Court adoption of text-based online dispute resolution (ODR) has the potential to increase access to justice, particularly for self-represented litigants, by allowing parties to communicate by text asynchronously at their convenience from any location. These features of text-based ODR could lead to increased efficiency and reduced costs for parties and courts alike.
Despite these possible advantages, ODR could potentially benefit already advantaged parties and leave others behind, particularly if courts do not provide alternative dispute resolution methods to parties who lack the digital literacy or technology access necessary to use ODR. Significantly, according to data from 2020 – 2021, in the United States, reliable internet access is lowest for those with at most a high school degree (59%) and for individuals in the lowest income bracket (57%). Without reliable access to broadband services, ODR users could experience lag times or other problems when trying to resolve disputes, which could cause exasperation, prolong disputes, and even lead disputants to stop participating in the ODR process.
Low-income individuals and those with at most a high school education are also more likely to rely solely on smartphones to connect to the internet, compared to the U.S. adult population as a whole. If an ODR platform is not as easy to use on smartphones, as compared to other devices, this reliance may create a disadvantage. It may pose broader challenges as well.
For example, a recent study found that people typed more slowly on mobile devices than on computers—a difference that was more acute among older adults. Given this discrepancy, some parties, especially inexperienced typists or writers, may find it difficult, exhausting, or annoying to rely on texts to share the complex arguments often used in the resolution of disputes. These challenges may cause parties to concede or altogether ignore issues that they might otherwise pursue, potentially resulting in frustration or even the abandonment of legitimate legal claims. In addition, those who rely on smartphones may face challenges if the platform is not optimized for mobile screens or they are not adept at uploading or downloading documents on mobile devices.
In addition to voicing concern about access to the technology needed for ODR, some observers worry that mandatory ODR could shrink access to justice by overriding consent and party self-determination in some instances. A survey by the National Center for State Courts found that “poorer, older and also less educated people generally . . . seem less willing to engage with ODR.” Court-connected programs that impose ODR or do not offer other pretrial dispute resolution procedures might end up restricting access to justice rather than expanding it.
We conducted two of the first independent evaluations of text-based ODR programs in U.S. state courts. Our findings suggest that although text-based ODR seems to remove some barriers to access to justice, it can raise others. Below, we share our main findings and suggest paths that courts can take to lower those barriers.
The programs we evaluated differed in the issues they involved and the platforms they used. In Collin County, Texas, we assessed a debt and small claims pilot program in a busy Justice of the Peace Court (JP3-1) located in Plano, Texas (Texas program). 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 (Michigan program).
Our evaluations were limited by a small sample size and possible selection bias: those parties who opted to use ODR may have differed from those who did not. The possibility of selection bias restricts our ability to draw firm conclusions about ODR’s causal effects.
Even though the two programs we evaluated used different ODR platform vendors, the platforms worked similarly and had comparable limitations. Neither was available to those with significant visual impairments or with limited English proficiency. Both allowed only one individual per side to participate.
However, the programs differed in important aspects: the case types involved, how parties were informed about ODR, and who facilitated ODR communications. The Texas program was available to all eligible debt and small claims cases filed in the court we studied. The main impetus for the program was to reduce burdens associated with an increasing caseload while also improving access to justice. During the evaluation period (September 1, 2019, through August 31, 2020), the jurisdictional limit for these cases was $10,000. During this timeframe, 1,874 debt and 274 small claims cases were filed, for a total of 2,148 cases. In 70% of the cases in which both parties used ODR, the defendant was self-represented.
The Texas program was intended to be mandatory for all cases in which the defendant filed an answer, except cases in which at least one party was not English-proficient or the clerk determined that a party lacked the necessary digital literacy. Only one person could participate per side; when a party had an attorney, the attorney participated. When both parties registered for ODR, they could first try to negotiate an agreement on the platform. If negotiation resulted in impasse, they could pay $40 to a mediator to help them resolve their dispute on the platform, also via text. If parties reached agreement, they submitted their terms to the court on the platform itself and their case was dismissed.
