Resources / Study / Innovation for Court ADR

Just Court ADR

The blog of Resolution Systems Institute

Archive for the ‘Research’ Category

Holistic Approach to Eviction Mediation Proves Successful in Kane County, Illinois

Jennifer Shack, November 16th, 2022

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.

As readers may remember, the 16th Judicial Circuit in Kane County, Illinois, launched its eviction mediation program in May 2021, with RSI as the program administrator. The program approaches the resolution of eviction cases holistically, with referrals to financial counseling and legal services as well as mediation. Mediations are conducted primarily via Zoom, with some in-person mediation permitted. As part of the AAA-ICDR Foundation grant, RSI Research Associate Dee Williams and I evaluated the program’s performance during its first year. The evaluation included program use, services provided, mediation outcomes and participant experience. The evaluation revealed a program that is succeeding on all metrics.

We found that the program had a high rate of referral, with 578 (42%) of the 1,392 eligible tenants making contact with the program coordinator after being referred by the judge. Almost two-thirds of tenants who accessed the program were referred to housing counseling, rental assistance and legal assistance. Not all cases required mediation, and some cases scheduled for mediation did not take place; thus, 388 (28%) of eligible cases were mediated. Of these, 74% resulted in an agreement that avoided eviction, which translated into eviction being avoided through mediation in 20% of all cases filed.

Overall Positive Experiences

In post-mediation surveys, both landlords and tenants in general indicated they had a good experience in mediation: 61% said they were highly likely to recommend mediation to a friend. They also indicated they experienced procedural justice, with 73% indicating the mediator treated them extremely fairly and 80% indicating they were treated with very much respect. Their perception of whether they were able to talk about what was important to them was lower, however, with 54% rating this highly. Attorneys were more likely to rate their experience highly overall: 71% were highly likely to recommend mediation to a colleague.

The one area of concern is that 19% of parties who responded to the survey wrote comments indicating they believed the mediator was biased or not active enough in helping them resolve their dispute, which equaled the percentage who wrote positive comments about the mediators’ fairness and helpfulness. RSI is investigating this further, with the hopes of identifying whether certain mediators may need further training.

Access, Tech Use Examined

We also asked survey respondents how they accessed the video mediation, whether they needed to borrow a mobile phone or computer from someone, whether they had to leave their home to attend the mediation, and whether they had any technical difficulties. Approximately 6 in 10 tenants used a mobile phone to participate, and almost everyone else used a personal computer. Our sample is very likely biased, as those who have ready access to the internet would be more likely to respond to the survey; nevertheless, we found that only 2 of 49 respondents borrowed a device and three went to someone else’s home. Five attended from work. Ten of 56 respondents indicated there were technical issues during their mediation. These included problems connecting, bad connections, people getting disconnected and someone’s microphone not working.

Support Breeds Success

When I interviewed the judge and program staff for an implementation report on the program, I found the judge was very supportive of the program and that both he and program staff believed landlord and attorney buy-in was essential to the success of the program. The evaluation indicates that the judge’s support was instrumental to the program’s high rate of referral and that landlords and attorneys who completed surveys generally had favorable opinions of the program. These both support the general belief that both judicial support and party buy-in are necessary characteristics of successful programs.

New RSI Report Sheds Light on Family ODR for Thinly Resourced Parents, Courts and Communities

Susan M. Yates, October 26th, 2022

Do you have a project that you started before the pandemic that you had to put on the back burner in the face of many urgent tasks? I did, but not anymore! I am thrilled to say that RSI’s report, “Family Court Online Dispute Resolution for Thinly Resourced Parents, Courts and Communities: Impediment, Improvement or Impossible Dream?” is now available online.

RSI is very grateful to the JAMS Foundation, whose generous funding made this project possible. We are also thankful to many others who contributed to the project, who you can learn about in the report.

