RSI has completed the first phase of the ODR Party Engagement (OPEN) Project! We are excited to share what we have learned from our research and to roll out new downloadable tools designed to support courts. A summary of our research, our full report and the tools can be found in a new section of our website.
The Study
For this extensive study, RSI conducted six focus groups with a total of 41 participants from three areas of the country. Our aim was to uncover barriers to using court-referred text-based ODR (online dispute resolution) and ways courts can address these barriers. More information about the study, a summary of the findings and key takeaways are available on the OPEN Project section of our website, in addition to the full report.
Tools for Courts
Informed by our research findings, RSI developed tools to help courts communicate more effectively about ODR. The two downloadable documents, “Communicating Effectively about ODR: A Guide for Courts” and a “Document Preparation Worksheet and Checklist for ODR Programs,” are both accessible on our website.
The Guide for Courts provides recommendations for developing documents, websites and video tutorials for ODR that are easy to understand and use, particularly for those who have low literacy and are self-represented.
The Document Preparation Worksheet and Checklist walks readers through each step of the document prep process, from considering the characteristics of the audience to determining the key content to include and the best way to communicate this content. Once documents are completed, the interactive checklist provides an opportunity to review the material and ensure all key recommendations were incorporated.
Next Up in Phase 2: Model Materials
RSI is very proud of what we have accomplished in Phase 1, and there is more to come! We are now starting Phase 2, in which we will work with an inclusive designer to create model court documents, a brief informational ODR video and a mockup webpage, using our findings from Phase 1 and previous research on best practices.
We will user-test these models to learn what barriers persist for people when attempting to use the models to register for ODR. After all our user-testing is complete and barriers have been addressed, courts will be able to download the final model documents, video and webpage to use as examples when developing their communications. This will provide added support to courts with limited resources, who will be able to simply replicate these models and tailor them to their specific needs and audience using instructions we will provide.
RSI is grateful for the generous support of the American Arbitration Association-International Centre for Dispute Resolution Foundation for making the OPEN Project possible.
Court adoption of text-based ODR allows parties to communicate asynchronously, at their convenience, from anywhere. This suggests that ODR has the potential to increase access to justice, particularly for self-represented litigants,[i] and could lead to increased efficiency and reduced costs for parties and courts alike.[ii] Conversely, however, for parties who lack digital literacy or access to technology, mandated ODR could instead benefit already advantaged parties and leave others behind. Furthermore, in some instances, mandating ODR could reduce access to justice by overriding consent and party self-determination.[iii]
The Texas and Michigan Programs
The programs we evaluated differed in the issues involved and the platforms used. In Collin County, Texas, we assessed a debt and small claims pilot program in a busy Justice of the Peace Court (JP3-1) that used the Modria platform. In Ottawa County, Michigan, we examined a program for post-judgment family matters brought to the Friend of the Court (FOC), an agency under the aegis of the Chief Judge of the 20th Circuit Court. The FOC used the Matterhorn platform. Both programs, however, were intended to be mandatory once the program was referred. And both required that the parties register and communicate via text on the ODR platforms.
Litigant survey responses suggested that many parties were unaware of the ODR program or did not understand its main features. When asked what would make them more likely to use ODR for a similar case in the future, half said more information.
Although the programs we evaluated used different ODR platform vendors, the platforms worked similarly and had comparable limitations. The platforms provided a chat space and permitted third-party facilitation or mediation. Neither was available to those with significant visual impairments or limited English proficiency. Both allowed only one individual per side to participate. This limitation meant that in Texas if a party had a lawyer, the lawyer participated alone. In Michigan, only parties could participate, and those who had lawyers were not referred to ODR.
Possible Reasons for Not Using ODR
Although ODR was ostensibly mandatory in both programs, the majority of parties in each court did not use ODR. In Texas, both parties to a case used the platform in only 81 of 341 cases (24%) referred to ODR. In Michigan, ODR use was twice as high: For the 102 matters in which caseworkers determined ODR was appropriate, 48% used ODR. In 26 of the 53 matters in which the parties in the Michigan program opted not to use ODR, at least one party did not register on the platform.
Survey and interview data suggest a few reasons parties did not use ODR. In both programs, staff indicated they did not send parties who lacked digital literacy to ODR, and litigant survey responses suggested that many parties were unaware of the ODR program or did not understand its main features. In the Texas program, of those who did not use ODR, 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.
In survey responses for the Michigan program, parties appeared to lack a basic understanding of how ODR worked. Half of the 50 parties surveyed near the start of their matter did not know ODR was offered free of charge.
According to Texas court staff, litigants received information about the ODR program via the notice the court sent to them (or their lawyers) about their court date, and through an email or text from the platform when the court uploaded their case to it — if the court had their email address or cellphone number. Both the notice and the email lacked information about how ODR worked. Similarly, the Michigan program’s automated email and text, platform, and FOC website missed opportunities to educate the parties.
Implications for Courts
Despite their accessibility issues, both the Texas and Michigan programs had similar access to justice benefits. Our evaluations suggest that for those parties who use ODR, the process is convenient. We found that 72% of ODR use in Texas and 52% in Michigan occurred outside of court and office hours, i.e., at times not available to them in traditional dispute resolution methods. However, in both programs, many parties simply did not register to use ODR. In addition, 50% of ODR users who responded to our survey noted that they liked that ODR was easy to use. These findings indicate that ODR can increase convenience.