The 20th Circuit Court FOC launched the Michigan program. At the FOC, caseworkers facilitate the entry and maintenance of appropriate orders, attempt to resolve complaints and disagreements between parties, and ensure compliance with court orders. The FOC decided to implement ODR for post-judgment matters in August 2020, after having observed success with its online system for child support enforcement. The FOC sought to provide parties with a simple and convenient process to resolve their issues related to parenting time, custody, and child support, while also increasing how efficiently their matters are resolved.
Although the FOC intended to require ODR for eligible matters, in practice, caseworkers had the flexibility to decide whether any given matter was appropriate for ODR. In such instances, they informed the parties about the process and instructed them to register for ODR. Parties could actively opt out of ODR at the time their caseworker offered it to them or by checking an opt-out box during the registration process. They could also passively opt out by not registering.
If both parties registered for ODR, the caseworker opened the platform to joint communications, which allowed parties to communicate bilaterally and jointly with the caseworker. The caseworker could also communicate with each party separately. The caseworker monitored communication between the parties and intervened when necessary. If the parties reached an agreement, the caseworker drafted the agreement terms, and the parties signed the resulting document on the platform. If they did not reach an agreement, they could request a court hearing.
Although ODR was ostensibly mandatory in both programs, the majority of parties in each court did not use ODR. In the Texas program, both parties participated in ODR in 12% of cases in which answers were filed. Although 678 answers were filed, only 341 cases were uploaded to ODR. In 170 (50%) of those cases, at least one case participant performed at least one activity on the ODR platform, and in 81 cases—24% of the cases uploaded to ODR—both sides used the platform.
In the Michigan program, ODR use was twice as high as in the Texas program. For the 102 matters in which caseworkers determined ODR was appropriate, 48% used ODR. In 50% of the matters in which parties were instructed to use ODR but did not, at least one party did not register on the platform. In 11 matters, neither party registered.
Survey and interview data from the two evaluations suggest a few reasons why parties did not use ODR. In both programs, staff members 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 that they 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 and whether they would be required to pay for the service. In fact, half of the 50 parties we surveyed near the start of their matter did not know the platform was offered free of charge.
According to staff members from the Texas court, litigants received information from the court about the ODR program in two ways: 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 the ODR platform. The latter occurred only if the court had their email address or cellphone number. Both the notice and the email lacked information about how ODR worked. We noted a similar lack of information in the Michigan program, where caseworkers offered ODR to the parties. Our review of the information provided in the automated email or text, on the platform, and on the FOC’s website revealed that the FOC missed opportunities to educate the parties.
Our evaluations revealed that when parties used ODR, they participated at times of their own choosing, with 72% (Texas) and 52% (Michigan) of ODR use taking place outside of court and office hours. In the Michigan program, 71% of parties used only a smartphone to access the ODR platform, and another 22% used a smartphone at least once. We did not have information on the devices Texas ODR participants used.
To further contextualize the evaluation of these text-based programs, we also surveyed parties about the possibility of video mediation. The majority of surveyed parties in both evaluations indicated they found video mediation to be an attractive option. When asked to elaborate, some parties’ comments suggested they would prefer to resolve their dispute face-to-face, either through in-person or virtual communications.
| Texas | Michigan | |
| Case type | Debt & small claims | Post-judgment family |
| Platform | Modria | Matterhorn |
| How informed | Notice with summons | Caseworker verbal or email |
| Program type | Mandatory (in theory) | Caseworkers exercised discretion, then mandatory (in theory) |
| ODR process | Negotiate, then mediate if needed | Caseworker-faciliated communication |
The Texas and Michigan programs were designed very differently and served different contexts. But both experienced similar benefits and accessibility issues. Our evaluations suggest that for those parties who can and do use ODR, the process is convenient. In both programs, the parties used ODR at times not available to them in traditional dispute resolution methods. Thus, ODR can enhance access to justice for some.
However, ODR seems to erect barriers for others. In both programs, many parties simply did not register to use ODR. Although we did not directly assess reasons for registration failures, our analysis did uncover several issues that might explain it, at least in part.