Why RSI Did this Project

Having worked with court mediation in its early years, in recent years I have been witnessing similar responses to court online dispute resolution (ODR). There are proponents who see ODR as a great way to make court systems more accessible, less expensive and quicker. However, some also have significant concerns about issues such as whether ODR will be fair and accessible, who will pay for ODR and what might be lost by relying on technology.

RSI wanted to sort out whether family ODR could improve access to justice for thinly resourced parents who were in court over child-related issues (e.g., parenting time and decision-making), which we know is an area of great need in many jurisdictions. We were especially interested in how family ODR might work in jurisdictions and communities that were also thinly resourced.

Structure of the Project

We created a framework for the project. It is a series of steps – each building on the previous steps – that walks through a process of considering what it would take for family ODR to be accessible, ethical, effective, feasible and sustainable.

To work our way through that framework, we:

  • Conducted research on the literature and the state of court ODR
  • Surveyed state alternative dispute resolution (ADR) and ODR leaders
  • Surveyed 37 national experts working in academia, ADR, court ADR, court administration, family law, funding, intimate partner violence, judging, legal aid, legal technology design, ODR, self-represented litigants and technology
  • Convened those 37 experts three times
  • Drew on RSI’s organizational experience

The data used in the report reflects the status of ODR in 2020. Because the project was already delayed by the pandemic, we decided not to continue to update the report as new programs were developed and new resources became available.

Tensions

Through the above work, we identified three tensions that must be resolved in order for family ODR to serve thinly resourced parents, courts and communities.

1. The desire to serve all parents is in tension with the limitations imposed by the thinly resourced environment explored in the project.

Courts have a responsibility to protect potentially vulnerable parents and ensure ODR is accessible and ethical. However, courts that are thinly resourced are unlikely to be able to provide the full range of services recommended by some experts to ensure ODR is accessible for all parents. The services include, for example, individualized education for each parent about their rights, personalized counseling for each parent about their best options, and one-on-one assistance while using ODR. Indeed, in our experience working with courts, it is likely that these thinly resourced courts would be looking for ways to reduce their costs by implementing ODR, not to increase costs because of a need for additional services to supplement ODR.

To address this tension, a safe tradeoff can be constructed by drawing on a long-established requirement of in-person family mediation. Prior to mediation, each parent must be screened individually to determine if a party has experienced intimate partner violence or other coercive behavior in the relationship that would make participation in a traditional mediation unwise. This need for screening is also true for family ODR.

This screening can be expanded to address the concerns specific to ODR, such as issues related to language, disability or access to the internet. The screener would assist the parents in finding ways to access ODR (e.g., how to involve a translator), would work with them to determine if mandatory participation in ODR is appropriate (e.g., in the case of an insurmountable barrier due to a serious illness or a violent relationship), and would help them access other suitable services when needed.

Screening some parents out of ODR will reduce the number of families that can benefit from ODR. However, it will also help to ensure that ODR is accessible and ethical for the parents who do participate.

2. There is a tension between the need for voluntary decision-making (to help make ODR ethical) and the need for participation (to help make ODR effective).

Neither the literature nor the gathered experts agree on whether mandatory or voluntary participation is inherently better. There is, however, a way to address this tension.

A safe tradeoff can be accomplished — as is sometimes the case with in-person family mediation — by requiring that parents who are not screened out of ODR try an initial ODR step. Because this comes after screening, it avoids requiring parents to use ODR if they are unable to participate in ODR or if they should not participate in ODR for any of a variety of reasons. It also increases the likelihood that a court ODR program will serve enough parents to make it effective by requiring that parents at least try ODR.

3. There is a tension between the cost of accessible, ethical, effective family court ODR and the ability of thinly resourced parents, courts and communities to pay for it.

The project pondered ways to resolve that tension, i.e., how to pay for quality court ODR. In the end, this tension could not be resolved. The project was unable to identify a feasible, sustainable path by which family court ODR could be provided nationwide to parents who need it via courts that cannot afford it.

Recommendations

The report resulted in nine recommendations.

1. Support family ODR
There is a need for family ODR despite the growth in family ODR and the availability of family ADR in some areas. There should be nationwide support for providing family ODR to thinly resourced parents, courts and communities.

