Over the past four years, I have had the pleasure of evaluating a few text-based online dispute resolution (ODR) programs in the courts. Two of the evaluations, which I conducted with University of California, Davis Professor of Law Donna Shestowsky, can be accessed via the Resolution Systems Institute website. The evaluations indicated that these programs show promise for making dispute resolution more convenient and accessible for some parties. But courts need to properly plan for their programs and address issues that can affect access and usage.
ODR poses an opportunity to lower barriers to access to justice by allowing parties to attempt to resolve their disputes without needing to travel or to take time off work. However, ODR, and text-based ODR in particular, can also raise barriers. Parties who do not have reliable access to the internet, who are not digitally literate, or who are significantly visually impaired may find it frustrating at best or impossible at worst to use text-based ODR. Additionally, those who use a smartphone to get on the internet or who have difficulty typing may be unable to fully participate if the ODR platform does not have voice activation technology.
Courts should consider how to address these barriers during the planning phase. For example, courts should consider giving the parties access to another dispute resolution process. Courts considering replacing in-person mediation with ODR might instead let parties choose between the two options. Courts that do not have in-person alternative dispute resolution (ADR) may want to design a program with at least two options.
As with any new initiative, courts need to take into account the diverse interests of those who will use or administer ODR. Courts can also benefit from the perspectives of those who assist individuals likely to be involved in the ODR program, such as tenants or those under financial strain. Bringing in interested parties helps to uncover possible issues before they arise, enhances the possibility of attorney buy-in, and enlists others to spread the word about the upcoming program. At minimum, courts developing ODR programs should include representatives from the plaintiff’s bar, the defense bar, and legal services. If a program involves debt or housing, social services agencies may also be able to provide insight into parties’ needs as well as the best methods for reaching out to potential defendants. Literacy and disability experts would be helpful in designing an inclusive process.
In our evaluations, Donna and I found that many parties either did not know about the program or needed better information about it. At the same time, we found the courts made little information available online for parties who wanted to learn more about ODR or how to participate. In both programs, the majority of parties did not use ODR despite ostensibly being required to do so.
To avoid this issue, courts should create a communications plan as part of the program planning process. The plan should specify how parties can learn about the program, including modes of communication (e.g., text, graphics, videos) that parties are likely to see at different points early in the case process (such as in the notice with their summons, on the court’s website, and on the ODR platform). Information provided should educate parties about how to use ODR as well as its potential risks and benefits. It 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 ensuing legal proceedings. The plan should also detail what information court personnel should relay about ODR so that they inform and educate parties uniformly.
The communications plan should include an outreach strategy. This strategy should not only alert the media. It should also include meetings with, for example, attorney organizations, advocacy groups, and social services agencies. Outreach must be a continual process. Individuals do not pay attention to information until it is relevant to them. Therefore, courts’ outreach strategies should include regularly occurring activities.
During the planning process, courts should attempt to identify and address any challenges the average party may have when attempting to participate in ODR. For example, I received word from one of the programs I evaluated that parties were abandoning the registration process, saying it was too difficult. Instructions on ODR use should be easy to understand, and the registration process should be as simple as possible. The less parties understand, the more likely they are to either not attempt ODR or to abandon the process before they begin.
Courts should also work with constituents to uncover stumbling blocks. For instance, an eviction ODR program I evaluated required the landlord or their attorney to enter the email address and/or cellphone number of the tenant. It became clear after the program launched that the landlord often did not have that information. Requiring that information led to frustration and invalid entries.
ODR — and particularly text-based ODR — is a new process for which most parties do not have a frame of reference. They will have questions and will need help navigating ODR. This may fall to the ADR program administrator, if there is one, or to court clerks if there is no program administrator. Courts should be aware that answering questions and dealing with issues associated with the platform could increase the staff’s workload. In one program I evaluated, the person who administered the program spent a couple of hours a day answering questions, logging into the program to fix mistakes parties made while registering, and ensuring that agreements were recorded so the next court hearing could be canceled. In another program, the clerks fielded only a few questions per week. However, participation in that program was particularly low, and when we surveyed parties in that court who did not use ODR, only one of ten knew about the program.
As with any new program, ODR requires thoughtful preparation. Because it is new, and because it offers unique barriers to parties, courts should be mindful of ways in which it differs from other ADR programs, particularly in terms of the technological barriers and capacity for parties to understand and use the ODR platform. Courts should also prepare for a possible increase in the burden on court staff.
