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

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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

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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.

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Table I. Summary of the ODR Pilot Program Judicial Third Fifth Ninth Tenth Eleventh Seventeenth Circuit County Columbia Lake Orange Polk Dade Broward Family Family Small Civil Traffic Case Type Small Claims Small Claims Dissolution Dissolution Claims Compliance No Children No Children Integration Non- Non- Non- Integrated Integrated Integrated Model1 Integrated Integrated Integrated Funding State and State and State and Local Funds State Funds State Funds Source Local Funds Local Funds Local Funds Launch Date May 2020 N/A April 2020 N/A May 2020 N/A Target 290 560 1,360 465 1,530 927 Sample Size2 Cases 0 0 622 0 1,530 0 Processed3 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

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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 Small Claims ($0-$8,000) All cases except insurance-related matters. County Civil Use a local screening tool to determine suitability on Civil ($8,001-$30,000) a case-by-case basis Contract and Indebtedness Consumer debt Circuit Civil Other Real Property Actions Potential application for commercial evictions Compliance cases (e.g., proof of valid insurance, Traffic Civil Infractions driver license, registration, etc.). Other infractions may also be suitable. Family Dissolution of Marriage In cases that do not involve children County County and Municipal Compliance with local ordinances Criminal 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

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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

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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.

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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.

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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

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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.

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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.

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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.

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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 Family Family Small Small Small Civil Traffic Case Type Dissolution Dissolution Claims Claims Claims Infractions no Children no Children Integration Non- Non- Non- Integrated Integrated Integrated Model Integrated Integrated Integrated 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.

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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 Judicial Circuit Third Fifth Ninth Tenth Eleventh Seventeenth Family Civil Family Small Small Small Case Type Dissolution Traffic Dissolution Claims Claims Claims No Children Infraction No Children Target 290 560 1,360 465 1,530 927 Sample Size1 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.

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platforms of Modria and Matterhorn, owned by Tyler Technologies and Court Innovations, respectively11.

Table V. ODR Pilot Case Types & Vendors by Judicial Circuit Judicial Third Fifth Ninth Tenth Eleventh Seventeenth Circuit Family Civil Family Small Small Small Case Type Dissolution Traffic Dissolution Claims Claims Claims No Children Infraction No Children Tyler Court Tyler Court Court Court Vendor Technologies Innovations Technologies Innovations Innovations Innovations Platform Modria Matterhorn Modria Matterhorn Matterhorn 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 Third Fifth Ninth Tenth Eleventh Seventeenth Circuit Family Civil Family Small Small Small Case Type Dissolution Traffic Dissolution Claims Claims Claims No Children Compliance No Children Target Sample 290 560 1,360 465 1,530 927 Size Quoted Price $25 $30 $25 $30 $10 $30 Per Case Integration & $0 $1,000 $0 $1,000 $3,500 $3,500 Setup Fees Total Requested $7,250 $17,800 $34,000 $14,950 $18,800 $31,310 Funding 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.

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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.

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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.

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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

Judicial Circuit Third Fifth Ninth Tenth Eleventh Seventeenth Family Civil Family Small Small Small Case Type Dissolution Traffic Dissolution Claims Claims Claims No Children Compliance No Children

Platform Modria Matterhorn Modria Matterhorn Matterhorn Matterhorn

December November December February January November Contract Executed 2019 2019 2019 2020 2020 2019 Withdrew Withdrew Withdrew Platform Launched May 2020 April 2020 August April 2020 July 2020 August 2020 2020 Withdrew Withdrew Withdrew Time from Contract 19 weeks after 36 18 weeks after 28 15 weeks after 40 Execution to Launch weeks weeks 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

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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 Judicial Circuit Third Fifth Ninth Tenth Eleventh Seventeenth Family Family Small Civil Traffic Case Type Small Claims Small Claims Dissolution Dissolution Claims Infraction No Children No Children Planned Non- Non- Non- Integration Integrated Integrated Integrated Integrated Integrated Integrated Model Modria Matterhorn Modria Matterhorn Matterhorn Matterhorn Platform Tyler Court Tyler Court Court Court Vendor Technologies Innovations Technologies Innovations Innovations Innovations SPIRIT Odyssey New Vision Odyssey CMS Clericus Showcase Traffic Tyler New Vision Tyler Vendor CiviTek Equivant Information Technologies Systems Technologies System

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.

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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

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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

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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.

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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

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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.

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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

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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.

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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.

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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..

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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.

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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.

