Online Dispute Resolution Pilot Program Report

Online Dispute Resolution Pilot Program Report

Recommendations from the Online Dispute

Resolution Workgroup of the Commission on Trial Court Performance and Accountability and the Committee on Alternative Dispute Resolution

Rules and Policy

January

2021

Online Dispute Resolution Workgroup Members

The Honorable William F. Stone, Circuit Judge, First Judicial Circuit, Chair

Mr. Matthew Benefiel, Trial Court Administrator, Ninth Judicial Circuit

The Honorable Gina Beovides, Circuit Judge, Eleventh Judicial Circuit

Ms. Heather Blanton, Human Resources Manager, Twelfth Judicial Circuit

Mr. Eric Dunlap, Florida Supreme Court Certified Mediator

The Honorable Stephen Everett, Circuit Judge, Second Judicial Circuit

Dr. Oscar Franco, Florida Supreme Court Certified Mediator

Mr. W. Jay Hunston, Florida Supreme Court Certified Mediator

Ms. Jeanne Potthoff, ADR Director, Seventeenth Judicial Circuit

The Honorable William Roby, Circuit Judge, Nineteenth Judicial Circuit

Mr. Christopher Shulman, Florida Supreme Court Certified Mediator

Staff Support Provided by the Office of the State Courts Administrator

Lindsay Hafford, Senior Court Operations Consultant

Judith Ivester, Court Operations Consultant

Kimberly Kosch, Senior Court Operations Consultant

Victor McKay, Court Operations Consultant

Susan Marvin, Chief of Alternative Dispute Resolution

Hengel Reina, Senior Court Analyst II

Table of Contents

Executive Summary ........................................................................................................................ 4

Introduction and Background ....................................................................................................... 10

Online Dispute Resolution in the Courts ...................................................................................... 10

Florida ODR Pilot Program .......................................................................................................... 12

Overview and Methodology ...................................................................................................... 12

Summary of Pilot Findings ....................................................................................................... 17

Pilot Outcomes by Case Type ................................................................................................... 20

Selecting an ODR Platform ....................................................................................................... 22

Considerations When Providing Mediation Through ODR Platforms ..................................... 24

Lessons for Future Implementations of ODR ........................................................................... 25

Analysis of Mediation Focused Statutes and Rules ...................................................................... 26

Findings and Recommendations ................................................................................................... 30

Appendices .................................................................................................................................... 41

Executive Summary

The Florida State Courts System is committed to improving court performance through the use of

innovative services. In May 2018, the Supreme Court initiated a comprehensive review of online dispute

resolution (ODR) as a potential case resolution method technology1. ODR involves litigants – in some

instances with the assistance of court personnel – resolving disputes using a web-based platform

designed to lead participants through a series of steps toward the goal of case resolution. The Court

directed the Commission on Trial Court Performance and Accountability (Commission) and the

Committee on Alternative Dispute Resolution Rules and Policy (Committee) to perform an analysis of

ODR solutions and the anticipated impact of implementing ODR in court-connected alternative dispute

resolution services. The chairs of the respective bodies jointly created the Online Dispute Resolution

Workgroup (Workgroup).

The Workgroup issued the report Online Dispute Resolution in Florida’s Trial Courts (Appendix B) in

June 2018, recommending that: 1) a pilot program be established to study the application of ODR in

small claims cases, 2) the scope and intent of the pilot program be communicated to the trial court chief

judges and clerks of court to emphasize the need for continued compliance with existing court rules and

statutes governing court-connected mediation, and 3) a legal analysis of ODR as a method of dispute

resolution be conducted.

The Court approved the recommendations and requested a pilot program plan be submitted for

consideration. The Court approved the Online Dispute Resolution Pilot Project Plan for Florida’s Trial

Courts (Appendix C) in June 2019 and directed the Workgroup to proceed with its implementation. The

plan for the pilot included evaluating the use of ODR in three distinct case types and in six judicial

circuits, as shown in Table I below.

1 See Appendix A, May 2018 Memorandum to TCP&A Commission and ADRR&P Committee from Chief Justice Jorge

Labarga Re: Online Dispute Resolution with Modria.

Table I. Summary of the ODR Pilot Program

Judicial

Circuit Third Fifth Ninth Tenth Eleventh Seventeenth

County Columbia Lake Orange Polk Dade Broward

Case Type Small

Claims Small Claims Small Claims

Family

Dissolution

No Children

Civil Traffic

Compliance

Family

Dissolution

No Children

Integration

Model1

Non-

Integrated

Non-

Integrated Integrated

Non-

Integrated Integrated Integrated

Funding

Source Local Funds State Funds

State and

Local Funds

State and

Local Funds

State and

Local Funds State Funds

Launch Date May 2020 N/A April 2020 N/A May 2020 N/A

Target

Sample Size2 290 560 1,360 465 1,530 927

Cases

Processed3 0 0 622 0 1,530 0

Vendor Modria Matterhorn Modria Matterhorn Matterhorn Matterhorn

1Refers to whether the ODR platform was integrated with the clerk’s case maintenance system or operated as a stand-alone,

non-integrated system. 2Proposed sample was developed by estimating the number of filings in a six-month period and then

determining the appropriate sample size needed to ensure a 95% confidence interval with a 2.5% margin of error. 3Not all of

the 622 cases entered into the ODR platform in the Ninth Judicial Circuit were resolved in the platform. Some of the cases

were resolved through traditional means.

Implementing ODR services required more court staff time and resources than initially anticipated, and

the pilot produced mixed results. Of the six original participating judicial circuits, three withdrew from

the pilot prior to launching services to the public after numerous delays related to the vendor’s inability

to provide a functional platform. Of the three circuits that successfully launched services to the public,

the Eleventh Judicial Circuit processed their anticipated sample number of cases, while the Third

Judicial Circuit did not process any cases. The Ninth Judicial Circuit processed a significant number of

cases even though their vendor did not integrate the ODR platform with the clerk’s case maintenance

system, which resulted in additional workload for court staff to manually input case information in the

platform.

To complement data from the pilot, which as noted was limited, the Workgroup evaluated literature and

analyzed the experiences of other courts around the country that are also implementing ODR. In part,

that literature review underscored the importance of clear and concise instructions to promote ODR

participation and the availability of a web-based login for convenience, accessibility, and security

purposes. The Workgroup’s findings, which include seven recommendations on the application of ODR

in the Florida trial courts, are discussed in detail in this report. Due to the evolving nature of this

technology, many of the recommendations are designed to serve as guidelines for the preferred model

implementation of ODR, with the recognition that a circuit may implement ODR differently based on

local circumstances or changes in the technology. The exception to this is Recommendation Two, in

which the Workgroup supports statutory and rule changes related to the use of ODR in the courts.

Recommendation One

The Workgroup recommends courts consider first implementing ODR in high volume and low

complexity case types.

Discussion: Online dispute resolution has been determined to be a viable alternative to traditional case

adjudication methods for certain case types and can provide courts with an innovative way to increase

access to justice while improving administrative efficiencies. When applied in these targeted case types

and implemented strategically, ODR can be a helpful tool for both courts and users. The Workgroup

identified the case types thought to be most suitable for ODR and divided them into tiers ranging from

the most to least appropriate for online processing. The most suitable (Tier One) cases are indicated in

the table below.

Table II. Tier One Case Types for ODR

Division Case Type Specific Criteria

County Civil

Small Claims ($0-$8,000) All cases except insurance-related matters.

Civil ($8,001-$30,000) Use a local screening tool to determine suitability on

a case-by-case basis

Circuit Civil Contract and Indebtedness Consumer debt

Other Real Property Actions Potential application for commercial evictions

Traffic Civil Infractions

Compliance cases (e.g., proof of valid insurance,

driver license, registration, etc.). Other infractions

may also be suitable.

Family Dissolution of Marriage In cases that do not involve children

County

Criminal

County and Municipal

Ordinances Compliance with local ordinances

Recommendation Two

The Workgroup recommends the Supreme Court pursue amendments to the Florida Statutes and the

Florida Rules of Court Procedure, as applicable, to: a) define ODR as a platform hosted and supported

by the judicial branch that provides an online forum where users can resolve legal disputes using

technology-assisted negotiation tools; b) require parties to provide an email address as a method of

contact at the time the case is filed; and c) establish specific authority for the trial courts to offer online

dispute resolution services that include a vendor processing fee. Further, the Workgroup recommends

courts implementing ODR maximize the use of electronic notarization.

Discussion: Online dispute resolution is not defined in statute or rule. Incorporating a definition may

help distinguish ODR from other case resolution methods. The Court may wish to pursue creating a

definition of ODR in statute and rule to distinguish it from other case resolution methods. The

Workgroup also identified that ODR functions best when courts can communicate with parties

electronically through email, but both parties’ email addresses are not required as a standard data

element at the time a case is filed. To facilitate communication, the Workgroup recommends that email

address be made a required data element parties supply when a case is filed. Additionally, while there is

no prohibition, there is also no specific authority in statute to permit online dispute resolution vendors to

charge a processing fee for users of the system. The Court may wish to pursue statutory authority to

allow ODR vendors to collect processing fees from court users of the system. The Court may wish to

allow courts that implemented a user fee model to continue to operate under those terms while pursuing

specific statutory authority.

Another aspect of ODR that may need to be streamlined in certain case types relates to the notarization

of documents. Traditional notary processes utilize a physical audience with the notary public. These

processes may present an impediment to the ideal ODR caseflow. Part II of chapter 117 of the Florida

Statutes, which governs online notarizations, may not address all scenarios in which notarization may be

required in a case being processed in the ODR platform. However, the Workgroup encourages

maximizing the use of electronic notarization.

Recommendation Three

The Workgroup recommends courts implementing ODR services employ a user fee model in order to

sustain the service and mitigate the fiscal impact to the courts. This recommendation extends to cases in

which mediation may also be conducted as part of the ultimate resolution of the case (e.g., small claims

case). In cases that may potentially involve mediation, the Workgroup supports implementation of a user

fee model – provided that the user fee for the ODR portion of case processing is made distinct from any

fee associated with mediation, and that the requirements related to collection of mediation fees are

followed. In all cases, the fee structure should be made clear to the user.

Discussion: Online dispute resolution services are offered by vendors under a per-case processing or

subscription fee model. Costs typically range from $5.00 to $30.00 per case depending on the case type

and other factors. These fees can be borne by the court or by individual users of the ODR system. In

order to provide long-term sustainability, the user fee model is preferred.

Recommendation Four

The Workgroup recommends that courts interested in pursuing ODR establish a project management

team to oversee its implementation. This team should be led by a court administration professional with

experience managing information technology projects and comprised of key members of court and clerk

staff.

Discussion: Implementing ODR is a multi-faceted and potentially lengthy process that will require input

from various court personnel and stakeholders. Adopting principles of project management will be key

to the success of the ODR implementation. Members of this team will collaborate to develop a design

framework; create the procurement documents; and engage with other court staff, justice and community

stakeholders, and the vendor throughout the ODR project’s development.

Recommendation Five

The Workgroup recommends the ODR project management team create a design framework at the

outset of the project. The design framework should consist of the minimum criteria for desired

functionality and a clearly defined operational system that addresses the stated goals of the court in

implementing an ODR solution.

Discussion: The project management team should develop a design framework as a first step in the

planning process. The framework should include clearly stated goals, a map of the desired ODR process,

and minimum criteria for required functionality. Beginning the implementation process with a design

framework will ensure that the resultant platform is structured in accordance with the court’s stated

priorities and needs.

Recommendation Six

The Workgroup recommends ODR services be offered using an opt-out (automatic) participation model.

Discussion: Courts have the option of using an opt-in (voluntary participation) or an opt-out (automatic

participation) model. The pilot program followed an opt-in model, and the results mirrored national

trends, which indicate lower adoption rates for the ODR service. Under the opt-out, or automatic

participation model, cases of the select type are routed to ODR as the first method of resolution. This is

the preferred model as it is believed to increase participation leading to a more effective application of

the service. It should be noted that, under either model, court users should still be given the option to

request judicial resolution of their case if necessary.

Recommendation Seven

The Workgroup recommends that courts implementing an ODR program include a data collection

component that provides clear metrics by which the court can capture the information needed to evaluate

usage and assess performance. The suggested metrics may include, but are not limited to, number of

cases processed in ODR, average case processing time, staff workload associated with processing cases

in ODR versus through traditional methods, nature and duration of engagement in the platform by user

type, and user satisfaction.

Discussion: For ODR to be effective it needs to deliver a service that is at least as efficient as current

processes. The Workgroup recommends courts articulate specific goals for ODR and establish

appropriate metrics to collect the needed performance data by which to measure success.

Summary

ODR can serve as an innovative tool for courts if implemented strategically. ODR systems seem to work

best when a court identifies the issue they are hoping to solve, carefully considers vendor capabilities

and limitations, and clearly communicates the court’s needs to their vendor. Additionally, based on the

Workgroup’s observations and its literature review, certain components emerged as ideal for a

successful ODR implementation. Those components include an ODR system that is integrated with the

clerk’s case maintenance system, a system where users receive clear information on how to participate

in ODR at the first opportunity, and a system that is accessible through a web-based login page.

Introduction and Background

In May 2018, the Florida Supreme Court directed the Commission on Trial Court Performance

and Accountability (Commission) and the Committee on Alternative Dispute Resolution Rules

and Policy (Committee) to conduct a review of online dispute resolution (ODR) solutions and

the impact of such solutions on court-connected alternative dispute resolution (ADR) services

(Appendix A). Tasked with performing the analysis, the chairs of the Commission and the

Committee jointly created the Online Dispute Resolution Workgroup comprised of a selection of

their respective members. The Workgroup’s report, Online Dispute Resolution in Florida’s Trial

Courts (Appendix B), recommended the Court:

• Establish a pilot to study the application of ODR in small claims cases;

• Communicate to the trial court chief judges and clerks of court the scope and intent of

the ODR pilot and emphasize the need for continued compliance with existing court

rules and statutes governing court-connected mediation; and

• Conduct a legal analysis of ODR as a method of dispute resolution for court-connected

cases.

The Supreme Court approved the report in October 2018, with the modification that the

Workgroup establish one or more pilot projects to study the application of ODR for a variety of

case types including small claims, family, and civil traffic cases. The Court also requested that

the Workgroup submit a pilot plan prior to implementation. The ODR Pilot Project Plan for

Florida’s Trial Courts (Appendix C) was developed by the Workgroup to comply with the

Supreme Court’s direction and approved by the Court in June 2019.

Online Dispute Resolution in the Courts

Originating in the private sector to facilitate the resolution of conflicts, ODR services and

platforms are spreading to public courts. The National Center for State Courts (NCSC) and the

Pew Charitable Trusts (Pew) broadly define court ODR as “...a court-annexed, public-facing

digital space in which parties can convene to resolve their dispute or case.”2 Court ODR differs

from other forms of technology-supported dispute resolution as the platform is: (1) exclusively

online and does not require litigants to participate in in-court procedures or events in many

instances; (2) designed to assist litigants in resolving their dispute or case from beginning to end;

and (3) supported or hosted by the judicial branch3.

The first court sponsored ODR platform launched September 2014 in the 74th District Court of

Bay City, Michigan. Since 2014, at least 17 states have implemented ODR services across more

than 76 court jurisdictions with nearly two-thirds of those ODR sites added between 2018 and

20194. Michigan has continued to spearhead ODR implementations, offering services across 31

separate courts in the state. New Mexico and Arkansas follow with eight and six

implementations, respectively. Despite the availability of court-oriented online dispute

resolution services and platforms in the marketplace for over six years, ODR is still a new

process and not widely implemented across the United States. Most states are slowly adopting

this technology, piloting an implementation in only one or two case types or jurisdictions. Of the

case types courts usually consider for ODR, traffic infractions are the most numerous, making

up half of implementations in the country.

Courts are also using ODR across a variety of case categories including warrants, civil debt,

small claims, family law, landlord tenant disputes, and contract collection cases, among others.

Over half (58 percent) of the ODR platforms in use nationwide center on interactions between

the state and one party or defendant, such as in traffic cases5. The remaining 42 percent of

platforms are primarily oriented to small claims or other civil debt cases where two parties

attempt to negotiate with each other to reach a settlement6. Interest expressed by the

participating Florida courts mirrored many of these national ODR trends and is reflected in the

structure of the pilot.

2 The Pew Charitable Trusts. January 2019. Online Dispute Resolution Offers a New Way to Access Local Courts:

How private-sector technologies can be repurposed to serve the civil legal system. 3 National Center for State Courts. What is ODR? Accessed November 10, 2020. 4 ABA Center for Innovation. September 2020. Online Dispute Resolution in the United States: Data Visualizations. 5 ABA Center for Innovation. September 2020. Online Dispute Resolution in the United States: Data Visualizations. 6 ABA Center for Innovation. September 2020. Online Dispute Resolution in the United States: Data Visualizations.

https://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2019/01/online-dispute-resolution-offers-a-new-way-to-access-local-courts


https://www.ncsc.org/odr/guidance-and-tools

https://www.americanbar.org/groups/centers_commissions/center-for-innovation/online-dispute-resolution-in-us/



ODR has been identified as a viable point of access to the courts for selected case types and its

use is expanding nationally across state courts. ODR provides an innovative way for litigants to

resolve cases while preserving time and resources. A nationwide survey7 conducted by the

NCSC found more than 80 percent of respondents wanted more online access to the courts,

including the ability to ask for guidance from court staff online instead of having to make the

trip to the courthouse for information.

Court-sponsored ODR involves litigants resolving disputes using a web-based platform designed

to lead participants through a series of steps toward the goal of case resolution. The steps include

posing standardized questions, providing an opportunity for response, allowing parties to make

and accept case negotiation offers with or without the assistance of a mediator, and, in some

instances, automatic generation of a settlement agreement to be filed with the court. ODR

services where the interaction is between an individual and the court, such as in civil traffic

infraction compliance implementations, provide an online space where court users can submit

documents or evidence and interact with court personnel to resolve their legal issues.

Florida ODR Pilot Program

Overview and Methodology

For purposes of the pilot, ODR was defined as an online platform hosted and supported by the

judicial branch where users can easily access informational legal resources, engage with the

other party of the dispute or officer of the court to address a legal issue, submit documents and

evidence as needed, and generate an agreement that can be filed with the court, if applicable.

The Workgroup determined the requirements for the pilot by selecting appropriate case types,

methods of participation, pilot timeframe, vendor assignments, funding models, and pilot

assessment goals. The Workgroup also directed the staff of the Office of the State Courts

Administrator (OSCA) to work closely with circuit staff to coordinate the pilot and to serve as a

resource for program design and implementation, development of workflows, and post-pilot

analysis.

7 GBA Strategies. 2017 State of the State Courts – Survey Analysis. Accessed November 15, 2017.

https://www.ncsc.org/__data/assets/pdf_file/0012/16131/sosc-2017-survey-analysis.pdf.

The NCSC and Pew provided extensive technical assistance throughout the course of the pilot.

Additionally, Florida was selected to participate in an evaluation study conducted by Harvard’s

Access to Justice Lab, in collaboration with Pew. An ODR implementation meeting was held in

January 2020 in Orlando and was attended by NCSC, Pew, Harvard, OSCA and circuit staff.

These staff met frequently throughout the pilot via teleconference to discuss progress and share

implementation issues and updates.

The Court originally requested the pilot launch by October 1, 2019, and for a report to be

submitted by September 30, 2020. Due to delays establishing contracts with vendors, the Court

granted an extension for the pilot to launch services by February 2020, with a report on the

findings and recommendations due January 31, 2021.

SELECTION OF PILOT PARTICIPANTS AND CASE TYPES

The Court sought to assess the potential benefits of ODR in differing contexts by piloting the

service in multiple case types at once. The Court identified small claims, dissolution of marriage

in cases that do not involve children8, and civil traffic infractions as case types potentially

suitable for ODR. The goals of the pilot were to learn whether parties may be more likely to

settle cases online prior to judicial intervention and whether that varied by case type; to learn

how traditional case resolution processes could be translated to an online negotiation (and in

some cases, mediation) model, including using an asynchronous communication format; to

explore whether an ODR process would save judicial time and provide a less acrimonious

approach for parties attempting to solve their disputes; and to assess how an online service could

aid courts in streamlining traditional court processes involving brief in-person hearings and

presentation of compliance documents.

Six judicial circuits, representing both demographic and geographic diversity, were selected for

participation in the pilot. The participants would test ODR implementations in one of the three

identified case types. In addition to case type, the pilot varied in other aspects. For example,

multiple vendors were selected to provide the ODR service and half of the participating circuits

8 Does not include simplified dissolution of marriage cases.

implemented ODR as a stand-alone service, while the other half sought to integrate the ODR

platform with the clerk of court’s case maintenance system (CMS) (see Table III below)9.

Table III. Case Type & Integration Summary

Judicial Circuit Third Fifth Ninth Tenth Eleventh Seventeenth

Circuit Size1 Small Medium Large Medium Extra Large Extra Large

County Columbia Lake Orange Polk Dade Broward

Case Type Small

Claims

Small

Claims

Small

Claims

Family

Dissolution no Children

Civil Traffic

Infractions

Family

Dissolution no Children

Integration

Model

Non-

Integrated

Non-


Non-


1 Circuit size is determined by the OSCA and is based on number of filings within a jurisdiction.

While there was variation in the pilot, certain process elements were standardized across all six

platforms. For example, participation was opt-in (voluntary), with ODR being offered as an

alternative to traditional case resolution methods; litigants could revert to the traditional court

process at any point in their case; each ODR platform allowed for asynchronous communication

between parties; mediations (if needed) were conducted by court staff, rather than volunteers or

contract mediators; and a pre-determined time frame for litigants to attempt to reach an

agreement or provide compliance documentation was set.

DETERMINING SAMPLE SIZE

The Workgroup determined the pilot should ideally be based on processing a statistical sample

of cases that would allow for inferential analysis, rather than being based on a pre-determined

start and end date. As such, the pilot was designed to run until each court processed a specific

number of cases using ODR or until six months elapsed from the launch of services to court

users, whichever came first. The target sample size of cases for each pilot site was developed

using an estimate of the number of fillings reasonably expected in a six-month period, which

was based on the total number of filings reported in that respective case type during the 2016-

2017 fiscal year. In the interest of completing the pilot and reporting on its findings, it was

9 Integration with the clerk’s case maintenance system (CMS) allows the ODR platform to communicate directly

with the CMS so that activities and filings are recorded in the CMS automatically, saving time for both court and

clerk staff. In stand-alone implementations, the litigant is required to file documents (such as the settlement

agreement) separately with the clerk and ODR activities must be recorded by court and clerk staff in the CMS.

agreed that circuits that did not process their target sample of cases would cease10 offering ODR

six months after the launch of services, regardless of the number of cases processed through the

ODR platform. Table IV shows the target sample size for each participating circuit.

Table IV. ODR Pilot Case Type & Sample Size by Judicial Circuit


Case Type Small

Claims

Small

Claims

Small

Claims

Family

Dissolution

No Children

Civil

Traffic

Infraction

Family

Dissolution

No Children

Target

Sample Size1 290 560 1,360 465 1,530 927

1 The proposed sample was developed by estimating the number of filings in a six-month period and then

determining the appropriate sample size needed to ensure a 95-percent confidence interval with a 2.5-percent margin

of error. Sample size has been rounded.

VENDOR PROCUREMENT AND PILOT FUNDING

Costs associated with ODR stem from the per-case processing fees charged by ODR vendors.

The pilot was funded through a combination of state and local funds. At the beginning of the

procurement process, potential ODR vendors were identified from a nationwide vendor list

provided by the NCSC. OSCA staff assessed and narrowed the list to those companies with

experience implementing ODR in a court-connected setting. Phone interviews were conducted

with prospective vendors to learn more about their ODR platforms and how they could meet the

needs of courts. OSCA published a request for quotes (RFQ) in July 2019 and received three

responses from interested vendors. Staff engaged with the pilot circuits to learn about their needs

and then assisted the Workgroup with matching each circuit with one of the three vendors that

responded to the RFQ.

Following approval by the Workgroup, circuits collaborated with their vendor to negotiate

contracts and begin the development process. Table V shows the assignment of vendors and

judicial circuits for the pilot study. Ultimately, the pilot was conducted through the ODR

10 The 11th Judicial Circuit met its sample size during the pilot phase and continued to offer the service during the

Workgroup’s evaluation period. It transitioned to a user fee model following an exception request granted by the

Chief Justice.

platforms of Modria and Matterhorn, owned by Tyler Technologies and Court Innovations,

respectively11.

Table V. ODR Pilot Case Types & Vendors by Judicial Circuit

Judicial


Case Type Small

Claims

Small

Claims

Small

Claims

Family

Dissolution

No Children

Civil

Traffic

Infraction

Family

Dissolution

No Children

Vendor

Platform

Tyler

Technologies

Modria

Court

Innovations

Matterhorn

Tyler

Technologies

Modria

Court

Innovations

Matterhorn

Court

Innovations

Matterhorn

Court

Innovations Matterhorn

Table VI shows the total estimated funding by pilot site, along with the source of funds used. A

funding estimate was developed by multiplying the cost per case quoted by the vendors and the

target sample number of cases. Other vendor set-up and development fees were incorporated as

applicable. Several circuits secured local funding for all or a portion of their anticipated costs,

and the Trial Court Budget Commission authorized the remaining funds to be allocated from

statewide reserves.

Table VI. ODR Pilot Funding by Judicial Circuit

Judicial


Case Type Small

Claims

Small

Claims

Small

Claims

Family

Dissolution

No Children

Civil

Traffic

Compliance

Family

Dissolution

No Children

Target Sample

Size 290 560 1,360 465 1,530 927

Quoted Price

Per Case $25 $30 $25 $30 $10 $30

Integration &

Setup Fees $0 $1,000 $0 $1,000 $3,500 $3,500

Total

Requested

Funding

$7,250 $17,800 $34,000 $14,950 $18,800 $31,310

Local Funds $7,250 $0 $10,000 $6,500 $12,100 $0

State Funds $0 $17,800 $24,000 $8,450 $6,700 $31,310

11 A third vendor was initially matched with two of the pilot judicial circuits. Early in the pilot process, a

reassessment of needs resulted in further narrowing of the vendor field. The affected judicial circuits were

reassigned to the two remaining ODR vendors, Tyler Technologies or Court Innovations.

DATA COLLECTION

The pilot was designed to collect data from multiple sources to assess trends and efficiencies

gained by using ODR. In advance of the launch of services to court users, circuits administered

surveys to court users who would qualify for ODR to establish a baseline of experience with

traditional court processes and anticipated comfort using an online process. For outcome and

platform usage data, it was determined that the vendors would supply relevant information at the

end of the pilot. This information would include the amount of time users spent on the platform,

the average number of days it took to resolve the case, the time of day users accessed the system,

and similar metrics. One of the vendors also administered an exit survey designed to gather

information about user experience. Although the data was more limited in volume than

originally anticipated due to the outcomes of the pilot, surveys, platform usage data, and

statistical data were used by staff to assess ODR program performance, administrative

efficiency, and customer satisfaction. Finally, staff administered a pre- and post-pilot survey to

circuit trial court administrators to gather information on initial preparations and post-pilot

evaluations.

Summary of Pilot Findings

The pilot was scheduled to run from approximately February 2020 to August 2020. However,

following the onset of the COVID-19 pandemic in March 2020, the Florida State Courts System

enacted measures to protect the public and court staff from unnecessary exposure to the virus.

These measures included closing facilities and postponing many court proceedings. As a result,

circuits and vendors faced shifting priorities, new demands on resources, and a changed

landscape where courts rapidly embraced a variety of online processes and tools as they adjusted

to a remote working environment. These changes impacted the ODR pilot in ways that could not

have been contemplated during the planning and design phases. Because of this and other

factors, the study offered mixed results, but several clear findings emerged: implementing ODR

services is more time and staff resource-intensive than initially assessed; system integration and

provision of key platform features are crucial if ODR is to provide measurable efficiency gains

to courts; and court users may be less receptive to using online processes for certain case types

than they initially indicated.

As a result of the limited data produced during the pilot, the study was unable to address all

initial research questions from the pilot project plan. Generally, the pilot demonstrated that ODR

can operate within Florida’s trial courts and that cases can be successfully resolved through

these means. The pilot also revealed challenges associated with implementing this type of

service, such as those related to integration with existing technical systems and operational

processes.

The civil traffic infraction online case resolution (OCR12) implementation in the Eleventh

Judicial Circuit was the most successful of the six pilots in terms of the number of cases

processed. Of the three case types piloted, civil traffic infraction cases were the least complex,

involving an individual engaging with the state and a business process that translated easily to an

online format. Slightly more complex were the three small claims implementations, but they all

encountered unique problems and only one of those implementations processed cases. For

example, the Third Judicial Circuit’s implementation had difficulty attracting court users to use

the platform. In the Ninth Judicial Circuit, 622 cases were uploaded13 to Modria but fewer than

expected cases saw engagement between the parties, and even fewer cases were successfully

resolved in the platform. The Fifth Judicial Circuit withdrew from the pilot, dissatisfied with the

then in-progress ODR platform.