2. Develop national standards for family court ODR
National standards for family court ODR should be developed and promoted. They should provide definitions; descriptions; guidance and, potentially, specific measurable criteria. The standards should articulate how to ensure family ODR is accessible, ethical and effective.

3. Consider how to assess whether family court ODR meets the standards
During the development of the standards, the question of how to assess whether court programs and vendors meet the standards should be addressed. For example, who would conduct the assessments? What would be the impact of any finding by the assessment?

4. Ensure every participant has a live conversation with a screener prior to ODR
There are situations in which some parents should not participate in ODR; therefore, every parent should engage in a live telephone or video conversation with a screener prior to using ODR. Together, they should explore whether: there was or is any intimate partner violence in the relationship; they have access to ODR; they are comfortable communicating in a language in which ODR is offered; they are comfortable with ODR technology; they are experiencing any mental illness or substance use issues that prevent them from participating in ODR; and they might need any accommodations as a result of disability.

5. Investigate the potential for a national program to conduct screenings
In many places across the country, parents are not routinely screened prior to family mediation. We see the same practice developing with family ODR. A national program is needed to offer screening that is affordable for thinly resourced parents and courts that cannot afford to pay screeners for ODR.

6. Require every parent who is not screened out of ODR to make an initial attempt to use ODR to identify areas of agreement with the other parent
Requiring parents to attempt to use ODR after screening will provide an ethical combination of screening parents out of, and mandating them into, ODR. It will encourage the maximum number of parents to try ODR, thereby increasing the opportunity for effectiveness, but not require parents who are unsuited to ODR to use it. Parents who do use ODR should not be required to reach agreement using it, but the experience of trying the initial step can also encourage parents to keep using ODR if they find it to be easy to use and helpful.

7. Provide guidance and model materials to courts developing ODR projects
Reliable, curated resources presented in an accessible format can help prevent courts from having to reinvent the ODR wheel. These resources could include, for example, guidance on how to determine what ODR processes and platforms to use, what standards to apply, how to select a vendor and what best practices are. These materials should also include model outreach and educational materials such as text for summonses, websites and communications with parents, as well as videos to which local court information could be added.

Courts also need assistance from experienced, knowledgeable experts to put those resources to work. Courts and communities with the least resources should be actively contacted, made aware of the resources, helped to assess whether there is a need for family ODR in their jurisdiction and, if there is a need, supported as they implement family ODR.

8. Enable courts to assess and improve their family ODR services
ODR platforms generally can provide regular statistical information on how ODR is functioning. Courts may need assistance determining what data they need, working with their vendor to obtain the data, and learning how to draw useful information for reports. Video mediation apps, such as Zoom, do not have built-in reporting mechanisms. Courts using video mediation will therefore need to devise other ways to collect critical data.

Courts also need to ensure parents are experiencing procedural justice when they participate in ODR. For courts using ODR platforms, this will likely require the insertion of surveys into the ODR system or the adaptation of surveys provided as part of the ODR platform. Courts using video mediation will need to survey parties about their mediation experience another way, e.g., by email or text.

Additionally, courts should participate in comprehensive program evaluations when possible. They should share results of these evaluations with other courts and with ODR providers to inform other ODR programs.

9. Investigate the potential for a national family court ODR provider
Although the project did not identify an entity that would be able to establish and sustain a national provider of family ODR, it is still possible that a resource-rich home for family ODR exists somewhere. Individuals and entities that are concerned with services to thinly resourced parents, courts and communities should explore whether there is a deep-pocketed funder who would commit to a multi-year national program.

Conclusion

This project investigated the study question, “How might family court online dispute resolution serve thinly resourced parents, courts and communities?” It found that family court ODR can be an impediment to access to justice if not provided in an appropriate manner. However, if it is provided in a manner that is accessible, ethical and effective, family court ODR can improve access to justice. Doing so will require standards for family court ODR, as well as resources to support the provision and evaluation of ODR. It will also necessitate comprehensive screening conversations with all parents prior to ODR, which will enable courts to require that all parents who are not screened out attempt at least an initial stage of ODR.