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Table IX. Tier One of ODR Eligible Case Types Division Case Type Specific Criteria Small Claims ($0-$8,000) All cases except insurance-related matters. County Civil Use a local screening tool to determine Civil ($8,001-$30,0001) suitability on a case-by-case basis Contract and Indebtedness Consumer debt Circuit Civil Other Real Property Actions Potential application for commercial evictions Compliance cases (e.g., proof of valid insurance, Traffic Civil Infractions driver license, registration, etc.). Other infractions may also be suitable. Family Dissolution of Marriage In cases that do not involve children County County and Municipal Compliance with local ordinances Criminal 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 Division Case Type Specific Criteria Evictions – Residential County Civil Evictions – Non-Residential Circuit Civil Other Negligence Causes that are focused on debt collection Child Support IV-D Child Support Non-IV-D Family1 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;

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• 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

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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

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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.

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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.

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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.

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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

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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.

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Table XI. Sample Data Elements to Collect for Assessment Data Types Survey Case Platform Administrative Staff resources Time and resources spent Number of cases Time spent in platform measured in time or going to court referred to ODR per user type number of personnel assigned to task Time and resources spent Number of days case Cost of process Case type using ODR platform active in platform. elements

Access to specific Percentage of all Time spent by Initiator of engagement resources cases of a type staff inputting internet, electronic devices, in platform referred to ODR data into systems legal resources etc. Number of cases Time elapsed between Comfort with technology where users opted communication Cost per case out of ODR if asynchronous model used. Number of cases Number of cases Comfort with traditional where users opted negotiated and/or or online processes into ODR mediated Outcome and process Number of cases where

satisfaction 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.

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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

Page 41 APPENDIX A Appendix A APPENDIX A Appendix B

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’S TRIAL 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 Negotiation Mediation Evaluation

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

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.

5 Alex Sanchez, Manager, Small Claims and Dispute Resolution, Franklin County Municipal Court. June 12, 2018.

6 https://www.courtinnovations.com/MID14A

7 Alex Sanchez, Manager, Small Claims and Dispute Resolution, Franklin County Municipal Court. June 12, 2018. Appendix B

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.

Step 4: If No Step 3: If ODR is Step 1: Small Resolution Selected, Parties Claims Action Step 2: Reached, a Florida Attempt Filed with Parties Given Certified Mediator Resolution in Court; Case Option to is Assigned to the Online Platform. Number Proceed Using Case. Mediator Case may be Interacts with Assigned; Traditional Resolved by ODR Parties in ODR Notice to Mediation or System Without System to Resolve Appear Issued ODR. Need for Third Case; Settlement to Parties. Party Neutral. Agreement Filed.

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. 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

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 efficiencyand effectivenessof 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 Officesof 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 fromthe 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 Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Appendix B Sample Online Dispute Resolution Caseflow Process* Appendix B

Step 4: If ODR is Step 1: Small Claims Step 2: Case Step 3: Parties Given Step 5: Parties Selected, Invitation to Action Filed with Number Assigned; Option to Proceed Register Online within Participate is with Traditional ODR Platform and Clerk of Court; Filing Notice to Appear Generated and Sent to Mediation or ODR Begin ODR Process Fee Collected Issued to Parties Parties

Step 8: If Offer is Accepted, Step 9: If Agreement Step 6: Plaintiff Initiates Step 7: Respondent Makes Settlement Agreement Generated; Cannot be Reached, Case Online Interaction and Offer/Counteroffer Must be electronically signed by Will be Referred to Florida States Damages Sought both parties; Filed with the Court Supreme Court Certified and Reviewed by Judge Mediator

Step 11: Settlement Step 10: Mediator Interacts Agreement Generated; Must Step 12: Signed Agreement Step 13: If Approved, Judge with Parties Online to Reach be Electronically Signed by Filed with the Court; Must be Signs Agreement and Case is Agreement Both Parties Reviewed by Judge Disposed

*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 jurisdictions or case types. Appendix B County Small Claims Mediation Service Delivery Models