First, survey responses suggested that parties lacked information or had misconceptions about the programs. In fact, some eligible parties in Texas showed up for their hearing without knowing they were expected to have tried ODR first. In Michigan, some parties erroneously believed that participation in ODR would be via video. Second, staff members in both courts indicated that some parties lacked digital literacy. Third, caseworkers in the Michigan program noted that some parties lacked reliable internet access. Fourth, the platforms we evaluated were unavailable to individuals with limited English proficiency or significant visual impairment. Together, these observations query whether the ODR platforms were accessible to members of marginalized subpopulations who came to courts for assistance.
Our finding that some parties lacked information or had nontrivial misconceptions about ODR suggests parties did not always make informed decisions about whether to opt out or participate. To enhance access to justice and self-determination, courts should ensure that parties are well-informed about ODR by incorporating a communications plan into their program design. A court’s plan should specify how parties can learn about the program and detail what information court personnel should relay about ODR so that they inform and educate parties uniformly. The plan should also indicate what information about ODR to include on the court’s websites and the ODR platform to educate parties about ODR’s potential risks and benefits and how to use it. Courts should 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. Developing an outreach plan that includes asking social services or other relevant agencies to inform their clients about the ODR program is also important.
Ideally, courts should present information about ODR in a thorough yet concise way that is comprehensible to all, including individuals with low literacy. Psychological research has shown that people are more likely to absorb new information when they understand its importance and personal relevance. Thus, courts should personalize their ODR instructions rather than offering a generic statement that parties are expected to use it. For example, rather than telling all clients, “parties who have small claim disputes are expected to use ODR,” court staff could tell hypothetical client Joe, “The court has an online dispute resolution program, which we expect you to use for your small claim dispute with Acme Auto unless your situation meets one of our listed exceptions.”
Further, ODR offerings should be accessible to all eligible parties. To accomplish this goal, courts should urge ODR providers to facilitate use by parties with visual impairments and limited English proficiency. Courts should direct parties who do not have reliable internet access to computers in the courthouse or other community locations. This solution is far from ideal, however, since parties’ ODR participation would then be restricted by the locations’ regular business hours, and parties would likely have to return multiple times, rendering ODR less convenient. These locations might also not provide sufficient privacy.
Courts should also ensure that parties who use only smartphones for online activities find ODR platforms easy to use. In the Michigan program, nearly three-quarters of participants exclusively used a smartphone for ODR. Yet our findings support the concern that text-based ODR may be difficult for smartphone users. Since national data suggest that individuals with fewer resources tend to rely on their phones for internet access, this concern might be particularly consequential for parties with lower socioeconomic status. This pattern underscores that text-based platforms must be user-friendly for smartphone users. Courts should urge ODR providers to include in-app voice control to facilitate ODR use on smartphones generally, but this 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. Both programs we evaluated were limited by the platform they selected, which allowed only one participant per side. The Texas program allowed attorneys to participate without their client, while the Michigan program limited participation to parties. Neither is ideal. The former means parties cannot communicate directly with the other party. The latter may discourage parties from using their attorney, if they have one, a particular concern if the program is mandatory. Courts should urge their ODR providers to develop technology that allows parties to participate alongside their attorneys, which maximizes self-determination for those who wish to participate directly and with their attorney’s support.
Courts should also 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, can help identify challenges that parties face when using a given platform and can point to possible solutions. Courts might also consider providing parties with links to web-based resources or trainings that could increase their comfort with technology or offer instructions for sharing and signing documents online.
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 ADR options rather than being the only form of court-connected ADR.
Our evaluations indicate that ODR can remove some access- to- justice barriers, but raise others. Courts contemplating their own ODR programs should strive to make ODR available to all parties and to offer more than one alternative to a court hearing or trial. Courts should also stay informed about developments in the ODR field and findings from program evaluations and other relevant research. Taking these steps will help courts design and deliver ODR programs that meet the needs of the parties they serve.