In the end, whether family ODR that is accessible, ethical, effective and feasible can be provided nationwide to parents who need it, despite limited family, court and community resources, remains an unanswered question and potentially an impossible dream. There is no clear path to determining how to sustain family court ODR services.

Use of Joint Session to Open Mediation Influenced by Lawyers and Geography

Dee Williams, October 18th, 2022

Historically, mediations would begin with a joint introductory session with all parties discussing the case together along with the mediator, and the parties having the opportunity to discuss their issues and interests directly in a guided conversation. Mediations would either continue in joint session or move into separate caucuses, depending on the course of the conversation and the preferences of the mediator. In the last 10-20 years, however, it has become increasingly uncommon for mediations to begin jointly.

In “Joint Session or Caucus? Factors Related to How the Initial Mediation Session Begins,” by Roselle Wissler and Art Hinshaw (Ohio State Journal on Dispute Resolution, September 2022), the authors report the findings of the first study to examine the relationships between the way in which mediation opens and a wide range of factors. It found that although many mediators suggest tailoring the structure of mediation to the needs of an individual case, the likelihood of mediation beginning with a joint session is instead tied to whether the parties are represented by an attorney, whether the mediator has a law degree and where in the US the mediator resides.

Wissler and Hinshaw note that there is significant disagreement as to whether joint opening sessions are still needed. Some possible benefits of such a session include that it would provide: a chance to explain to parties the process and the issues at hand and make sure all are on the same page, a chance to open channels of communication and foster understanding between opposing parties via face-to-face communication, and a chance for the mediator to observe the dynamic between the parties and establish a rapport. There are also some who argue that the existence of mediation-informed lawyers and pre-session discussions between parties and mediators, as well as the changing landscape of mediation proceedings (which frequently includes more “impersonal” civil and commercial cases with little or no pre-existing relationship), obviate the need for these sessions.

Many mediators and lawyers, rather than advocating for or against joint opening sessions, suggest tailoring the structure of the mediation to the needs of an individual case. They indicate that joint opening sessions may be helpful in situations where litigants may not be well informed about each other’s positions and/or when there exists a continuing relationship between parties. On the other hand, joint opening sessions may not be recommended if the relationships between parties are highly contentious, or when violence or abuse is involved.

Study

To examine the factors involved in how mediations begin, Wissler and Hinshaw conducted a survey among civil and family mediators with publicly available contact information in eight states across the US. They limited participation to those who had mediated civil or family disputes (outside of small claims or probate) involving only two parties within the US in the last four months. Out of 5,510 mediators who received an email invitation, 1,065 (19.3%) responded. Respondents were asked to focus on their most recent concluded mediation in their responses. Both family and civil mediators’ cases mainly came directly from lawyers or court mediation programs/judges.

Findings

Wissler and Hinshaw found that joint opening sessions have not been replaced by pre-session communication, as there is no correlation (or in civil cases, there is a slight positive correlation between pre-mediation communication and…) between whether litigants are present in pre-session communications and whether the mediation begins in joint session. Joint opening sessions have also not been obviated by litigants being more informed (either by the mediator in pre-session communication or by their lawyers) about the mediation process and the issues at hand. In general, issues discussed in pre-session were more likely to be brought up in the mediation session proper, not less likely – so these communications are not taking the place of communication in a joint opening session.

Similarly, the findings suggest that the way mediation begins is not strongly related to dispute characteristics (such as disputants’ prior experience with litigation; the presence of non-monetary issues in the case; or the presence of abuse, harassment, or violence between disputants). Joint session was more likely when litigants had the goal of speaking face-to-face (90% vs 70% in civil cases, 92% vs. 54% in family cases) or preserving their relationship (86% vs 63% in family cases), suggesting that it is more likely to occur when litigants have goals that are in line with a desire to communicate directly with the opposing party.

