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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.

Idaho’s Pilot Eviction Mediation Program Shows Early Signs of Success

Nicole Wilmet, January 29th, 2021

As a result of COVID-19, Idaho’s Canyon County, like many counties across the United States, is facing an increase in eviction cases. After seeing success with mediation programs in two other nearby counties (Ada and Idaho Falls), Canyon County launched its own pilot eviction mediation program for landlords and tenants this past November. This new program offers landlords and tenants the opportunity to potentially avoid the unknowns that can arise during eviction hearings or trials. For landlords, one of the greatest unknowns of an eviction trial may be the significant loss in back rent payment. For tenants, a trial may result in the fear of losing a home and having a permanent eviction judgment on their record – which may make it difficult to find other housing in the future. As a result, with this eviction mediation program, landlords and tenants in Canyon County now have the opportunity to address these unknowns directly and craft their own alternative solutions for their case.

Since the Canyon County program’s launch in November, 38 eviction cases have been scheduled for a hearing and each case has agreed to try the court’s new mediation program. Recent reports indicate that during the mediations, most renters are agreeing to “[pay] some money in a specified amount of time.” If tenants are able to uphold that agreement, “then at the review hearing their case is dismissed.” Of these 38 cases, recent news outlets further report that only “18% of tenants did not uphold the bargain and evictions were entered” and “only 5%, or two cases, did not reach [any type of] a resolution” during mediation. In the same report, Third District Judge Susan Clark shared that the mediators for the program are hired on a contract basis and, currently, the estimated cost to the county for the program is $150 per case. 

Illinois’ Third Judicial Circuit Launches Pilot Family Law Mediation Program for Pro Se Litigants

Nicole Wilmet, January 31st, 2020

In November, Illinois’ Third Judicial Circuit announced its receipt of a grant from the Illinois Supreme Court Commission on Access to Justice. The grant’s funds have allowed the Circuit to create a pilot family law mediation program for divorce and family cases that involve two self-represented litigants. Angela Wille, the Circuit’s Self-Represented Litigant Coordinator, is managing the grant along with Associate Judge Maureen Schutte, Supervising Judge of the Family Division.

In the announcement, Chief Judge William A. Mudge said, “this is a great opportunity for families in Madison County to meet with a certified, neutral third-party mediator and attempt to reach a mutual agreement regarding issues pertaining to their children and/or their property.”

The court began referring cases to the program in December 2019.

Michigan Supreme Court Launches New Online Dispute Resolution Program, MI-Resolve

Nicole Wilmet, August 23rd, 2019

In August, the Michigan Supreme Court launched MI-Resolve, a free online dispute resolution tool. The program is provided by Matterhorn and is currently available for district courts in 17 Michigan counties to use. During the pilot phase of this program, MI-Resolve is limited to cases alleging that money is owed and is being used in small claims, general civil, landlord-tenant, contract, and neighborhood disputes. The goal of MI-Resolve is to make access to legal resources more efficient and affordable and save parties the time and cost of having to go to court in person.

Through the program, parties may resolve their disputes with or without the assistance of a mediator. When working with a mediator, MI-Resolve’s Terms of Service note that parties may arrange to meet in person with a mediator or via videoconference. In recent news coverage of the program, Michelle Hilliker from the Michigan Office of Dispute Resolution noted that mediators for the program are required to complete at least 40 hours of State Court Administrative Office approved training and a 10-hour internship. Individuals do not need to have a case filed in court to use MI-Resolve. However, if parties do have a dispute filed, they may use MI-Resolve to try to reach a settlement before their hearing or trial date.

Parties wishing to use MI-Resolve must be over 18, live, work, or have a dispute arise in one of the 17 counties offering the program, have an active e-mail address, access to the internet, and must agree to the terms in the Agreement to Mediate (which parties access through their registration page after completing intake). In the press release for the program, the Michigan Supreme Court notes that MI-Resolve is expected to expand statewide soon.

New Mexico Launches Nine ODR Pilot Programs

Nicole Wilmet, June 28th, 2019

On June 3, 2019, the Supreme Court of New Mexico announced the approval of nine new online dispute resolution (ODR) pilot programs to resolve debt and money due cases. The programs will run until June 30, 2020 and will operate in New Mexico’s Second, Sixth, and Ninth Judicial District Courts, Bernalillo County Metropolitan Court, and five Magistrate Courts in Curry County, Grant County, Hidalgo County, Luna County, and Roosevelt County. The Administrative Office of the Courts will be overseeing the pilot project and will appoint and certify mediators to serve in each of the programs. The courts will be using Tyler Technologies’ Modria® software for each of the programs.

Referral to the pilot programs will be mandatory for all applicable debt and money due cases. If the parties enter into a settlement agreement through the pilot program, then their agreement will be put into writing, signed and filed with  the court using the Modria software. In the event the parties do not reach a settlement agreement within thirty days, then the court may either grant an extension to continue the parties’ use of ODR or schedule a date for trial or other hearing. The Supreme Court of New Mexico will be using these nine pilot programs to consider expanding the ODR program to courts statewide.