Both circuits (the Tenth and Seventeenth judicial circuits) piloting ODR in the family

dissolution with no children case type withdrew from the study, dissatisfied with the unfinished

ODR platforms. There were numerous factors that affected the outcome of the ODR pilot,

including product delivery issues, lack of interest in modifying existing court processes, the

prevalence of other remote alternatives to ODR such as videoconference-aided court, and

stretched resources as a result of COVID-19, among others. These outcomes reveal the need for

courts to make careful assessments regarding the purpose and utility of ODR prior to

implementing such a service.

12 The 11th Judicial Circuit referred to their online platform as an online case resolution service, signifying that it

does not involve traditional ‘disputes’ between two parties, but rather a compliance matter between the state and an

individual. 13 To initiate case resolution through the Modria platform, court staff was required to set up the case in the platform

by manually entering case data including information on the parties to the case. Not all uploaded cases saw

participant engagement in the platform.

These findings are discussed below and illustrated in greater detail in Appendix D, Pilot Case

Summaries by Judicial Circuit.

ODR DEVELOPMENT, IMPLEMENTATION, AND INTEGRATION

Every pilot circuit experienced some form of delay during the development and implementation

phases of their ODR project. The Third, Ninth, and Eleventh judicial circuits had delays of one

to two months but were able to launch ODR services by May 2020. The remaining three circuits

(the Fifth, Tenth, and Seventeenth judicial circuits) encountered development issues pervasive

enough that they ultimately withdrew from the pilot and did not launch ODR services to the

public. Those issues stemmed from a divergence in the circuits’ vision for their projects and the

vendors’ ability to deliver promised customizations given the capabilities of their platforms.

Desired customizations included web-based landing or sign-in pages for court users, customized

case flows, and customized generated agreement templates. Court staff dedicated significant

time and effort to working through these challenges both with their respective vendors and

independently. Table VII summarizes the varying lengths of the pilot in each circuit and notes

when key project milestones of contract execution and product delivery occurred.

Table VII. Time Required to Launch ODR Services by Judicial Circuit


Case Type Small

Claims

Small

Claims

Small

Claims

Family

Dissolution No Children

Civil

Traffic

Compliance

Family

Dissolution No Children

Platform Modria Matterhorn Modria Matterhorn Matterhorn Matterhorn

Contract Executed December

2019

November

2019

December

2019

February

2020

January

2020

November

2019

Platform Launched May 2020 Withdrew

July 2020 April 2020

Withdrew

August

2020

April 2020 Withdrew

August 2020

Time from Contract

Execution to Launch 19 weeks

Withdrew

after 36

weeks

18 weeks

Withdrew

after 28

weeks

15 weeks

Withdrew

after 40

weeks

Integration of the ODR platform with the courts’ case management systems and the clerks’ CMS

presented other challenges. Integration with the CMS allows the respective systems to

communicate and provides a more seamless experience to users and court staff alike. Based on

pilot observations, integration between these systems is a critical component of a successful

ODR implementation but is not always easily achieved. Vendors initially approached several

Florida clerks of court offering a product that would integrate with existing clerk CMS, and the

Workgroup sought to evaluate these capabilities as an element of the pilot. As seen in Table VIII,

half of the circuits (the Ninth, Eleventh, and Seventeenth judicial circuits) planned to pilot ODR

in an integrated model, while the other half (the Third, Fifth, and Tenth judicial circuits) would

operate ODR as a stand-alone service. Integrating the ODR platforms with the clerk CMS led to

delays in each instance attempted. Integration issues stand out in the Ninth Judicial Circuit

particularly, where the ODR platform and clerk CMS were provided by the same vendor.

Table VIII. CMS and Platform Integration Model by Judicial Circuit


Case Type Small Claims Small

Claims Small Claims

Family

Dissolution

No Children

Civil Traffic

Infraction

Family

Dissolution

No Children

Planned

Integration

Model

Non-

Integrated

Non-


Non-


Platform

Vendor

Modria

Tyler

Technologies

Matterhorn

Court

Innovations

Modria

Tyler

Technologies

Matterhorn

Court

Innovations

Matterhorn

Court

Innovations

Matterhorn

Court

Innovations

CMS

Vendor

Clericus

CiviTek

Showcase

Equivant

Odyssey

Tyler

Technologies

New Vision

New Vision

Systems

SPIRIT

Traffic

Information

System

Odyssey

Tyler

Technologies

Pilot Outcomes by Case Type

SMALL CLAIMS

Of the three pilot sites testing the small claims case type, two (the Third and Ninth judicial

circuits) were able to launch ODR services to court users, but both encountered issues that

affected their ability to meet their target sample size. The Third Judicial Circuit encountered

development delays, launching two months after their initial target date. The pilot in the Third

Judicial Circuit encountered difficulty soliciting user interest in the ODR platform, and no court

users opted to use the service. Court facility closures and the resultant loss in foot traffic due to

the onset of the COVID-19 pandemic adversely affected the circuit’s ODR promotional

campaign centered on sharing information and redirecting qualified court visitors to the ODR

platform.

The Ninth Judicial Circuit launched ODR services but did so lacking back-end integration

between the platform and the clerk’s CMS, as well as key platform features such as a launch

page. Throughout the pilot, the Ninth Judicial Circuit worked closely with their vendor to reach

compromise solutions. Toward the end of the six-month timeframe, circuit staff loaded onto the

platform qualified, pre-screened small claims cases for which there was contact information for

both parties.

An analysis of data from the ODR platform used in the Ninth Judicial Circuit indicated that 43

percent of cases had no participation from either party. Of the remaining 57 percent of cases

entered into the ODR platform, the majority (64 percent) saw engagement from only one of the

parties with the other party choosing not to log in or negotiate. Both parties need to be interested

in attempting to solve the dispute and to do so using ODR for this new process to be successful.

In time, as court users become more familiar with ODR and online court processes, this issue of

lack of dual engagement on the platform may become less of a concern. Other usage data

provided by the vendor (Modria) showed that 30 percent of users accessed the platform outside

of normal business hours, spending an average of 12 minutes on the site. The most popular

access time was at 9:00 a.m., during normal court business hours.

The Fifth Judicial Circuit withdrew from the pilot due to development delays and their

dissatisfaction with the ODR product, thereby providing no data to offer for this study.

DISSOLUTION OF MARRIAGE

Both the Tenth and Seventeenth judicial circuits piloting this case type experienced pervasive

development delays and withdrew from the pilot. With no launch of services, the study was

unable to assess the viability of ODR as a less acrimonious option for parties attempting to

resolve family dissolution disputes.

CIVIL TRAFFIC INFRACTIONS

Civil traffic infractions were piloted in the Eleventh Judicial Circuit and, of the three case types

implemented, this case type proved to be the most successful. The Eleventh Judicial Circuit

launched an online case resolution (OCR) service and met their targeted sample size, and

participant exit surveys showed high levels of satisfaction with the process14. However, this case

type is less complex than small claims or family dissolution. A civil traffic infraction case does

not involve mediation and is an engagement between an individual and the state. Also, the

perceived benefit of OCR is more immediately present to users than in the other case types

piloted. There is a high volume of civil traffic infractions in Miami-Dade County, and it is

expensive and time-intensive for court participants to visit the courthouse to resolve their cases.

The OCR pilot in the Eleventh Judicial Circuit shows that civil traffic infractions are suitable

and likely to be a popular case type for OCR implementations. For example, 80 percent of

surveyed users who commented on their experience expressed satisfaction with OCR. Many

platform users (87 percent) accessed the platform once to submit their compliance

documentation and were able to resolve their case online, and, overall, ODR users spent an

average of 6.5 minutes resolving their legal issues compared to the 68 minutes spent resolving

the case in the traditional in-person manner.

Additional pilot outcome information can be found in Pilot Case Summaries by Judicial Circuit

(Appendix D) and Summary of Pre-Pilot Baseline Survey Data (Appendix E). ODR platform

usage data and exit survey data supplied by the vendors can be found in Platform Usage Data

from 9th Judicial Circuit – Small Claims Implementation (Appendix F), Platform Usage Data

from the 11th Judicial Circuit – Civil Traffic Infraction Implementation (Appendix G), and Exit

Survey Data from the 11th Judicial Circuit – Civil Traffic Infraction Implementation (Appendix

H).

Selecting an ODR Platform

There are many ODR tools available on the private market, but relatively few ODR vendors offer

products designed for public sector or court-connected use. There are also currently no known

open-source or non-profit ODR platforms or service packages available for adoption; however, a

promising development is underway in the courts in Utah. The Utah State Courts System has

designed and built an in-house ODR platform based on open source technology and has

experienced success with its use in small claims cases. They have indicated they may offer their

platform as an open source option for other state court systems in the future. For purposes of the

14 See Appendix H, Exit Survey Data from the 11th Judicial Circuit – Civil Traffic Infraction Implementation

pilot, the Florida courts exclusively considered vendor-based platforms and did not explore the

option to independently develop an ODR platform. It is anticipated that vendor-based solutions

will continue to improve to serve the needs of the courts in increasingly beneficial ways.

However, the idea of in-house systems should not be rejected, especially considering the

potential long-term costs to courts associated with vendor-based solutions in implementations

where the court funds the ODR service.

When selecting an ODR platform, courts will need to balance the capabilities and limitations of

the available product with their vision for an ODR service before moving forward with

implementation. A challenge identified during the pilot was the need to modify court processes

to work well online and in the context of the ODR platform. For instance, when using ODR, the

preferred method of contact shifts from standard mail toward email. Many of Florida’s courts do

not currently have a mechanism in place for collecting email addresses for all parties and will

need to put in place a process to do so if adopting an ODR service model. Courts may also need

to modify other internal operational processes and policies for an ODR process to function as

intended. This may include entering new administrative orders to establish policies, modifying

caseflows, and repurposing key staff to manage ODR-based communications.

Another challenge observed in the pilot was the development time frame and extensive staff

resources needed to successfully implement an ODR solution. Current vendor-based solutions

are not ‘plug-and-play’ and instead require modifications to conform to a court’s business

processes. During the pilot, software customizations resulted in considerable time commitments

from court staff. And, despite working closely with their vendors, several of the pilot circuits

found that current ODR platforms were not able to fully meet their needs or expectations. A

possible solution to this challenge is for courts to identify the fundamental elements needed to

launch an online service for a particular case type and then ensure the potential vendors can

deliver a minimal viable product in line with those needs. Courts should consider launching with

platforms that will go through stages of enhancement to improve upon or add to the ODR service

as opposed to launching with a full complement of desired features.

Considerations When Providing Mediation Through ODR Platforms

As noted previously in this report, some case types in which courts choose to implement ODR

may involve a mediation component. Examples include those case types, such as small claims,

that are typically referred to court-supported or private mediation by a judge or through a

standing administrative order establishing a policy in the judicial circuit. Mediation as a

component of ODR presents unique challenges that deserve special consideration.

The central difference between mediating in person versus through an ODR platform is the

asynchronous nature of the ODR-based communications. This includes the exchange of text-

based communications as opposed to real-time face-to-face conversation. The lack of nonverbal

cues between parties, and between the parties and the mediator, may make it more challenging

for the mediator to reduce obstacles to communication between the parties and establish trust and

rapport between them and with them. Parties and attorneys may find it more difficult to

communicate the interests and motivations underlying their positions as well as their positions in

the lean, textually constrained confines of an ODR platform. Thus, cases with high emotions

may not be mediated as easily in the ODR platform as they could be in person. Additionally, the

written communication abilities of the mediator have enhanced importance in the ODR format.

Special attention to grammar, language usage, and punctuation is key to maintaining the

professional tone of the exchange.

A second consideration when conducting mediation through an ODR platform involves the

provisions of confidentiality of mediation. Under § 44.405(1), Fla. Stat., mediation

communications are confidential and a mediation participant shall not disclose them to a person

other than another participant in the mediation or a participant’s counsel. Mediators are required

to inform participants of mediation confidentiality in their orientation statement. Maintaining

confidentiality when conducting an ODR platform-based mediation presents challenges of which

the mediator must remain aware. For instance, due to the asynchronous, text-based nature of the

communication exchange, the mediator may have no means of discerning whether a participant

is communicating with other people who are not mediation participants. Additionally, it is

possible information from the mediation session could be captured by participants and saved or

shared at a later time. During an in-person mediation, usually conducted by court programs in

one or two sessions, a mediator can see who attends the mediation and may be able to discern

whether a participant is recording mediation communications via a device such as a phone or

tablet. These protections are not possible in an ODR-based mediation session.

Third, ODR-based mediation requires different levels of engagement from the mediator. For

example, registered parties to an ODR-based mediation receive an email from the platform

whenever a communication is made. Instead of completing an in-person mediation in one or two

sessions with the attention focused on one case, the mediator may be asked to respond to

attorney and party communications in the platform several times a day in multiple cases to

maintain the momentum of the mediation. A fourth consideration involves the technical skills

needed by the mediator to operate successfully within the ODR platform. This is critical to

ensuring that the correct information is shared with the appropriate parties and that

confidentiality is not inadvertently breached. For instance, the mediator must be prepared to

manage the group chat features within the ODR platform and remedy mistakes of a party who

inadvertently enters information they intended to convey to the mediator privately in the group

chat space.

Lessons for Future Implementations of ODR

The inclusion of multiple variables (case type, integration models, vendors, etc.) in the pilot

generated valuable insights and numerous points for future consideration. These lessons will be

useful to courts considering an ODR service, helping them to avoid some of the issues

encountered by the pilot circuits and to build upon successes. At the forefront of these lessons

learned is that, for now, application of ODR in Florida seems best suited to low complexity case

types where an individual engages with the state, or where two parties attempt to negotiate with

one another. The pilot also demonstrated that implementing an ODR service is resource-

intensive, particularly in terms of staff time, and its success is dependent on a complex interplay

of factors. ODR is an emerging technological frontier nationally and a new process in Florida.

Over time, as familiarity and experience with ODR grows, greater ease and success

implementing ODR services are expected.

Analysis of Mediation Focused Statutes and Rules

As directed by the Court, a legal analysis of the implications of ODR for existing statutes, rules,

and policies was undertaken by OSCA staff. The analysis focused on the application of current

statutes and rules to ODR and the potential need to amend statutes or rules to accommodate

aspects of ODR.

Defining ODR in Florida Law – There is currently no definition of ODR in Florida Statute, rule,

or Supreme Court order. Additionally, there is no langauge that addresses ODR fees or other

aspects of resolving cases through these means. The Workgroup agreed it may be advantageous

to a statewide understanding of ODR and the utilization of ODR in the court system to define the

term in statute and rule. Further, the Workgroup agreed that the collection of ODR fees should be

addressed in statute and concurrent changes may be required to court rules to effectuate the use

of ODR in the trial courts. A proposed solution is discussed in the Findings and

Recommendations section of this report.

Alternative Dispute Resolution in Florida Statute – Courts interested in implementing an ODR

solution in cases where mediation may be involved should be aware of the applications of the

mediation rules and regulations and how they affect ODR. Chapter 44, Fla. Stat. (Chapter 44),

governs alternatives to judicial action including methods of mediation, arbitration, and voluntary

trial resolution in the judicial branch. Chapter 44 does not reference ODR, nor does it appear to

include any prohibitions on the use of ODR. As written, the provisions of Chapter 44 do not

apply to ODR generally but do apply to the portions of the ODR experience which include

mediation. For example, in a small claims case processed using ODR, the provisions of Chapter

44 would engage if a mediator is requested and assigned to the case.

When selecting a case type for ODR, courts should be aware of potential concerns related to

court-connected mediation. Court-connected mediation is mediation administered by the court

ADR program. These programs offer mediation services to litigants at a reduced cost or at no

charge. Section 44.108, Fla. Stat., and In re: Alternative Dispute Resolution Services in Florida’s

Trial Courts, Fla. Admin. Order No. AOSC09-19 (May 6, 2009), govern which case types are

supported by court-connected ADR programs and include family cases with parties whose

combined incomes are $100,000 per year or less; county court cases involving an amount in

controversy not exceeding $15,000; small claims cases; and juvenile dependency cases. Courts

are not permitted to charge fees for mediations in small claims actions, eviction cases, or where a

party is found to be indigent. The other court-connected mediation cases are provided on a

sliding fee scale based on parties income. Mediation services for other case types, such as county

cases above $15,000 and circuit civil cases, are provided by private mediators and paid for by the

parties.

A court offering mediation in the ODR platform must develop a means to collect the statutorily

required mediation fees in the event the parties participate in mediation within the ODR

platform. Section 44.108(2), Fla. Stat., outlines the fee requirements as:

When court-ordered mediation services are provided by a circuit court's mediation

program, the following fees, unless otherwise established in the General Appropriations

Act, shall be collected by the clerk of court:

(a) One-hundred twenty dollars per person per scheduled session in family

mediation when the parties' combined income is greater than $50,000, but

less than $100,000 per year;

(b) Sixty dollars per person per scheduled session in family mediation when the

parties' combined income is less than $50,000; or

(c) Sixty dollars per person per scheduled session in county court cases

involving an amount in controversary not exceeding $15,000.

Another consideration relates to the application of mediation referral rules and the application of

the protections typically associated with mediation. For example, § 44.404(1), Fla. Stat.,

provides that “a court-ordered mediation begins when an order is issued by the court.” Circuits

implementing ODR, should be aware that a court order to mediation or arbitration is needed for

the mediator or arbitrator to have the protection of judicial immunity under § 44.107, Fla. Stat..

Additionally, a case-specific court order or court administrative order serves the purpose of

attaching the provisions of the Mediation Confidentiality and Privilege Act (§§ 44.401 - 44.406,

Fla. Stat.), to mediation (see § 44.402(1), Fla. Stat.). The provisions and protections of Chapter

44 do not apply in the negotiation step offered in many ODR platforms as negotiation is

traditionally conducted informally between parties or their attorneys prior to a court hearing or

mediation and does not involve a third party neutral such as a mediator.

Alternative Dispute Resolution in Court Rule – The Florida Rules of Court Procedure

pertaining to mediation provides for the physical attendance of parties at mediation15, and some

of the rules include the specific provision that parties must be physically present “unless

otherwise permitted by court order or stipulated by the parties in writing.” Telephonic

appearance at mediation has long been an accepted practice and, due to the onset of the COVID-

19 pandemic, courts have temporarily relaxed certain requirements around in-person

appearances, including those associated with mediation. The Workgroup on the Continuity of

Court Operations and Proceedings During and After COVID-19 is in the process of considering

proposing revisions to the rules of procedure which would specifically allow parties to appear by

audio or audio-video communications technology in a variety of proceedings. This initiative

could be expanded to include remote appearances for mediation, including those that may take

place through the ODR platform.

Appearance by parties and their representatives at mediation are also discussed in rule 1.750(e),

Fla. R. Civ. P., and rule 7.090(c), Fla. Sm. Cl. R.. They allow an attorney to appear at mediation

on behalf of their client and also allow “a nonlawyer representative to appear on behalf of a party

with the party’s signed written authority to appear.” Although no prohibition exists for this

provision to extend to ODR, the referenced rules could be revised to state whether a nonlawyer

representative would be allowed to appear for a party in a small claims ODR platform.

Electronic signatures and mediator appointment rules present other considerations. The rules of

court procedure governing the signing of mediation agreements do not prohibit electronic

signatures for mediation agreements; however, the rules could be amended to specifically

include an allowance for electronic signatures16. Under rule 1.750(c), Fla. R. Civ. P., “in small

claims actions, the mediator shall be appointed, and the mediation conference held during or

immediately after the pretrial conference unless otherwise ordered by the court. In no event shall

the mediation conference be held more than 14 days after the pretrial conference.” A court

15 See rule 1.720(b) & 1.720(d), Fla. R. Civ. P. (applies to county cases above small claims according to rule

1.750(e), Fla. R. Civ. P.); 1.750(e), Fla. R. Civ. P.; rule 7.090(a), 7.090(c), 7.090(f), Fla. Sm. Cl. R.; and rule

12.740(d), Fla. Fam. L. R. P.]. 16 See rule 1.730(b), Fla. R. Civ. P.; rule 7.090(g), Fla. Sm. Cl. R.; rule 12.740(f)(1), Fla. Fam. L. R. P.

implementing an ODR platform in cases where mediation may be involved may wish to enter an

administrative order that allows mediation to occur prior to the pretrial conference.

Further considerations regarding court summons appear in rule 7.060(a), Fla. Sm. Cl. R., which

describes the summons required to be served on a defendant and the specific language it must

contain regarding venue. The form that corresponds to the rule is Summons/Notice to Appear for

Pretrial Conference Form 7.322. Both could be revised to contain language regarding ODR.

Form 7.322 could include notice to the parties of the option to choose to participate in the ODR

platform. Additionally, rule 1.720(f), Fla. R. Civ. P., rule 7.090(f), Fla. Sm. Cl. R., and rule

12.741(b)(2), Fla. Fam. L. R. P., provide that failure to appear at mediation may result in the

imposition of costs and attorney fees incurred by the opposing party. The rules may need to be

revised to state whether failure to participate in an ODR platform mediation after agreeing to use

the platform would constitute a failure to appear which would subject a party to such sanctions.

Last, courts that implement ODR in a family law setting should note that rule 12.740(e), Fla.

Fam. L. R. P., requires that mediation be completed “within 75 days of the first mediation

conference unless otherwise ordered by the court.” The existing time frame could be altered by

administrative order for the ODR platform if the court so chooses.

The above-referenced rule amendments may merit further consideration by the Committee on

Alternative Dispute Resolution Rules and Policy.

Rules for Certified and Court-Appointed Mediators – The provisions of the Florida Rules for

Certified and Court-Appointed Mediators do not need to be revised in any manner to address

ODR-based mediations. All of the provisions of the rules apply to mediators conducting

mediations by any means whether in person, by videoconferencing, or using an online platform.

One question for consideration is whether the Mediator Qualifications and Discipline Review

Board and The Florida Bar would have access to text-based mediation communications made in

the ODR platform for the purpose of investigating mediator or attorney professional misconduct

occurring during the mediation if a grievance is filed regarding a mediator who conducts a

mediation or an attorney who represents a party in the platform. Such communications are not

confidential under the exception to mediation confidentiality in § 44.405(4)(a)(6), Fla. Stat..

There are also exceptions to mediation confidentiality for professional malpractice during

mediation, § 44.405(4)(a)(4), Fla. Stat., and to establish or refute “legally recognized grounds for

voiding or reforming a settlement agreement reached during mediation,” § 44.405(4)(a)(5), Fla.

Stat. A circuit implementing ODR has the ability to specify to the vendor the period of time for

which communications in the platform will be retained by the vendor, additionally, the circuit

may store the communications if they have the ability to do so.

Findings and Recommendations

Based on observations from the pilot and information learned from studying national trends in

ODR, the Workgroup concludes that ODR can be a useful tool for courts if implemented

strategically. For example, ODR can provide an alternative point of entry to the courts, giving

users remote, round-the-clock access to address their case. There are indications that court users

may prefer ODR over traveling to court because ODR offers litigants the opportunity to access

the courts in new ways, largely outside of traditional business hours. With ODR, litigants can

engage in the court process at their convenience. This may be especially important for those that

struggle to access the courts while balancing employment or familial obligations.

ODR users may also experience an increased comfort level with accessing the justice system

through these means. By using ODR, participants can engage with the other party

asynchronously, giving them more time to consider how they want to proceed and to develop a

response that works best for their unique situation. ODR as a process can also help minimize

power imbalances between parties, creating a space for engagement and fairer outcomes. A 2017

NCSC survey found 80 percent of respondents said they want more online access to courts17. The

same survey also found that court users want the ability to ask for guidance from court staff

online.

Online platforms can also benefit courts by allowing them to serve a variety of needs by

leveraging technology that works within existing staff and fiscal resources. While there is

considerable workload associated with launching ODR, once launched it requires minimal

administrative resources as most users resolve cases online without court assistance or

17 The Pew Charitable Trusts. January 2019. Online Dispute Resolution Offers a New Way to Access Local Courts:

How private-sector technologies can be repurposed to serve the civil legal system.



intervention. In instances where an officer of the court would be involved, the asynchronous

nature of ODR allows them to work with multiple parties across different cases at the same time

without coordinating schedules. This allows for increased efficiencies in case processing without

holding scheduled proceedings or hearings.

It should be noted that implementing ODR is not without its challenges. ODR is not suitable for

all case types, and project planning is critical to ensure that key platform criteria and court-

related needs are met. The Workgroup developed seven recommendations which represent a

framework for how courts may use ODR in their overall offering of case resolution services.

These recommendations are designed to be guidelines to assist courts in achieving a successful

ODR implementation, with the recognition that a circuit may implement ODR differently based

on local circumstances or changes in the evolving technology. The recommendations are

discussed in further detail below.

Recommendation One: The Workgroup recommends courts consider first implementing

ODR in high volume and low complexity case types.

ODR is best suited for cases where the volume of filings is high, but the complexity of the case is

relatively low, such as in most small claims and civil traffic infraction cases. There are several

states that are starting to explore ODR solutions for other, slightly more complex case types

including bench warrants, divorce, and foreclosure cases. With the onset of the COVID-19

pandemic and the mounting number of cases, states are looking for ways to assist with case

processing. For instance, several states are considering an ODR option for processing eviction

cases. However, ODR does not seem to be a viable solution for more complicated cases. Cases

involving complex civil litigation and high claim values would not be suited for ODR. Criminal

cases are also not recommended for resolution through these means.

Compliance related cases, like those in the traffic division, are also amendable to an online

process but, due to lack of a traditional ‘dispute,’ they are better classified as online case

resolution. Below is a listing of case categories where circuits may find the most value in

implementing an ODR service.

Table IX. Tier One of ODR Eligible Case Types


County Civil

Small Claims ($0-$8,000) All cases except insurance-related matters.

Civil ($8,001-$30,0001) Use a local screening tool to determine

suitability on a case-by-case basis

Circuit Civil Contract and Indebtedness Consumer debt

Other Real Property Actions Potential application for commercial evictions

Traffic Civil Infractions

Compliance cases (e.g., proof of valid insurance,

driver license, registration, etc.). Other

infractions may also be suitable.

Family Dissolution of Marriage In cases that do not involve children

County

Criminal

County and Municipal

Ordinances Compliance with local ordinances

1Civil cases with a claim value above $15,000 cannot be mediated by court-connected alternative dispute resolution

programs so courts may wish to limit ODR to those cases with a claim value of $15,000 or below.

Cases with a higher level of complexity due to processes inherent in that particular case type or

in the number of litigants associated with the case will involve more work to translate current

business and court processes successfully to an online format. For these types of cases, local

screening to determine suitability and feasibility of implementing an ODR process is

recommended. The following case types may prove well-suited to an ODR implementation:

Table X. Tier Two of ODR Eligible Case Types


County Civil Evictions – Residential

Evictions – Non-Residential

Circuit Civil Other Negligence Causes that are focused on debt collection

Family1

Child Support IV-D

Child Support Non-IV-D

UIFSA2 IV-D

UIFSA2-Non-IV-D

Paternity/Disestablishment of Paternity

1 The Florida Department of Revenue’s Child Support Program is likely to be a significant stakeholder in certain

case types. It is recommended to seek their support before implementing ODR in these case types. 2Uniform

Interstate Family Support Act.

Currently, the Workgroup does not recommend ODR for cases with the following criteria:

• Highly complex cases;

• Cases with more than two parties;

• Cases where an insurer is a party and the cause is not centered on debt collection;

• County criminal misdemeanors or any circuit criminal cases;

• Cases involving violence or physical wellbeing and security; and

• Probate or guardianship cases.

Over time, some of these case types may become more suitable for ODR as familiarity with

online court services develop and processes mature. Cases concerning serious misdemeanors and

felonies, high-value assets or claim amounts, and complex cases with multiple parties are not

suitable for ODR.

Recommendation Two: The Workgroup recommends the Supreme Court pursue

amendments to the Florida Statutes and the Florida Rules of Court Procedure, as

applicable, to: a) define ODR as a platform hosted and supported by the judicial branch

that provides an online forum where users can resolve legal disputes using technology-

assisted negotiation tools; b) require parties to provide an email address as a method of

contact at the time the case is filed; and c) establish specific authority for the trial courts to

offer online dispute resolution services that include a vendor processing fee. Further, the

Workgroup recommends courts implementing ODR maximize the use of electronic

notarization.

