader in innovative ways to move mediation online. I’m very excited about working closely with her.

In your RSI bio, you say that court ADR is often “a better and more efficient process” than litigation. What makes it that way?

I think that was referring to the context of what I do in these large cases, but applying it more to RSI, it can also be the best way for disputes to get resolved. People get hauled into court unexpectedly; they don’t have resources to hire a lawyer for a long fight. Really, all they want to do is tell their side of the story to the other side. They can hear the other side, and they get a neutral person to help resolve it, and most of the time, things get resolved that way. There’s recognition that litigation might go on for years, so for people who aren’t familiar with the court process, mediation can be a savior.  

Do you have any particular plans or things on your to-do list as Board President?

One focus is attracting younger people to the board who are excited about RSI’s mission, so there is confidence the organization will continue for years into the future; that it’s influenced by younger people who see different ways to resolve these kinds of problems, who have new ideas, new energy, new blood. Getting younger people from all different communities to join the board is a high priority.

The second priority is to see if we can expand services in the area of family disputes – in particular child protection cases in which children have been removed from their homes due to allegations of neglect or abuse. These are so difficult for families. Mediation has proved to be effective – it can be even more effective with online tools available today. And also just to be supportive of the courts in their own efforts to expand ADR in small claims, mortgage and rent disputes, among others.

Spring 2022: How RSI’s Work Has Expanded and Evolved During the COVID-19 Pandemic

Just Court ADR, May 18th, 2022

As the COVID-19 pandemic has strained finances, families and the social fabric in general, the need for and potential of well-designed alternative dispute resolution (ADR) to stitch together solutions has become increasingly apparent. Throughout this challenging time, Resolution Systems Institute (RSI) has continued to monitor and evaluate new dispute resolution initiatives and developed new court mediation programs of our own. Below is a description of some of our work during the pandemic.

In 2020, as a potential pandemic-driven eviction wave loomed, RSI began to design our first eviction mediation program. In the course of about nine months, we developed the court rules, procedures and forms the program would need to operate. We also recruited a cadre of mediators and provided them with specialized eviction mediation training through our friends at the Center for Conflict Resolution. The Kane County (Illinois) Eviction Mediation Program launched in spring 2021. Later that fall, RSI launched similar programs in Illinois’ Kankakee and Winnebago counties. Overall, our programs operate in judicial districts that serve over 920,000 Illinois residents.

To learn more about RSI’s work over the last two years in the eviction arena, we recommend you check out our blog entries on the topic, as well as our Eviction Mediation Special Topics resource. RSI is now working with Kane and Winnebago counties to bolster their longstanding foreclosure mediation programs as homeowners now begin to feel the squeeze that renters started experiencing last year.

While RSI is spearheading these new program development and administration initiatives, evaluation remains the central pillar of upholding RSI’s mission of improving access to justice. RSI Director of Research Jennifer Shack recently published two reports evaluating the program development experience in Kane County: Eviction Mediation Design and Implementation in Illinois’ 16th Judicial Circuit: Challenges and Keys to Success and Participant Experience in Eviction Mediation: Summary Of Early Survey Responses in the 16th Judicial Circuit of Illinois’ Video Mediation Program.

In partnership with the University of California, Davis, RSI has also evaluated online dispute resolution (ODR) pilot programs in Texas and Michigan. The pandemic generated greater interest among courts for ADR processes that parties could access remotely. The evaluations, which will be released soon, will provide courts with a better understanding of what ODR adoption requires and what possible benefits it can provide.

The last two years have provided many of us, RSI included, with a complex mix of setbacks and new opportunities. RSI is committed to innovating and adapting to meet the challenges that courts, and the litigants they serve, encounter in this ever-changing world. We are grateful to our program partners, our funders and each of you who come to RSI in search of expertise and guidance. We hope you will continue to take this journey with us as we work towards our mission of expanding access to justice through court alternative dispute resolution.

Eviction Mediation Q&A w/ Christina Wright

Just Court ADR, December 30th, 2021

This article is part of a series of perspectives on eviction mediation program development that is being supported by the American Arbitration Association-International Centre for Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.

RSI began operating our first eviction mediation program in spring of 2021, based in Kane County, Illinois. Here, Program Coordinator Christina Wright answers questions posed by Executive Director Susan Yates about the program.

