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Archive for the ‘Online Dispute Resolution’ Category

Recently Added Resources to RSI’s Research Library

Nicole Wilmet, November 4th, 2020

Did you know that RSI’s Resource Center is the most comprehensive and respected source of information on court ADR anywhere? Housed within the Resource Center is the Research Library which has an extensive annotated collection of court ADR resources such as articles, studies, court rules, statutes and court forms.

Each month I review and add new resources to the Research Library. The following list highlights a few of the resources that have recently been added.

I hope these resources are helpful to you in your work!

RSI Convenes Experts to Explore Access to Justice in Family ODR

Eric Slepak-Cherney, November 3rd, 2020

RSI recently held a series of online gatherings to explore the use of online dispute resolution (“ODR”) to serve thinly-resourced families, courts and communities with regards to developing parenting plans (or revising them in post-decree cases) for divorcing or separating never-married parents. These events were the culmination of a National Convening of Experts on Family ODR underwritten by the JAMS Foundation. As part of this project, we brought together experts from across the country and across multiple disciplines, conducted surveys of both these experts and court administrators nationwide, and facilitated discussion on a myriad of issues during the course of the Convening. Our findings will serve as the basis of a forthcoming report, which RSI expects to publish in by the end of 2020.

Our first step in this process was to collect existing research and data about family ODR. ODR is still relatively in its infancy and its application in resolving disputes around parental responsibilities even more nascent. At the time of writing this, there were five such family court programs operating nationwide and no data on outcomes as of yet has been made available.

We saw this as an opportunity to investigate the level of need and barriers to developing these programs nationwide. RSI sent out surveys to court ADR administrators across the country, and in all, received responses from individuals in 23 states and Washington, D.C. For more about our findings from this research, see this recent blog post from Director of Research Jennifer Shack.

A priority for this project was to facilitate dialogue among key stakeholders and thought leaders. We assembled a coalition of nearly 40 experts, comprising family lawyers, ADR practitioners, judges, court administrators, legal technology and ODR experts, legal aid attorneys, academics and funders. These experts provided us thoughtful insight into the benefits and concerns they have regarding the use of ODR in this field and for this underserved population.

Based on the expert responses and guidance from other research, particularly the International Council on Online Dispute Resolution Standards, we developed a framework for how we would explore the topic during the Convening and in our report. To ensure that courts are providing family ODR that serves stakeholders who are thinly-resourced (a term that acknowledges not just financial poverty, but lack of access to education, technology, infrastructure and other resources), a program must possess five essential characteristics: accessibility, ethicality, effectiveness, feasibility and sustainability. If a family ODR program – which entails not just the technological component, but also the dispute system design, human resources and interaction with the court – misses out on these characteristics, it runs the risk of either failing entirely, or perhaps even worse, widening the disparity in outcomes between thinly-resourced litigants and those with means.

Over the course of three 90-minute sessions we explored how family ODR programs could embody these characteristics, including identifying essential features that would need to be built into the programs. The experts were broken into new groups of four or five for each characteristic, maximizing the cross-pollination among professionals from different backgrounds. Each group explored the characteristic, prompted by a different guiding question for each group, and a facilitator captured the thinking of the group. For example, when the groups explored ethics (which we defined very broadly), they considered confidentiality, data security, fairness, procedural justice, information and education, informed consent, neutrality and impartiality, safety and transparency. 

A number of themes emerged throughout the course of the event. Access to a device with which to participate in ODR and access to the internet were significant concerns, as were concerns about potential barriers caused by disabilities or limited English proficiency. One big focus was on the risk posed to survivors of intimate partner violence; on the one hand, the remote nature of ODR might empower some, but the threat of coercion when participating in an ODR process that relies on self-determination could pose a huge risk. Another theme to emerge was the decision of whether to make programs opt-in or opt-out, and gaining clarity about what that really means. ODR programs nationwide have reported struggles with participation and volume, and the balance of getting people to try the platform and respecting their self-determination weighed heavy for the experts. The gatherings also tackled how family ODR for thinly-resourced parents, courts and communities could be supported financially and where it might be hosted.        