ODR is not defined in Florida statute or rule. As noted in the recommendation, the Court may

wish to pursue creating a definition of ODR in statute and rule to distinguish it from other case

resolution methods and to illuminate and preserve important differences between ODR and other

case resolution methods. Additionally, an email address is not a required data element of court

filings, and many clerk of court systems are not designed to capture this information. The

Workgroup identified the significant challenge posed by the lack of parties’ email addresses and

noted how that impacted the adoption rate of ODR. As a web-based service, the success of ODR

depends on electronic communications through email. Email is the preferred method to make

the initial notification to parties regarding their eligibility to resolve their case through ODR and

is the best way to communicate with parties throughout the ODR process.

Additionally, while there is no prohibition, there is also no specific authority in statute to permit

online dispute resolution vendors to charge a processing fee for court users of the system. The

Workgroup recommends that the Court pursue statutory authority to allow ODR vendors to

collect processing fees from court users of the system. The Court may wish to allow courts that

implemented a user fee model to continue to operate under those terms while pursuing specific

statutory authority.

Several of the case types in which a court may choose to implement ODR require the exchange

of notarized documents. Part II of chapter 117 of the Florida Statutes, which governs online

notarizations, may not address all scenarios in which notarization may be required in a case

being processed in the ODR platform. However, to maintain the intent of ODR as a remote

method of case processing, the Workgroup encourages courts to maximize the use of electronic

notarization.

Recommendation Three: The Workgroup recommends courts implementing online dispute

resolution services employ a user fee model in order to sustain the service and mitigate the

fiscal impact to the courts. This recommendation extends to cases in which mediation may

also be conducted as part of the ultimate resolution of the case (e.g., small claims case). In

cases that may potentially involve mediation, the Workgroup supports implementation of a

user fee model – provided that the user fee for the ODR portion of case processing is made

distinct from any fee associated with mediation, and that the requirements related to

collection of mediation fees are followed. In all cases, the fee structure should be made clear

to the user.

ODR services are based on a per-case processing fee charged by the ODR vendor. The costs

must either be borne by the court or by the individual users of the system. These costs could

quickly become unsustainable for any court system to absorb. As such, the Workgroup

recommends the adoption of a user fee model to support ODR service provision as a sustainable

option to ensure continuity of service. As noted in Recommendation Two above, explicit

language in statute may be needed to clarify the authority to permit the transferring of ODR

vendor fees from a participating court to online system users.

ODR offers numerous potential benefits to court users. The facilitation of case resolution by

increasing the availability of online resolution processes, providing affordable access to justice,

and minimizing time and monetary constraints of court users should serve as the primary goal of

any ODR implementation. As the technology and services offered are only now being

implemented in courts across the country, additional analysis for determining the viability of user

funded versus court funded platforms is warranted. The vendors in our pilots charged for each

case entered in the platform, irrespective of whether the case is resolved in the platform. And

though vendors may offer bulk-pricing contracts, the number of cases potentially suitable for

ODR in a circuit, especially in high volume case types, pose a substantial cost18. Courts have the

opportunity to minimize costs to themselves and their users when structuring ODR programs and

negotiating contracts.

Recommendation Four: The Workgroup recommends that courts interested in pursuing

ODR establish a project management team to oversee its implementation. This team should

be led by a court administration professional with experience managing information

technology projects and comprised of key members of court and clerk staff.

As noted throughout this report, implementing an ODR solution is a multi-faceted undertaking

involving several court processes and stakeholders. A project management team would work to

ensure key platform criteria and court-related needs are met, stakeholder input is balanced

against technical and resource limitations, and various project elements are managed with an eye

toward launch deadlines. In the pilot, OSCA staff observed that the majority of the project delays

were due to technical issues. Typical delays revolved around the vendor’s ODR platform not

functioning as expected or integration issues with the case maintenance systems used by the

clerks and courts.

An ODR project management team, formed at the outset of an ODR initiative and with an

experienced project manager leading the team, is recommended. A court administration

professional with experience bringing information technology (IT) projects to production would

be able to effectively collaborate with subject matter experts and court, clerk, and vendor

development staff. Team members should include court and clerk representatives to balance the

court systems needs and concerns with the technical aspects of an implementation that involves

the clerks’ case maintenance systems and databases. Representatives from court and clerk staff

18 Per-case processing fees for the pilot ranged from $10.00 for civil traffic infraction cases to $25.00 for small

claims cases.

can provide valuable insight into their organization’s needs, concerns, and current system and

process limitations that would affect the development of the ODR platform.

Project team membership can function as a mechanism by which stakeholders have input and

receive updates on the ODR project’s progress. Courts may wish to consider including key court

staff on the project team. Representation should include court IT staff, subject matter experts for

the targeted case type, clerk of court IT staff, alternative dispute resolution staff in case types that

may involve mediation, and other court departments and units as appropriate. Courts have the

option to structure team membership to build buy-in for the ODR project in a way that enriches

the project and avoids development delays, project derailment, or resistance to the ODR service

after implementation.

Recommendation Five: The Workgroup recommends the online dispute resolution project

management team create a design framework at the outset of the project. The design

framework should consist of the minimum criteria for desired functionality and a clearly

defined operational system that addresses the stated goals of the court in implementing an

ODR solution.

Court implementations of ODR are not new19, but the tool is not in widespread use by court

systems across the United States20. As more courts implement ODR and interest in providing the

service grows, national organizations such as the NCSC, Pew, the Conference of State Court

Administrators (COSCA), and the American Bar Association (ABA) will likely continue to

convene workgroups and issue reports evaluating the potential of ODR and best practices. States

where courts have implemented ODR are also sharing their experiences through reports and

national and regional collaborative venues. A common theme emerging from these reports and

conversations is that courts interested in ODR should consider specific design framework

elements before initiating the service.

19 In 2016, the Franklin County Municipal Court (FCMC) of Columbus, Ohio with the help of Matterhorn of Court

Innovations Inc., developed the first court ODR implementation. Alex Sanchez and Paul Embley. “Access

Empowers: How ODR Increased Participation and Positive Outcomes in Ohio.” NCSC Trends in State Courts

(2020). 20 The American Bar Association Center for Innovation identified 66 active court annexed ODR implementations

across 12 states at the end of 2019. ABA Center for Innovation. September 2020. Online Dispute Resolution in the

United States: Data Visualizations.

https://www.ncsc.org/__data/assets/pdf_file/0019/42166/access_empowers_Sanchez-Embley.pdf

https://www.ncsc.org/__data/assets/pdf_file/0019/42166/access_empowers_Sanchez-Embley.pdf



The design, procurement, and development stages are critical junctures where courts with clearly

defined platform and integration criteria are more likely to successfully launch an ODR service.

Courts without clearly defined understanding of the problem(s) ODR is meant to address, the

constituency it is meant to serve, or the elements necessary for an ODR platform to effectively

deliver services increase their chances of development delays and dissatisfaction with the final

product. The Workgroup recommends ODR project management teams create a design

framework at the outset of the project to better define and guide their program. While not a

guarantee against a failed ODR implementation, a thorough design framework can help courts

easily identify the products and services that best align with their needs. The Workgroup’s

recommendation is not meant to rigidly prescribe assessment criteria, but to strongly encourage

Florida’s trial courts to consider specific questions and measures when considering ODR.

The Florida trial courts will find immense value in clearly defining specific goals, process, and

service criteria during the ODR design framework stage before soliciting services and products

from vendors. Courts that develop a clear and detailed assessment from the project’s outset of

how an ODR platform will help them address a local need and interact with existing systems

improve their chances of successful implementation. Additionally, during the design framework

phase, courts should consider which case type(s) to target for online resolution and which

business processes would need to be modified as a result.

Design frameworks can also aid in the selection of an ODR vendor that can deliver a minimum

viable product (MVP). An MVP, for purposes of this report, is defined as a service or platform

that can be successfully launched and provide services to the target community within a

reasonable time frame. For ODR, this type of product is not perfect, but it provides a reliable and

correctly functioning ODR service. An MVP can be refined through later enhancements based on

user activity, stakeholder feedback, and performance assessments. Design frameworks can be

used to inform the structure of a procurement so that it clearly posits to potential vendors the

issue the court is primarily focused on addressing, the key service or platform components a

vendor’s product must be able to deliver from the outset, and expected features and support. See

Appendix I – Design Framework Resources for additional information.

Recommendation Six: The Workgroup recommends online dispute resolution services be

offered using an opt-out (automatic) participation model.

Courts implementing an ODR program must decide if the service will be offered under an opt-in

(voluntary) or opt-out (automatic) participation model. The choice to implement one model over

the other will have a significant bearing on the adoption rate of ODR and on the overall number

of cases processed. The Workgroup recommends circuits adopt an opt-out model when

implementing ODR services. This model is thought to facilitate the most familiarity with the

online process for court users and provides ODR programs with a user base large enough to

reliably sustain operations.

During the program design phase, courts should carefully consider which participation model to

implement. This decision must be made in close conjunction with the decision on program

funding. Other factors impacting participation model decisions are the case type selected for the

implementation and the court’s goal in offering ODR services. For example, if ODR is offered in

a high-volume case type with the goal of processing a certain percentage of cases through these

alternate means, the court may prefer using the automatic or opt-out model. If ODR is envisioned

as one option in an existing array of services, or the court would like to learn more about how

prospective users interact with ODR, a voluntary or opt-in model might be more appropriate.

Recommendation Seven: The Workgroup recommends that courts implementing an online

dispute resolution program include a data collection component that provides clear metrics

by which the court can capture the information needed to evaluate usage and assess

performance. The suggested metrics may include, but are not limited to, number of cases

processed in ODR, average case processing time, staff workload associated with processing

cases in ODR versus through traditional methods, nature and duration of engagement in

the platform by user type, and user satisfaction.

Online dispute resolution offers a service delivery option that provides the court and court users

increased convenience, administrative efficiencies, and improved access to justice. A court may

adopt ODR with the goal of benefiting from one or all of the aforementioned efficiencies. For

ODR to be effective it needs to deliver a service that is at least as efficient as, or more so than,

current processes. The Workgroup recommends courts articulate specific goals for ODR and

establish appropriate benchmarks to collect the needed performance data by which to measure

success.

Depending on their goals, courts will likely need to capture additional information on top of

currently collected case metrics. For example, an ODR service meant to offer court users

increased convenience would collect data on the amount of time users spent on the platform and

track the number and nature of negotiated agreements. Part of this data would be captured by the

platform and need to be provided to the court by the vendor. Other data points would be derived

from the clerk’s CMS and user surveys. In addition, courts need to ensure all data provided by

vendors or captured through internal means are appropriately formatted for the type and level of

analysis that will be conducted. It needs to be determined in advance whether summary data is

sufficient to evaluate success or if more granular data is needed in specific units. Another

consideration is the data format. If a court uses regression analysis to identify statistically

significant relationships, the data should be provided in an easily downloadable comma-

separated-values (.csv) or Excel file format and compatible with the statistical software used to

conduct the analysis.

Technical data considerations are best thought through during the design phase of an ODR

project and may be guided by the other performance measures in use by the court. Depending on

the goal or mix of goals pursued, courts will need to capture a variety of data to measure their

progress. For example, if pursuing a goal of increased convenience for court users, data collected

from user surveys focused on process and court experience improvement would be useful. Such

surveys should collect data on users’ preferences, comfort with technology, and time and other

resources spent traveling and in court, both pre- and post-ODR implementation. Similarly, data

needed to assess progress toward a goal of increasing access to justice would include user

surveys focused on satisfaction with process and outcomes and select case and outcome metrics.

For courts focused on administrative efficiencies, administrative and case processing information

regarding staff resources and costs pre- and post-ODR implementation would be useful for

comparison purposes. The table below presents sample data elements courts may wish to

consider when designing this aspect of their ODR solution.

Table XI. Sample Data Elements to Collect for Assessment

Data Types Survey Case Platform Administrative

Time and resources spent

going to court

Number of cases

referred to ODR

Time spent in platform

per user type

Staff resources measured in time or

number of personnel

assigned to task

Time and resources spent

using ODR platform Case type

Number of days case

active in platform.

Cost of process

elements

Access to specific

resources internet, electronic devices,

legal resources etc.

Percentage of all

cases of a type

referred to ODR

Initiator of engagement

in platform

Time spent by

staff inputting

data into systems

Comfort with technology

Number of cases

where users opted

out of ODR

Time elapsed between

communication if asynchronous model used.

Cost per case

Comfort with traditional

or online processes

Number of cases

where users opted

into ODR

Number of cases

negotiated and/or

mediated

Outcome and process

satisfaction

Number of cases where

an agreement is reached

Establishing what success looks like and what data needs to be collected (and from where) to

make that assessment is vital. These considerations are especially important considering how

much an ODR platform may cost courts and their users. Performance analysis not only measures

how effectively an ODR service is meeting established goals but can also be used to identify

where action should be taken to improve a service. Data analysis can illuminate trends that helps

a court focus on specific parts of an online process where changes could have a positive or

measurable impact. This sort of iterative, data-driven assessment makes it more likely a court can

realize the benefits sought from an ODR initiative or, conversely, identify if an ODR process is

not meeting their needs and make necessary corrections.

Appendices

APPENDIX A – MAY 2018 ORIGINAL ODR REFERRAL FROM THE SUPREME COURT

APPENDIX B – JUNE 2018 REPORT ONLINE DISPUTE RESOLUTION IN FLORIDA’S TRIAL COURTS

APPENDIX C – MAY 2019 REPORT ONLINE DISPUTE RESOLUTION PILOT PROJECT PLAN FOR

FLORIDA’S TRIAL COURTS

APPENDIX D – PILOT CASE SUMMARIES BY JUDICIAL CIRCUIT

APPENDIX E – SUMMARY OF PRE-PILOT BASELINE SURVEY DATA

APPENDIX F – PLATFORM USAGE DATA FROM 9TH JUDICIAL CIRCUIT – SMALL CLAIMS

IMPLEMENTATION

APPENDIX G – PLATFORM USAGE DATA FROM THE 11TH JUDICIAL CIRCUIT – CIVIL TRAFFIC

INFRACTION IMPLEMENTATION

APPENDIX H – EXIT SURVEY DATA FROM THE 11TH JUDICIAL CIRCUIT – CIVIL TRAFFIC INFRACTION

IMPLEMENTATION

APPENDIX I – FRAMEWORK DESIGN RESOURCES

APPENDIX A

Appendix A APPENDIX A

Online Dispute Resolution in Florida’s Trial Courts

Recommendations from the Online Dispute Resolution Workgroup

June 22, 2018

Appendix B

ONLINE DISPUTE RESOLUTION WORKGROUP

MEMBERS

Mr. Matthew Benefiel, Trial Court Administrator, Ninth Judicial Circuit The Honorable Gina Beovides, County Judge, Dade County, Eleventh Judicial Circuit Mr. Eric Dunlap, Esq., ADR Neutral, Ninth Judicial Circuit Dr. Oscar Franco, ADR Neutral, Seventeenth Judicial Circuit Mr. W. Jay Hunston, Jr., Esq., ADR Neutral, Nineteenth Judicial Circuit The Honorable Thomas Rebull, Circuit Judge, Eleventh Judicial Circuit The Honorable William Roby, Circuit Judge, Nineteenth Judicial Circuit Mr. Christopher M. Shulman, Esq., ADR Neutral, Thirteenth Judicial Circuit The Honorable William F. Stone, Circuit Judge, First Judicial Circuit

STAFF SUPPORT Office of the State Courts Administrator

Patty Harris, Senior Court Operations Consultant Lindsay Hafford, Court Operations Consultant Victor McKay, Senior Court Analyst II Susan Marvin, Chief of Alternative Dispute Resolution Kimberly Kosch, Senior Court Operations Consultant

Appendix B

Table of Contents

INTRODUCTION ............................................................................................................................... 4

SECTION ONE: DESCRIPTION OF ONLINE DISPUTE RESOLUTION (ODR) ................................... 4

SECTION TWO: USE OF ODR IN OTHER STATE COURTS ............................................................. 5

SECTION THREE: ODR AS A MEDIATION TOOL ........................................................................... 8

SECTION FOUR: RECOMMENDATIONS OF THE WORKGROUP ...................................................... 9

RECOMMENDATION ONE: ESTABLISH A PILOT TO STUDY THE APPLICATION OF ODR IN FLORIDA’STRIAL COURTS SMALL CLAIMS CASES .......................................................................................... 9

RECOMMENDATION TWO: COMMUNICATE TO THE CHIEF JUDGES AND CLERKS OF COURT THE

SCOPE AND INTENT OF THE ODR PILOT AND EMPHASIZE THE NEED FOR CONTINUED COMPLIANCE

WITH EXISTING COURT RULES AND STATUTES ........................................................................... 10

RECOMMENDATION THREE: CONDUCT A LEGAL ANALYSIS OF ODR AS A METHOD OF DISPUTE

RESOLUTION FOR COURT-CONNECTED CASES ............................................................................. 11

SECTION FIVE: FINAL REMARKS BY THE WORKGROUP ............................................................ 11

APPENDICES .................................................................................................................................. 12

Appendix B

INTRODUCTION

The Florida Supreme Court, by letter dated May 14, 2018 (Appendix A), directed a review of online dispute resolution (ODR) solutions and the anticipated impact of implementing ODR in court-connected alternative dispute resolution services. The Commission on Trial Court Performance and Accountability (TCP&A) and the Committee on Alternative Dispute Resolution Rules and Policy (ADRR&P) were tasked with performing the analysis and the chairs of those respective bodies jointly created the Online Dispute Resolution Workgroup (Workgroup) comprised of their members and topical experts. This report contains the work product and recommendations developed by the Workgroup.

SECTION ONE: DESCRIPTION OF ONLINE DISPUTE RESOLUTION (ODR)

ODR solutions have been in use for over twenty years, resolving millions of disputes in both the United States and abroad.1 ODR has its roots in the private sector, addressing disputes arising from e-commerce transactions through websites such as eBay or PayPal. Due to the high volume of disputes resulting from the increased buying and selling of products and services online, e-commerce businesses began providing ODR as a service to customers. As a benefit, customers began resolving their disputes in a convenient manner without the expense of a traditional legal process. With sophisticated communications technology, ODR offered e-commerce businesses the ability to improve satisfaction and loyalty of customers while also preserving the resources that would otherwise be directed toward addressing the disputes of dissatisfied customers.

Following the success of ODR in e-commerce, the concept was further developed to address court-specific case types such as traffic infractions, small claims, and family cases. In the most basic illustrative terms, ODR is designed to resolve disputes in four steps, as shown below. These steps may differ according to whether the ODR is conducted in the private sector or is conducted in association with a court case.

Diagnosis Mediation EvaluationNegotiation

During diagnosis, relevant information is gathered through an online form submitted by the user. Information is captured to identify the case number (if available), problem, and possible

1 Case Studies in ODR for Courts: A view from the front lines. JTC Resource Bulletin, Version 1.0, November 29, 2017.

Appendix B

resolutions including users contact information and preferences on how status updates should be communicated during the ODR process. Once information is uploaded and the user(s) consent to the terms and conditions on confidentiality, the negotiation begins.

Negotiation is voluntary and is different from traditional mediation in that there is no third-party neutral. During negotiation, the ODR software guides the parties through a series of questions. There may be multiple rounds of offers and counteroffers within a specified period of time. Communications are enabled mostly through email, although videoconferencing or online chatting is also possible. If an agreement is reached, a contract document is generated and each party signs it electronically. If an agreement cannot be reached, the parties are free to proceed to mediation within the appropriate jurisdiction of county or circuit court. In court-connected ODR that reaches this stage, a third party neutral, or mediator, would be assigned to mediate the case online. During mediation, the third-party neutral reviews information about the dispute and assists in further directing the online discussion toward a common resolution. Once a settlement is reached, the mediator assists in seeing that the agreement is memorialized within a report which is submitted to the court for consideration and adjudication.

It should be noted that for court-connected traffic cases, a pathway exists from diagnosis directly to adjudication. Also, in all case types associated with ODR, parties may agree on a resolution during the negotiation step, and if the case is filed with the court, may skip mediation and proceed directly to adjudication. In private ODR, if users are unable to reach an agreement, the case may proceed to what is referred to as the evaluation phase, which requires the assistance of a private arbitrator.

The potential for ODR to promote access to justice is notable. ODR has been shown to resolve disputes in a timely manner using common, built-in workflows. It also allows parties to have direct access to their case 24 hours a day and thus, more control over the pace and outcome of the dispute resolution process. Another notable feature of ODR is that the online interactions may occur at the time and place of the parties choosing, allowing participants to interact when they are best mentally and emotionally prepared. In addition, ODR allows parties in different locations or countries to avoid the costs and inconveniences of travel.

SECTION TWO: USE OF ODR IN OTHER STATE COURTS

The use of ODR in the courts remains limited, although implementation is growing across several jurisdictions. Approximately one year ago, Tyler Technologies, Inc. (Tyler), a public-sector software company and developer of the Odyssey case maintenance software, acquired the online dispute resolution platform Modria. Tyler began marketing Modria to courts nationwide as an integrated solution that works with their Odyssey system and as a non-integrated solution with other case maintenance systems. Modria is implemented in Nevada’s Clark District Courts (Las Vegas) for use in family cases and is currently under contract in the following jurisdictions:

Ohio Court of Claims (Expected to launch summer 2018) Travis County, Texas for small claims cases (Expected to launch July 2018)

Appendix B

Fulton County, Georgia for small claims and landlord and tenant cases Santa Clara County, California for small claims cases Williamson County, Texas for small claims cases

The Ohio Court of Claims is testing Modria to resolve complaints filed against a government entity for failure to provide public records. Ohio statute requires that these cases be referred to mediation and establishes an aggressive timeline for case disposition. ODR is intended to aide parties and the court in meeting these deadlines and also, facilitating citizens’ access to the Court of Claims which has statewide jurisdiction but only one physical location in Columbus. Once the case is filed and assigned to a mediator, the mediator reviews the case to determine if it is appropriate for ODR. At present, these mediations are conducted telephonically and the court does not foresee integrating Modria with any of its other case types for which mediation takes place in person. This court uses Odyssey but provides Modria as a stand-alone, non-integrated module. Once a case is initiated in Modria, parties are notified via email that the case will be mediated using ODR. Upon reaching a resolution, the settlement agreement is not automatically filed with the clerk, but instead must be filed by the parties.2

Modria is not the only solution offered to the courts. Some courts use a software called Matterhorn. Court Innovations, Inc. developed Matterhorn in partnership with the University of Michigan Law School. Matterhorn is used as a cloud-based ODR service linking to courts’ case management and payment systems. The service allows judges and court staff to remain involved in the process by interacting online with litigants. Matterhorn is successfully implemented in at least two states nationally, Michigan and Ohio, as further described below.

Since 2016, Ohio’s Franklin County Municipal Court has offered Matterhorn as a service of the court in the Small Claims Division, including City of Columbus tax cases. ODR is provided at no cost to the user as it is intended to save time, resources, and alleviate the frustrations associated with a lawsuit and coming to court. As noted by one user, ODR provided a very good experience, as it can be overwhelming and intimidating to go to a court room, ODR made the whole process less intimidating and more comfortable to reach a resolution.3 To use Matterhorn, parties voluntarily elect to use the portal as an alternative to in-person and telephonic mediation. Parties are notified of the option to use ODR by an information card that is mailed with every tax case summons and each case that has been formally referred to mediation (others may find the option by going to the court’s website to self-refer).4 Court staff mediators then conduct the online mediation. Unlike in Florida, there are no certification requirements for mediators in Ohio as they

2 Parks, Jennie B., Director of Operations, Ohio Court of Claims. June 13, 2018.

3 Alex Sanchez, Manager, Small Claims and Dispute Resolution, Franklin County Municipal Court. June 12, 2018.

4 https://sc.courtinnovations.com/OHFCMC

Appendix B

https://drive.google.com/open?id=0B3BrP9nYCtdyTmJnWDhab2NOdnc

https://sc.courtinnovations.com/OHFCMC

simply follow ABA ethics and Ohio Supreme Court guidelines. Also, in 2005, the state adopted the Uniform Mediation Act, which is broad enough to cover any form of mediation, online or otherwise, which means no rule or statute changes are anticipated with the implementation of ODR.5

In Michigan, the 14A District Court in Washtenaw County offers a Matterhorn-developed product called Online Plea for certain misdemeanor cases and offers online warrant resolution as well. These two solutions complement their existing online traffic ticket review service allowing parties to handle certain legal matters with the court and law enforcement in an entirely online environment. The user accesses the court website and enters information which is then evaluated for eligibility. If the user is deemed eligible to participate in this format, they can sign up to receive emails or text message updates with the status of the review as well as the final outcome. The court markets this service as being no different than coming to court. Unlike ODR that includes a third party neutral, this ODR solution allows for a judge and law enforcement officer to make decisions about the case based on the same criteria they would apply if the parties were in court. Some advantages to this type of service are that it is free of charge to the user and it can be done at their convenience using a computer or mobile device.6

In 2017, Michigan’s 20th Circuit and Ottawa County Probate Courts implemented the Matterhorn ODR software solution for child support show cause hearings. Currently, Ottawa County uses ODR in a limited capacity. According to their 2018-2020 Strategic Plan they are considering increasing the use of alternative dispute resolution methods (mediation, arbitration, and ODR). This planned increase will address the public’s increasing demand for alternative dispute resolution methods and other innovative and effective programs.

Other courts, such as in Utah and New York, are exploring options for ODR. The Utah courts appointed a steering committee in 2016 to develop an online dispute resolution system which it expects to begin testing in 2018 at their West Valley court location. According to a Joint Technology Committee Resource Bulletin on ODR (Appendix B), in order to implement the solution in Utah, the state will not need to amend statutes to allow for cases to be resolved using ODR. Statutes already allow for electronic signatures with the confirmation that the filer intended, and did in fact, file the document as true and original. Utah’s rules of civil procedure, however, will need to be amended to allow notices of complaint and summons to be delivered through electronic means.6 Once ODR is implemented, it will be the sole resolution mechanism for small claims cases7. Additional information may be found in their 2018 Annual Report to the

Community.


6 https://www.courtinnovations.com/MID14A


Appendix B

http://codes.ohio.gov/orc/2710.01v1

https://www.miottawa.org/courts/20thcircuit/pdf/reports/2018-2020-Strategic-Plan.PDF

https://www.utcourts.gov/annualreport/2018-CourtsAnnual.pdf

https://www.utcourts.gov/annualreport/2018-CourtsAnnual.pdf

https://www.courtinnovations.com/MID14A

The New York State Unified Court System began evaluating the use of ODR when the New York State Permanent Commission on Access to Justice recommended the courts implement an ODR solution to address consumer debt cases as an important step in access to justice. After receiving a grant from the State Justice Institute, development of such a system began, but was met with strong resistance by legal service providers after they argued the service would place vulnerable populations at risk with careless and unscrupulous creditors. The courts abandoned the plan to use ODR for consumer debt cases and instead decided to develop an ODR pilot program for a different case type.8

SECTION THREE: ODR AS A MEDIATION TOOL

As provided under section 44.1011(2), Florida Statutes, mediation is defined as “a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.” Rule 10.210, Florida Rules for Certified and Court-Appointed Mediators, defines mediation as “a process whereby a neutral and impartial third person acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. It is an informal and non-adversarial process intended to help disputing parties reach a mutually acceptable agreement.” Both definitions include the presence of a third party in order to be considered mediation.

In fiscal year 2016-17, over 60,000 small claims, residential and commercial eviction, other county civil, dependency, and family cases were resolved through mediations conducted by trial court ADR programs. The Workgroup evaluated whether ODR, such as that offered by Modria or Matterhorn, meets the definition of mediation as it is defined in Florida. In some instances, the ODR experience does not meet the definition of mediation and in some instances, it does. The central difference is the presence of the neutral third party.

For example, in a small claims action, the user experience in the Modria solution generally works as indicated in the diagram below (see Appendix C for more detail). In a scenario where the parties are given the option of in-person versus online dispute resolution and the parties opt to resolve their case online, they will be instructed as to how to proceed with the ODR system. In general, the plaintiff will initiate the online activity and both parties will be required to create a login and a password. They will then proceed through a series of questions to identify what they hope to gain from the settlement. The Modria system will suggest an initial settlement and, if both parties agree, a settlement agreement will be generated without the assistance of a mediator, as depicted

8 Case Studies in ODR for the Courts: A view from the front lines. JTC Resource Bulletin, Version 1.0, November 29, 2017.

Appendix B

in Step 3 below. There is also an opportunity for additional offers and counteroffers to be exchanged within a designated period of time. If the parties cannot reach an agreement on their own, the case will be assigned to a Florida Supreme Court certified county mediator who will work with both parties, within the online platform, to reach a settlement, much as they would in a traditional mediation, as depicted in Step 4 below.

SECTION FOUR: RECOMMENDATIONS OF THE WORKGROUP The Florida Supreme Court certifies mediators and regulates the practice of court-connected mediation, valuing ethics and professionalism in the practice of dispute resolution in the courts. It appears other jurisdictions implementing ODR do not have the extensive and detailed set of laws and rules governing the ethical conduct of mediation which exists in Florida.

