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.
Text-based online dispute resolution (ODR) programs are often touted as a way to increase access to justice. They are seen as more convenient, less costly to parties, and less intimidating, and thus as having the potential to reduce the default rate, particularly for debt cases. Yet early evaluations of ODR programs have found that they suffer from low participation. An information gap, worsened by the prevalence of low literacy, contributes to this low participation.
Through a generous grant from the AAA-ICDR Foundation, RSI’s ODR Party Engagement (OPEN) Project hopes to address this problem by gaining insights from impacted populations and using those insights to develop guidance on communication materials for small claims courts that use ODR.
The Information Gap
RSI’s ODR evaluations found that parties were often unaware of their court’s ODR program or did not understand what ODR was and how it worked. We identified deficiencies in the language the courts used to inform and educate parties, and in how the information was provided. In Utah, a usability study found that parties did not always understand the information provided and wanted more information than was offered.
These evaluations point to a need for better information to apprise parties that an ODR program exists and educate them about the program. Then they could knowledgeably decide whether the program might benefit them, understand what the risks may be, and learn how to use the ODR platform.
Need for Digital Hand-holding
Informing parties properly has become more important with the increase in self-represented litigants. According to the Program for the International Assessment of Adult Competencies, 48% of US adults struggle to perform tasks with text-based information, such as reading directions, with 19% only capable of performing short tasks.
Some courts have changed their approach to helping parties, with varying success. But even those that recognize the need to serve their constituents better may not realize they have a communication problem. Recently, the Colorado Supreme Court conducted a listening tour throughout the state to find out how it might better serve the state courts’ constituents. The main takeaway was that people with low literacy could not understand the courts’ communications to them.
Some courts have instituted alternative dispute resolution (ADR) programs, such as RSI’s virtual eviction mediation programs, that involve access to a program administrator to help parties navigate the program. Small claims ODR programs are different. These programs require parties to use ODR before their first hearing, and they often do not have a designated staff person to help those who have the wherewithal to reach out to the court on their own. Without a person to “hold their hand” through the process, parties need digital hand-holding.
RSI’s Project Goals
To engage and educate parties, courts should offer ODR participants materials that are easy to understand and to access via multiple methods (e.g., mailed notices, videos, text guides). A recent readability study of court forms found that simplifying the text used in the forms increased participants’ understanding of the purpose of a subpoena from 29% to 70%.
Courts generally do not have the knowledge or capacity to develop materials that can be readily understood by people with low literacy. For the OPEN Project, RSI will conduct a series of focus groups and apply their findings, along with best practices developed from prior research, to develop guidance on communication materials for small claims courts using ODR. Cases such as debt, landlord-tenant, eviction and consumer-merchant cases are likely to benefit.
OPEN aims to make access to justice more equitable for self-represented, diverse populations who are either required or offered the opportunity to use text-based court ODR for debt and small claims cases.
For mediation to be successful, it is considered essential that the involved parties trust the mediator. Yet little research has been done to determine whether any particular mediator behaviors help to engender party trust. RSI intends to change that. With a generous grant from the Rackham Foundation, we are undertaking an exploration of the intersection between mediator behaviors and party trust.
Two Potential Phases
During this exploration, we will observe mediations, code mediator behaviors, survey parties before and after mediation, interview mediators and collect outcome data. The purpose will be to test the mediator behavior codes, data collection instruments, research protocols and hypotheses to determine whether research of this type can provide useful information.
If we find that our research is fruitful, RSI will undertake a full research project to determine which, if any, mediator behaviors impact party ratings of trust in the mediator and other procedural justice components, and whether mediation resulted in agreement, among other factors. Our ultimate goal is to provide mediators and trainers with concrete information about behaviors that are more likely to engender party trust in the mediator and result in a satisfying, successful mediation. This project will lay the foundation for work toward that goal.
Seeking Site for Observation
We plan to observe a limited number of mediations at two sites with mediators with different training and backgrounds. We have identified one but are seeking another. If you are interested, please contact RSI Director of Research Jennifer Shack.
We are grateful to the Rackham Foundation and to Ava Abramowitz, who has championed this research, for this opportunity. She and her research partner Ken Webb have developed and tested the coding scheme we will be using. Stay tuned!
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.
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.
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.