Reaction to the Convening was overwhelmingly positive. The experts appreciated the opportunity to collaborate with one another, particularly with individuals they might not have met otherwise, and dive into nuanced, detail-oriented discussions about particular features of family ODR. We at RSI are immensely grateful to the JAMS Foundation for enabling us to have this opportunity to move the ball on an issue we find very near and dear to our hearts and mission!

Survey of States Points to Widespread Unmet Need for Family ADR and ODR

Jennifer Shack, November 2nd, 2020

Resolution Systems Institute recently surveyed state court and alternative dispute resolution (ADR) administrators to gather information about the status of family mediation and family online dispute resolution in their states. The survey was part of a larger project, funded by the JAMS Foundation, we are doing that explores the potential for online dispute resolution (ODR) to help thinly-resourced parents to resolve their disputes, particularly in courts and communities that also have limited resources. The purpose of the survey was to understand the landscape of family ADR and ODR in the states, to learn about their efforts to provide ODR and, for those who had implemented ODR, to gain insights from their experience. 

The survey responses tell the story of the haves and have-nots. Some states have everything in hand when it comes to ADR, but about half of those who responded see an unmet need for both in-person and online services. They lack the funding and resources to make this happen. Their responses, too, indicate that they are interested in providing greater access to services.

Background

To prepare to distribute the survey, we conducted an exhaustive search for a contact person within the state court administrative office in each state. For those states for which we couldn’t find a contact person, we attempted to locate someone else within the state who would have knowledge of the statewide status of ADR and ODR. In the end, we sent surveys to 36 states and Washington, DC, of which 33 were to statewide court or ADR administrators. People from 24 states and Washington, DC, completed the survey. The responses are skewed toward those with statewide ADR offices, as 14 of the 23 states represented in the survey, as well as DC, have statewide ADR offices. This is 62% of the respondents. In contrast, of the total possible sample of states (and DC), only 39% (20 of 51) have ADR offices. 

For the survey, we defined ODR broadly as both video-conference mediation like Zoom and formal ODR platforms like Modria or Matterhorn. We also asked the respondents to concentrate on family dispute resolution for parents and courts with limited resources. That is, for parents who are not able to pay for dispute resolution services and courts that lack the resources to provide these services at no cost. 

Findings

All but two of the responding states have at least one staff person dedicated to ADR part-time. However, having an ADR office makes it more likely that the state court administrative office has full-time staff dedicated to ADR. Ten of the 15 states with an ADR office have at least one full-time person dedicated to ADR; only three of the ten states without an ADR office have full-time staff dedicated to ADR.

In the majority of represented states, the state provides some form of funding. However, these states range from minimally supporting to fully supporting ADR for court users. As with staffing, those states with ADR offices are more likely to provide some support for ADR programs. All but one of these fund ADR in some way, with ten providing ongoing funding. In contrast, only six of the ten states without ADR offices provide any funding for ADR in the courts. Of these, two provide ongoing support.

Face-to-face (or in-person) mediation is available in all states represented in the survey, although it is available statewide in only 63% of them. With the need to adjust to COVID-19, states have made the switch to video-conference mediation, with almost half providing this statewide. Text-based platforms are much less widely used. Only seven states have such a service, and none has made it available statewide. 

While face-to-face mediation is available in all states, more than half of the respondents said there was an unmet need for mediation in their state for parents with limited resources. Most of these said they lacked the funding and mediators necessary to meet that need. More than half said they required stakeholder buy-in and about half said leadership was needed. 

Almost all states have either implemented ODR statewide (in the form of video-conference mediation like Zoom) or are in the process of implementing it. The two most common reasons for pursuing ODR are to increase access to justice and to respond to the restrictions placed on in-person services due to the COVID-19 pandemic. Funding appears to be the tricky spot for them, with eight respondents saying either they have yet to figure out funding for long-term maintenance or that individual courts were going to have to figure it out. 

Despite the increased availability of online services, almost half of the respondents said there was an unmet need for family ODR, with another third saying that they weren’t sure about the need for ODR in their state. Those who said there was an unmet need said that to meet that need their state needed funding, staff time and technical support, followed closely by leadership, stakeholder buy-in and mediators.  

Conclusion

While both in-person and video mediation are widely available in the responding states, more than half of the respondents see a need for greater resources to provide access to dispute resolution services to parents with limited resources. In all, most of the respondents held a positive view of ODR and its role in providing dispute resolution to parents and areas that are not well served by mediation. This is evident in the relatively widespread adoption of video-conference mediation.  