Workgroup members discussed the possibility of a pilot to provide a better overall view of ODR against the backdrop of Florida’s Rules for Certified and Court-Appointed Mediators. The Workgroup acknowledges that in today’s tech-savvy environment, court clientele expect a certain level of technology. They also acknowledge that ODR may be beneficial toward improving access to justice and maximizing the use of mediators and courthouse space. A pilot program will require an exception to existing statutes and rules in order to be instituted, if it is to be called “mediation.” As an alternative, the Workgroup agrees that it may not be necessary to call this experimental program “mediation,” but rather it may be better referred to as simply “online dispute resolution.” The goal is ultimately to bring ODR within the framework of mediation as we know it in Florida, but in its current form (at least as presented by Modria), it does not appear to comply with all of the existing statutes and rules. The Workgroup agrees that since mediation in Florida is defined in both statute and rule, unless or until statute and rule amendments are pursued, a distinction will need to be made between mediation and online dispute resolution.

Recommendation One: Establish a pilot to study the application of ODR in Florida’s trial court

small claims cases.

The Workgroup recommends piloting ODR in at least one Florida county for small claims cases (claims of $0-$5,000). Over time, if the pilot proves successful for small claims cases, the pilot may be expanded to other civil case types such as traffic, county civil over $5,000, or family cases.

Step 1: Small Claims Action

Filed with Court; Case

Number Assigned; Notice to

Appear Issued to Parties.

Step 2: Parties Given

Option to Proceed Using

Traditional Mediation or

ODR.

Step 3: If ODR is Selected, Parties

Attempt Resolution in

Online Platform. Case may be

Resolved by ODR System Without Need for Third Party Neutral.

Step 4: If No Resolution

Reached, a Florida Certified Mediator is Assigned to the Case. Mediator Interacts with Parties in ODR

System to Resolve Case; Settlement Agreement Filed.

Appendix B

In fiscal year 2016-17, there were 253,286 small claims cases filed in Florida. Of these, 56,034 were ordered to mediation (see Appendix D for more detailed information). As noted in the JTC Resource Bulletin, Version 2.0 (Appendix E), full integration of ODR with a court’s case maintenance system is the preferred method of ODR. Currently, eight counties in Florida use the Odyssey case maintenance system (Appendix D). Since a fully integrated ODR solution is recommended by the Joint Technology Committee and Modria integrates with Odyssey, it would be ideal to choose one of these eight counties to test the capabilities of Modria in a fully integrated environment. The Ninth Judicial Circuit has indicated a willingness to participate in a pilot effort. Given the case volume in the circuit and the current use of Odyssey in Orange County, a pilot in the Ninth Judicial Circuit will likely guarantee a valid sample.

Small claims mediations are currently free to parties pursuant to section 44.108(2), Florida Statutes. The Workgroup recommends ODR services remain free as part of the pilot. To continue to offer these services free of charge, the courts would incur the fees associated with the use of the ODR software. The Office of the State Courts Administrator (OSCA) should explore the pilot-related costs and develop a budget proposal for consideration by the Trial Court Budget Commission.

Finally, the pilot should consider the human resources needed to fulfill its goal. It is not immediately clear that the existing pool of small claims mediators are available for ODR cases. Fourteen judicial circuits use volunteer small claims mediators for mediation service delivery in county court. These volunteers, who are largely retired individuals, are trained by OSCA in a 20-hour certified county mediation training program and mediate cases once or twice per month at their local courthouse. Mediations are conducted in person and typically last 45 minutes. Mediators do not utilize computer or electronic devices; stipulated mediation agreements are drafted by hand at the end of the mediation and parties sign the agreement prior to departure and filing with the court. Currently, the required components of certified mediation training programs do not include learning objectives or demonstrations on mediation conducted via digital platforms. Given these factors, the OSCA, in consultation with the statewide ADR Directors and the Committee on ADR Rules and Policy, should research the availability, expertise, training and electronic accessibility needed for mediators to provide ODR service delivery in small claims cases.

Recommendation Two: Communicate to the trial court chief judges and clerks of court the

scope and intent of the ODR pilot and emphasize the need for continued compliance with

existing court rules and statutes governing court-connected mediation.

The Florida Supreme Court has authority to adopt rules for practice and procedure in all courts under Article V, Section 2(a) of the Florida Constitution. Chapter 44, Florida Statutes legislatively establishes the Court’s authority over court-ordered mediation and arbitration services. Specifically, section 44.102(1), Florida Statutes, provides “Court-ordered mediation shall be conducted according to rules of practice and procedure adopted by the Supreme Court.”

Appendix B

Furthermore, the Florida Supreme Court establishes policy for the judicial branch according to rule 2.205(a)(1)(A), Florida Rules of Judicial Administration.

By contrast, the duties of the clerks of court are administrative and do not allow for adoption of court rules of practice and procedure or court policies. Article V, Section 16, Florida Constitution, establishes in each county a clerk of the circuit court. As noted on the Florida Court Clerks & Comptrollers’ website, in most jurisdictions, the Florida clerk not only serves as Clerk of the Circuit Court, but also as County Treasurer, Recorder, Auditor, Finance Officer, and Ex-Officio Clerk of the County Commission. Chapter 28, Florida Statutes, includes many sections regarding the duties of the clerks of circuit courts, all of which are administrative and none of which supersede the courts’ authority over court cases. In conclusion, the Workgroup agrees that since the clerks of court do not possess legal authority to establish online dispute resolution for court-connected mediation or adjudicative processes, they also do not possess the authority to implement a pre-mediation negotiation component and implementation of all such processes must be done solely at the direction of the Florida Supreme Court. Also, as noted above, the Supreme Court’s rules of practice and procedure for court-connected mediation services necessitate all case referrals to ODR must be by court order.

Recommendation Three: Conduct a legal analysis of ODR as a method of dispute resolution

for court-connected cases.

In accordance with section 44.102(2)(a), Florida Statutes, civil actions for monetary damages must be referred to mediation upon the request of any party, “provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties.” The Workgroup recommends a comprehensive legal analysis of the use of ODR to resolve cases in Florida’s trial courts. At a minimum, the analysis should address the difference between ODR and in-person mediation; potential changes needed to current laws, rules and policies; impacts to funding sources; and the applicability of ODR to various civil case types. The analysis should be completed in consultation with the TCP&A and ADRR&P and should be done in conjunction with the pilot.

SECTION FIVE: FINAL REMARKS BY THE WORKGROUP

The Workgroup agrees the courts’ use of ODR is not a question of “if,” but rather a question of “when and how.” As always, Florida courts should actively find ways to implement technology to improve service to the public. With the establishment of a pilot, Florida will be at the forefront in designing a more modernized dispute resolution process that complies with the requirements of Chapter 44 and the Florida Rules for Certified and Court-Appointed Mediators. Florida’s existing court rules may need to be revised to allow an ODR process to operate in full compliance with them. Such issues should be evaluated as part of a pilot effort; and recommendations should be made on the feasibility of expanding the pilot to additional jurisdictions or civil case types in the future.

Appendix B

https://www.flclerks.com/page/ClerksDuties

https://www.flclerks.com/page/ClerksDuties

On behalf of the Workgroup, thank you for the opportunity to provide these recommendations to the TCP&A, the ADRR&P, and the Florida Supreme Court for consideration. Appendices

Appendix A – Florida Supreme Court Letter dated May 14, 2018 re: Online Dispute Resolution with Modria

Appendix B – Joint Technology Committee Resource Bulletin, Case Studies in ODR for Courts: A view from the front lines, Version 1.0

Appendix C – Sample Online Dispute Resolution Case Flow Process Chart

Appendix D – County Small Claims Mediation Service Delivery Models

Appendix E – Joint Technology Committee Resource Bulletin, ODR for Courts, Version 2.0

Appendix B

Appendix B

The Honorable Rodney Smith and The Honorable Diana L. Moreland May 14, 2018 Page 2

Tyler Technologies is currently marketing Modria to all clerks of court around the state. Due to this marketing and the potential impact such a solution could have on court operations, I am directing the Commission on Trial Court Performance and Accountability and the Committee on Alternative Dispute Resolution Rules and Policy to complete an analysis regarding the use of Modria and other similar systems. The analysis should assess both the efficiency and effectiveness of Modria and the anticipated impact on court-ordered alternative dispute resolution services.

I ask that the Commission on Trial Court Performance and Accountability take the lead in offering recommendations on the appropriate use of this solution in both the Offices of the Clerk of Circuit Court and the Florida State Courts System. The Court asks both committees to consider the ethical, regulatory compliance, and operational issues associated with online dispute resolution programs such as

Modria that could potentially arise from the integration of this new technology within the court system.

The Court asks that you please submit your joint recommendations for the Court's consideration by June 30, 2018.

Sincerely

JL:pah

Appendix B

Appendix B

Step 1: Small Claims Action Filed with

Clerk of Court; Filing Fee Collected

Step 2: Case Number Assigned; Notice to Appear Issued to Parties

Step 3: Parties Given Option to Proceed

with Traditional Mediation or ODR

Step 4: If ODR is Selected, Invitation to

Participate is Generated and Sent to

Parties

Step 5: Parties Register Online within

ODR Platform and Begin ODR Process

Step 6: Plaintiff Initiates Online Interaction and States Damages Sought

Step 7: Respondent Makes Offer/Counteroffer

Step 8: If Offer is Accepted, Settlement Agreement Generated;

Must be electronically signed by both parties; Filed with the Court

and Reviewed by Judge

Step 9: If Agreement Cannot be Reached, Case

Will be Referred to Florida Supreme Court Certified

Mediator

Step 10: Mediator Interacts with Parties Online to Reach

Agreement

Step 11: Settlement Agreement Generated; Must be Electronically Signed by

Both Parties

Step 12: Signed Agreement Filed with the Court; Must be

Reviewed by Judge

Step 13: If Approved, Judge Signs Agreement and Case is

Disposed

Sample Online Dispute Resolution Caseflow Process*

*This diagram represents a general caseflow process for a simple claims case, such as a small claims case, and is not meant to represent the process for all jurisdictionsor case types.

Appendix B

As of FY 2017-18

Circuit County

Small Claims

Cases

Referred1

Small Claims

Cases

Mediated1

Staffing Model2

Case Referral Practice2

Clerk Case

Maintenance

System3

Escambia 620 370 Volunteer Automatic by AO BenchmarkOkaloosa 174 145 Volunteer Automatic by AO BenchmarkSanta Rosa 131 67 Volunteer Automatic by AO ClericusWalton 0 0 N/A N/A ClericusFranklin 0 0 N/A N/A Clericus

Gadsden 59 59 Employee/VolunteerAll Contested Cases; Individually by Judge

CDS

Jefferson 0 0 N/A N/A Clericus

Leon 1,039 1,039 Employee/VolunteerAll Contested Cases; Individually by Judge

Benchmark

Liberty 0 0 N/A N/A Clericus

Wakulla 101 101 Employee/VolunteerAll Contested Cases; Individually by Judge

Clericus

Columbia 128 128 Contract Individually by Judge ClericusDixie 54 54 Contract Individually by Judge ClericusHamilton 37 37 Contract Individually by Judge ClericusLafayette 0 0 N/A N/A ClericusMadison 73 73 Contract Individually by Judge ClericusSuwannee 128 128 Contract/Volunteer Individually by Judge ClericusTaylor 0 0 N/A N/A CDS/ClericusClay 150 145 Employee/Volunteer All Contested Cases OdysseyDuval 1,172 825 Employee/Volunteer All Contested Cases ShowcaseNassau 145 142 Employee/Volunteer All Contested Cases ClericusCitrus 504 504 Volunteer All Contested Cases BenchmarkHernando 226 226 Volunteer All Contested Cases ClericusLake 1,059 1,059 Volunteer All Contested Cases ShowcaseMarion 542 542 Volunteer All Contested Cases ClericusSumter 0 0 N/A N/A ClericusPasco 1,521 1,521 Contract Individually by Judge ClericusPinellas 1,836 1,834 Contract Individually by HO/Judge OdysseyFlagler 105 94 Volunteer Individually by Judge BenchmarkPutnam 123 115 Volunteer Individually by Judge ClericusSt. Johns 123 117 Volunteer Individually by Judge BenchmarkVolusia 473 456 Volunteer Individually by Judge In-HouseAlachua 521 521 Employee/Volunteer All Contested Cases CourtviewBaker 42 42 Employee/Volunteer All Contested Cases ClericusBradford 14 14 Employee/Volunteer All Contested Cases ClericusGilchrist 17 14 Employee/Volunteer All Contested Cases ClericusLevy 23 22 Employee/Volunteer All Contested Cases BenchmarkUnion 0 0 Employee/Volunteer All Contested Cases ClericusOrange 15,452 4,050 Volunteer Automatic by AO OdysseyOsceola 3,734 1,147 Volunteer Automatic by AO Benchmark

County Small Claims Mediation Service Delivery Models

7

8

9

1

2

3

4

5

6

As of FY 2009-10

Appendix B

As of FY 2017-18

Circuit County

Small Claims

Cases

Referred1

Small Claims

Cases

Mediated1 Staffing Model2 Case Referral Practice2

Clerk Case

Maintenance

System3

1

As of FY 2009-10

Hardee 0 0 N/A N/A ClericusHighlands 53 53 Volunteer Individually by Judge ClericusPolk 313 313 Contract/Volunteer Individually by Judge New Vision

11 Dade 2,837 2,333 Employee/Volunteer Individually by Judge Odyssey/CJIS

Desoto 28 25 Contract/VolunteerAutomatic by AO; All

Contested Cases; Individually by Judge

Clericus

Manatee 222 212 Contract/VolunteerAutomatic by AO;

Individually by JudgeClericus

Sarasota 1,202 1,110 Contract/VolunteerAutomatic by AO; All

Contested Cases; Individually by Judge

Benchmark

13 Hillsborough 2,839 1,846 Employee/Contract All Contested Cases OdysseyBay 1,719 488 Volunteer All Contested Cases BenchmarkCalhoun 0 0 N/A N/A ClericusGulf 0 0 N/A N/A ClericusHolmes 146 54 Volunteer All Contested Cases ClericusJackson 1,025 324 Volunteer All Contested Cases ClericusWashington 256 85 Volunteer All Contested Cases Clericus

15 Palm Beach 4,422 4,422 Volunteer All Contested Cases Showcase

16 Monroe 159 158 AllAll Contested Cases; Individually by Judge

Odyssey

17 Broward 5,285 4,507 Contract All Contested Cases OdysseyBrevard 4,273 2,693 Employee/Volunteer Automatic by Clerk FACTS

Seminole 248 248 Employee/VolunteerAll Contested Cases; Individually by Judge

In-House

Indian River 200 200 Contract Individually by Judge BenchmarkMartin 120 120 Contract Individually by Judge ClericusOkeechobee 100 100 Contract Individually by Judge ClericusSt. Lucie 213 213 Contract Individually by Judge BenchmarkCharlotte 545 545 Volunteer Automatic by AO BenchmarkCollier 1,091 1,091 Volunteer Automatic by AO ShowcaseGlades 0 0 N/A N/A ClericusHendry 0 0 N/A N/A ClericusLee 1,861 1,861 Volunteer Automatic by AO Odyssey

59,483 38,592

1 Compendium 2009-10 21st Edition2 Mediation Circuit Profiles February 20083 Court Application Processing System (CAPS) Implementation Matrix, Updated 9/14/2017

10

18

19

20

12

14

Appendix B

JTC Resource Bulletin ODR for Courts

Version 2.0

Updated and Adopted 29 November 2017

Appendix B

Abstract Online Dispute Resolution (ODR) encompasses a broad array of technologies used to resolve a growing variety of business and consumer disputes throughout the world. It has grown to become a distinct and particularly effective dispute resolution mechanism. Courts have implemented ODR for low-dollar personal injury claims, landlord-tenant, small claims, and minor traffic and code enforcement violations. ODR presents opportunities for courts to expand services while simultaneously reducing costs and improving customer experience and satisfaction. This Resource Bulletin provides a basic primer in Online Dispute Resolution and describes several implementation models, as well as court-specific opportunities and considerations. A companion publication – Case Studies in ODR for Courts: A view from the front lines – describes ODR implementations in a variety of court settings.

Document History and Version Control Version Date Approved Approved by Brief Description

1.0 12/12/2016 JTC Release document

1.0 11/29/2017 JTC Withdrawn.

2.0 11/29/2017 JTC Updated and re-released.

Appendix B

Acknowledgments This document is a product of the Joint Technology Committee (JTC) established by the Conference of State Court Administrators (COSCA), the National Association for Court Management (NACM) and the National Center for State Courts (NCSC).

JTC Mission:

To improve the administration of justice through technology

ODR Focus Group:

IV Ashton LegalServer

Ethan Bauer The Pew Charitable Trusts

Kevin Bowling 20th Circuit & Ottawa County Michigan Courts

Ron Bowmaster Utah Courts (retired)

MJ Cartwright Matterhorn

Diana Colon New York State Unified Court System

Sherry MacLennan British Columbia Legal Services Society

Shannon Salter British Columbia Civil Resolution Tribunal

David Slayton Texas Office of Court Administration

Colin Rule Tyler/Modria

Doug Van Epps Michigan Office of Dispute Resolution

National Center for State Courts

Thomas M. Clarke, Research and Technology

Paul Embley, Technology Services

Jim Harris, Technology Services

Additional Contributors

Sue Brown ClaimsPortal (United Kingdom)

Robert Ciolek 14A District Court (Michigan)

Carrie Menkel-Meadow University of California, Irvine School of Law

Alex Sanchez Franklin County (Ohio) Municipal Court

Richard Schauffler National Center for State Courts

Ann Thompson Thomson Reuters

Martin Ward ClaimsPortal (United Kingdom)

Corry Van Zeeland Rechtwijzer, Legal Aid Board (Netherlands)

Appendix B

Joint Technology Committee:

COSCA Appointments David Slayton (Co-Chair) Texas Office of Court Administration

David K. Byers Arizona Supreme Court

Laurie Dudgeon Kentucky Administrative Office of the Courts

The Honorable Sigfrido Steidel Figueroa Puerto Rico Court of Appeals

Rodney Maile Hawaii Administrative Office of the Courts

NACM Appointments Kevin Bowling (Co-Chair) Michigan 20th Judicial Circuit Court

Paul DeLosh Supreme Court of Virginia

Danielle Fox Circuit Court for Montgomery County, Maryland

Kelly C. Steele Florida Ninth Judicial Circuit Court

Jeffrey Tsunekawa Seattle Municipal Court

NCSC Appointments The Honorable O. John Kuenhold State of Colorado

The Honorable Michael Trickey Washington Court of Appeals, Division 1

CITOC Appointments Jorge Basto Judicial Council of Georgia

Casey Kennedy Texas Office of Court Administration

Ex-officio Appointments Joseph D.K. Wheeler IJIS Courts Advisory Committee

NCSC Staff Paul Embley

Jim Harris

Appendix B

Contents Abstract ............................................................................................................................ii

Document History and Version Control ............................................................................ii

Acknowledgments ........................................................................................................... iii

Contents .......................................................................................................................... v

Introduction ..................................................................................................................... 1

Applying technology to resolution processes .................................................................. 1 Problem triage and diagnosis ................................................................................................. 3 Mediation / Arbitration ............................................................................................................ 4 Resolution / Adjudication ........................................................................................................ 4 Information gathering / document preparation ........................................................................ 5 Communication ...................................................................................................................... 5

Opportunities for courts ................................................................................................... 6 Access ................................................................................................................................... 7 Efficiency................................................................................................................................ 7 Enforcement/collection ........................................................................................................... 8 Fairness ................................................................................................................................. 8 Customer satisfaction ............................................................................................................. 8

Integration Options .......................................................................................................... 9 Partial integration ..................................................................................................................10 Full Integration ......................................................................................................................10 Pretrial / Standalone ..............................................................................................................10 ODR as a marketplace for legal services...............................................................................11 Extra-judicial .........................................................................................................................11

Case types .................................................................................................................... 11 Small claims ..........................................................................................................................12 Traffic and parking ................................................................................................................12 Property ................................................................................................................................12 Tax assessment appeals .......................................................................................................13 Family ...................................................................................................................................13

Considerations .............................................................................................................. 14 Business needs .....................................................................................................................14 Cost ......................................................................................................................................14 Scope ....................................................................................................................................14 Privacy and security ..............................................................................................................15 Data ......................................................................................................................................15 Transparency ........................................................................................................................15 Digital divide ..........................................................................................................................16 Definition of success .............................................................................................................17

Legal outcomes .................................................................................................................18 Procedural satisfaction ......................................................................................................18 Expanded access ..............................................................................................................19

Appendix B

ODR Maturity ................................................................................................................ 19 Stakeholders and Partners ....................................................................................................21

The Public .........................................................................................................................21 Staff ..................................................................................................................................21 The Bar .............................................................................................................................23 Partner Agencies ...............................................................................................................23

Leadership and Governance .................................................................................................24 Culture ..................................................................................................................................24 Statutes and Rules ................................................................................................................25 Processes .............................................................................................................................26 Technology ...........................................................................................................................27 Funding .................................................................................................................................28

Recommendations ........................................................................................................ 29 Focus on the public. ..............................................................................................................29 Involve users in design and testing........................................................................................29 Start with problem triage / self-help tools. ..............................................................................30 Make ODR an “opt out” process; limit scenarios for opting out. .............................................30 Provide escalation and/or enforcement mechanisms. ...........................................................31 Offer “live” help......................................................................................................................31 Limit complexity for the first project. ......................................................................................31 Forget the forms. ...................................................................................................................31 Create calculators. ................................................................................................................32 Keep it really simple. .............................................................................................................32 Use an Agile development process. ......................................................................................32 Manage expectations. ...........................................................................................................32 Implement in phases. ............................................................................................................33 Consider flextime and/or offsite staff roles. ............................................................................33 Empower staff. ......................................................................................................................33 Leverage Contract/Vendor Relationships ..............................................................................34 Measure success. .................................................................................................................34 Make ODR transformational. .................................................................................................35

Conclusion .................................................................................................................... 37

Appendix A: ODR systems in use in Courts .................................................................. 38 US Courts .............................................................................................................................38 Courts in other countries .......................................................................................................38 Extra-judicial ODR .................................................................................................................38

Appendix B

Introduction For more than 20 years, Online Dispute Resolution (ODR) has been used effectively to resolve individual-to-individual e-commerce disputes. Increasingly, it is being used in innovative applications unique to the judiciary. While ODR is a new concept for courts, it is not a theory or a “bleeding-edge” technology. It is a proven tool with a documentable record of success over a sustained period of time: billions of disputes have been resolved outside of court using ODR. Significant opportunities exist for courts to leverage ODR to expand services while simultaneously reducing costs and improving the public’s experience and therefore, satisfaction. For those reasons, it is becoming central to the discussion of the future of courts.

In its 2016 recommendations entitled Call to Action: Achieving Civil Justice for All, theConference of Chief Justices (CCJ) observes that navigating civil courts can be daunting and “those who enter the system confront a maze-like process that costs too much and takes too long.” The report notes that services should improve in step with changing needs and the development of new technologies, but goes on to lament that “courts lack any of the user-friendly support we rely on in other sectors.” Recommendation 13 of the CCJ report implores courts to “take all necessary steps to increase convenience to litigants by simplifying the court-litigant interface and creating on-demand court assistance services.”

As such, “on-demand court assistance” must go beyond basic informational webpages or online payment portals. A more public-facing use of technology, ODR takes the benefits of technology much further. While courts are using technology effectively to improve case management and administrative processes and to address federal disposition reporting requirements, ODR has the potential to dramatically expand the public’s access to justice and improve their experience with justice processes.

This Resource Bulletin identifies key issues, opportunities, considerations, and recommendations for courts evaluating ODR. A separate JTC publication – Case Studies in ODR and the Courts: A View from the Front Lines - provides case studies ofcourt-specific ODR either fully implemented or under development.

Applying technology to resolution processes Simply defined, ODR is a digital space where parties can convene to work out a resolution to their dispute or case. Originally limited to non-binding, out-of-court dispute resolution between private parties, ODR is now used in the public sector to resolve traffic violations or code enforcement, landlord/tenant, small claims, small-dollar personal injury claims, separation/divorce, and tax assessment appeals cases, etc.

ODR leverages technology to provide the same customer-centric “anytime/anywhere” access the Internet provides for online banking, shopping, dating, healthcare, genealogy, and other activities. It not only enables people to communicate about disputes at a distance, but also facilitates resolution by increasing the availability of resolution processes, improving the flow and character of information, reducing conflict,

Appendix B

and minimizing many financial and time constraints. Use of technology can increasingly expedite as well as shape communication, negotiation, and ultimately, resolution.

ODR’s digital space can be presented to users in the form of a website or application (app), and can utilize a variety of information and communication technologies ranging from simple chat service or videoconferencing to cognitive computing. Leveraging a wide range of technology-enabled processes, ODR delivers much more than just a digital space. ODR can be used to do any or all of the following:

• triage problems• provide legal information in plain English• de-escalate conflict between parties• structure negotiations• suggest solutions• trigger essential reminders• negotiate• facilitate• mediate• adjudicate

In some instances, ODR can even help enforce agreements.

ODR is not a specific software package, it is a thoughtful and intentional use of technology to facilitate problem resolution. The goal is not to replace courts with computers, but rather to strategically apply technology to certain dispute resolution processes to make them more accessible, efficient, convenient, and cost effective. Any online case processing application that leads to resolution may be loosely described as ODR (focusing narrowly on the “online” aspect versus “dispute resolution”).

Technology can be used to automate some or all of the steps in a resolution process. It creates an additional path into the courts, expanding access to justice. While ODR is not appropriate for all case types, it is a powerful tool for those that are more transactional in nature, are less complex, and that occur in high volume. Court resources are costly and the value added by human intervention in those case types is limited. Well-designed ODR leverages technology to efficiently resolve high-volume/low-complexity cases. This can free up human resources to address low-volume/higher-complexity disputes.

More complicated cases naturally demand more human involvement, but complex cases are usually a very small percentage of a court’s caseload. Cases that must ultimately be decided in a courtroom should not be a priority to attempt to address online. In almost all case types, technology can still be used in a variety of ways to improve the process. Figures 1 and 2 together demonstrate the correlation between case volume and reliance on technology, and case complexity and reliance on human intervention.

Appendix B

Figure 1 - Case volume / complexity continuum1 Figure 2 - Technology / human involvement continuum

As case complexity increases, the volume of cases decreases and the benefits of automating processes decrease proportionately.

Reliance on technology naturally diminishes as more skilled, personal assistance is required.

ODR is not an “all or nothing” decision. Technology can be used to help move cases through some aspects of the resolution process, while other steps are handled by court staff. Most court-based ODR today is a hybrid of human involvement and automation. ODR technologies may be applied to problem triage and self-help, mediation and arbitration, and/or adjudication. Some systems may also provide post-adjudication enforcement.2 Information gathering and communication technologies can facilitate all stages of a resolution process. Access to justice improves when any stage of the resolution process is available online.

Problem triage and diagnosis According to a recent study3, 48 states offer websites with legal forms and self-help content. However, getting to the right information may require users to frame their questions in a legal context. When there are multiple approaches to resolving a dispute, forms and instructions do little to help individuals understand the implications of various paths to resolving the dispute4. Legal self-help websites can often be text-heavy and filled with jargon unfamiliar to all but lawyers.

In contrast, a good ODR triage process can help people determine if they have a legal issue, diagnose the problem, and provide focused, relevant information about their legal rights and obligations. Since not all disputes and complaints

1 Figures 1-3 are based in part on ‘The ODR spectrum’ published in Thomson Reuters ‘The Impact of ODR Technology on Dispute Resolution in the UK – 2016’ 2 ODR systems can be focused specifically on facilitating post adjudication enforcement, as in child support and parenting time apps, or can incorporate Blockchain or similar technologies include enforcement capabilities. 3 Kourlis, Rebecca Love and Riyaz Samnani, Court Compass: Mapping the Future of User Access Through Technology. Institute for the Advancement of the American Legal System, University of Denver. May 2017. 4 Staudt, Ronald W, Access to Justice for the Self-Represented Litigant: An interdisciplinary Investigation by Designers and Lawyers (with P. Hannaford). 52 Syracuse L. Rev. 1017 (2002).

Figure 3 - ODR Process Stages

Appendix B

https://blogs.thomsonreuters.com/legal-uk/wp-content/uploads/sites/14/2016/10/BLC_ODRwhitepaper.pdf


http://iaals.du.edu/sites/default/files/documents/publications/court_compass_mapping_the_future.pdf

http://iaals.du.edu/sites/default/files/documents/publications/court_compass_mapping_the_future.pdf

https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?referer=http://theconversation.com/every-year-millions-try-to-navigate-us-courts-without-a-lawyer-84159&httpsredir=1&article=1572&context=fac_schol

https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?referer=http://theconversation.com/every-year-millions-try-to-navigate-us-courts-without-a-lawyer-84159&httpsredir=1&article=1572&context=fac_schol

involve legal issues, a good triage tool within an ODR system can also help prevent unmeritorious complaints.