Several sets of findings address the hypothesis that lawyers generally do not wish for joint opening sessions. Mediation was less likely to begin in joint session when the mediator had a legal background or a history as a neutral evaluator (59% vs 77% in civil cases), or when one (67%-82%) or both (57%-72%) of the disputants was represented by an attorney, compared with when neither disputant had an attorney (88%-95%). It was also less likely to begin in joint session in cases referred from lawyers (33%) compared with any other source, and less likely to begin in joint session when mediators said the lawyers were the parties with the most influence over how mediation began (17%).

The state in which the mediation took place had a large impact on likelihood of beginning in joint session, as did the mediator’s history in terms of how frequently they opted to begin in joint session. Out of the states surveyed, mediation is most likely to begin in joint session in Maryland, New York and Illinois and least likely to do so in Utah.

Wissler and Hinshaw note that, taken together, the findings suggest that the recommendation to determine how mediation begins on a case-by-case basis, tailored to the nature of the particular dispute and the needs of the disputant, is largely disregarded.

New Reports Describe Successes, Challenges in Launch of Eviction Mediation Programs in Illinois’ Kankakee, Winnebago Counties

Jennifer Shack, September 19th, 2022

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.

In late 2021, the 17th Circuit and 21st Circuit courts of Illinois launched eviction mediation programs with RSI assistance. RSI now administers the programs remotely. I had the pleasure of interviewing the judges and program administrators involved in the planning and implementation of the programs. The purpose was to help other courts interested in starting eviction mediation programs by better understanding how the programs work and the challenges and successes they experienced during the planning phase and post-launch. The resulting reports for the 17th Circuit and 21st Circuit are now available.

Photo by eskay lim via Unsplash

Both programs started with the same program design and initially relied on the same program coordinator, who administered the programs remotely with the help of an assistant. For both programs, the program coordinator or the program assistant attended court calls remotely so that when the judge referred cases to the program, they could obtain party contact information and other case details that would help them to administer the program. Parties had access to rental assistance, and mediation was held via Zoom by paid mediators. The programs got off to a slow start but have begun to see more referrals.

17th Circuit Program

The 17th Circuit program, serving Winnebago County, launched in September 2021, but started seeing regular referrals in January. The mediation program was conceived as a partner service to rental assistance.[1] Winnebago County had the benefit of two agencies that could process rental assistance applications quickly and that could have representatives present at the court call. Because rental assistance was readily available to most tenants, the judge decided to refer cases to rental assistance first, then authorize mediation for cases in which the assistance was denied. 

Initially, the program coordinator did not have an easy way to follow up with the tenants to see if they had been approved for rental assistance and whether they wanted to mediate. Seeing an opportunity for the program to do more, the court and RSI decided to have the program coordinator help move tenants through the rental assistance application process. She now follows up with tenants to be sure they have applied for rental assistance and helps get them in contact with a rental assistance agency if not. This helps her to identify cases that need mediation and to schedule them for mediation if the tenants agree to participate.

Lessons Learned

Coordination with program partners may improve buy-in

RSI did not have the staff capacity to take on the role of coordinating program partner communications and needs during program development. According to RSI’s associate director, this resulted in more landlord resistance to the program than in another circuit whose eviction mediation program RSI helped develop. In that program, there was ongoing communication among the program partners, and their perspectives were incorporated into the program rules and process. There, attorneys for landlords and tenants, as well as representatives from the rental assistance agencies and court staff, met regularly before program launch to discuss program development and after the program launched to discuss any issues with the program and its processes.

Communication is essential

The program coordinator and the program assistant both indicated that the open communication with both rental assistance agencies is essential to the smooth running of the program and to ensuring that those who need mediation are offered the opportunity. Communication with the judge is also necessary. The judge initially referred cases to mediation based on a narrow set of criteria. The program coordinator and the program manager have been discussing with the judge the benefits of mediation in other circumstances.

Judge support is key

The judge promotes use of the program both by informing the parties of the resources available to them and strongly encouraging parties to attend mediation.