Usability Evaluation of Utah’s ODR Platform Provides Insights for Developing Accessible Tools for All

Jennifer Shack, September 28th, 2020

A recently published evaluation of Utah’s self-built ODR platform for small claims cases has guidance relevant to other courts and ODR developers. The evaluation, conducted by the Innovation for Justice Program at the University of Arizona, examined the usability of the platform as well as the affidavit and summons. It found serious issues at several points in the process that pointed to the need for better design, more information and greater functionality in order for litigants to be able to confidently pursue their case from beginning to end.

In Utah, the vast majority of small claims cases are debt claims. These largely end in default judgment because the defendants don’t appear for their hearing. According to this study, emerging data from the pilot sites indicated that only 36% of defendants registered on the ODR platform. Of those 36% of cases, 50% achieved a settlement or voluntary dismissal. In anticipation of a statewide launch of the platform, the evaluation was undertaken to determine what changes could be made to improve the platform, potentially increasing usage and get better outcomes. 

The research team first interviewed stakeholders, including potential defendants, about the platform before designing the evaluation. It then assessed usability by observing eight people who were demographically similar to debt claim defendants in Utah. Those eight people were observed doing specific tasks from the receipt of the affidavit and summons through the end of the ODR process. They were asked to think aloud while they performed tasks that were based on a script written by the research team. The team also video-recorded them as they performed the tasks to further observe their expressions and movements to identify confusion, confidence, frustration, etc.

Once the baseline testing was completed, the research team conducted a series of workshops with low income members of the community in Pima County, Arizona, to identify areas for improvement in the design of both the affidavit and summons and the ODR platform. With the information from both baseline testing and the workshops, the research team then redesigned the documents and platform, then tested the redesigns on another group of eight people. With this third group, the research team did the same type of assessment as it did with the baseline group to determine whether their redesign improved the usability of the platform.

The initial group of eight were stepped through 11 tasks. In five of these, a majority of test participants were unable to complete the task without help due to lack of information, design issues or functionality problems. The problems began at the very beginning, with participants not knowing what to do with the summons and continued with problems finding help on the platform, registering on the platform, sharing documents and reviewing the written agreement.

The first critical issue identified was that the test participants could not fully understand the affidavit and summons. Three of the eight didn’t understand they could register for ODR and a fourth didn’t understand that the URL provided enabled them to participate in ODR. Further, only one of the eight identified all of the options available to them (participate in ODR, ask to be excused from ODR, right to a jury trial, and so forth). People also had difficulty typing the URL into their cellphones.

The second critical issue the participants encountered was failing to find help information on the platform. Only one of the eight participants was able to find the “Help” PDF. Further, the test participants wanted more information than they were provided. They wanted to be told what ODR was on the home page, wanted legal terms to be defined and more information on how to use the platform.

The next failure occurred when participants attempted to register. Only one test participant was able to complete the process without help. Common errors included typing in their name or case number incorrectly, failing to notice the system requirements for a password and not understanding the meaning of the terms plaintiff and defendant. In addition, several participants couldn’t find the corresponding information on the affidavit and summons that they needed in order to register.

The final critical issues the test participants faced were when they attempted to upload documents and review and sign the agreement. The problems in those instances were with the functionality of the technology, however, participants also had trouble figuring out where they could access the document upload function.

Interestingly, the test participants were best able to use the chat function to negotiate and come up with a payment plan. Despite this, they needed more information to do this well, including a better understanding of the ODR facilitator’s role and how to interact with the facilitator. They wanted a way to chat with the facilitator individually (without the other party) and wanted the ODR facilitator to start the chat.

At the end of their testing and redesign, the research team made the following recommendations:

  • Employ best practices for URL formation, website naming, user interface design, and highlight key information on the affidavit and summons.
  • Streamline the registration process.
  • Simplify document sharing and review, as well as allow users to confirm settlement details and download and print the agreement.
  • Improve ODR information and help – include an FAQ button on the home page, include a quick guide and include a welcome video outlining how ODR works. Include closed captioning of the video.
  • Clarify legal information and user options.