Problem triage does not require exhaustive information or extensive documentation of the dispute. The first step in a well-designed ODR process is to gather essential information - only enough information to accurately diagnose the situation. In many instances, Personal Identifying Information (required to create a user profile, for example) should not be collected until after the triage phase, allowing individuals to assess their situation and consider options before identifying themselves. Collecting only essential information and documents reduces the time burden on parties and limits the volume of information the court will need to log, store, and retain. ODR should not require or collect information for all cases that is only relevant in a small number of cases.

• British Columbia’s Civil Resolution Tribunal (CRT) system has demonstrated that often parties in a dispute simply need information, not legal action.5

Mediation / Arbitration ODR can facilitate party-to-party negotiations through synchronous or asynchronous communications, either with or without the assistance of a neutral third party. ODR systems like British Columbia’s CRT can provide a structured environment for parties to communicate about their dispute and attempt to resolve it themselves. If parties cannot agree without assistance, some form of automated or human mediation and/or arbitration is the next step.

Studies show the public has a strong desire to negotiate and to reach a collaborative agreement to their disputes.6 As with the so-called “Ikea Effect,” people place greater value on things they build themselves. People are more likely to be satisfied with a consensual agreement, and they’re also more likely to adhere to it.7 When ODR is provided by or through the courts, it carries the authority of the court, giving parties greater confidence in the process and the outcome.

Resolution / Adjudication The goal of an ODR process is resolution, not necessarily a case and disposition. That resolution may come in the form of an agreement the parties reach on their

5 In the first year, more than 10,000 individuals started “explorations” using strata Solution Explorer. About 600 ended up as actual claims, which means that approximately 94% were able to resolve their issue without formal CRT intervention. 6 British Columbia Ministry of Justice. “Online Civil Justice Services Survey 2015.” Confidence interval of +/- 2.9%, 19 times out of 20) [BC Stats]. 7 See Shestowsky, Donna. “The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante.” Iowa Law Review, vol. 99, no. 2, ser. 637, Jan. 2014.

Appendix B

https://ilr.law.uiowa.edu/print/volume-99-issue-2/the-psychology-of-procedural-preference-how-litigants-evaluate-legal-procedures-ex-ante/


own after direct negotiation, a settlement reached with the help of a facilitator, an outcome suggested by an algorithm, or in some other form.

• Human-facilitated adjudication occurs through Washtenaw County,Michigan’s online pleading system for traffic cases. Magistrates review thecharges, information provided by defendants, the driver’s record, andother records. If the case qualifies for mediation, the charge can bereduced to “impeding traffic,” a violation which will not appear on anindividual’s driving record and will not negatively impact auto insurancerates. Defendants then have a limited amount of time to accept thereduced charge and pay the associated fine.

Information gathering / document preparation Well-designed ODR can help parties narrow the focus of negotiations to key issues, build a joint narrative, and reduce some conflicts by reducing the exchange of unnecessary but potentially emotionally charged information. Technology can also be used to simplify the process of gathering information, giving system users a convenient way to meet documentation requirements.

While ODR should focus on resolution, not document preparation, ODR systems can feed into existing paper processes. Information and evidence gathered during the triage process can be used to resolve the conflict, as well as to complete any documents or feed any processes required by existing statutes and rules.

• The UK’s Claims Portal facilitates investigation, negotiation, and litigationof traffic accident and personal injury claims. Information related to injuryclaims can be transferred securely through the system, including medicaldocumentation, settlement offers and counter-offers. If the parties do notreach agreement, the system can generate a Court Proceeding Packet8

from information provided during investigation and negotiation stages.

Communication Communication mechanisms used in ODR range from low-tech land-line telephones to very high-tech, secure messaging. The process can be either synchronous or asynchronous for the user and the court, depending on the court’s goals and purposes for the system. In either case, communication methods should extend the court’s availability to the public. Utilization statistics support the public’s preference for extended hours of access. For example, nearly 33% of Franklin County, Ohio’s ODR system use is “after hours.”9

8 See Court Proceedings Pack for low-value personal injury road traffic accidents on justice.gov.uk. 9 “ODR in Franklin County Municipal Court.” Email from Alex Sanchez, Manager, Small Claims and Dispute Resolution, Franklin County (Ohio) Municipal Court, 21 Nov. 2017.

Appendix B

Approximately 40-45% use British Columbia’s Civil Resolution Tribunal outside normal business hours.10

The virtual aspect of ODR may be more than just convenience for the public. It may actually be much more effective than the stressful and confrontational atmosphere of in-person interactions.”11 Clearly, individuals are likely to be more comfortable at home, and will be better informed if they can “pause” the resolution process to gather information and assess options – luxuries not available when standing in front of a judge in a traditional courtroom. Even face-to-face virtual negotiation via communication technologies like Skype or Facetime may have some of the negative impacts associated with going to court.

More sophisticated ODR can also help shape and “de-conflictualize” the communication between parties. Algorithms can be used to detect and neutralize inflammatory language in written communications, helping to de-escalate conflict. Websites and apps can use a combination of technology and human mediators to reduce conflicts in co-parenting situations.12 By nature, self-help, negotiation, and facilitation are collaborative processes, unlike traditional court discovery processes that front-load the resolution process with adversarial exchanges of information that can escalate conflict and polarize parties.

Opportunities for courts ODR can help courts improve both outcomes and outputs. Most notably, ODR eliminates many of the obvious physical barriers and can also mitigate many of the financial barriers that limit individuals from accessing court processes. The “level playing field” of ODR can improve fairness. Together, these benefits improve litigant satisfaction with the process. Using ODR technologies, courts can simultaneously increase case throughput while reducing costs.

Technology … introduces new possibilities for helping … achieve resolution. We may learn from offline approaches in designing ODR systems, but the larger challenge is to take advantage of what we can do with technology that we could not do before.13

For courts ready to reimagine justice processes, those new possibilities can provide dramatic improvements in measurable aspects of the justice process.

10 Interview with Shannon Salter, Chair, Civil Resolution Tribunal. 11 October 2017. 11 Case, Lucinda. “The Impact of ODR Technology on Dispute Resolution in the UK.” Legal Solutions UK and Ireland Blog, Thomson Reuters, 2016. 12 Some courts are stipulating that co-parents use the OurFamilyWizard website/app or similar tools. 13 Rule, Colin and Ethan Katsh. "What We Know and What We Need To Know About Online Dispute Resolution," South Carolina Law Review 67 S.C. L. Rev. 329. Winter 2016.

Appendix B


https://www.ourfamilywizard.com/

https://www.americanbar.org/content/dam/aba/images/office_president/katsh_rule_whitepaper.pdf

Access ODR facilitates access for individuals with a variety of physical barriers:

• Poor health• Limited mobility• Physical or mental disabilities• Caregiving responsibilities for children or the elderly• Military deployment• Relocation• Work-related travel• Distance to the courthouse• Threat of domestic violence

While minor offenses or traffic violations may only require one court appearance, simply showing up can be costly, particularly for individuals in low-paying, hourly wage jobs. Landlord-tenant disputes and family court cases often require multiple trips to court, making the burden of appearing in court even greater.

Going to court can be nearly impossible for individuals who live at a significant distance from the jurisdiction of the dispute, making it almost impossible to enforce the terms of a divorce decree, resolve a traffic citation received while traveling through an area, or address the issue of a non-paying tenant. ODR allows parties in different locations or jurisdictions to resolve disputes without the cost and complexity of trying to meet at the same time in the same place.

While many courts are now utilizing videoconferencing to mitigate some of the impacts of geographic distances, that technology does not resolve the challenge of coordinating schedules so that all parties can participate simultaneously. An online solution can provide asynchronous communication so that individuals can resolve disputes when it is most convenient for them, whether or not the court is “open.”

ODR also removes much of the anxiety individuals may experience over appearing in person to address any issue, but particularly to address uncomfortable or threatening issues like outstanding warrants, overdue fees, tickets, immigration status, domestic violence, and other legal matters. It can help individuals in almost any circumstance engage with the justice system more conveniently, inexpensively, and simply.

Efficiency ODR can often resolve disputes more quickly than traditional legal processes. An ODR platform may be accessed anytime, anywhere, and is not reliant upon the parties and the court or a mediator convening on a shared schedule, so disputes can be moved through the system more quickly. For example, the online traffic pleading system implemented in several Michigan district courts has reduced the time to resolution for disputed cases from months to days, though all parties still

Appendix B

"came to the table" — the offender, law enforcement, and the judge or magistrate.

While automation in and of itself can improve efficiency, courts should streamline and simplify processes as part of an ODR initiative. Off-loading repetitive, non-value-add tasks to technology can help courts better utilize their human resources. The combination of streamlining and automation will naturally reduce the need for some human administrative interventions, giving staff more time to focus on more complex cases.

Enforcement/collection When the dispute in question involves fines or fees, the court may be responsible for enforcement and collection. An ODR solution can assist the adjudicator in understanding a defendant’s ability to pay, set an appropriate payment schedule, provide automated payment reminders, and even be integrated with an online payment mechanism. More sophisticated ODR systems may incorporate Blockchain14 or similar technologies, providing automated enforcement. ODR can help litigants comply with judgements, reducing defaults. Faster resolution and disposition also mean courts and agencies receive funds more quickly.

Fairness Individuals who use ODR are not identified by gender, race/ethnicity, religion, socio-economic status, age, or other characteristic irrelevant to the dispute that might be casually observed through in-person interactions. As such, ODR can help address some of the issues associated with explicit or implicit bias – an issue known to impact the fairness of outcomes. Technology does not discriminate, except against those who do not have access to technology. While actively embracing the many advantages of technology, courts must also ensure vulnerable populations have avenues of access and assistance.

ODR can also “level the playing field” in many kinds of disputes. Much of the unfairness in our current justice system is tied to whether a litigant has the financial means to retain legal counsel, take time away from work to go to court, and wait years for resolution to an issue. By automatically enforcing justice process time limits, ODR can prevent one party from stalling to delay resolution in an attempt to cause the other party inconvenience or financial difficulty.

Customer satisfaction With a nod to customer satisfaction, courts sometimes use surveys to gather feedback from court users. However, follow-on surveys are not necessarily an accurate indicator of an individual’s in-court experience. An ODR system provides a platform for gathering litigant satisfaction data throughout the process.

14 Distributed Ledger Technology originally developed for Bitcoin currency. Blockchain is a continuously growing list of records (“blocks”) that are linked and secured using cryptography.

Appendix B

While ODR can incorporate customer satisfaction surveys into the resolution process, elaborate surveys are not the best way to gauge user experience. Courts can benefit from knowing the answer to a single question: Would you recommend this process to someone else? Using a scale of 0 to 10, courts can compare detractors (those who answer 0-6) to promoters (scores of 9-10). Subtracting the percentage of detractors from the percentage of promoters yields a “net promoter score” (NPS).

In the private sector, companies track their NPS to gauge customer loyalty. While courts do not need “loyal” customers, they do need to know how satisfied parties are with court processes. Asking whether court clients would encourage others to use the process can help courts measure their progress. A free-form field that encourages individuals to explain their rating can provide valuable, actionable information.

Another measure of satisfaction may be compliance with case resolution/outcomes. Courts can compare compliance outcomes by collecting pre-ODR key performance indicators on the number of cases that return to the court because of non-compliance and comparing those against return cases post-launch of ODR, for a true A-B test. If judgments are paid through the system, compliance may be easier to quantify.

Simple “button rating” web tools including “thumbs up/thumbs down” indicators, like/dislike buttons, star ratings, etc. can be built into an ODR system, helping courts quantify and understand a variety of aspects of the user experience. In more sophisticated ODR implementations, analytics can assess the tone of text exchanges and re-route/escalate cases.

How long people stay in the ODR system can be an indicator of either success or failure. Courts should track and analyze the number of people that “bounce” off the site immediately, as well as those that see an issue through to resolution (including resolution before a formal case is filed) or start a process but fail to progress, which could signal a too-complex process. Using a website “heat map” or “click map,” courts can analyze where users are clicking (or failing to click) and make important adjustments.

With an established baseline15 for comparison, courts can set appropriate goals for the percentage of disputes resolved within certain timeframes and take corrective action when statistics point to problem areas in the process.

Integration Options There is no single “correct” way to implement ODR. Court managers can use both flexibility and creativity to design ODR processes that stand alone, preface a court

15 See CourTools.org for suggested performance measures.

Appendix B

http://www.courtools.org/

process, or are partially or fully integrated with the courts and their information systems. In some public-private partnerships, ODR can be a marketplace for legal and adjudication services.16 Private entities may offer ODR as an alternative to the courts.Ideally, ODR would not introduce a system “silo,” but would be implemented as part of a broader, court-wide plan.

Partial integration An ODR system may rely on the case management system for certain information and integration of updated information. A case management system with limited options for integration was a challenge for Washtenaw County, Michigan’s 14A District Court. A nightly data exchange currently facilitates their ODR process. The court anticipates integrating the ODR module directly with a case management system in 2018.

Full Integration In full integration, ODR is integrated seamlessly into the court’s processes and includes phases for notification of availability of ODR, problem self-diagnosis, negotiation, potential court review, adjudication, and recording of final settlements. This approach defines ODR not as an alternative to traditional court proceedings, but as a “high-tech upgrade” of existing court dispute processes. The 2016 HiiL Trend Report specifies full integration as the preferred method for ODR.

• British Columbia’s Civil Resolution Tribunal is a fully-integrated system.

• When implemented, Utah’s small claims court will be fully-integrated ODR.

Pretrial / Standalone Some ODR implementations seek to help parties resolve a dispute instead of filing a legal action. In some instances, early triage and dispute resolution tools “front end” a formal judicial process.

• Franklin County, Ohio Municipal Court provides professional mediationservices through ODR with the goal of helping parties resolve disputeswithout court proceedings. If parties are unable to agree, a party canproceed with formal action in the traditional court setting, but theinformation input into the ODR system is not captured and utilized togenerate a formal case filing.17

• British Columbia’s Civil Resolution Tribunal front-ends the formal Tribunalprocess with a “Solution Explorer” that provides information, guidance,and self-help resources before users create profiles and launch a claim.

16 "ODR and the Courts: The Promise of 100% Access to Justice?" HiiL Trend Report IV (2016): HiiL, 2016. Web. 30 Nov. 2016. 17 For a look at the Franklin County Municipal Court ODR, see https://www.courtinnovations.com/ohfcmc.

Appendix B

http://www.onlineresolution.com/hiil.pdf

https://www.courtinnovations.com/ohfcmc

To date, about 94% of users who started an “Exploration” ultimately resolved their issue without making a formal CRT claim. Unresolved cases are escalated to a higher level of negotiation and facilitation, and can ultimately be adjudicated by a Tribunal member through the online platform, if parties cannot come to agreement.

• The UK’s Claims Portal facilitates resolution and financial settlements inpersonal injury disputes and generates the paperwork required for filing aformal court action in instances where the claimant is not satisfied with theproposed settlement.

ODR as a marketplace for legal services While ODR is often a competitor to traditional legal assistance, it can also be a platform to provide better, more understandable access to traditional legal services.

• The Dutch Rechtwijzer system helps users triage issues and selectspecific, unbundled services offered by public and private legal serviceproviders that have been certified as qualified by the Legal Aid Board(Raad voor Rechtsbijstand).

Extra-judicial Some ODR providers offer resolution services to the public without any direct connection to the courts. In this implementation, the ODR system is a substitute to the courts and settlements are not recorded with the court or generally enforceable actions.

• Individuals who have been injured in a car accident in New York first file aclaim with the insurance company. If the insurance company either fails torespond promptly or denies the claim, consumers can utilize the ADR/NewYork No-Fault Insurance website to request and receive arbitration.Arbitration is one of several options available to consumers, includingtaking the insurance company to court.

Case types The use of ODR is expanding rapidly in court settings, with dozens of implementations and pilot projects underway in the United States and abroad.18 The following areexamples of case types being resolved through ODR.

18 A recent report by HiiL entitled ODR and the Courts: The Promise of 100% Access to Justice contains numerousexamples of ODR in the international community. See http://www.onlineresolution.com/hiil.pdf.

Appendix B

http://www.onlineresolution.com/hiil.pdf

Small claims Small claims cases generally do not involve attorneys on either side, making these disputes an ideal entry point for ODR in a jurisdiction.

• Franklin County, Ohio is using ODR to resolve a variety of small claims case types, including City of Columbus tax cases.19 Defendants are invited to the free, online platform when they receive a summons and can opt to seek resolution a variety of ways. Litigants always have a right to their day in court even if they first use ODR to explore other options. ODR does not supplant the hearing, but instead serves as a supplementary process that may result in resolution. In many instances, it eliminates the need for traditional proceedings.

• British Columbia’s Civil Resolution Tribunal started handling small claims cases up to CAN$5,000 in June (2017). That threshold will increase gradually over time until the CRT becomes the dispute mechanism for all small claims cases up to CAN$25,000.

Traffic and parking Informal hearings and other proceedings where individuals contest small civil infractions or lesser misdemeanors can consume half or more of a limited-jurisdiction court's docket. ODR for such violations does not replace the option for an in-person hearing, but can complement it.

• More than 20 individual courts in Michigan are now using ODR to resolve a variety of traffic and civil infractions.

Property Property disputes include landlord-tenant, tenant-tenant, tenant-homeowner’s association, and others. They may center on issues of maintenance and repair, pets, misuse of property, non-payment of rent, eviction, etc.

• British Columbia’s Residential Tenancy Branch uses ODR for landlord-tenant disputes. The website also includes tools to help users meet important deadlines (for example, the timeframe for a landlord to return a deposit) and calculators to help determine the fairness of a rent increase.

Shared-ownership communities like condominium and co-op properties may have specific regulations that impact the nature of disputes and how they are resolved.

19 More information on the Franklin County (Ohio) Municipal Court ODR program can be found at https://www.courtinnovations.com/ohfcmc.

Appendix B

https://www.courtinnovations.com/ohfcmc

• British Columbia’s online Civil Resolution Tribunal is the dispute resolution process for strata (condominium) disputes.

Tax assessment appeals The process for appealing a tax assessment varies by jurisdiction, but generally requires an individual to prove the value of a home, car, boat, or other asset. Individuals submit photos, appraisals, documentation of recent sales of similar properties, and other information that could easily be provided digitally.

Integrating an ODR system with a dynamic mapping system gives filers the opportunity to identify properties they think bolster their case and review recent sales. The dynamic mapping system is more accurate than online real estate listing sites and gives the filer insight into the data the county is using to establish the property’s value. Helping taxpayers understand the true value of their property can help resolve some cases before they are actually filed.

• The Ohio Board of Tax Appeals (BTA) has been using ODR since late 2014. The system is convenient for taxpayers, agents, and attorneys, who can file an appeal online, access electronic case files, negotiate settlements, and take actions on cases. The system also improves the process for Ohio BTA staff, improving efficiency and service to citizens.

Family Low-conflict, low-complexity family court cases are particularly well-suited to ODR because of the clear benefit to children and the parents who care for them. ODR can be used for uncontested divorces, many contested divorces, and some related matters like child support and parenting if parties have a basic willingness to negotiate and no history of domestic violence. A significant proportion of cases could potentially be resolved with minimal intervention or with no human intervention. Seriously contested cases may require significant human involvement, but may still be able to be resolved online in a synchronous mode.

Handling custody and child support matters from home is more convenient and less stressful for both parents and children. Online resources are also beneficial in some high-conflict situations, providing access to justice processes without requiring individuals to be in public spaces where security risks are greater.

• Michigan launched the MiChildSupport website in April of 2017, giving divorced parents access to a child support calculator that was previously only available to court staff. The site also facilitates child support payments as well as new applications for child support.

• MyLawBC can be used to help avoid foreclosure, make a separation (divorce) plan, create a will, prepare power of attorney, handle end of life healthcare choices, and assess risk and develop a personal safety plan in domestic abuse situations. The website combines self-help guided

Appendix B

pathways that users can access anonymously with contact information for lawyer referrals, notaries public, victim advocates, and pro bono legal aid.

• Ottawa County, Michigan’s Family Court Compliance ODR providesautomated notifications, reminders, a secure communication mechanismfor case managers and parents, and tools for managing “show cause”hearings. The system has reduced in-person hearings by 27% and arrestwarrants by 36% in the first year.

Considerations Courts must weigh a variety of legal, technical, practical, and ethical considerations as they evaluate the potential for ODR in their jurisdictions. Those considerations range from technology essentials (customizable off-the-shelf or in-house cloud-based products that meet the court’s requirements for integration and security) to implications to the court’s mandate to provide access to justice and procedural fairness. Considerations for courts include, but are not limited to, the following:

Business needs Courts have business needs based on a host of business processes relating to records, calendars, and courtroom proceedings, as well as personnel, finances, technology, and facilities.20 Courts will approach ODR differently based on their unique business challenges.

Reducing judicial caseloads or addressing budget cuts may be one court’s priority, while another court may be focused on improving access to justice for unserved and under-served segments of the community. Thankfully, the benefits of ODR are not exclusive to a specific challenge. ODR can simultaneously resolve multiple, unrelated issues. Stakeholder involvement is key to leveraging ODR to meet the broadest scope of business requirements.

Cost Any technology initiative carries some direct cost, but many jurisdictions are finding those costs to be surprisingly low and manageable. In some instances, courts may opt to share the cost with users, partner agencies, and/or stakeholders. In others, ODR may be funded by stakeholders other than the court.21 ODR also provides opportunities for private/public partnerships.

Scope A variety of factors will determine the scope of an ODR initiative. Courts must identify disputes to be handled through ODR, and whether ODR will be

20 Steelman, David C. Court Business Process Enhancement Manual - An Aid to Process Improvement and Process Reengineering for Judges, Court Managers, And Court Information Technology Directors. Joint Technology Committee – Technology Reengineering Subcommittee. May 2003. 21 For example, the UK’s ClaimsPortal was funded by insurance company and legal provider stakeholders.

Appendix B

mandatory or optional. Some legal associations have proposed limiting certain ODR initiatives to self-represented litigants. If ODR will be utilized by both represented and self-represented litigants, courts must determine how to ensure there is not an imbalance of power. For example, if the plaintiff is a debt collector with representation, the system would need to ensure the defendant knows his/her rights and how the relevant burden of proof works.

Not all cases are suitable for online dispute resolution. For those that are not, certain processes or parts of the case might still be handled online. In situations where cases are too complex to be fully resolved online, ODR can offer valuable process improvements.

Privacy and security Courts will need to thoughtfully define who owns ODR system data, how it will be protected, how it can be used, and how and where audit trails are maintained. Important considerations include the court’s responsibility in maintaining records if peer-to-peer negotiation ensues in software provided or licensed by the court, information that should be private, and information that should be available to whom, when, and how. Courts are responsible for final agreements, judgments, and any officially filed documents as part of the court record. Negotiation and private communication between parties are not part of the court record, and therefore not retained and not discoverable.

Data ODR is a digital process; data that drives the process can be captured and analyzed to refine and improve the process. Case resolution outcomes including time to reach agreement, compliance, and user satisfaction levels are benchmarks for which courts continue to be responsible.

Courts have not traditionally been data-driven organizations. It may be a culture shift for courts to intentionally publish data that could potentially expose inefficiencies, prejudices, or injustices. However, courts must be able to quantify success to make evidence-based decisions about processes and services. That will require courts to collect data about their processes, as well as their users. The High Performance Court Framework22 can help courts create administrative and managerial capacity to support a performance improvement quality cycle.

Transparency Courts must determine how the system will help drive fair and transparent resolutions. Parties need to know how the process will work before they begin, who manages the process, who will have access to the data, and how much it will cost at each stage of the process. Processes and algorithms that impact

22 See Ostrom, Brian and Roger Hanson. Achieving High Performance: A Framework for Courts. National Center forState Courts, Research Division. April 2010.

Appendix B

https://cdm16501.contentdm.oclc.org/digital/collection/ctadmin/id/1874

decisions should be available for scrutiny. Some court ODR systems provide a public dashboard for querying prior decisions.23

Digital divide Concerns about limited technology access in certain populations have prompted some court leaders to justify delays in fully leveraging technology including ODR. However, studies confirm that Americans have almost universally adopted technology: 93% of Americans age 18-49 use the Internet.24 US consumers rely on cloud-based offerings for an enormous variety of essential daily activities from shopping25 and banking, to healthcare, education, dating, and more. Nearly half use mobile devices to access those resources.26

Utilization varies somewhat by income, but even among the lowest income populations, Internet use nears 80%. The percentage of Americans using the Internet today is so high that researchers today specifically study Internet “non-adopters.” Conversely, justice advocacy groups estimate that only about 20% of low-income Americans can access the civil court system, and the statistics aren’t much better for other income brackets. 27 Ironically, this means that a much higher percentage of the population has access to information technology than has access to justice through the courts.

With the enormous potential for improving the public’s access to justice, courts may still forgo ODR options because not all sectors of the public have easy access to the Internet. Nearly 50% of adults with household income less than $30,000 do not own a computer or have broadband Internet access at home28. Broadband availability is still limited in some rural areas, as well.

Though the digital divide is real, it is shrinking. The proliferation of smartphones over the last few years has narrowed the divide significantly. Internet access is primarily an issue if websites can only be used from desktop or laptop computers. Pew Center research has identified a class of "smartphone-dependent" Internet users: those with “few options for online access other than their cell phone.”29 As of November 2016, more than three quarters of U.S. adults

23 For examples, see the ClaimsPortal Executive Dashboard or the Residential Tenancy Branch Search Decisions. 24 Anderson, Monica, and Andrew Perrin. “13% Of Americans Don't Use the Internet. Who Are They?” FactTank: News in the Numbers, Pew Research Center, 7 Sept. 2016, www.pewresearch.org.25 Smith, Aaron, and Monica Anderson. “Online Shopping and Purchasing Preferences.” Internet, Science & Tech,Pew Research Center, 19 Dec. 2016, www.pewinternet.org 26 Mobile Fact Sheet.” Internet and Technology, Pew Research Center, 12 Jan. 2017, www.pewinternet.org/fact-sheet/mobile/. 27 “Closing the Justice Gap.” Brennan Center for Justice, New York University School of Law, 28 Aug. 2017,www.brennancenter.org/. 28 Anderson, Monica. “Digital Divide Persists Even as Lower-Income Americans Make Gains in Tech Adoption.” FactTank: News in the Numbers, Pew Research Center, 22 Mar. 2017, www.pewresearch.org/fact-tank/2017/03/22/digital-divide-persists-even-as-lower-income-americans-make-gains-in-tech-adoption/. 29 Smith, Aaron. "U.S. Smartphone Use in 2015."

Appendix B

https://www.claimsportal.org.uk/about/executive-dashboard/

http://www.housing.gov.bc.ca/rtb/search.html

http://www.pewresearch.org/fact-tank/2016/09/07/some-americans-dont-use-the-internet-who-are-they/

http://www.pewinternet.org/2016/12/19/online-shopping-and-purchasing-preferences/

http://www.pewinternet.org/fact-sheet/mobile/

https://www.brennancenter.org/issues/closing-justice-gap

http://www.pewresearch.org/fact-tank/2017/03/22/digital-divide-persists-even-as-lower-income-americans-make-gains-in-tech-adoption/

http://www.pewresearch.org/fact-tank/2017/03/22/digital-divide-persists-even-as-lower-income-americans-make-gains-in-tech-adoption/

http://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015/

owned a smart phone, up from 46% in November of 2012. Smart phone ownership increased from 70% to 77% between May and November of 2016 alone.30

In spite of access challenges, jurisdictions that have provided paper alternatives to online processes are finding that users are simply not interested.31 Individuals who do not have Internet access at home may have access through a family member or at a public library or local Wi-Fi hotspot at a fast food restaurant or store.

It may be that in the future public libraries, providing access to public computers, will become more central to dispute resolution than courts…32

Librarians, social workers, teachers, and advocates for the homeless and victims of domestic violence are important stakeholder representatives in an ODR initiative. They may become the new professionals in ODR.

Definition of success A successful ODR project should positively impact both outcomes and output. Measuring both is key to accurately assessing the impact. Simultaneously tracking ODR cases against traditional case processing would provide powerful comparisons in instances where ODR is an “opt in” process. To facilitate comparisons of public opinion before and after ODR in either an “opt out” or single-path process, courts must capture sufficient “pre-ODR” customer satisfaction statistics.