Tenants need help obtaining rental assistance

Not all tenants are capable of navigating the process of obtaining rental assistance, particularly in the short time frame required by the court’s eviction process. The program coordinator has found that she often needs to explain to tenants what they must do to apply and to follow up to be sure they do so in a timely manner. In addition, she often must explain to tenants what the status of their application is, because they do not always understand their situation.

Good program administration is important

The judge indicated that the program coordinator’s follow-up with tenants about their efforts to obtain rental assistance has helped to move parties through the application process. The program coordinator indicated that this case management has allowed her to identify cases suitable for mediation and has led to more cases being mediated.

It’s helpful to meet with landlords before program launch

The judge noted that outreach to landlords helped to assuage landlords’ fears about the program, reducing resistance to it.

The mediation program may need to evolve

The program may not work the way originally planned, or the original plan may not lead to the most effective provision of services. In this case, the judge’s desire to wait to mediate cases until after rental assistance was denied led to a need to reconfigure the program coordinator’s role.

21st Circuit Program

The 21st Circuit program, serving Kankakee County, launched in December 2021 but saw its first referrals in March 2022. In the 21st Circuit, the reasons for the slow start were complicated. The judge, who was assigned to hear evictions after the program planning phase, was supportive of mediation but had a narrow view of which cases were appropriate. Further, there was no funding for the program during the planning phase, so RSI did not have the staff to engage with stakeholders to get their input and their buy-in. This may have played a role in resistance to mediation among the plaintiff’s bar.

The mediation program was conceived as a partner service to rental assistance,[2] with parties having access to both at the same time. The judge was given the authority by local court rule to order cases to mediation, which she uses when she believes referral to mediation is warranted. Though the court and its partners did not integrate rental assistance with mediation, in practice, the judge refers cases to mediation when she determines the tenants do not know about the resources available to them. The program coordinator has thus taken on the role of helping self-represented tenants, who make up the vast majority of defendants, navigate the rental assistance process. The rental assistance agency has been less involved in the program than the agencies in the 17th Circuit, and has determined that it cannot inform the program coordinator of the status of rental assistance applications due to privacy concerns. This has made it more difficult to help tenants, and mediations often take place without knowledge of whether the tenants have been approved for rental assistance. 

Lessons Learned

Many of the lessons learned were similar to those for the 17th Circuit, but for different reasons.

Coordination with program partners may improve buy-in

Because of a lack of funding during program planning, RSI was understaffed and could not take on the role of coordinating program partner communications and needs. According to the associate director, this resulted in more landlord resistance to the program than in another judicial circuit, in which there was ongoing communication among the program partners and the incorporation of program partner perspectives into the program rules and process.

It helps to remain flexible

The mediation program went through some growing pains, and both the court and the program coordinator needed to figure out how to best work together and to best manage cases. This effort is ongoing but appears to be bearing fruit.

Communication is essential

Lack of communication with the court led to a slow rollout of the program. This has changed as communication has improved. Lack of communication with the rental assistance agency has made it more difficult to assist tenants and to reach agreements in mediation.

Judge support is key

Although the eviction judge came onto the bench after the program had been planned, and therefore needed some time to acclimate to the mediation program, she believes there is a place for mediation in eviction cases. This has led to a greater number of referrals as time has passed.

Good program administration is important

The judge relies on the program coordinator to help tenants navigate resources and to gain access to rental assistance. This has broadened the scope of the position and has required greater case management skills. 


[1] State and federal funds have been made available that provide eligible tenants up to $25,000 to pay past and future rent. The county disburses the funds, which are sent directly to the landlord.

[2] State and federal funds have been made available that provide eligible tenants up to $25,000 to pay past and future rent. The county disburses the funds, which are sent directly to the landlord.