The research team also included recommendations for further study, which are relevant to anyone designing an ODR platform:

  • To increase accessibility, the platform design should comply with World Wide Web Consortium (W3W) and Web Accessibility Initiative (WAI) standards.
  • Create informational videos. The videos should be close-captioned and in multiple languages.
  • Develop an auto-responses bank containing common chat responses that parties can select as they negotiate with the other party.
  • Create a paper ODR quick guide that can be sent with the affidavit and summons. The guide should describe the ODR process, provide legal information, and explain in general terms how the ODR platform works.
  • Provide a link or button on each page that provides help for that particular page.
  • Provide an integrated interest calculator to help parties check the amount in controversy and submit calculations to the ODR facilitator and other party.
  • Integrate a calendar function so the parties and ODR facilitator can identify a mutually agreeable time to chat synchronously.
  • Provide the option for each party to chat individually with the ODR facilitator.
  • Integrate an AI chatbot to answer questions and alert the ODR facilitator when they are needed.
  • Integrate a video-conference feature.
  • Employ an integrated exit survey to provide ongoing feedback.

The take-home message from this evaluation is that parties need a lot of information provided in accessible formats. They also require document and platform design that makes it easy to find that information and a platform that is not only easy to use but also flexible. 

Resources for Courts Considering and Developing ODR Programs

Jennifer Shack, August 31st, 2020

Back in March, as courts put a hold on in-person activities, I provided Court ADR Connection readers with a list of resources on online dispute resolution with an idea that courts were beginning to think about how to provide remote services. Now, six months later, with courts continuing these remote services, I thought it might be time to share the list again in hopes that the resources might provide guidance.

Considerations and Concerns in ODR Program Design

Online Dispute Resolution Special Topic

Resolution Systems Institute, 2019

RSI has written a guide for courts who are considering, have started developing or already have ODR programs. It discusses important considerations for ODR implementation, from goal setting to costs to ethical concerns.

Read RSI’s advice about ODR on our website.

Considerations in Implementing Court ODR Systems

Doug Van Epps and Michelle Hilliker. Michigan Supreme Court State Court Administrators Office of Dispute Resolution. Jan. 6, 2020

Van Epps and Hilliker share their insights and the knowledge gained from their development and implementation of ODR in the Michigan courts in this guide. Based on both the issues they encountered and their discussions with others involved in implementing ODR systems, their considerations are meant to assist courts to determine how to design, implement and evaluate an online dispute resolution (ODR) system.

The considerations span a variety of topics including leadership and court staff; prospective users and stakeholders; goals; implementing authority and legal implications administration; platform attributes and functions; mediators; non-court dispute resolution service staff; costs, fees and funding sources; confidentiality; protections; vendor selection; data collection and evaluation; and marketing plans. The guide also includes a list of recent ODR publications and resources.

Access the Considerations document on Michigan’s Supreme Court State Court Administrator’s Office website.

Case Studies in ODR for Courts

Joint Technology Committee, 2020

This paper presents seven case studies of ODR implementation in the courts. The case studies are short, but include key takeaways about what worked and what didn’t. The ODR programs include two outside the US, and deal with small claims, family, tax and traffic cases.

Read the case studies.

Online Dispute Resolution: A Digital Door to Justice or Pandora’s Box? Parts I-III

Doug McQuiston and Sharon Sturges, Colorado Lawyer, February and March, 2020

McQuiston and Sturges are in the midst of publishing a three-part series on ODR in the courts that examines the use of videoconferenced mediation. They note that videoconferencing may be appropriate for family cases and those involving intimate partner violence. The main obstacle to providing this service is limited or poor internet connectivity.

Part II focuses on the use of artificial intelligence in ODR. McQuiston and Sturges cite the many benefits of AI-assisted ODR for small claims and family cases, such as the ability to negotiate asynchronously, which eliminates the need to coordinate schedules. Self-represented litigants who may be reluctant to attend mediation without an attorney may be more inclined to use this technology. Further, in doing so, they can save money. McQuiston and Sturges note some drawbacks, however. These include AI’s inability to understand and address human emotions and its tendency to deviate to the mean, without reference to shades of gray in disputes or situational fairness. To help readers understand how AI in ODR would work, they end by describing systems already in place around the world.

