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Courts Can Take Steps to Design Text-Based ODR Programs that Better Serve Parties

Jennifer Shack, June 22nd, 2023

While conducting two of the first independent evaluations of text-based online dispute resolution (ODR) programs in U.S. state courts, Donna Shestowsky and I found those programs promoted access to justice in some ways, but inhibited it in others. To help other courts, we wrote an article about how they might reduce potential barriers when developing and implementing their text-based ODR programs. The following is a summary of our advice from the article, “Access to Justice: Lessons for Designing Text-based Court-Connected ODR Programs,” which was recently published in Dispute Resolution Magazine, a publication of the American Bar Association.

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).

New, Free IPV Screening Tool Can Help Ensure that Mediation is Safe and Fair

Rachel Feinstein, June 14th, 2023

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.

Screenshot of the webpage for MASIC-S, a new tool to screen for interpersonal violence and abuse.
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.

New Eviction Mediation Special Topic Offers Courts Guidance in Midst of Housing Crisis

Just Court ADR, June 25th, 2021

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 of Dispute Resolution Foundation. The AAA-ICDR’s grant is enabling RSI to expand our outreach to other court ADR colleagues working in the fast-evolving eviction field, and we are tremendously grateful to the Foundation for their support.

Those of you familiar with Resolution Systems Institute will know that over the past year, we have been heavily focused on the rise in eviction cases in the aftermath of COVID-19. This evolving eviction crisis has begun to, and will continue to, test the capacity of our court systems in a way likely not seen since the foreclosure wave of the last decade.  RSI’s mission is to strengthen access to justice through court ADR, and with many courts looking at diversion efforts to address a surge in eviction cases, we see both significant opportunities and challenges ahead to ensure that participants receive due process.

We are thus very proud to share with you our new Eviction Mediation Special Topic. In the past, we have shared with you our Special Topics collections on subjects such as Child Protection Mediation, Community Mediation and Online Dispute Resolution, to name a few. These resources provide background on how court ADR programs address these cases, share insight into how to evaluate such programs and share relevant resources such as articles, evaluations and sample materials.

The Eviction Mediation Special Topic contains all of this information, with a slight twist. Due to the topical nature of this subject, we have prepared this resource in the context of the current crisis. Background information and certain resources are therefore presented with current events in mind, and we also have a section about key considerations we have learned thus far into the eviction crisis. Additionally, we have done our best to collect information on active court ADR eviction programs, captured in our Eviction ADR Across the Country database. We plan to update the Special Topic regularly as developments unfold, and new collective knowledge becomes available to the field.

We are sincerely grateful to the American Arbitration Association-International Centre for Dispute Resolution Foundation, whose generous funding has enabled us to create and share this resource.

Recently Added Resources to RSI’s Resource Center

Nicole Wilmet, June 23rd, 2021

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.

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

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