Susan Yates: Please tell us a little about who this program serves.

Christina Wright: We primarily serve very low-income renters, including section 8 and those with housing vouchers. Many are living on zero wages or social security. Family sizes vary from 1 to 5, and I rarely see families larger than 5. The families are both in large cities, like Elgin and Aurora, and in rural areas like Elburn. Kane County is a large jurisdiction that spans urban and rural populations. Those receiving services from our program are primarily white, Latino and black, and comprise all genders. English and Spanish are the primary languages spoken. Many participants have already utilized other community/government programs. Some receive these benefits, while others have been repeatedly denied, and have run out of good options.

RSI Kane County Eviction Mediation Program Coordinator Christina Wright
RSI Kane County Eviction Mediation Program Coordinator Christina Wright

SY: How does this program operate?

CW: The process begins when an eviction case is filed with the court. Once the case begins, parties are eligible to participate in the mediation program. Either the landlord or the tenant can initiate the process by contacting the program. Most first contacts are made during a court appearance. However, landlords are required to deliver a notice of the program to tenants during service, so some enrollments begin when a party reaches out prior to the first court appearance.

By initiating contact with the program, participants compel the other party to participate. The program coordinator is tasked with connecting the parties to coordinate a virtual mediation date. All mediations are currently being conducted via Zoom. Once a date is settled, the coordinator schedules a trained mediator to serve for that case. Mediators work in 4 hour shifts and may mediate 1-4 cases during that time. On average, mediations take about 50 minutes.

Mediations are confidential, so while the ultimate outcome is reported to the court, the details of the process remain private. There are many different potential outcomes to an eviction mediation, but the most common agreements involve move out dates and/or payment plans. Once an agreement is made, the mediator completes a court order that is submitted to and signed by the judge. This ends the mediation process and, typically, the court case. By coming to a mutual agreement in mediation, future court dates and eviction orders are prevented.

SY: Eviction mediation programs are often described as eviction diversion programs. What are the aspects of your programs, other than mediation?

CW: We work with the community to provide solutions to the more common problems we see related to eviction, such as financial need. Our partners help participants apply for financial relief programs that help with things such as rent and utilities in hopes of preventing evictions based on past due rent. Participants can consult with attorneys to meet their legal needs and housing counselors to help them find affordable housing.

SY: Tell us a little more about your partners in these programs. What do they do? How do parties get in touch with them?

CW: We have partnered with several other community organizations in an attempt to provide as many services as possible to those in need. Prairie State Legal Service offers free legal representation to those who qualify. The Aurora Financial Empowerment Center helps clients with a variety of consumer needs, as well as assisting applicants with financial aid applications. Consumer Credit Counseling Services and The Neighbor Project provide housing counseling services. We provide referrals to these organizations that let parties contact them directly.

SY: Who are your mediators? What kind of training do they have? What are their professional and/or personal backgrounds?

CW: Our mediators come from a diverse set of backgrounds. Many are attorneys and arbitrators, while others are counselors, teachers, executives and retired from many other careers. All of the mediators have completed a 30-hour (or longer) mediation certification, many through our partners at the Center for Conflict Resolution. They also have all been trained on the unique needs of eviction mediation. Some have also chosen to receive additional training in a variety of styles of conflict resolution. Our mediators reflect many different races and genders, speak multiple languages, and because of the virtual nature of the mediations, reside across the country (and some even internationally).

RSI’s Board Member Alyson Carrel Co-Authors New Negotiation Textbook

Just Court ADR, May 6th, 2021

Congratulations to RSI’s Board Member Alyson Carrel for co-authoring a new negotiation textbook entitled Negotiation and Lawyers. Joining Alyson as co-authors are Art Hinshaw, Leonard L. Riskin, Chris P. Guthrie, Richard C. Reuben, Jennifer K. Robbennolt and Nancy Welsh. The textbook is responsive to the increased role technology plays in the negotiation practice and presents the core concepts, skills and strategies lawyers need to be successful in negotiation both online and offline. In particular, Alyson crafted a chapter on technology and negotiation.

Congratulations to Alyson and the entire team of authors on this terrific new resource!