In Part III, McQuiston and Sturgis explore ethical considerations of ODR from the attorney perspective. They also discuss relevant standards, including those of the International Counsel for ODR – that ODR programs be accessible, accountable, competent, confidential, equal, fair, legal, secure and transparent. To courts that plan to implement ODR, McQuiston and Sturgis advise that they establish an ethical framework that “incorporates the underlying purposes of mediator standards.”  

Read Part I, Part II and Part III of the series.

Designing and Implementing a State Court ODR System: From Disappointment to Celebration

David Allen Larson, Journal of Dispute Resolution, Vol. 2019, No. 2, Jun. 5, 2019

This article chronicles the author’s work to develop an online dispute resolution (ODR) system to handle credit card debt collection in New York State courts. The author worked with the New York State Unified Court system for a little over two years to design and implement their ODR platform. The article discusses the issues related to dispute system design in this setting, explains how the project was derailed and ends with lessons learned. The four lessons discussed are (1) anticipate conflicts and resistance, (2) obtain support from judges and court staff at the beginning, (3) figure out the technology while also ensuring a fair vendor bidding process and (4) pick your case type carefully.

The article also touches on some issues specific to ODR such as how ODR relates to a court system that is not fully digitized and how long to retain records of online communications. It also offers general advice, such as recommending that ODR processes should “balance efficiencies, neutrality and self-determination.”

Read the full article on SSRN.

Pouring a Little Psychological Cold Water on ODR

Jean Sternlight, Journal of Dispute Resolution, 2020

This article explores online dispute resolution (ODR) from a psychological lens to examine the strengths and weakness of ODR. The article examines the psychology of dispute resolution by focusing on four different areas: the psychology of perception and memory, the psychology of human wants, the psychology of communication, and judgment and decision making. Sternlight’s article suggests that ODR may not be the best tool to assist individuals in creatively working things out with a fellow disputant and may be better employed for small and predictable disputes, like small online purchases. The article also posits that computers may not be the best forum for communication and argues that human mediators, lawyers or friends are more effective than computers in helping humans deal with their emotions and other judgement and decision-making issues. Sternlight ends by calling for empirical research for both online and in-person dispute resolution.

Read the full article on SSRN.

Studies of Online Dispute Resolution Programs

So far, there have been few published studies of online dispute resolution programs in the courts. Below are two conducted a while back.

Getting Divorced Online: Procedural and Outcome Justice in Online Divorce Mediation

Martin Gramatikov and Laura Klaming, Journal of Law & Family Studies, Jan. 1, 2012

This study of a Dutch experiment with ODR for divorcing couples found that the participants perceived the process to be fair, with procedural fairness, interpersonal justice and informational justice all given high marks. On a scale of 1 to 5, they had averages of 4.27, 4.5 and 4.19, respectively. The participants’ perception of the outcome was also positive, though to a lesser extent than for the procedure. They gave an average of 3.91 for distributive justice, 3.37 for restorative justice, 3.18 for functionality and 3.0 for transparency. The ratings were similar for both men and women. Other findings included men reporting higher out of pocket costs and time spent in mediation than women, and women reporting higher levels of frustration and anger than men.

The participants were referred to ODR, which was provided free of charge, if both parties had an email account and the issues were not complex. Once referred, the parties completed an intake questionnaire to provide the mediator with some details about the dispute. The parties could communicate with the mediator and each other via text message or email. The mediator moderated all communications. Each party was required to respond to the other within 48 hours as a condition of the agreement to mediate. Once all issues in dispute were finalized, the parties completed an evaluation of the procedure before the agreement could be finalized.

Read the complete abstract and access the full study in RSI’s Research Library.

Evaluation of the Small Claims Online Dispute Resolution Pilot

Marc Mason, Avrom Sherr. Sep. 1, 2008

Two courts in England tested online mediation to resolve 25 small claims cases. Those parties who were willing to try mediation were given the option of mediating face-to-face, by telephone, or online. Two mediators were responsible for all online mediations, which were conducted using TheMediationRoom.com.

The online mediations resulted in settlement in 48% of the cases, which was similar to the settlement rate for the face-to-face and telephone mediations, but lower than other small claims mediation programs have reported. Mediators and parties were surveyed post-mediation about their experiences with the process. Mediators reported using more than one method of communication outside TheMediationRoom.com platform – generally email or telephone – to complete the mediation in most cases, and as many settlements were completed outside the platform as within it. The mediators attributed this to difficulties in getting responses from the defendants, as well as to technical difficulties. Because of this and because they lacked the ability to judge non-verbal cues, the mediators said they would have preferred using telephone or email in all but four cases.

