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.