Courts must ensure their evaluation framework is not an artificial measure. A decrease in case filings may simply mean the claims process is too lengthy, complex, or costly, not that the need has been met or lessened. Quantifying the number of problems identified and resolved before they become cases is a bettermeasure of success than the number of cases that complete an ODR-based process. Court managers may struggle to conceptualize a goal that improves outcomes for citizens but ultimately stops “short of the courthouse doors” by facilitating the resolution of issues before they become cases. As ShannonSalter, Chair of British Columbia’s Civil Resolution Tribunal (CRT), emphasizes, “Not ending up in CRT is success.”33

30 “Mobile Fact Sheet.” Internet and Technology, Pew Research Center, 12 Jan. 2017, www.pewinternet.org/fact-sheet/mobile/. 31 Anticipating a need for a non-technical alternative for populations with limited access to technology, British Columbia’s CRT created a parallel paper forms process. However, only 20 paper applications were filed in 2016. For January-November of 2017, the number was 13. 32 Menkel-Meadow, Carrie. “Hybrid and Mixed Dispute Resolution Processes: Integrities of Process Pluralism.”Comparative Dispute Resolution Research Handbook. Edward Elgar Publishing. Forthcoming in 2018.33 Salter, Shannon. “Joint Technology Committee - ODR Focus Group Meeting.” 15 Aug. 2017, Vancouver, British Columbia.

Appendix B

http://www.pewinternet.org/fact-sheet/mobile/

Courts must also find ways to assess the public’s experience with ODR – whether it facilitated access that otherwise would not have been possible, made the process more understandable, reduced stress, etc. Measures of success traditionally fall into one or more of three categories – legal outcomes, procedural satisfaction, or expanded access. Relevant measures of success in these areas will be different for court clients and partner agencies.

Legal outcomes Measures of the effectiveness of ODR on legal outcomes include time to disposition, cost per case to both litigants and courts, settlement rates, default rates, and both financial and non-financial impacts on clients and communities.34 ODR can also improve court outputs, increasing the volume of cases resolved and decreasing case backlogs.

Some ODR initiatives are showing dramatic results in reducing the time to resolution and resulting costs for courts while simultaneously improving results for both court clients and partner agencies. In Washtenaw County, Michigan 14A District Court, the number of days to case closure dropped by 65% for cases resolved using ODR, while the default rate on fines dropped from approximately 22% to less than 1% for cases handled through ODR.35

Off-loading some portion of straight-forward cases to automated processes can also free up personnel to provide greater personal assistance in more complex cases. After implementing ODR, Washtenaw County 14A District Court also experienced a significant decrease in the number of days to case closure for cases handled through traditional processes.

Procedural satisfaction Citizens have high expectations of courts, and their satisfaction with court procedures impacts their perception of the court’s legitimacy as well as their willingness to accept legal outcomes.36 Valid measures of procedural satisfaction can include whether individuals felt they were treated respectfully, felt heard, understood the instructions and implications of the process, believed the process was fair and impartial, and whether the technology worked well.

34 For more information about measuring success in legal outcomes, see CourTools – Trial Court Performance Measures – Measure 1: Access and Fairness. 35 In presentation by Robert Ciolek, Court Administrator for Washtenaw County’s 14A District Court at Court Technology Conference 2017, Salt Lake City, Utah. 12 September 2017. 36 Burke, Kevin, and Steve Leben. “Procedural Fairness: A Key Ingredient in Public Satisfaction.” Court Review.American Judges Association. 2007.

Appendix B

http://www.courtools.org/Trial-Court-Performance-Measures.aspx

http://aja.ncsc.dni.us/courtrv/cr44-1/CR44-1-2BurkeLeben.pdf

Expanded access ODR can expand access by helping eliminate a wide variety of obstacles that prevent individuals from understanding and exercising their rights.37 Financial barriers are an obvious challenge, but access issues also include physical barriers as well as barriers of language and literacy. People with family responsibilities, work-travel requirements, limited mobility, health issues, challenges related to language or literacy, immigration status, those who live in remote areas, and members of the armed forces who are deployed can engage with the justice system more conveniently, inexpensively, and simply through ODR.

Accessibility issues also include the high cost of traditional litigation, a barrier that even free or reduced-cost legal aid cannot address. Over and above attorney fees, courts must consider all costs that impact litigants: filing fees, lost wages from missing work for court hearings, transportation costs, child care expenses, and other direct costs to litigants or their families.

Because ODR seeks to resolve issues before they become formal cases, it can be challenging to find an appropriate basis for comparison. Case volumes may increase or decrease because of the deployment of these tools. Increased volume could indicate more people are accessing redress. Fewer case filings also indicate increased access to dispute resolution processes. The efficiency of the tools should make dealing with any increased volume less time consuming than dealing with the old volume.

ODR Maturity A variety of factors influence a court’s readiness to undertake an ODR initiative. Some factors will be outside the court’s control. Awareness of where obstacles lie can help court managers enhance and leverage strengths, finding pathways where progress is possible.

The following table captures some of the strengths of courts succeeding with ODR, and identifies some of the characteristics that have created challenges and caused setbacks. Enthusiastic, dynamic leadership seems to be a key element that has helped some courts succeed in spite of obvious challenges or gaps in foundational preparations. A visionary leader can positively influence court culture and work collaboratively to establish practices that improve processes and the potential for success with ODR.

37 “About the Office.” Justice.gov, The United States Department of Justice, 8 Aug. 2017, www.justice.gov/atj/about-office.

Appendix B

https://www.justice.gov/atj/about-office

Stakeholders and

Partners Leadership and

Governance Culture Statutes and Rules Processes Technology Funding

Public engaged in process development and improvement.

Established partnerships.

Contract and relationship management expertise.

Flexible procurement and partnering strategies.

Collaborative relationship with local Bar association.

Lead by strong champions with decision-making authority.

Cross-functional support.

Energized, visionary, tech-savvy.

Collaborative.

Includes succession plan.

Sustainability.

Customer-focused.

Open.

Innovative.

Accepting of failures in the pursuit of improvement.

Flexibility in piloting new approaches.

Evidence-based practices.

Impacts analyzed rigorously and regularly using accurate, relevant metrics; processes continually refined.

High level of digital agility; incorporates new technologies quickly.

Uses technology effectively to enhance operational effectiveness and deliver better, more cost-effective services.

High expectation for access to online processes.

Sustainable revenue streams.

Resistant to or suspicious of partnering.

Unwilling to utilize commercial options.

Agency silos.

Political rivalries.

“We know what the public wants.”

Adversarial relationship with local Bar Association.

No clear leader, or leader who lacks authority to act.

No succession plan.

Court-centric focus.

Suspicious.

Defensive.

Risk averse.

Silo mentality.

Known obstacles with limited options for addressing them.

Complex, manual processes that have changed little over the years.

Policy, process, or technology barriers to collecting and analyzing data.

Limited use of technology.

Suspicious of or actively opposes use of technology.

Digital divide.

No funding.

No flexibility to adjust utilization of current budget.

Str

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rs

Appendix B

While technology is often perceived as the most daunting aspect of an ODR project, human factors can have a far more significant impact. Subtle (or dramatic) differences in Stakeholders and Partners or Leadership and Governance can have a significant impact on the success or failure of an ODR attempt. Taken together, these factors influence the court’s Culture.

Stakeholders and Partners Stakeholder interests in ODR vary widely. The measure of success for some stakeholders in an ODR initiative may be to make it safer for domestic violence victims to deal with court processes, while for other stakeholders, it may be to reduce costs or keep their own jobs from changing. In spite of the range of potential motivations and perspectives, buy-in from all stakeholder groups is important.

The Public Historically, courts have shown limited interest in changing court processes to make them easier for individuals to navigate. Court aren’t actually asking litigants what they want, either. Almost all studies to date of how people perceive and evaluate justice procedures consist of “laboratory studies of laypeople (typically undergraduate research participants) who evaluate options for resolving hypothetical disputes.”38 Contrast that with the prevalence of usability testing and user experience (UX) design in almost every other industry.

The public will likely be the most enthusiastic stakeholder group. Making some court functions available online ultimately provides better access to a much larger portion of society. Courts are recognizing that ODR could be hugely beneficial to their jurisdictions and the people they serve.

Staff Organizations with well-designed ODR pathways will have much less need for staff to assist the public in navigating court process. As processes are streamlined and digitized, some court functions will naturally shift to other parts of the organization, or may go away. While the number of staff needed in some roles will diminish, the number in other roles will increase. Any diminishing of the need for current staff skills may generate resistance. Ideally, ODR initiatives will free up staff to provide more “value-add” assistance.

Highly skilled staff will be needed to leverage technology to communicate complex legal information and ideas in understandable, useable ways. While the total number of clerks decreased following Utah’s digitization efforts,

38 Shestowsky, Donna. “The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante.” Iowa Law Review, vol. 99, no. 2, ser. 637, Jan. 2014.

Appendix B



clerks in Utah’s paperless courts today are more educated and capable, and are better-paid than their non-digital predecessors.39 To fully benefit from process improvements, Courts will need to find innovative ways to help existing staff transition into new roles, while recruiting to fill gaps.

Courts that are behind the technology curve may be further delayed by technology-resistant incumbents who have held key roles for decades. The skillsets required to stamp and file documents are not the skills and mindset required to re-engineer processes and use technology to assess issues, provide pathways to resolution, and serve up focused, useful, actionable information. Courts will need Facilitators, Knowledge Engineers, Content Specialists, and Developers. Staff capabilities required for ODR include the following:

• Creativity• Cultural sensitivity• UX (user experience) design• Ability to use technology to gather, analyze, and share information• A laser-like focus on customer service and continuous improvement• Ability to distill complex information to a basic reading level

ODR may also necessitate the creation of new, more flexible staff positions. Court staff that support a 24/7 ODR process may be able to do their jobs remotely and on a much more flexible work schedule. British Columbia’s Civil Resolution Tribunal operates in a small facility “footprint,” with 65-70% of its employees working from home most or all of the time. These positions offer flexibility that has drawn an extremely well-qualified cadre of staff. Recruiting is easier, turnover is low, and job satisfaction is high.

Highly qualified individuals who want or need to work non-traditional hours may be willing to accept less competitive wages in exchange for flexibility. In courts where compensation is under-market, this can be a significant benefit to both the court and its employees. Flex-time roles can prove to be a notable hiring advantage and can also reduce some court costs associated with physical facilities. Employees working from home don’t need parking spots or desks, or to clear security checkpoints.

There may be special considerations for states where court staff are unionized. Building and maintaining strong working relationships with union representatives is key. In some instances, it may be necessary to build a distinctly different (potentially parallel) process to facilitate the adoption of ODR without violating fair labor practices.

39 Bergal, Jenni. “Courts Plunge into the Digital Age.” Digital Courthouses Go Paperless, Pew Charitable Trusts, 8Dec. 2014.

Appendix B

http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2014/12/8/courts-plunge-into-the-digital-age

An additional consideration is that ODR could potentially indirectly reduce individual incomes. For example, in jurisdictions where law enforcement officers receive overtime pay to attend court, ODR would ideally eliminate some of the need for in-person court appearances, thus reducing that agency’s costs for overtime pay, but also limiting officers’ potential income. In markets where compensation is not competitive with surrounding industries, this may be an emotional issue. Ultimately, this should be addressed as a compensation issue, not an ODR issue.

The Bar Legal scholars have long recognized the potential for ODR to reduce the need for some traditional legal services. Conversely, ODR may also bring new opportunities for lawyers, especially in states that adopt limited scope representation (unbundling) rules.

Resistance by the Bar may well be a contributor in the courts’ historically tepid response to ODR. As budget constraints, consumer expectations, and modernization efforts drive courts to develop and deploy ODR, citizens will be empowered to resolve some legal issues without the assistance of legal counsel. Courts should not be surprised by Bar efforts to protect the livelihoods of their lawyers. However, this should not influence the course of ODR efforts.

For lawyers and public servants whose careers are in the courts, ODR may well be regarded as threatening. This should not deter us from evolving techniques that better meet the needs of Internet-based societies. It is not the purpose of the courts to provide lawyers with a livelihood.40

Courts may intentionally begin by implementing ODR to address conflicts like small dollar consumer complaints or misdemeanor traffic violations that don’t generally involve lawyers, thus avoiding resistance that could delay or derail a project. As courts become more familiar with and skilled in ODR, they will be better prepared to take on more complex legal processes like divorce and higher value claims, and the resistance to those initiatives may generate in the legal community.

Partner Agencies When courts collect fines and fees on behalf of other agencies, ODR can facilitate faster collection and decrease the likelihood that a party defaults. In those situations, partner agencies are likely to enthusiastically support the use of ODR. However, ODR may inadvertently undercut an agency’s revenue stream. If ODR is available pre-filing, disputes may be resolved at that stage;

40 Suskind, Richard. Foreword to “Online Dispute Resolution: Theory and Practice.” Eleven International Publishing, The Hague, Netherlands, n.d.

Appendix B

http://www.ombuds.org/odrbook/Table_of_Contents.htm

the court would not realize either revenues or expenses associated with case filing and other civil process fees. Courts should factor in a broader macro analysis to consider the long-term economic benefits to litigants and the community, with these benefits potentially offsetting loss of fee revenue to stakeholder agencies.41

Leadership and Governance Jurisdictions that are succeeding with ODR initiatives point to a strong champion leading the effort. That leader must not only be capable and well-respected, but also authorized to act. This is particularly important within the judiciary.

In the Michigan initiative, a Michigan Supreme Court Justice encouraged and facilitated conversations between the vendor and the courts. The justice recognized the potential for ODR technology and supported the initiative. County court IT staff report the justice’s leadership and approach were key to their project’s ultimate success. The opportunity was offered, not required, and the first court that was approached declined to participate. Today, more than 20 Michigan courts have implemented ODR for a variety of case types including traffic, parking, warrants, past due fines, and family court compliance.

Good governance can smooth the pathway to success with an ODR initiative. Poor or nonexistent governance will make the path more complicated and difficult, and in extreme instances, ensure that the project fails and the status quo prevails. When multiple departments, functional areas, and partner agencies consistently work together to ensure the effective use of information technology to further the organization’s goals, governance is functioning well.

In the absence of effective governance, visionary leadership may be sufficient to launch and sustain an ODR initiative of limited scope. As those initiatives begin to succeed, momentum will build and may be a catalyst for more effective governance. Succession planning should include developing capacity within the organization to maintain momentum if/when key individuals retire, are reassigned, or leave the organization.

Culture The people who serve, staff, and use the courts are all part of the Court’s culture. That culture is one of the most significant factors influencing the potential for ODR in a jurisdiction. Innovations linked to ODR can touch on virtually any aspect of a court’s processes – and in fact, should influence and change many of those processes. Some courts that are succeeding with ODR demonstrate a

41 For example, see the economic impact study of the Phoenix Muni CAP program, which stands as a model for this kind of larger, more far-reaching perspective.

Appendix B

https://www.cap-az.com/departments/finance/cap-economic-impact

culture of collaboration, innovation, and empowerment. ODR appears to bring increased energy and enthusiasm to their organizations.42

Collaboration Courts are notorious for functioning in “silos” of informationand activity. To succeed with ODR, courts must foster collaboration among departments, agencies, and other branches of government. An interdisciplinary approach to process development will ensure ODR benefits all stakeholders. A brief, daily huddle meeting or “scrum” can facilitate effective information sharing and “Plan-Do-Check-Act” improvement efforts.

Innovation Fear of failure stifles creativity and limits the potential for real innovation. Waterfall-style project management, procurement, and development are common in government organizations including courts, but will not facilitate the kind of iterative, “fail fast and learn” adjustments required to rapidly change and fine-tune processes and systems. In contrast, Agile development is cyclical: Prototype. User Test. Adjust. Implement. Repeat.

Empowerment Innovation thrives on individual initiative and occurs morenaturally in “flatter” organizations than in hierarchal and rule-based organizations. Ideally, the power to act should reside as close as possible to those who “live” the processes. Court staff must be encouraged to identify bottlenecks and shortcomings in the processes they administer, and be empowered to make adjustments. Employee-initiated recommendations for process improvements should be regularly evaluated, and as appropriate, implemented.

Statutes and Rules Rules and statutes that inadvertently constrain the use of technology may need to be updated, but technology-specific statutes and rules should not be too prescriptive. Narrowly written rules will likely have to be revisited repeatedly as technologies evolve, de facto “standards” emerge and are replaced. For example, courts might specify that electronic files be submitted in a lossless format instead of specifying which lossless format.43

42 Personal observations of this paper’s editor. Individuals representing organizations involved in the development of this paper have generously and enthusiastically shared both knowledge of and passion for ODR. There is a growing ODR community where those who are involved with ODR mentor and encourage others undertaking similar efforts. 43 File format was one factor leading to a sanction in a 2013 patent infringement lawsuit in Maryland. See Austin, Doug. “Court Rules Production Must Be TIFFs with Bates Numbers – EDiscovery Case Law.” EDiscovery Daily Blog,Cloudnine, 12 Mar. 2013.

Appendix B

https://www.ediscovery.co/ediscoverydaily/case-law/court-rules-production-must-be-tiffs-with-bates-numbers-ediscovery-case-law/

Traditional court processes also include built-in delays meant to accommodate the exchange of paper documents via mail (or historically, by rider on horseback). While mandated delays no longer make sense in some court processes, they remain codified in court rules and statutes. Changes may be required. As part of their digital transformation, Utah’s Judicial Council adopted a rule change mandating electronic case filing starting in 2013.44 Washington state adopted rules as far back as 2004 to ensure that “[u]se of technology in the justice system . . . serve[s] to promote equal access to justice and to promote the opportunity for equal participation in the justice system for all.”45

Changes to statutes and rules are likely to come more quickly with the advocacy of a well-respected project champion. Even so, rule and statute changes are often multi-year initiatives. In situations where ODR cannot be implemented due to existing rules and statutes, it may be possible to begin implementation using waivers or other temporary mechanisms. In the spirit of “It’s better to ask forgiveness than wait for permission,” one approach may be to assume anything is permitted that is not expressly prohibited. Courts may also utilize temporary rules and procedures adopted specifically for a pilot project, with an evaluation component to determine the potential for permanent changes.

Processes Courts are not known for simplicity and efficiency. Worse still, many court processes are traditionally adversarial, facilitating or escalating conflicts.

The procedure at courts tends to turn disagreements into a positional battle, enhancing conflict rather than contributing to solutions. This adversarial procedure may still be a superior method for fact-finding in murder cases or large-scale product liability matters. It certainly is a costly one. 46

The ODR perspective can be valuable in process re-engineering. Traditional court processes hinge on location and schedule, with a judge as the ultimate destination and highly skilled, highly compensated counsel to assist all along the way. ODR decouples the process from the courthouse, schedule, judge, and lawyer, reducing the number and complexity of steps to resolution. Adjudication is the last step of a traditional dispute resolution process; with ODR, it is the last failure.

44 Bergal, Jenni. “Courts Plunge into the Digital Age.” Digital Courthouses Go Paperless, Pew Charitable Trusts, 8Dec. 2014. 45 Zorza, Richard, and Donald J. Horowitz. “The Washington State Access to Justice Technology Principles: A Perspective for Justice System Professionals.” Library ECollection, National Center for State Courts, 28 Sept. 2006.46 Barendrect, Maurits, Jin Ho Verdonschot, Frances Singleton-Clift, Jamie Poeteray, Gintare Petreikyte, and Filippa Braarud. “ODR and the Courts: The Promise of 100% Access to Justice? Online Dispute Resolution 2016.” HiiL Trend Report IV, The Hague, Netherlands, 2016.

Appendix B

http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2014/12/8/courts-plunge-into-the-digital-age

http://cdm16501.contentdm.oclc.org/digital/collection/tech/id/355

http://cdm16501.contentdm.oclc.org/digital/collection/tech/id/355

http://www.hiil.org/data/sitemanagement/media/HiiL%20Online%20Dispute%20Resolution%20Trend%20Report.pdf

Court personnel must be able to envision a different process for accomplishing the court’s purposes, and be empowered to make meaningful changes. Court personnel must also become converted to the concept of continual improvement. Process re-engineering is never “done.” Sophisticated ODR implementations leverage data from actions and outcomes to continuously improve processes. Court managers currently involved in ODR advise courts not to undertake an ODR initiative until they are prepared to change fundamental court business practices.

Technology By definition, ODR is an online process; technology is at the core. The 2015 report “Reforming Our Justice System: A Report on Progress and Promise”47 lends both legitimacy and urgency to court technology initiatives, including ODR:

Technology can reform civil justice precisely because it is, almost by definition, efficient, affordable and accessible. Its use should be universal.

While most courts are utilizing technology in a variety of ways, true transformational changes have yet to be realized. ODR offers efficiency, affordability, accessibility, and more. Even so, courts do not need to be at the forefront of technology to implement ODR. If a court’s case management system cannot support integration, for example, a separate automated process might be developed to facilitate the necessary transfer of data.

Whether the court develops a solution in-house, selects and customizes an off-the-shelf solution, or hires a firm to build custom software, courts must factor in capacity for support over the lifetime of the solution and ensure the platform can ultimately integrate with the court’s case management system or other technologies and applications. It should also be flexible so it can address existing rules, processes, and workflows, as well as be easily adapted to address any changes. Avoid platforms with limited configurability and costly customization.

Analytics from some existing ODR solutions reveal that system users are heavily mobile-dependent and likely to access ODR via smartphones. Mobile-dependent populations may also have limited literacy – a skill essential to utilizing an ODR system no matter where the individual accesses the Internet. Courts should ensure that ODR web content is mobile-optimized and user friendly. Software must adjust to the platform from which it is accessed (laptop, tablet, smartphone, etc.) and go through rigorous user testing.

47 Reforming Our Civil Justice System: A Report on Progress & Promise. American College of Trial Lawyers Task Force on Discovery and Civil Justice and IAALS. April 2015

Appendix B

http://iaals.du.edu/sites/default/files/documents/publications/report_on_progress_and_promise.pdf

Funding Budget is an important and complex aspect of ODR readiness. One of the major downfalls of the groundbreaking Rechtwijzer 2.0 divorce website in the Netherlands was the failure of the project to transition successfully from start-up funding to self-sustaining revenues48.

Additional financial resources are helpful but may not be essential to a technology initiative like ODR. With clear goals, carefully planning, and intentional spending, courts may be able to make transformational changes within existing budgets. Washtenaw County, Michigan’s 14A District Court absorbs the ODR vendor’s per-transaction fee and does not currently pass that cost along to partner agencies or the public.

Court budgets may be impacted by the political climate, global economy, crime rate, and overall case filings. A budget shortfall is an opportunity to re-imagine court services. Rather than react to budget reductions by implementing short-term spending cuts, Utah’s Judicial Council elected to change the way the courts do business and to organize its operation around the optimal use of available funding.49 Utah’s AOC made the conversion to digital using existing IT funding. The new paperless court requires fewer staff, which helps the AOC deliver better service at a lower overall cost. Utah is expanding on their recession-driven digital foundation to launch ODR, having already conquered issues tied to wet signatures and hardcopy documents.

In the United Kingdom, the prospect of a 40% reduction in funding prompted a thorough and thoughtful analysis of the utilization of court facilities and services. That analysis lead to the closure and sale of 140 under-utilized court facilities in 2011, with another 86 scheduled for sale in 2016-2017. Funds generated by the sale of physical structures are earmarked for judicial modernization, including ODR.50

While there are costs associated with any technology initiative, there are also costs associated with doing nothing. Courts cannot maintain their current scale of operation with diminishing funding, or address an increasing scale with current funding. Instead of framing an ODR initiative in terms of cost, one approach is to focus on savings. In any cost/benefit analysis, include the value proposition for citizens. Ensure the numbers make sense. Resources should be allocated in proportion to the issues ODR is meant to address. Apply ODR first to the court’s highest volume case types.

48 Smith, Roger. “Classical Lessons from the Rechtwijzer: a Conversation with Professor Barendrecht.” Law, Technology and Access to Justice, Legal Education Foundation, 22 June 2017.49 Suskin, Lee. “A Case Study: Reengineering Utah’s Courts Through the Lens of the Principles For Judicial Administration.” NCSC.org, National Center for State Courts, 27 Feb. 2012.50 Bowcott, Owen. “Ministry of Justice to Close 86 Courts in England and Wales.” The Guardian, Guardian News andMedia, 11 Feb. 2016.

Appendix B

https://law-tech-a2j.org/odr/classical-lessons-from-the-rechtwijzer-a-conversation-with-professor-barendrecht/

http://www.ncsc.org/%7E/media/files/pdf/services%20and%20experts/court%20reengineering/utah%20case%20study%202%2027.ashx

http://www.ncsc.org/%7E/media/files/pdf/services%20and%20experts/court%20reengineering/utah%20case%20study%202%2027.ashx

https://www.theguardian.com/law/2016/feb/11/ministry-of-justice-close-86-courts-england-wales

Grants or one-time funding can help launch a project, but ongoing revenue streams and/or cost savings are essential to long-term success. Scalable funding can ensure an ODR program’s long-term viability. An increasing interest in the program would simultaneously provide an increase in revenues to sustain it. Per transaction/filing fees for ODR should be lower than the costs of traditional “in person” transactions.

Recommendations As with any technology project, basic best practices in project management and technology utilization apply. There are additional best practices unique to ODR that warrant discussion. The following recommendations come from court personnel who have “lived” an ODR implementation.

Focus on the public. Public opinion polls and academic studies demonstrate clearly that the public wants courts to use technology to make court processes not only more efficient, but more understandable, fair, and accessible.51 An ODR initiative must begin with a commitment to view the court experience from the public’s perspective. No matter whether the litigant is an adoptee, soon-to-be divorcé, victim, witness, or someone accused of major or minor wrong-doing, courts today are inconvenient, confusing, and stressful places.

Technology can deliver information in ways that will address the needs of the range of potential users. For example, to assist those with limited literacy or language barriers, information can be provided simply and clearly through multiple media: audio, video, and images, as well as text.

ODR is, by definition, a customer-facing application of technology. Resolving disputes involves court processes and personnel who are peripheral to the dispute. It may be a significant culture shift for court personnel to focus primarily on court clients and their needs and preferences.

Involve users in design and testing. Court customers will experience some benefits from having online access to any court dispute resolution process. However, to glean the greatest benefit, ODR should be co-designed and rigorously user-tested by the public it seeks to serve. Courts must involve the public as key stakeholder participants. In a social media-driven economy, well-designed, user-friendly websites and apps are their own best advertisement.

51 For example, see the 2016 The State of State Courts, NCSC’s annual public opinion survey.

Appendix B

• Public-facing information systems need more than token public input.Involve advocates for the indigent, domestic abuse victims, the elderly,and representatives from multi-cultural organizations.

• Prototyping and multiple rounds of testing with the public are essential.Consider A/B testing to simultaneously compare two different versions ofthe same process.

• Test with individuals representing all potential audiences. Reach out tothose populations through social media and classified advertisementwebsites like Craigslist.

• Lawyers and court staff are not good proxy for the public.

Start with problem triage / self-help tools. The purpose of ODR is to resolve conflicts, not move cases through a system. Providing sophisticated diagnostic tools to help users triage and resolve their own issues is beneficial to both courts and the public. Encourage parties to explore resolution options before creating a case. Increasing disputes resolved prior to case filing will reduce the number of cases filed and may artificially skew case processing statistics.

Make ODR an “opt out” process; limit scenarios for opting out. To effectively neutralize power imbalances inherent in some traditional dispute resolution processes like divorce and small claims, ODR must be the process,not an alternative to a process. “Opt in” ODR assumes all parties are reasonably interested in a just resolution. If that were actually the case, there would be little need for the justice system. “Opt out” ODR provides a mechanism for dealing with exceptional situations. In the words of one ODR pioneer, “If you want to doom your ODR pilot, make it ‘opt in.’ ”

When both parties are required to participate in an ODR process, it is much less likely that one party can use the justice system to harass. Courts can also use ODR technologies in creative ways to empower unrepresented and underrepresented groups. This may be the single most important “best practice” in ODR.

• For less conflictual processes like pleading a traffic ticket, “Opt in”processes are adequate as long as all parties eligible to use the processare directed to it. The differences between ODR and traditional optionsshould be clearly and succinctly identified.

• Court websites with multiple pathways for problem resolution canundermine ODR efforts. Use Google and other search mechanisms tolocate and view your court’s web resources (all of them – not just ODR)from the user perspective.

Appendix B

• Reduce text “clutter” to ensure users see essential information.

Provide escalation and/or enforcement mechanisms. Many times, parties will comply with ODR-generated agreements without any further encouragement or enforcement. For less congenial situations, there must be the option of an enforcement mechanism to encourage parties to come to agreement and then adhere to it. The enforcement mechanism would ideally take a different form than the original path.

Offer “live” help. By design, ODR should channel capable parties to online resources that effectively facilitate dispute resolution. At the same time, ODR systems should offer assistance using a variety of technical and non-technical methods, including some form of “live” help to meet the needs of those with disabilities, language barriers, technology access issues, or truly unique cases.

• Assistance can be provided via email, chat, phone, or in person.

• Well-designed ODR should not generate a steady stream of requests forhelp. A high percentage of users accessing live help indicates a problemwith the system or process (not the users).

