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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.

Does ADR + Tech = Better Access to Justice? RSI Spent Much of 2022 Trying to Find Out

Sandy Wiegand, May 2nd, 2023

RSI spends a lot of time and energy studying the conditions under which court-based alternative dispute resolution (ADR) can best improve access to justice. In recent years, that has often meant using new technologies and/or assessing their impact.

As is often the case with innovations, ADR options that employ new technology are sometimes hailed as the solution to longstanding challenges. For example, online dispute resolution (ODR) is celebrated for its potential to increase access to justice by allowing parties to engage on their own schedules, in their own spaces. Unfortunately, however, technological innovations can also bring challenges and create their own barriers to justice.

RSI’s 2022 annual report asks the question: Does ADR + Tech = Better Access to Justice? Our staff spent much of last year examining that premise. We published two landmark evaluations of court programs that used ODR-specific platforms; completed an in-depth report on the potential for ODR to serve thinly resourced parents, courts and communities; and used video mediation to serve hundreds of clients in northern Illinois. We also evaluated how those programs were operating and how participants viewed them.

Our annual report outlines these efforts and summarizes some of our findings. Not surprisingly, we found both promising signs and causes for concern when it came to technology’s impact on access to justice. We also discovered a lot more questions that need to be answered and problems that need to be addressed.

We hope you will take the time to read the Resolution Systems Institute 2022 Annual Report and review what we have learned so far. The role of technology is, of course, just one of many aspects of court-based ADR that RSI is examining. Please join us as we continue exploring what technology can and can’t solve, as well as other keys to providing cost-effective, timely and fair conflict resolution.

Rethinking Party Safety in Online Mediation

Dee Williams, January 19th, 2023

The COVID-19 pandemic has led to online mediation becoming far more common in family cases than it was previously. This shift from in-person to video mediation has both benefits and potential pitfalls when it comes to participant safety, as discussed in a recent article by Erin R. Archerd.

In her Winter 2022 Stetson Law Review article, “Online Mediation and the Opportunity to Rethink Safety in Mediation,” Archerd describes some of the security benefits and challenges of mediating online, recommends steps mediators can take to enhance party security in online mediation, and calls for a more expansive conception of safety for mediations in general.

Photo by Liza Summer via Pexels

Some observers argue that online mediation can be safer than mediating in person because of the physical distance between the parties. Archerd acknowledges this benefit, but also sees a downside. She notes that when mediating in person, a mediator can personally ensure that the room has safe exit routes for all parties in case of a confrontation and that the mediation is not observed or interrupted by an unauthorized party. Such assurances are more difficult online. Additionally, Archerd states that interacting via camera also entails the loss of some of the nonverbal cues that mediators might normally use to assess parties’ senses of safety. To make up for this, she suggests that — once screening for impediments has been completed and the mediator and parties decide to go forward with­ mediation — mediators hold private pre-mediation sessions with each party. During such a meeting, the mediator can go over the security of the parties’ mediation locations, make sure they will be in a safe and appropriately private environment during the mediation, and establish ways to communicate if the party is being watched or intimidated from off-screen. Mediators can do something similar on the day of mediation by holding a private session with each party prior to joint session to ask them to describe their space and ask whether they feel they can safely complete the mediation process.

Maintaining confidentiality in an online mediation also requires more work, since mediators are not able to monitor all aspects of the space in the same way. Archerd recommends that mediation agreements make it clear that unauthorized parties should not be present at the mediation. In addition, mediators should communicate with parties in advance about how to ensure privacy in their mediation locations. At the start of the mediation session, mediators should confirm with parties that they are not recording and that no unacknowledged parties are present. Another aspect of safety is the long-term well-being of participants: Mediators conducting mediations online need to be sure they are well connected to “wraparound services” such as domestic violence or special education resources. Archerd notes that lack of access to in-person meetings can hamper feedback that would otherwise be received about the overall well-being of parties, and greater effort to connect parties to required services may be beneficial in online mediation environments.

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.

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