As of FY 2009-10 As of FY 2017-18

Small Claims Small Claims Clerk Case Cases Cases Maintenance 1 1 2 2 3 Circuit County Referred Mediated Staffing Model Case Referral Practice System Escambia 620 370 Volunteer Automatic by AO Benchmark Okaloosa 174 145 Volunteer Automatic by AO Benchmark 1 Santa Rosa 131 67 Volunteer Automatic by AO Clericus Walton 0 0 N/A N/A Clericus Franklin 0 0 N/A N/A Clericus All Contested Cases; Gadsden 59 59 Employee/Volunteer CDS Individually by Judge Jefferson 0 0 N/A N/A Clericus 2 All Contested Cases; Leon 1,039 1,039 Employee/Volunteer Benchmark Individually by Judge Liberty 0 0 N/A N/A Clericus All Contested Cases; Wakulla 101 101 Employee/Volunteer Clericus Individually by Judge Columbia 128 128 Contract Individually by Judge Clericus Dixie 54 54 Contract Individually by Judge Clericus Hamilton 37 37 Contract Individually by Judge Clericus 3 Lafayette 0 0 N/A N/A Clericus Madison 73 73 Contract Individually by Judge Clericus Suwannee 128 128 Contract/Volunteer Individually by Judge Clericus Taylor 0 0 N/A N/A CDS/Clericus Clay 150 145 Employee/Volunteer All Contested Cases Odyssey 4 Duval 1,172 825 Employee/Volunteer All Contested Cases Showcase Nassau 145 142 Employee/Volunteer All Contested Cases Clericus Citrus 504 504 Volunteer All Contested Cases Benchmark Hernando 226 226 Volunteer All Contested Cases Clericus 5 Lake 1,059 1,059 Volunteer All Contested Cases Showcase Marion 542 542 Volunteer All Contested Cases Clericus Sumter 0 0 N/A N/A Clericus Pasco 1,521 1,521 Contract Individually by Judge Clericus 6 Pinellas 1,836 1,834 Contract Individually by HO/Judge Odyssey Flagler 105 94 Volunteer Individually by Judge Benchmark Putnam 123 115 Volunteer Individually by Judge Clericus 7 St. Johns 123 117 Volunteer Individually by Judge Benchmark Volusia 473 456 Volunteer Individually by Judge In-House Alachua 521 521 Employee/Volunteer All Contested Cases Courtview Baker 42 42 Employee/Volunteer All Contested Cases Clericus Bradford 14 14 Employee/Volunteer All Contested Cases Clericus 8 Gilchrist 17 14 Employee/Volunteer All Contested Cases Clericus Levy 23 22 Employee/Volunteer All Contested Cases Benchmark Union 0 0 Employee/Volunteer All Contested Cases Clericus Orange 15,452 4,050 Volunteer Automatic by AO Odyssey 9 Osceola 3,734 1,147 Volunteer Automatic by AO Benchmark Appendix B As of FY 2009-10 As of FY 2017-18

Small Claims Small Claims Clerk Case Cases Cases Maintenance 1 1 2 2 3 Circuit County Referred Mediated Staffing Model Case Referral Practice System Hardee 0 0 N/A N/A Clericus 10 Highlands 53 53 Volunteer Individually by Judge Clericus 1 Polk 313 313 Contract/Volunteer Individually by Judge New Vision 11 Dade 2,837 2,333 Employee/Volunteer Individually by Judge Odyssey/CJIS Automatic by AO; All Desoto 28 25 Contract/Volunteer Contested Cases; Clericus Individually by Judge Automatic by AO; 12 Manatee 222 212 Contract/Volunteer Clericus Individually by Judge Automatic by AO; All Sarasota 1,202 1,110 Contract/Volunteer Contested Cases; Benchmark Individually by Judge 13 Hillsborough 2,839 1,846 Employee/Contract All Contested Cases Odyssey Bay 1,719 488 Volunteer All Contested Cases Benchmark Calhoun 0 0 N/A N/A Clericus Gulf 0 0 N/A N/A Clericus 14 Holmes 146 54 Volunteer All Contested Cases Clericus Jackson 1,025 324 Volunteer All Contested Cases Clericus Washington 256 85 Volunteer All Contested Cases Clericus 15 Palm Beach 4,422 4,422 Volunteer All Contested Cases Showcase All Contested Cases; 16 Monroe 159 158 All Odyssey Individually by Judge 17 Broward 5,285 4,507 Contract All Contested Cases Odyssey Brevard 4,273 2,693 Employee/Volunteer Automatic by Clerk FACTS 18 All Contested Cases; Seminole 248 248 Employee/Volunteer In-House Individually by Judge Indian River 200 200 Contract Individually by Judge Benchmark Martin 120 120 Contract Individually by Judge Clericus 19 Okeechobee 100 100 Contract Individually by Judge Clericus St. Lucie 213 213 Contract Individually by Judge Benchmark Charlotte 545 545 Volunteer Automatic by AO Benchmark Collier 1,091 1,091 Volunteer Automatic by AO Showcase 20 Glades 0 0 N/A N/A Clericus Hendry 0 0 N/A N/A Clericus Lee 1,861 1,861 Volunteer Automatic by AO Odyssey 59,483 38,592