• Observing where and why users access live assistance is key to iterativeimprovement in both the process and the technology used to administer it.

• ODR users should be able to successfully resolve targeted high-volumecase types without assistance, freeing up clerk resources to focus on thesmall percentage of users with unique needs.

• Contact links should not be “buried” to discourage utilization.

Limit complexity for the first project. Limit complexity in the first ODR initiative, then leverage the knowledge gained in that effort, tackling more complicated processes/case types. Experiment on a case type with a growing backlog, or one that is primarily transactional – like traffic citations.

Forget the forms. Court personnel and lawyers may think about disputes in terms of which court and which form, but the court’s customers will not. Use decision trees and Google-like machine learning to anticipate questions and lead users to the correct path. Gather information about the dispute as individuals progress through decision trees. ODR can land the dispute in the correct court on the right “form” (if forms are still required) using automation.

Appendix B

Create calculators. Calculators can help individuals diagnose issues and determine what, if any, action they should take. Personal injury and tax assessment appeal calculators can help a potential litigant be realistic about possible resolutions and costs for pursuing those resolutions. The first step in Ohio’s Board of Tax Appeals ODR process is a calculator called “Is it worth appealing?”52 Child support calculators can help partners determine budget and tax implications based on their income and circumstances, helping set appropriate expectations and potentially reducing conflict. Understanding how the support amount will be determined can help reduce conflict.”53 Michigan’s MiChildSupport54 includes a child support calculator. Adjudicators can also benefit from calculators to help assess a defendant’s ability to pay fines/fees to more fairly assign income-appropriate financial penalties.

Keep it really simple. The more complex a process, the higher the likelihood that individuals will fail to complete it. Court process experts recommend that processes be limited to no more than six or seven steps that can be completed in a relatively short period of time. The proscribed time-period will vary by case type, jurisdiction, and other circumstances, but individual courts should set a “visionary” standard and strive to meet it.

• Eliminate any redundancy in information-gathering steps.

• Don’t ask for the same information twice.

• Don’t require information that is not essential to the problem resolutionprocess.

Use an Agile development process. ODR is best implemented using Agile or iterative development cycles. What is initially released can be delivered more quickly, but will not include all the features intended over the long term. Each iterative release may enhance functionality and/or the interface to better meet user needs. Users are involved throughout the process and will likely experience some aspect of the system that does not immediately meet their needs or expectations.

Manage expectations. Adjustments to the user interface are an indication the court is listening and responding to user feedback, not that the system was poorly designed. Public

52 See the Ohio Board of Tax Appeals website at https://ohio-bta.modria.com/resources/ohio-bta-diagnosis/strongcase.html 53 Reducing Conflict Over Child Support, Ohio State University. https://ohioline.osu.edu/factsheet/FLM-FS-12-99-R10 54 See State of Michigan Department of Health and Human Services MiChildSupport at https://micase.state.mi.us/.

Appendix B

https://micase.state.mi.us/portalapp/public/login.html?execution=e1s1

https://micase.state.mi.us/

relations and change management efforts can help ensure court managers, system users, and the public all have appropriate expectations.

Implement in phases. A phased implementation has obvious benefits for technology development, allowing the implementation team to learn from and respond to any issues that arise from a pilot before rolling out to a broader audience. But an even more important benefit to this approach is that a small and successful implementation builds positive momentum. Awareness and acceptance in the stakeholder community can reduce or eliminate resistance based on unfamiliarity.

British Columbia’s Civil Resolution Tribunal launched its strata (condominium) dispute resolution process in 2016. One year later, the Tribunal assumed jurisdiction of small claims up to $5,000. Built in to the original legislation is a slow and steady increase in the monetary threshold of claims the Tribunal will handle. Over time, the Tribunal will become the mandatory forum for claims up to $25,000.

Consider flextime and/or offsite staff roles. One of the major advantages of ODR for users is its anytime/anywhere Internet presence. This can be a benefit for courts, as well. Because ODR is not a 9-5 “storefront,” it will require a different staffing model. Some personnel may need to work non-traditional hours; some may work from home or satellite locations.

• Working non-traditional hours and in non-traditional settings can help staffbetter understand and serve ODR clients, many of whom will be accessingthe system in non-traditional hours and settings.

• Court organizations doing ODR are finding it a competitive hiringadvantage to offer flex-time/off-site work, coupled with governmentemployment benefits and the opportunity to make a difference.

Empower staff. In addition to the potential need to adapt to flexible work hours and remote workers, courts must make a fundamental shift in management expectations. ODR facilitators can help identify and resolve process bottlenecks if court managers “unbind” them from archaic rules and cumbersome hierarchy.

…it’s important to remember that best practice is, by definition, past practice. Using best practices is common, and often appropriate, in simple contexts. Difficulties arise, however, if staff members are discouraged from bucking the process even when it’s not working anymore. Since

Appendix B

hindsight no longer leads to foresight after a shift in context, a corresponding change in management style may be called for.55

Leverage Contract/Vendor Relationships “Build or buy” is a common conversation in both public and private sector technology initiatives. In most instances, buying a customizable off-the-shelf (COTS) product is a better business decision than building from scratch. A host of issues are associated with internal “one off” development efforts including documentation, user training, and resources for ongoing development and long-term support.

Court managers can leverage contract management and vendor relationship skills to effectively manage court technology projects, including ODR. The market for COTS software is robust and competitive, making high quality software accessible to organizations with limited technology expertise. Strategically outsourcing labor can augment gaps in staff skill-sets.

Measure success. Courts that are regularly measuring performance can incorporate additional metrics to capture ODR processes and customer opinions. Courts that are not already measuring can begin with CourTools or similar performance measures. Table 1 – Outcomes and Measures/Data Sources provides sample outcomes, suggested data sources, and methods of displaying data.

55 Snowden, David J., and Mary E. Boone. “A Leader's Framework for Decision Making.” Harvard Business Review,Harvard Business School Publishing Corporation, 7 Dec. 2015, hbr.org/2007/11/a-leaders-framework-for-decision-making.

Appendix B

https://hbr.org/2007/11/a-leaders-framework-for-decision-making

Table 1 – Sample of Desired Outcomes and Measures/Data Sources

Desired Outcomes Measure/data source Expressed as ODR helps people who could not otherwise get to court.

Online survey at the conclusion of the ODR experience, question with binary (yes/no) or scaled responses.

Of all people who used ODR, X% said they would not have been able to come to court in person.

ODR helped close cases faster.

Days to case closure for case type X from filing date to disposition through ODR compared to traditional process.

Number of days from filing to disposition in ODR versus traditional process.

Fewer people default or fail to comply with a judgment when they resolve their matter through ODR.

Disposition, status, issuance of FTC warrants, or other fields that would indicate non-compliance.

Percentage of cases with a disposition of default that used ODR versus cases that did not use ODR.

ODR cuts judicial and staff time spent processing routine cases.

Internal workload assessment. Difference in minutes in time spent, by role, by case type.

ODR reduces the backlog of cases or proceedings.

Count of scheduled proceedings (informal and formal hearings, civil hearing before the court, etc.)

Reduction in backlog over time or pre-post implementation comparison.

ODR is helpful to all constituents.

Compare demographic factors and outcomes of those who use ODR and those who use in-person court services for similar case types.

Identify similarities or differences in segments of the population who use the ODR versus in-person options.

ODR helps my court serve different constituents in their preferred modality.

Ask in-person visitors and ODR users whether they received service in their preferred modality.

Quantify public’s preferred court experience.

ODR diverts a small/large proportion of cases from the court's docket.

Count and proportion of cases diverted over a time period. Count and Proportion of cases in which ODR was initiated but which returned to an in-person hearing over a time period.

Count and proportion of in-person hearings avoided with ODR.

Make ODR transformational. Courts can use ODR technologies in limited ways to incrementally improve and modernize current processes, saving money and increasing efficiency while

Figure 4 - Sample Time to Case Closure Comparison chart

Appendix B

improving convenience and access for the court’s customers. Beginning within the framework of existing processes may provide an entry point leading to more expansive uses.

However, incremental gains may lessen “pain points” sufficiently to constrain innovation. Ideally, courts will leverage ODR to re-engineer processes. ODR can be transformational, helping courts address some of their most challenging issues and improving access to justice for isolated and vulnerable populations.

• Every court can benefit from utilizing ODR technologies and approaches, no matter their current level of technology adoption, case processing times, or e-filing status.

• Courts may initially apply ODR to their most automated, streamlined process, or may “leap-frog” paper process dependencies.

Appendix B

Conclusion ODR shows tremendous potential for helping correct imbalances in access to justice. While statistics are somewhat limited, early indications are that ODR is making justice more accessible. For example, users of Franklin County, Ohio’s Small Claims mediation ODR represent approximately equal percentages of low-to-moderate income and middle-to-upper income users based on US census data correlated to user location. British Columbia’s Civil Resolution Tribunal is serving individuals from all parts of the province, including places where there are no courthouses.

Costly, sophisticated technologies can be employed to quantify deficiencies in court processes. However, impressive technology is not required to discover how court processes impact the public. Limited budgets are not a valid reason for delay: virtually all of the most successful examples of ODR in courts today were born of financial constraint.

The CRT’s Shannon Salter recommends that court managers begin with a clipboard and pen, if necessary. Step out into the foyer of the courthouse and start talking to court patrons. Ask what is difficult or confusing. Look at existing systems and processes. Test-drive another jurisdiction’s ODR process. Appendix A provides a list and links to a variety of court ODR websites.

Some may be dismissive of calls to utilize ODR citing the complexity and importance of the court’s cases. However, courts that have piloted ODR are providing encouraging statistics demonstrating significant and sustainable benefits that align well with court mandates.

For more information about the use of ODR in Courts, contact [email protected].

Appendix B

mailto:[email protected]

Appendix A: ODR systems in use in Courts US Courts Franklin County, Ohio Municipal Court Online Dispute Resolution https://www.courtinnovations.com/odr/OHFCMC/home

Washtenaw County, Michigan 14A District Court Online Mediation https://www.courtinnovations.com/cii/MID14A

Grand Rapids, Michigan 61st District Court Online Case Review https://www.courtinnovations.com/cii/MID61

Ohio Board of Tax Appeals https://ohio-bta.modria.com/resources/ohio-bta-diagnosis/strongcase.html

Courts in other countries British Columbia Civil Resolution Tribunal https://civilresolutionbc.ca/

United Kingdom Claims Portal https://www.claimsportal.org.uk/

MyLawBC – My problem. My Solution. http://mylawbc.com/

British Columbia Residential Tenancy Solution Explorer http://www.housing.gov.bc.ca/RTB/WebTools/SolutionExplorer.html

Netherlands Rechtwijzer https://rechtwijzer.nl/

Extra-judicial ODR American Arbitration Association – New York No Fault Insurance https://aaa-nynf.modria.com/

Appendix B

https://www.courtinnovations.com/odr/OHFCMC/home

https://www.courtinnovations.com/odr/OHFCMC/home

https://www.courtinnovations.com/cii/MID14A

https://www.courtinnovations.com/cii/MID14A

https://www.courtinnovations.com/cii/MID61

https://www.courtinnovations.com/cii/MID61

https://ohio-bta.modria.com/resources/ohio-bta-diagnosis/strongcase.html

https://ohio-bta.modria.com/resources/ohio-bta-diagnosis/strongcase.html

https://civilresolutionbc.ca/

https://civilresolutionbc.ca/

https://www.claimsportal.org.uk/

https://www.claimsportal.org.uk/

http://mylawbc.com/

http://www.housing.gov.bc.ca/RTB/WebTools/SolutionExplorer.html

https://rechtwijzer.nl/

https://rechtwijzer.nl/

https://aaa-nynf.modria.com/

https://aaa-nynf.modria.com/

Online Dispute Resolution

Pilot Project Plan for Florida’s Trial Courts

Online Dispute Resolution Workgroup May 2019

Appendix C

Online Dispute Resolution Pilot Project Plan for Florida’s Trial Courts

Page 2

ONLINE DISPUTE RESOLUTION WORKGROUP

MEMBERS

Chair: The Honorable William F. Stone, Circuit Judge, First Judicial Circuit

Matthew Benefiel, Trial Court Administrator, Ninth Judicial Circuit The Honorable Gina Beovides, County Judge, Dade County, Eleventh Judicial Circuit Heather Blanton, Mediation Services Coordinator, Twelfth Judicial Circuit Eric Dunlap, Esq., ADR Neutral, Ninth Judicial Circuit The Honorable Stephen Everett, Circuit Judge, Second Judicial Circuit Oscar Franco, Ph.D., ADR Neutral, Seventeenth Judicial Circuit W. Jay Hunston, Jr., Esq., ADR Neutral, Nineteenth Judicial CircuitJeanne Potthoff, Alternative Dispute Resolution Director, Seventeenth Judicial CircuitThe Honorable William Roby, Circuit Judge, Nineteenth Judicial CircuitChristopher M. Shulman, Esq., ADR Neutral, Thirteenth Judicial Circuit

STAFF SUPPORT Office of the State Courts Administrator

Arlene Johnson, Chief, Court Services Susan Marvin, Chief, Alternative Dispute Resolution Lindsay Hafford, Senior Court Operations Consultant Kimberly Kosch, Senior Court Operations Consultant

Appendix C


Page 3

Table of Contents ONLINE DISPUTE RESOLUTION ................................................................................. 4

BACKGROUND ............................................................................................................ 4

COORDINATION OF PILOT PROJECT ......................................................................... 5

PARTICIPATING CIRCUITS ......................................................................................... 5

CASE TYPES ............................................................................................................... 5

METHODS OF PARTICIPATION ................................................................................... 8

TIMEFRAME OF PILOT ............................................................................................... 9

SOFTWARE PLATFORMS AND DATA SECURITY ........................................................ 9

FUNDING ...................................................................................................................10

PROGRAM ANALYSIS ...............................................................................................11

Appendix C


Page 4

ONLINE DISPUTE RESOLUTION

Online dispute resolution (ODR) involves litigants and, in some instances, court personnel in resolving disputes using a web-based platform designed to lead participants through a series of steps toward the goal of case resolution. The steps include posing standardized questions, providing an opportunity for response, allowing parties to make and accept case negotiation offers with or without the assistance of a third party neutral, and, in some instances, automatic generation of a settlement agreement. ODR has been identified as a viable point of access to the courts for selected case types and its use is expanding rapidly across state courts. ODR is expected to provide an innovative way for litigants to resolve cases while preserving time and resources.

BACKGROUND

In May 2018, the Florida Supreme Court directed a review of ODR solutions and the anticipated impact on court-connected alternative dispute resolution (ADR) services. The Commission on Trial Court Performance and Accountability (TCP&A) and the Committee on ADR Rules and Policy (ADRR&P) were tasked with performing the analysis and the chairs of those respective bodies jointly created the ODR Workgroup (Workgroup). The Workgroup developed a report (Appendix A) which included the following three recommendations:

Recommendation One: Establish a pilot to study the application of ODR in Florida’s trial court small claims cases.

Recommendation Two: Communicate to the trial court chief judges and clerks of court the scope and intent of the ODR pilot and emphasize the need for continued compliance with existing court rules and statutes governing court-connected mediation.

Recommendation Three: Conduct a legal analysis of ODR as a method of dispute resolution for court-connected cases.

That report was submitted, and the Court considered it in October 2018. The Court approved the recommendations with the modification to Recommendation One that the Workgroup establish one or more pilot projects to study the application of ODR for a variety of case types including, but not limited to, small claims, family, and civil traffic cases.

To move forward with the pilot project, the Court requested that the Workgroup develop an implementation plan for its consideration. The Workgroup met several times in January 2019 to examine the potential applications of ODR in Florida’s trial courts. It considered elements such as the appropriate case types, number of participating circuits, number of cases to process in the pilot phase, timeframe for operating the pilot, means for conducting an outcome analysis, and anticipated costs.

Appendix C


Page 5

Based on its research and discussions, the Workgroup is recommending that three case types be piloted over seven counties via two different software vendors. Additional details regarding each aspect of the pilot project are discussed further in this proposed implementation plan.

COORDINATION OF PILOT PROJECT

The Workgroup recommends that the Office of the State Courts Administrator (OSCA) coordinate statewide pilot project efforts in order to maintain consistency and serve as a resource for participating circuits. However, participation at the local level will be critical to the success of the pilot project due to the nature of the services being implemented. A significant amount of the workload associated with launching these services will be the responsibility of the circuit. OSCA will provide support to assist with vendor selection, program design and implementation, development of workflows, and post-pilot analysis.

PARTICIPATING CIRCUITS

To identify potential pilot sites, the state courts administrator consulted with the chief judges and trial court administrators of each judicial circuit. Seven circuits expressed an interest in hosting a pilot in one of their counties, and the Workgroup worked with the interested circuits to identify which case types may be best suited for their circuit. Because of the enthusiasm and interest surrounding this project, the Workgroup recommends including all seven circuits in the pilot. Additionally, including all interested circuits will add geographic and demographic diversity to the project. The table below reflects the recommended circuits, the selected county within the circuit, the designated case type, and circuit size. Table 1. Proposed ODR Pilot Sites Circuit Circuit Size1 County Pilot Case Type

3 Small Columbia Small Claims 5 Medium Lake Small Claims 9 Large Orange Small Claims 10 Medium Polk Dissolution of Marriage without Children2 11 Extra Large Dade Civil Traffic Infractions 17 Extra Large Broward Dissolution of Marriage without Children2 18 Medium Brevard Small Claims

1Circuit size determined by the Office of the State Courts Administrator and is based on number of filings.2 Includes only those dissolution of marriage cases where no children are involved. Does not include simplified dissolution cases.

CASE TYPES

The Workgroup proposes piloting ODR in small claims, dissolution of marriage in cases that do not involve children, and civil traffic infraction cases. For each case type, certain characteristics

Appendix C


Page 6

remain constant such as that at any stage in the process, litigants can forego continued participation in ODR and undertake traditional court processes; parties can communicate asynchronously within the ODR platform; and time limits for attempting resolution in ODR will apply. Additional information regarding each case type is below. Small Claims

As of March 2018, ODR is an option in small claims cases for litigants in courts in selected jurisdictions in California, Michigan, Georgia, Ohio, Texas, and Utah. Initial reports indicate that ODR expands access to the courts and saves both litigants and the courts valuable resources. The ODR process includes four stages: diagnosis, negotiation, mediation, and adjudication. In some jurisdictions, litigants are invited to participate in ODR via a postcard that is received at the time of filing for the petitioner and at the time of service for the defendant. If either litigant initiates ODR, the other litigant is sent an email invitation to participate. At the diagnosis stage, the ODR intelligent software poses a series of questions to query the litigant’s position on monies owed, monies sought, and flexibility to accept a range of offers. The litigants then enter the negotiation phase with the hope that they can resolve their case. If they are not successful at negotiation, litigants can request mediation with a third party neutral. ODR mediators are assigned by the court and communicate asynchronously with the parties using the secure online platform. If the parties reach an agreement in either the negotiation or mediation phase, the ODR platform generates a settlement document which can be signed electronically and filed with the court. A sample caseflow for a small claims case in the ODR environment may involve the following steps:

Dissolution of Marriage in Cases That Do Not Involve Children

There are essentially four types of dissolution of marriage actions that are resolved in the courts: simplified dissolution, dissolution of marriage with children, dissolution of marriage with property but no children, and dissolution of marriage with no property or children. To qualify for a simplified dissolution filing, the parties must have no children from the marriage, no marital property, and must file the petition and marital settlement agreement with the clerk of

1: Small Claims Action Filed

2: Court Issues Notice

to Appear; Provides ODR

Option

3: If ODR is Selected, Parties

Attempt Resolution in

Online Platform

4: If Resolution Reached,

Settlement Agreement is

Generated

5: If Resolution is not Reached, Case is

Referred to Mediator

6: Mediator Interacts with Parties in ODR

Platform Asynchronously

7: If Resolution Reached, Settlement

Agreement is Generated

Appendix C


Page 7

court having resolved all matters at issue themselves. The Florida State Courts System has implemented measures over the years to make this type of dissolution as easy and accessible as possible for those that qualify. For dissolution actions that do not qualify for the simplified filing option, parties must file for dissolution of marriage. In cases where children are involved, there are complexities that require additional research before the Workgroup would recommend the use of ODR. However, for the dissolution of marriage cases where no children are involved, the Workgroup agreed that ODR could provide a valuable alternative to the traditional case resolution method. The standard activities and processes associated with these cases could just as easily be conducted through an online exchange of documents and negotiated offers. Once a settlement is reached, a final hearing can be set in which both parties appear before the judge, or the judge can enter the final judgement outside of the presence of the parties. In conducting outreach to several Florida court judges, the merits of allowing parties to resolve the myriad issues that must be addressed in these types of cases in an online, arms-length manner were repeatedly identified. Applying this case resolution method to dissolution is thought to not only save judicial time, but to save the parties valuable resources by offering a more streamlined, and less acrimonious approach to a potentially painful process. The Workgroup looked to other states’ use of ODR in the family court environment and learned that Nevada is employing ODR for parenting plans in their Clark County (Las Vegas) courts and Michigan is employing ODR for child support enforcement actions in Ottawa County. Parenting plan ODR involves negotiation and mediation between the litigants; child support enforcement ODR involves communications and actions between a parent and the court. The Workgroup considered these case types as ones that may be suitable for ODR in the Florida courts but agreed that offering it in dissolutions would provide a more valuable service for the pilot phase. A sample caseflow for a dissolution of marriage case in the ODR environment may involve the following steps:

1: Dissolution of Marriage Action Filed

2: Case Set for Pre-Trial Hearing; Parties Presented with ODR

Option

3: If ODR Selected, Parties Interact in Online Platform to

Resolve All, or Portions of, Disputed Matters

4: If All Matters Resolved, Marital

Settlement is Generated

5: Unresolved Matters May be

Resolved by Court at Final Hearing

6: Judge Enters Final Order

Appendix C


Page 8

Civil Traffic Infractions

Currently, when a law enforcement officer issues a citation for a civil traffic infraction, the recipient of the citation (defendant) is presented with the option of admitting guilt and paying the penalty, electing to take driver improvement school to reduce the number of points assessed, or requesting that the issue be set for a hearing before the court. If a hearing is requested, in most jurisdictions, the case will be calendared for a pre-trial hearing before a Civil Traffic Infraction Hearing Officer (CTIHO). Pursuant to rule 6.630(d), Fla. Rules of Judicial Admin., the CTIHO shall have the power to accept pleas from defendants, hear and rule upon motions, decide whether a defendant has committed an infraction, and adjudicate or withhold adjudication in the same manner as that of a county court judge. At the pre-trial hearing, the defendant is given the option to enter a plea of guilty, not guilty, or no contest. If the defendant pleads not guilty, the issue will be set for trial. If the defendant pleads guilty or no contest, they can make requests for actions including extension of payment deadline, reconsideration of the number of points assessed to the license, and permission to attend driver improvement school. In consideration of these requests, the CTIHO evaluates the defendant’s driving record and, where appropriate, makes offers based on their request. It is for these cases that ODR is recommended. The Workgroup agreed that the activities currently undertaken in person by the CTIHO could be offered in the ODR platform where the defendant would interact with the CTIHO to reach a case resolution. A sample caseflow for a civil traffic infraction case in the ODR environment may involve the following steps:

METHODS OF PARTICIPATION

The Workgroup recommends ODR be offered as an option for litigants to choose among other case resolution alternatives. Other case resolution options (judicial, in-person mediation, etc.) should be made clear in communications to litigants. The Workgroup notes that presenting ODR as one of several case resolution options may affect adoption rates but placed a higher value on litigants engaging in ODR by choice.

1: Citation Issued;

Defendant Requests Hearing

2: Defendant Selects ODR

Option Rather than In-Person

Hearing

3: Case Assigned to CTIHO; CTIHO

Initiates Case Activity in ODR

Platform

4: Defendant Enters Plea and Accompanying

Requests

5: CTIHO Reviews Defendant Driving

Record; Makes Offer in ODR Platform

6: Defendant Accepts Offer Online; Order Generated for

CTIHO Review

7: CTIHO Enters Order

Appendix C


Page 9

TIMEFRAME OF PILOT

The Workgroup recommends that the pilot project be case-delimited rather than approaching the project from a defined start and end date. This approach allows for an appropriate sample size of cases to be determined based on a statistical analysis of each jurisdiction and case type under evaluation. The Workgroup does, however, recommend that a time limit be established for pilot conclusion even if the target number of cases has not been processed. It is anticipated that each pilot site would have the ability to intake cases within three months from commencement of the pilot and that the pilot would conclude within six-months from initial case intake. In addition, structuring pilot case acceptance in this manner maximizes cost controls. The table below reflects the proposed sample size of cases expected to be processed in each participating county. Table 2. Proposed Sample Size for ODR Case Processing

Circuit County Case Type Proposed Sample Size in Number of Cases1

3 Columbia Small Claims 290 5 Lake Small Claims 560 9 Orange Small Claims 1,360 10 Polk Dissolution of Marriage without Children2 465 11 Dade Civil Traffic Infractions 1,530 17 Broward Dissolution of Marriage without Children2 927 18 Brevard Small Claims 890

1 Sample developed using FY 2016-17 total filings by case type to estimate the number of filings in a six-month period and then determine the appropriate sample size needed to ensure a 95 percent confidence interval with a 2.5 percent margin of error. Samples for dissolution of marriage without children are based on an estimate that 27 percent of cases fall into this category. 2 Includes only those dissolution of marriage cases where no children are involved. Does not include simplified dissolution cases.

SOFTWARE PLATFORMS AND DATA SECURITY

Over 25 software vendors providing ODR services have been identified. Of these, there are two primary vendors working with other state courts, Modria and Matterhorn. The Workgroup recommends contracting with a minimum of two vendors during the pilot phase. Working with multiple vendors will allow data to be collected on the available services and products including software design, integration capabilities, application program interfaces, adaptability to multiple case types, user experience, and cost. Vendors indicated an ability to tailor their software to the particular case type and existing electronic document management systems. ODR software also has the ability to integrate directly with the clerk of court’s case maintenance systems, which is expected to offer a more seamless experience to the user. The integration capabilities and associated programming costs vary slightly among the vendors and clerks’ systems presently in use.

Appendix C


Page 10

With regard to information security, the Workgroup has consulted with the Office of the State Courts Administrator’s (OSCA) Office of Information Technology and plans to engage them in the development of the pilot to ensure court and user data remains secure and uncompromised.

FUNDING

The pilot is expected to be funded through a combination of state and local funds. Most ODR vendors follow a cost model that is based on a per-case processing fee. In order to develop a funding estimate, the Workgroup worked with the interested circuits to identify which case types may be best suited for their circuit. OSCA staff then developed a proposed sample size based on FY 2016-17 Summary Reporting System filings in the respective case type, and an associated cost estimate based on preliminary pricing information supplied by vendors. Interested circuits were contacted to determine if local funds exist to cover all or a portion of the estimated costs and, where funds are available, they are reflected in the table below.

Table 3. Proposed Funding Model

Circuit Pilot

County Pilot Case Type

Proposed Sample

of Cases4

Total Maximum Estimated Funding Needed5

Local Funding6

Estimated State

Funding Needed7

3 Columbia Small Claims 290 $8,700 $8,700 $0 5 Lake Small Claims (Non-Integrated1) 560 $16,800 $0 $16,800 9 Orange Small Claims (Integrated1) 1,360 $34,000 $10,000 $24,000

10 Polk Dissolution of Marriage without Children2 465 $18,600 $6,500 $12,100

11 Dade Civil Traffic Infractions3 1,530 $15,300 $15,300 $0 17 Broward Dissolution of Marriage without Children2 927 $37,080 $0 $37,080

18 Brevard Small Claims 890 $26,700 $10,000 $16,700 Programming and Integration Fee $7,000 N/A $7,000

Estimated Total 6,022 $164,180 $50,500 $113,680 1 Refers to the integration method between the ODR platform and the case maintenance system. 2 Includes only those dissolution of marriage cases where no children are involved. Does not include simplified dissolution cases. 3 Civil Traffic includes only those civil traffic infraction proceedings presided over by a judge or hearing officer. 4 Proposed sample developed by estimating the number of filings in a six-month period and then determining the appropriate sample size needed to ensure a 95 percent confidence interval with a 2.5 percent margin of error. 5 Funding estimates developed using maximum sample costs provided by multiple online dispute resolution software vendors. Actual costs may vary based on final pilot plan. 6 Where funds are available, circuit has committed to providing all or a portion of the estimated funding needed. Funding available in the Ninth and Eighteenth circuits is estimated. 7 State funding will be requested from the Trial Court Budget Commission.