The 18 parties who responded to the questionnaire were less frustrated with their experience than the mediators. They expressed fewer issues with the technology, with 47% saying the technology was easy to use. However, they were not overwhelmingly satisfied with the process or the fairness of the outcome. Only 53% were satisfied with their experience and only 23% felt the outcome was fair. Responses to both satisfaction and fairness of outcome were more positive for those who settled their case. The small number of responses limits the reliability of these findings.

Read the full study on SSRN.

Studies Regarding Particular Issues Related to ODR

Shuttle and Online Mediation: A Review of Available Research and Implications for Separating Couples Reporting Intimate Partner Violence or Abuse

Fernanda S. Rossi, Amy Holtzworth-Munroe, Amy G. Applegate, Connie J. Beck, Jeannie M. Adams, Darrell F. Hale. Family Court Review (Association of Family and Conciliation Courts), Aug. 17, 2017

This article examines the published research on shuttle mediation, online audio-visual mediation, and online text-based mediation to discuss the applicability of these mediation methods to family law cases with a history of intimate partner violence and/or abuse (IPV/A). It first presents potential advantages and disadvantages of each mediation method in cases with IPV/A history. The authors suggest that mediators on IPV/A cases must carefully consider a variety of potential issues including the parties’ suspicion of mediator bias, confidentiality concerns and victim-perpetrator power dynamics. The authors also note the need for more empirical research comparing different effects of various mediation methods.

This article is behind a paywall on the Wiley Online Library.

Building Trust Online: The Realities of Telepresence for Mediators Engaged in Online Dispute Resolution

Susan Nauss Exon and Soomi Lee. Stetson Law Review, Vol 49, No. 1, 2019

Nauss Exon and Lee found that trust in an experienced mediator is the same whether a mediation participant interacts with that mediator via video or face-to-face. In their experiment, a single experienced mediator conducted 31 simulated mediations with one party in the room with him and the other interacting via telepresence. Telepresence is sophisticated video conferencing, in which sensitive microphones and special cameras that pan and zoom are used to help participants follow the flow of the conversation.

During the experiment, the participants were asked to complete a questionnaire before the mediation began that measured their level of interpersonal trust. They then completed a second questionnaire after mediation that asked them about their interactions with the mediator and their perceptions of him in order to determine how much they trusted him and found him to be trustworthy. In all, 59 participants provided usable data.

Nauss Exon and Lee found that although the participants’ questionnaire responses before mediation indicated they were on average more likely to distrust others than trust them, all participants agreed mildly or strongly that they could trust the mediator and that the mediator was trustworthy. Further, they found no difference in the level of response (mild or strong) between those who were in the same room as the mediator and those who participated via telepresence, with one exception. They found that those who had a lower predisposition to trust were more likely to see the mediator as trustworthy.

Read the full study on SSRN.

Studies Regarding Topics Related to ODR

ADR Empirical Research Studies

James Coben and Donna Steinstra. Mitchell Hamline Dispute Resolution Institute, Jun. 1, 2018

This compilation of abstracted studies includes a number on topics that are related to the use of ODR. These include:

  • A study of compliance with emailed requests
  • Team decision-making in a virtual environment
  • A qualitative analysis of email negotiation
  • Honesty in face-to-face communication as compared to through an intermediary

Find the abstracted studies on the Mitchell Hamline website.

Call for Research on ODR and Access to Justice

Measuring “Access to Justice” in the Rush to Digitize

Amy Schmitz, Fordham Law Review, 2020 

As online dispute resolution (ODR) gains rapidly in popularity among courts in the US, Amy Schmitz provides the field with a rationale and guide for researching its provision of access to justice, or A2J. In this article, she outlines ODR’s promise for increasing A2J for those who are involved in the court system and reviews the current status of research regarding A2J before discussing in detail what research should be done and how it can be undertaken. Schmitz calls for research about how people deal with their legal disputes, with comparisons over time among differing social groups and demographics. In sum, research should look into who can access the courts, how they do it and what resolutions they obtain.

Access the article on SSRN.