1 Compendium 2009-10 21st Edition 2 Mediation Circuit Profiles February 2008 3 Court Application Processing System (CAPS) Implementation Matrix, Updated 9/14/2017 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 Sherry MacLennan LegalServer British Columbia Legal Services Society Ethan Bauer Shannon Salter The Pew Charitable Trusts British Columbia Civil Resolution Tribunal Kevin Bowling David Slayton 20th Circuit & Ottawa County Michigan Courts Texas Office of Court Administration Ron Bowmaster Colin Rule Utah Courts (retired) Tyler/Modria MJ Cartwright Doug Van Epps Matterhorn Michigan Office of Dispute Resolution Diana Colon New York State Unified Court System

National Center for State Courts

Thomas M. Clarke, Research and Technology Paul Embley, Technology Services Jim Harris, Technology Services

Additional Contributors

Sue Brown Richard Schauffler ClaimsPortal (United Kingdom) National Center for State Courts Robert Ciolek Ann Thompson 14A District Court (Michigan) Thomson Reuters Carrie Menkel-Meadow Martin Ward University of California, Irvine School of Law ClaimsPortal (United Kingdom) Alex Sanchez Corry Van Zeeland Franklin County (Ohio) Municipal Court Rechtwijzer, Legal Aid Board (Netherlands)

Appendix B

Joint Technology Committee:

COSCA Appointments NACM Appointments David Slayton (Co-Chair) Kevin Bowling (Co-Chair) Texas Office of Court Administration Michigan 20th Judicial Circuit Court David K. Byers Paul DeLosh Arizona Supreme Court Supreme Court of Virginia Laurie Dudgeon Danielle Fox Kentucky Administrative Office of the Courts Circuit Court for Montgomery County, Maryland The Honorable Sigfrido Steidel Figueroa Kelly C. Steele Puerto Rico Court of Appeals Florida Ninth Judicial Circuit Court Rodney Maile Jeffrey Tsunekawa Hawaii Administrative Office of the Courts Seattle Municipal Court NCSC Appointments CITOC Appointments The Honorable O. John Kuenhold Jorge Basto State of Colorado Judicial Council of Georgia The Honorable Michael Trickey Casey Kennedy Washington Court of Appeals, Division 1 Texas Office of Court Administration Ex-officio Appointments NCSC Staff Joseph D.K. Wheeler Paul Embley IJIS Courts Advisory Committee 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, the Conference 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 of court-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 Reliance on technology naturally of cases decreases and the benefits of diminishes as more skilled, personal automating processes decrease assistance is required. proportionately.

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 Figure 3 - ODR Process Stages 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). Appendix B

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

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 the charges, information provided by defendants, the driver’s record, and other records. If the case qualifies for mediation, the charge can be reduced to “impeding traffic,” a violation which will not appear on an individual’s driving record and will not negatively impact auto insurance rates. Defendants then have a limited amount of time to accept the reduced 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 litigation of traffic accident and personal injury claims. Information related to injury claims can be transferred securely through the system, including medical documentation, settlement offers and counter-offers. If the parties do not reach 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

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

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 mediation services through ODR with the goal of helping parties resolve disputes without court proceedings. If parties are unable to agree, a party can proceed with formal action in the traditional court setting, but the information input into the ODR system is not captured and utilized to generate a formal case filing.17

• British Columbia’s Civil Resolution Tribunal front-ends the formal Tribunal process 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

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 in personal injury disputes and generates the paperwork required for filing a formal court action in instances where the claimant is not satisfied with the proposed 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 select specific, unbundled services offered by public and private legal service providers 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 a claim with the insurance company. If the insurance company either fails to respond promptly or denies the claim, consumers can utilize the ADR/New York No-Fault Insurance website to request and receive arbitration. Arbitration is one of several options available to consumers, including taking 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 are examples 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 numerous examples of ODR in the international community. See http://www.onlineresolution.com/hiil.pdf. Appendix B

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

• 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 provides automated notifications, reminders, a secure communication mechanism for case managers and parents, and tools for managing “show cause” hearings. The system has reduced in-person hearings by 27% and arrest warrants 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 for State Courts, Research Division. April 2010. Appendix B

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

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 better measure 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 Shannon Salter, 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