Significant Participation, Agreement Levels Highlight Potential of ODR for Family Cases

Jennifer Shack, August 31st, 2022

University of California, Davis, Professor Donna Shestowsky and I recently had the pleasure of conducting the first neutral evaluation of any family law court online dispute resolution (ODR) program in the United States. The program was launched by the 20th Circuit of Michigan’s Friend of the Court (FOC) in August 2020 with the goal of providing parties with post-judgment family law disputes a simpler, more convenient and cost-effective way to reach agreements related to child custody, parenting time and child support. It also aimed to increase efficiency in the disposition of these matters. By and large, we found that the program was providing the benefits the FOC hoped it would.

What We Studied

The FOC used Matterhorn’s text-based ODR platform, which allows participants to communicate with each other and their caseworker via asynchronous text messages and document exchanges. We used case data, ODR data, pre- and post-process party surveys, and staff interviews to gain insight into:

  • Parties’ expectations for the ODR process at the time it was offered to them, and their views on a video mediation alternative
  • ODR access, including the percentage of parties who participated and opted out, information about ODR available to parties, and parties’ capacity to use ODR
  • Participants’ evaluation of their experience of ODR in terms of procedural justice, satisfaction, fairness of the process, and ability to control the outcome of their matter
  • Parties’ impressions of the FOC and the other party
  • The agreement rates, hearing rates, and efficiency (time to disposition, caseworker time spent on matters) associated with ODR use
  • Direct costs and the FOC’s staff members’ perceptions of the effect of ODR on their work

Excitement and Anxiety

We found that before ODR, parties tended to be confident they could reach agreement, but the majority did not believe the other party would be truthful. They expressed high levels of excitement about using ODR, but also high levels of anxiety. Those who were planning on using it were twice as likely to report a high level of fear of the other party as those who weren’t sure they would, or who were not going to, use ODR.

Because of the platform’s technological limitations, caseworkers did not offer ODR to parties who had attorneys, those who had limited English proficiency, or to those who were blind or visually impaired. In addition, the FOC had decided that those who had a history of a high level of conflict would not benefit from ODR, and they were therefore not offered the opportunity.

Uptake Higher than for Other ODR

Almost half of the parties who were offered the chance to use ODR did so, which was high compared with other early ODR programs, which have had participation rates of 21% to 36%. In half the cases in which ODR was offered but not used, at least one of the parties simply did not register to use it despite the FOC’s intent to require its use. We noted that the emails sent to the parties informing them to register for ODR used language that could have confused the parties both about what the program was and their requirement to participate.  We also found that parties lacked an understanding of the main features of the program. This, too could have reduced program use.

A surprising finding was that almost all parties who used ODR accessed the platform with their mobile phone at least part of the time. Only 8% exclusively accessed the platform with a computer, while 71% only used their mobile phone. This indicates that the platform and any auxiliary activities, such as communications to the parties and agreement forms, must be optimized for phones.

When parties used ODR, they were four times as likely to give high ratings for fairness of the process as those who did not use ODR (50% vs. 12.5%), and twice as likely to give high ratings for satisfaction (50% vs. 25%). They were also much more likely to reach agreement than those who were offered ODR but didn’t use it (59% vs. 11%). In cases involving child support, parties using the online platform reached resolution nearly twice as fast as those who did not.

Positive, with Room for Improvement

Our evaluation indicates that the FOC’s ODR program has provided parties with a positive experience, improves agreement rates and reduces time to resolution for some cases. Program use is high in comparison with other programs.

However, our analysis suggests that the FOC could do more to educate parties about the program, direct parties to use it, and increase access to parties with disabilities as well as those who need an interpreter’s assistance to use the platform. The FOC should also explore ways to reduce access barriers for those identified by caseworkers as less likely to use or benefit from the program because they have lawyer representation or have high-conflict relationships. Attempts to reduce access barriers should also be directed at those who lack digital literacy and those who would use their mobile phone to access the platform. Our evaluation was limited by a small survey and case data sample size, which may have obscured statistical significance of some findings and did not allow us to conduct more detailed analyses of participant experience. We are looking forward to seeing more evaluations of ODR programs conducted, to build on our findings.