The Workgroup submitted a proposal to the Trial Court Budget Commission (TCBC) at their February 1, 2019, meeting requesting approval for the TCBC to authorize FY 2018-19 funding to

Appendix C


Page 11

cover the anticipated costs of the online dispute resolution pilot project.i In their request, the Workgroup specified that use of funds would be contingent on the Court’s approval of the pilot implementation plan. The TCBC approved the request, contingent on the continued availability of funds at the time of Court approval. If FY 2018-19 funds are not used, the TCBC could be asked to consider a request to authorize the use of FY 2019-20 funds. PROGRAM ANALYSIS

Staff of the OSCA will monitor the operations of the pilot project and conduct an outcome analysis to measure the success of using ODR. For the quantitative analysis, OSCA will rely on data supplied by the vendors which will allow staff to determine the percentage of users who selected ODR, amount of time spent interacting in the ODR platform, average number of days it took to resolve the case, number of cases that resolved without the assistance of a third party neutral, time of day litigants used the system, and similar metrics. For the qualitative analysis, OSCA staff plans to administer a survey to litigants and court personnel that will be designed to measure overall satisfaction and likelihood to use and recommend ODR in the future. The qualitative survey for litigants will include participant experience metrics such as ease of access and use, quality of instructions and information provided, and perceptions of procedural fairness. The survey for court personnel will focus on workload, the ability to integrate ODR with existing case resolution offerings, service delivery, and time and cost savings. Case outcomes, costs, and participant satisfaction will be compared to analyze the various perspectives on using ODR in the future.

i Anticipated costs were developed using a maximum sample costs provided by multiple online dispute resolution software vendors. Costs vary by case type and, subsequent to the TCBC meeting, anticipated costs were adjusted upward to account for the increased costs associated with processing cases in the dissolution case type.

Appendix C

Pilot Case Summaries by Judicial Circuit

THIRD JUDICIAL CIRCUIT

The Third Judicial Circuit piloted ODR in Columbia County for small claims cases. Their

platform was designed to include both negotiation and mediation options. The Circuit was

partnered with the vendor Modria to implement ODR services and a contract was executed on

December 19, 2019, with an agreement to pilot services for a six-month period from date of

platform launch or once 290 cases were processed, whichever milestone was achieved first. The

agreement included the provision that, for each case that qualified for ODR and was entered into

the platform, the circuit would be charged a processing fee of $25.

Court staff initially planned to work with Modria for three months to configure the ODR

platform and launch services by March 2020. Approximately five court staff members worked on

the ODR implementation throughout the course of the program. The development phase took

slightly longer than planned and services launched in May 2020. The Circuit intended to

advertise the ODR option to court users filing qualifying small claims cases. Public and

informational outreach was to take place primarily at the Columbia County courthouse when

court users visited the facility. The COVID-19 pandemic related courthouse closures limited the

impact of the Circuit’s ODR program outreach. As a result, the pilot met with difficulty

recruiting cases and closed six months after the launch of services without having processed any

cases.

The Circuit administered a pre-ODR implementation survey at the start of the pilot to establish a

baseline of court users’ costs, access to online resources, and anticipated comfort with online

processes. The Circuit collected 16 baseline surveys as a part of this outreach. Of those surveyed,

75 percent had attempted to resolve their case prior to their court date. Those surveyed spent an

average of 49 minutes traveling to and from the courthouse and an average of 115 minutes in

court. In addition to the time spent handling their legal issue, surveyed court users spent an

average of $50.07 in costs related to transportation, lost wages, and childcare to attend court in

person. The complications to the circuit’s outreach plan due to COVID-19 health measures

highlights the need for a robust outreach program to connect the utility of these new services to

court users’ needs.

Appendix D


FIFTH JUDICIAL CIRCUIT

The Fifth Judicial Circuit piloted small claims cases with both negotiation and mediation ODR

components in Lake County. The Circuit was partnered with the vendor Matterhorn to adapt the

vendor’s ODR platform for implementation. A contract for services was executed on November

22, 2019, with an agreement to pilot services for a six-month period from the date of platform

launch or for the processing of 560 cases, whichever milestone was achieved first. January 31,

2020 was set as the target date for the launch of ODR services and court and vendor staff

originally planned to work together over the course of two months to configure the ODR

platform to reflect the Circuit’s processes. The vendor charged a one-time configuration fee to

modify their product to include the negotiation and mediation components, generation of court-

compliant documents, and automatic submission of agreements back to the court. Circuit staff

provided the website language, user instructions, process documents, and business process map

for the modification of Matterhorn’s ODR platform to suit the needs of the Circuit.

The Circuit experienced multiple and extensive development delays during the implementation

process. Five months past their initial target launch date of January 31, the Circuit was still

engaged with the vendor in an attempt to resolve implementation issues and deliver an ODR

platform reflecting Circuit’s needs. Approximately 5 court staff members were involved with the

ODR program during their pilot, expending an estimated 1,200 hours of staff time. After careful

consideration, the Circuit withdrew from the pilot on July 31, 2020. Circuit staff cited

disappointment with the vendor’s ability to deliver a functioning product and the complications

presented by the COVID-19 pandemic as the determining factors in ending their pilot

participation. Circuit staff indicated they preferred to focus their resources on continuing to

provide ADR services remotely via videoconferencing technology solutions.

The circuit issued a pre-ODR survey to court users, collecting 104 responses. Of those surveyed,

53 percent had attempted to resolve their case prior to their court date. On average these court

users spent 40 minutes traveling to and from court, 44 minutes in court, and expended an average

of $85.19 in costs related to transportation, lost wages, and childcare to attend court in person. At

the start of the ODR program, staff was encouraged that ODR could offer court users a viable

venue to attempt to reach an agreement, avoiding the need and costs associated with setting a

hearing with a judge.

Appendix D


NINTH JUDICIAL CIRCUIT

The Ninth Judicial Circuit piloted an ODR implementation with both negotiation and mediation

components for small claims cases in Orange County. A contract was executed on December 19,

2019, between the circuit and Tyler Technologies, Inc., for the use of their Modria ODR

platform. The platform was to integrate with Tyler's Odyssey case maintenance system (CMS)

used by the Orange County Clerk of Court. The agreement called for a six-month pilot, or

processing 1,360 cases in the platform, whichever came first, with a $25 fee charged for each

case entered in the platform.

The circuit issued a pre-ODR survey to court users, collecting 400 responses. Of those surveyed,

56 percent had attempted to resolve their case prior to their court date. On average, these court

users spent 49 minutes traveling to and from court, 85 minutes in court, and spent an average of

$77 in costs related to transportation, lost wages, and childcare to attend court in person. Circuit

staff viewed ODR as a lower cost option, for both users and the circuit, that would provide court

users another venue to attempt to resolve a case prior to setting a hearing. The circuit advertised

ODR services to court users through official notices, courthouse signage, and the court’s social

media channels.

The circuit anticipated a launch of ODR services by early March 2020. Multiple delays in

programming development, including the vendor's inability to offer full integration with the clerk

CMS, delayed the launch of services to late April 2020. The product ultimately launched with

modified functionality due to integration issues. This resulted in court staff manually inputting

case information for each case that qualified for ODR.

The pilot concluded in October 2020, six-months after the platform launch, having reached less

than half of the target sample size for cases. Four court staff, dedicating an estimated 400 hours

over the course of the pilot were instrumental in ensuring the operation of the ODR process in

the circuit given functionality and integration challenges. Court staff developed an alternative

business process to that which was originally planned for the ODR implementation due to factors

relating to integration with the CMS and the absence of a web-based login page associated with

the ODR platform. As a remedy, court staff notified parties of qualifying cases for the new ODR

service through pre-trial conference notices. To access the platform, parties were required to

Appendix D


provide contact email add the case to the ODR platform. Once a case was entered, the ODR

platform would send notifications to both parties inviting them to start the ODR process. Due to

difficulties collecting email addresses from both parties in a case, only 622 cases met the email

qualification and were entered into the ODR platform.

Of the 622 cases entered to the ODR platform, 267 cases were closed due to a lack of response

from a party. Outcomes for the remaining cases are detailed in Table 1. Platform usage data

provided by the vendor shows that 30 percent of users accessed the platform outside of normal

business hours, spending an average of 12 minutes on the site. The most popular time to access

the ODR platform was at 9:00 a.m., during normal business hours.

Table 1: Ninth Judicial Circuit – Small Claims ODR Pilot Statistics

ODR Case Participation

Total Cases In ODR 622

Cases with User Participation 355 57%

Cases with No User Participation 267 43%

ODR User Participation

Total Cases in ODR with User Participation 355

Both Plaintiff and Defendant Participated 129 36%

Defendant Only Participated 139 39%

Plaintiff Only Participated 87 25%

ODR Initiation

Total Cases Where Users Initiated Negotiation 326

Defendant Initiated Negotiation 205 63%

Plaintiff Initiated Negotiation 121 37%

ODR Mediation

Total Cases Where Users Requested Mediation 73

Defendant Requested Mediation 54 74%

Plaintiff Requested Mediation 19 26%

Cases Resolved In ODR

Total Cases Resolved in ODR Platform1 30

Mediation Agreement Reached 7 23%

Negotiated Agreement Reached 23 77%

1Data reflects the average number of days to reach a negotiated or mediation agreement was ten days from the date

the user initiated the case in the platform.

Despite the implementation and integration challenges, the circuit found value in offering an

environment where parties can engage with each other prior to their first appearance in court and

Appendix D


attempt to resolve their dispute without further engagement. The Ninth Judicial Circuit continues

to offer ODR services.

TENTH JUDICIAL CIRCUIT

The Tenth Judicial Circuit planned to pilot ODR services in Polk County with a mediation

component for family cases involving dissolution of marriage in cases where no children are

involved. Matterhorn was chosen as the vendor, and, on February 14, 2020, a contract for ODR

services was executed with an agreement to provide services for six-months from the date of

platform launch, or the processing of 465 cases, whichever came first.

The circuit issued a pre-ODR survey to court users, collecting 44 responses. Of those surveyed

68 percent attempted to resolve their case prior to their court date. Surveyed court users spent an

average of 51 minutes traveling to and from court, 100 minutes in court addressing their legal

issue, and spent an average of $86.02 in costs related to transportation, lost wages and childcare.

At the start of the pilot program, staff saw potential promise in ODR providing a viable venue for

court users to attempt to resolve their dispute while minimizing associated case costs.

The circuit initially aimed to launch services by late March of 2020 but experienced delays.

However, the circuit withdrew from the pilot in late August 2020 being dissatisfied with the

vendor’s ability to deliver on platform customizations. At the time of their withdrawal from the

pilot, nearly seven months had elapsed from the signing of the contact. Seven court staff

members worked on this ODR implementation over its course. Citing a positive experience with

videoconferencing technologies like Zoom for their family dissolution mediation needs, the court

decided to continue to invest resources in their current remote processes. Court staff noted ODR

was not a situatable solution at this time for their needs regarding family dissolution cases.

ELEVENTH JUDICIAL CIRCUIT

The Eleventh Judicial Circuit piloted online case resolution (OCR) services in civil traffic

infraction cases in Dade County. A contract was executed on January 11, 2020, with Court

Innovations, Inc., for the use of their Matterhorn OCR platform. The court contracted for

services for a six-month pilot, or the processing of 1,530 cases in the platform, whichever came

first. The vendor charged a one-time configuration and integration fee, and $10 for each traffic

case processed in the platform.

Appendix D


The circuit issued a pre-ODR survey of court users, collecting 511 responses. On average,

surveyed court users spent 50 minutes traveling to and from court while only 18 minutes in court

addressing their legal issue. Surveyed court users reported spending an average of $42 in costs

related to transportation, lost wages, and childcare to attend court in person. For traffic

compliance cases, court and OSCA staff saw promising potential in ODR for reducing the time

commitment and expense for court users needing to resolve their citation or ticket.

The circuit and vendor anticipated to launch services by the end of February 2020. Delays in

programming development pushed the launch of service to late April 2020. Eighteen circuit staff

members expending over 520 hours working with Matterhorn staff to implement ODR services.

The new ODR service option was advertised to court users in the circuit though several channels

including courthouse signage, notifications on the traffic citation, the circuit’s website, and the

court’s social media accounts. In late August 2020, the circuit met their target sample of 1,530

cases, concluding their pilot.

From the pilot sample, Matterhorn platform usage data shows that 42 percent of users accessed

the platform outside of normal business hours. Most users (87 percent) accessed the platform

once to submit their compliance documentation to resolve their case. Overall, ODR users spent

an average of 6.5 minutes resolving their legal issues compared to the 68-minutes average non-

ODR users spent traveling to court and resolving their issue in person. Table 2 provides brief

statistics related to the outcomes of the pilot cases. Feedback from ODR users indicated a high

satisfaction with the service as it reduced the cost and amount of time spent handling the legal

issue and allowed users to more easily submit their compliance documents1.

Table 2: Eleventh Judicial Circuit - Small Claims OCR Pilot Statistics

OCR Case Resolution

Total Cases In OCR 1,530

Cases Approved by Hearing Officer 1,357 89%

Cases Rejected by Hearing Officer 95 6%

Cases Required to Submit Additional Information 78 5%

1 The circuit in conjunction with Matterhorn administered a post ODR survey to collect user’s comments and

experience with the ODR service.

Appendix D


The circuit reported overall satisfaction with the system. At the conclusion of the pilot, the

circuit requested, and was granted, approval by the Supreme Court to continue providing the

OCR service to court users under a user-pay model. The user-pay model went into effect on

October 14, 2020. Under this model, users, typically the respondent in a case, pay the vendor a

$5.00 service fee for processing their case online. Following the transition to the user-pay model,

staff analyzed preliminary data from the platform which shows that an average of 6 cases per day

are being processed in the OCR system since the user fee went into effect, as opposed to the 14

cases per day that were being processed when the service was free to users.

SEVENTEENTH JUDICIAL CIRCUIT

The Seventeenth Judicial Circuit planned to implement a negotiation focused ODR service for

family cases for dissolution of marriage in cases without children. A contract was executed on

November 25, 2019, with Court Innovations, Inc., for the use of their Matterhorn ODR platform.

The agreement stipulated a provision of ODR services for a six-month pilot, or processing 927

cases in the platform, whichever came first. The vendor charged a one-time configuration and

integration fee of $3,500, and $30 for each case entered on the platform.

The circuit issued a pre-ODR implementation survey of court users, collecting 39 responses.

Seventy-four percent of those surveyed attempted to resolve their case prior to their court date.

Those surveyed spent on average 44 minutes traveling to and from court and an average of 120

minutes in court. Surveyed court users reported spending an average of $66.80 in costs related to

transportation, lost wages, and childcare to attend court in person. At the start of the pilot

program, staff saw potential promise in ODR providing a viable venue for court users to attempt

to resolve their dispute while minimizing associated case costs.

The circuit anticipated launching ODR services in late March of 2020. Three circuit staff

members worked on the pilot implementation expending an estimated 98 staff hours over the

course of the pilot program. After multiple development delays, the circuit withdrew from the

pilot in late August 2020, citing concerns with the ODR product. After withdrawing from the

pilot, the circuit chose to continue focusing their resources on providing remote mediation

services via videoconferencing solutions.

Appendix D

Summary of Pre-Pilot Baseline Survey Data


Figure 1. Time spent traveling to court and in court

Figure 2. Costs incurred going to court

Figure 3. What role did you play in the case

Figure 4. Attempted to resolve case before court date

Figure 5. I got my entire case done in a reasonable amount of time

49

115

0

20

40

60

80

100

120

Average Time in MinutesTraveling to Court In Court

$11

$0 $0

$65

$0

$50

$0

$10

$20

$30

$40

$50

$60

$70

Transportation ParkingChildcare Wages LostOther Costs Total Average Cost

25%

75%

0%

0% 20% 40% 60% 80%

Claimant

Respondent

No Response

75%

25%

0%

0% 20% 40% 60% 80%

Yes

No

No Response

13%

6%

13%

50%

19%

0%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree

Neither Agreenor Disagree

Agree

StronglyAgree

No Response

APPENDIX E



Figure 6. I had the information I needed about court proceedings to resolve my case

Figure 7. The court's hours of operation made it easy for me to do my business

Figure 8. The mediator was neutral and impartial

6%

13%

6%

44%

31%

0%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

6%

0%

0%

69%

25%

0%

0% 20% 40% 60% 80%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

13%

0%

0%

31%

56%

0%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E



Figure 9. The mediation process met my expectations

Figure 10. I am satisfied with the outcome of my mediation

Figure 11. I would recommend mediation to my friends and family

13%

0%

0%

53%

33%

0%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

19%

6%

13%

50%

13%

0%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

13%

0%

13%

56%

19%

0%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E



Figure 12. I was confident in my ability to advocate on my own behalf

Figure 13. I have regular access to the Internet

Figure 14. Primary Internet device

Figure 15. Percentage of respondents with multiple Internet devices

Figure 16. I would be comfortable resolving my case

online

0%0%

7%

33%

60%

0%Not at allComfortableSlightlyComfortableNeutral

SomewhatComfortableVeryComfortableNo Response

19%

81%

0%

NoYesNo Response

77%

15%

8% 0% 0%0%Computer at

HomeComputer atWorkTablet

Smart phone

Other

No Response

100%

0%

20%

40%

60%

80%

100%

Yes - Multiple Devices

6%

13%19%

44%19%

0%

Not at allComfortableSlightlyComfortableNeutral


APPENDIX E



Figure 17. Age of survey respondents

0%

6%

38%

31%

19%

6%

0%

Up to 24

25-34

35-44

45-54

55-64

65 or Older

No Response

0% 10% 20% 30% 40%

APPENDIX E








40

44

38

39

40

41

42

43

44

45


$13$0

$33

$133

$58

$85

$0$10$20$30$40$50$60$70$80$90

$100$110$120$130$140$150


20%

79%

1%

0% 20% 40% 60% 80%

Claimant

Respondent

NoResponse

53%

41%

6%

0% 20% 40% 60% 80%

Yes

No

No Response

2%

5%

11%

13%

24%

46%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E






4%

2%

8%

23%

24%

39%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

5%

2%

5%

24%

30%

35%

0% 10% 20% 30% 40%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

2%

0%

6%

11%

35%

47%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E






3%

2%

12%

12%

25%

47%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

6%

0%

12%

13%

22%

48%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

2%

0%

12%

19%

20%

47%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E






Figure 32. Percentage of respondents with multiple

Internet devices

Figure 33. I would be comfortable resolving my case online

7% 4%

15%

16%35%


SomewhatComfortableVeryComfortableNo Response 9%

79%

13%

NoYesNo Response

46%

25%

5%

4%1%

19%Computer atHomeComputer atWorkTablet

Smart phone

Other

No Response

54%

0%

20%

40%

60%


10%

5%

18%

15%

22%30%



APPENDIX E




1%

13%

24%

21%

19%

9%

13%

Up to 24

25-34

35-44

45-54

55-64

65 or Older

No Response

0% 5% 10% 15% 20% 25% 30%

APPENDIX E








49

85

0102030405060708090


$14 $8

$31

$140

$89$77

$0$10$20$30$40$50$60$70$80$90

$100$110$120$130$140$150


15%

80%

5%

0% 20% 40% 60% 80% 100%

Claimant

Respondent

No Response

56%

41%

3%

0% 20% 40% 60% 80%

Yes

No

No Response

8%

6%

10%

36%

39%

1%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E






7%

2%

9%

37%

43%

1%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

Strongly Agree

No Response

8%

6%

11%

33%

41%

1%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

7%

0%

1%

19%

71%

1%

0% 20% 40% 60% 80%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E






7%

2%

10%

26%

55%

1%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

7%

5%

14%

24%

48%

1%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

8%

1%

11%

25%

52%

2%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E






Figure 49. Percentage of respondents with multiple

Internet devices


2% 3%

16%

20%

47%


SomewhatComfortableVery Comfortable

No Response5%

84%10%

NoYesNo Response

61%

17%

5%

2%0%


Smart phone

Other

No Response

65%

0%

20%

40%

60%

80%


9%

4%

22%

18%

32%

15%



APPENDIX E




5%

20%

27%

18%

15%

5%

11%

Up to 24

25-34

35-44

45-54

55-64

65 or Older

No Response

0% 5% 10% 15% 20% 25% 30%

APPENDIX E








51 51

46

48

50

52

54

56

58

60


$14 $11$30

$155

$83 $77

$0$10$20$30$40$50$60$70$80$90

$100$110$120$130$140$150$160$170


48%

45%

7%

0% 20% 40% 60% 80%

Petitioner

Respondent

NoResponse

68%

25%

7%

0% 20% 40% 60% 80%

Yes

No

No Response

16%

11%

18%

25%

18%

11%

0% 5% 10% 15% 20% 25% 30%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E






5%

0%

25%

30%

27%

14%

0% 5% 10% 15% 20% 25% 30% 35%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

0%

2%

9%

30%

48%

11%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

9%

5%

16%

18%

36%

16%

0% 10% 20% 30% 40%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E






16%

2%

32%

16%

20%

14%

0% 5% 10% 15% 20% 25% 30% 35%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

9%

5%

16%

18%

36%

16%

0% 10% 20% 30% 40%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

2%

0%

25%

27%

34%

11%

0% 10% 20% 30% 40%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E





Figure 65. Primary Internet Device



11%

5%

23%

16%30%



No Response

5%

84%

11%

NoYesNo Response

50%

2%5%

27%

0%


Smart phone

Other

No Response

62%

0%

20%

40%

60%

80%


20%

2%

32%

11%

11%

23%



APPENDIX E




0%

34%

11%

27%

7%

5%

16%

Up to 24

25-34

35-44

45-54

55-64

65 or Older

No Response

0% 10% 20% 30% 40%

APPENDIX E





Figure 71. What role did you play in the case?


50

18

0

10

20

30

40

50

60


$19$8

$35

$97

$17

$42

$0$10$20$30$40$50$60$70$80$90

$100$110


6%

6%

88%

0% 20% 40% 60% 80% 100%

No Response

Attorney/Witness

Defendant

8%

4%

7%

29%

51%

1%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E




Figure 74. The time my traffic court hearing was scheduled made it easy for me to attend

Figure 75. The hearing officer was neutral and impartial

8%

3%

8%

32%

50%

1%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

14%

12%

11%

26%

35%

2%

0% 5% 10% 15% 20% 25% 30% 35% 40%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

6%

3%

11%

27%

53%

2%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E



Figure 76. I am satisfied with the outcome of my case

Figure 77. The traffic court hearing process met my expectations



4%

4%

18%

17%

55%

2%

0% 10% 20% 30% 40% 50% 60%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

8%

4%

10%

30%

45%

2%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

4%4%

18%

17%

55%



No Response

91%

6%

3%

YesNoNo Response

APPENDIX E







73%

0%

20%

40%

60%

80%


84%

13%

3%

Yes

No

No Response

71%

6%

2%

15%


Smart Phone

No Response

2%

4%

11%

12%

21%

31%

20%

No Response

65 or Older

55-64

45-54

35-44

25-34

Up to 24

0% 5% 10% 15% 20% 25% 30% 35%

APPENDIX E



Figure 84. Time spent traveling to court and in court Figure 85. Costs incurred going to court

Figure 86. What role did you play in the case? Figure 87. Attempted to resolve case before court date


44 44

0

10

20

30

40

50

60


$11 $13$0

$150

$75$67

$0$10$20$30$40$50$60$70$80$90

$100$110$120$130$140$150$160


49%

49%

3%

0% 20% 40% 60% 80%

Petitioner

Respondent

No Response

74%

15%

10%

0% 20% 40% 60% 80%

Yes

No

No Response

10%

8%

15%

31%

28%

8%

0% 10% 20% 30% 40%

Strongly Disagree

Disagree

Neither Agree norDisagree

Agree

Strongly Agree

No Response

APPENDIX E



Figure 89. I had the information I needed about court proceeding to resolve my case



8%

0%

8%

41%

38%

5%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

Strongly Agree

No Response

3%

0%

3%

31%

59%

5%

0% 10% 20% 30% 40% 50% 60% 70%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

5%

0%

16%

34%

39%

5%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E







8%

3%

23%

21%

38%

8%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

10%

8%

26%

10%

33%


SomewhatComfortableVeryComfortableNo Response 15%

77%

8%

NoYesNo Response

46%

5%5%

28%

0%


Smart phone

Other

No Response

APPENDIX E







48%

0%

20%

40%

60%


36%

0%

21%

13%23%

8%



0%

10%

23%

15%

26%

21%

5%

Up to 24

25-34

35-44

45-54

55-64

65 or Older

No Response

0% 5% 10% 15% 20% 25% 30%

5%

0%

16%

34%

39%

5%

0% 10% 20% 30% 40% 50%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E




3%

0%

18%

36%

33%

10%

0% 10% 20% 30% 40%

StronglyDisagree

Disagree


Agree

StronglyAgree

No Response

APPENDIX E

APPENDIX F

Platform Usage Data from the 11th Judicial Circuit –Civil Traffic Infraction Implementation

FL11JC OCR StatisticsTime of DayLogins/CaseTime on Platform

APPENDIX G

Time of Day – Public and Court Staff

Data from Event Tracking of Activities on the Site such as Logins and Attachments for cases

May-September 15, 2020

52%

3%

45%

Court Staff

After Hours

Weekend

9-5

31%

11%

58%

Public Use

After Hours

Weekend

9-5

APPENDIX G

Logins/Case - Public

Data from Event Tracking of Activities on the Site: Case Creation and Logins for FL11JC cases

May-September 15, 2020

1,500

100 42 25 15 15 30

400

800

1,200

1,600

1 2 3 4 5 6-9 10+

Coun

t of C

ases

Logins per Case

Public Use of Matterhorn - Logins/Case

APPENDIX G

Avg Time – Public and Court Staff

Public OCR Users – 6 Minutes

6:27Average time per session

Court Staff – 8 Minutes

8:39Average time per session

Data from Google Analytics – May-September 15, 2020 average time on site by user type.

Excluding people who visited only the homepage page of the site and did not pursue a case.

APPENDIX G

Exit Survey Data from the 11th Judicial Circuit Civil Traffic Infraction Implementation

The following data is based upon 139 respondents to the Exit Survey provided by Matterhorn.

Resolved in a Timely Manner

stronglydisagree

disagree

neutral

agree

stronglyagree

Understood Status

stronglydisagree

disagree

neutral

agree

strongly agree

Handled Fairly

stronglydisagree

disagree

neutral

agree

stronglyagree

Appendix H

Exit Survey Data from the 11th Judicial Circuit Civil Traffic Infraction Implementation

Likely to Recommend

very unlikely

unlikely

neutral

likely

very likely

Able to Appear

Yes

No

0 10 20 30 40 50

from the police officer

info printed on the ticket

from the court's website

from the court's phone…

from a staff member at the…

via an emailed link from…

postcard

word of mouth

other

Count of People

Answ

er

How did you hear about the option to resolve your case online?

from the police officer

info printed on the ticket

from the court's website

from the court's phone tree orvoicemail

from a staff member at thecourt

via an emailed link from thecourt

postcard

Appendix H

Framework Design Resources

The following is a curated list of resources for reference when contemplating an ODR

implementation or beginning a framework design.

National Center State Courts : Online Dispute Resolution

The NCSC’s ODR website offers a plethora of information and resources. The website is aimed

at helping courts as they undertake ODR implementations. Courts will find an aggregation of

advice, research, and experiences of courts that have launched ODR services. The Key Decision

Points webpage breaks down major considerations and offers topic specific checklists and

toolkits. Of particular interest to courts may be the Online Dispute Resolution Design

Framework resource.

Michigan Supreme Court State Court Administrators Office of Dispute Resolution : Considerations in Implementing Court ODR Systems

Doug Van Epps and Michelle Hiliker have compiled a thorough ODR resource based on their

experience designing and implementing an ODR program in the Michigan courts. Organized

into thematic considerations, Van Epps and Hiliker develop a series of worksheets users can use

to prioritize elements and visualize the next steps for their implementation.

Joint Technology Committee : Case Studies in ODR for Courts

This series of seven case studies may be of use to courts as they map out their design framework.

Four of the case studies are of United States courts and highlights their process, program

features, and notable issues. The other three studies are of international ODR programs. These

case summaries can be used to identify additional considerations or potential process pressure

points that may not yet have been considered.

Appendix I

https://www.ncsc.org/odr

https://www.ncsc.org/odr/KeyDecisionPoints

https://www.ncsc.org/odr/KeyDecisionPoints

https://www.ncsc.org/__data/assets/pdf_file/0031/18499/2017-12-18-odr-for-courts-v2-final.pdf

https://www.ncsc.org/__data/assets/pdf_file/0031/18499/2017-12-18-odr-for-courts-v2-final.pdf

https://courts.michigan.gov/Administration/SCAO/OfficesPrograms/ODR/Documents/Resources/ODRConsiderations.pdf

https://www.ncsc.org/__data/assets/pdf_file/0020/16517/2020-01-28-odr-case-studies-v2-final.pdf

Online Dispute Resolution Pilot Program Report

Documents

Transcript of Online Dispute Resolution Pilot Program Report