Nonetheless, our finding that some parties lacked information or had nontrivial misconceptions about ODR also suggests parties did not always make informed decisions about whether to participate. To enhance access to justice and self-determination, courts should incorporate a communications plan. The plan should:
Specify how parties can learn about the program and detail what information court personnel should relay about ODR
Indicate what information about ODR to include on the court’s websites and the ODR platform to educate parties about how to use ODR and its potential risks and benefits
Outline outreach efforts to urge social services or other agencies to inform their clients about the ODR program
Additionally, courts should present information about ODR in a way that is comprehensible to individuals with low literacy. They should also explain the privacy and confidentiality implications of using ODR, especially regarding whether and how communications shared on the platform might be used in subsequent legal proceedings.
Further, ODR offerings should be accessible to all eligible parties. Courts should urge ODR providers to facilitate use by parties with visual impairments and limited English proficiency. Additionally, courts should direct parties who do not have reliable internet access to computers in the courthouse or other community locations — though as a result of limited business hours and privacy concerns, this solution is far from ideal.
Courts should also ensure that text-based platforms are user-friendly for smartphone users. In the Michigan program, 71% of participants exclusively used a smartphone for ODR. (We did not have information on the devices Texas ODR participants used.) Yet our findings indicate that text-based ODR may be difficult for smartphone users. Courts should urge ODR providers to include in-app voice control to facilitate ODR use on smartphones generally, a change that might be especially important for individuals with disabilities that restrict their ability to type. Parties should also be able to participate in ODR with their attorneys.
Finally, courts should explore ways to maximize access to their platforms for those who lack digital literacy. Usability testing, similar to that conducted for Utah’s ODR pilot program,8 can help identify challenges and potential solutions for given platforms. Courts might also consider providing parties with links to web-based resources or trainings that could increase their comfort with technology.
Given ODR’s current technological limitations and the percentage of the population that continues to lack reliable internet access or digital literacy, ODR is not a panacea for the continued access to justice problem in the U.S. Additionally, our evaluations suggest that parties have different preferences for how to resolve their disputes. To enhance access to justice, and to advance party self-determination, ODR might best serve parties as part of a constellation of alternative dispute resolution (ADR) options rather than being the only form of court-connected ADR.
[i] Amy J. Schmitz, Measuring “Access to Justice” in the Rush to Digitize, 88 Fordham L. Rev. 2381 (2020).
[ii] Amy J. Schmitz, Measuring “Access to Justice” in the Rush to Digitize, 88 Fordham L. Rev. 2381 (2020).
[iii] Amy J. Schmitz & Leah Wing, Beneficial and Ethical ODR for Family Issues, 59 Fam. Ct. Rev. 250 (2021).
Screening for interpersonal violence and abuse (IPV/A) is an essential step for making family mediation safer and more fair for all parties. Unfortunately, in “Joint Session or Caucus? Factors Related to How the Initial Mediation Session Begins,” Roselle Wissler and Art Hinshaw found that only 11% of surveyed family mediators screened for IPV, or had access to the screening results, prior to mediation (see footnote 85). A new tool, the MASIC-S, might change that. The MASIC-S is available free at ODR.com for all mediators. It is an abbreviated version of the Mediator’s Assessment of Safety Issues and Concerns (MASIC), which was developed in 2010 and is widely referenced for use in family mediation.
MASIC-S is an abbreviated version of the Mediator’s Assessment of Safety Issues and Concerns (MASIC). It is available for free at ODR.com (screenshot from website above) for all mediators.
RSI is particularly interested in this new tool in light of our 2018 project, supported by the Family and Interpersonal Resilience and Safety Transformation Fund, that studied IPV screening tools, surveyed experts in IPV dynamics (as well as lawyers, judges and mediators) on best and actual practices, and convened those experts to explore how to close that gap. The research led to an extensive report outlining RSI’s proposed solution and the steps to actualize it.
The questions in the MASIC-S focus on abuse in past or current relationships. Many of the questions have been validated, meaning that they accurately identify severe and concerning degrees of abuse, which the screening tool aims to assess. Mediators can screen parties during intake by privately administering the MASIC-S questionnaire in person or through videoconferencing. After each party has completed the questionnaire, the mediator will be prompted to consider specific questions regarding whether or not mediation is appropriate for the case, and if so, what accommodations might be necessary for a safe and voluntary process.
The Comprehensive Guidance provides detailed instructions for administering the MASIC-S, as well as directions to follow based on a party’s score. For example, if a party receives a score of 3 or higher, the guide recommends refraining from mediating jointly in-person; however, online mediation may still be a reasonable option. The Comprehensive Guidance even provides scripts to follow, such as what a mediator can say to safely terminate mediation without blaming either party or endangering a survivor.
The MASIC-S is also designed to protect confidentiality of the parties. For example, mediators do not record any identifying information that could connect responses to a particular person, and the results are not shared with the other party. Additionally, the responses are not stored online; mediators can instead download a PDF of the responses if they want a record of them. Using this abbreviated screening tool at intake can help to ensure mediation is appropriate for the parties and necessary accommodations are made for a safe and just process.
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.
As RSI’s Resource Center Director, I regularly adds new resources to the Research Library. The following list highlights a few of the resources that have recently been added.