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

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

Stakeholders and Leadership and Culture Statutes and Rules Processes Technology Funding Partners Governance Public engaged in Lead by strong Customer-focused. Flexibility in piloting Evidence-based High level of digital Sustainable process champions with Open. new approaches. practices. agility; incorporates revenue streams. development and decision-making new technologies Innovative. Impacts analyzed improvement. authority. rigorously and quickly. Established Cross-functional Accepting of regularly using Uses technology partnerships. support. failures in the accurate, relevant effectively to pursuit of metrics; processes enhance Contract and Energized, improvement. relationship visionary, tech- continually refined. operational management savvy. effectiveness and expertise. deliver better, more Collaborative. cost-effective Flexible Includes services. procurement and succession plan. partnering High expectation Sustainability. for access to online Strengths to leverage to Strengths strategies. processes. Collaborative relationship with local Bar association. Resistant to or No clear leader, or Court-centric focus. Known obstacles Complex, manual Limited use of No funding. suspicious of leader who lacks Suspicious. with limited options processes that technology. No flexibility to partnering. authority to act. for addressing have changed little Defensive. Suspicious of or adjust utilization of Unwilling to utilize No succession them. over the years. actively opposes current budget. commercial plan. Risk averse. Policy, process, or use of technology. options. Silo mentality. technology barriers Digital divide. Agency silos. to collecting and analyzing data. Political rivalries. “We know what the public wants.”

Potential barriers Potential Adversarial relationship with local Bar Association.

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, 8 Dec. 2014. Appendix B

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

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

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 information and 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 more naturally 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

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, 8 Dec. 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

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

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 and Media, 11 Feb. 2016. Appendix B

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 of the same process.

• Test with individuals representing all potential audiences. Reach out to those populations through social media and classified advertisement websites 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 process are directed to it. The differences between ODR and traditional options should be clearly and succinctly identified.

• Court websites with multiple pathways for problem resolution can undermine ODR efforts. Use Google and other search mechanisms to locate 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 for help. A high percentage of users accessing live help indicates a problem with the system or process (not the users).

• Observing where and why users access live assistance is key to iterative improvement in both the process and the technology used to administer it.

• ODR users should be able to successfully resolve targeted high-volume case types without assistance, freeing up clerk resources to focus on the small 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 resolution process.

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

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 staff better understand and serve ODR clients, many of whom will be accessing the system in non-traditional hours and settings.

• Court organizations doing ODR are finding it a competitive hiring advantage to offer flex-time/off-site work, coupled with government employment 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

Table 1 – Sample of Desired Outcomes and Measures/Data Sources

Desired Outcomes Measure/data source Expressed as ODR helps people who Online survey at the conclusion of the ODR experience, Of all people who used ODR, X% could not otherwise get to question with binary (yes/no) or scaled responses. said they would not have been able court. to come to court in person. ODR helped close cases Days to case closure for case type X from filing date to Number of days from filing to faster. disposition through ODR compared to traditional process. disposition in ODR versus traditional process. Fewer people default or fail Disposition, status, issuance of FTC warrants, or other fields Percentage of cases with a to comply with a judgment that would indicate non-compliance. disposition of default that used ODR when they resolve their versus cases that did not use ODR. matter through ODR. ODR cuts judicial and staff Internal workload assessment. Difference in minutes in time spent, time spent processing by role, by case type. routine cases. ODR reduces the backlog of Count of scheduled proceedings (informal and formal Reduction in backlog over time or cases or proceedings. hearings, civil hearing before the court, etc.) pre-post implementation comparison. ODR is helpful to all Compare demographic factors and outcomes of those who Identify similarities or differences in constituents. use ODR and those who use in-person court services for segments of the population who use similar case types. the ODR versus in-person options. ODR helps my court serve Ask in-person visitors and ODR users whether they received Quantify public’s preferred court different constituents in their service in their preferred modality. experience. preferred modality. ODR diverts a small/large Count and proportion of cases diverted over a time period. Count and proportion of in-person proportion of cases from the Count and Proportion of cases in which ODR was initiated but hearings avoided with ODR. court's docket. which returned to an in-person hearing over a time period.

Figure 4 - Sample Time to Case Closure Comparison chart Make ODR transformational. Courts can use ODR technologies in limited ways to incrementally improve and modernize current processes, saving money and increasing efficiency while 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

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 C

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

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 Circuit Jeanne Potthoff, Alternative Dispute Resolution Director, Seventeenth Judicial Circuit The Honorable William Roby, Circuit Judge, Nineteenth Judicial Circuit Christopher 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

Page 2 Appendix C Online Dispute Resolution Pilot Project Plan for Florida’s Trial Courts

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

Page 3 Appendix C Online Dispute Resolution Pilot Project Plan for Florida’s Trial Courts

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.

Page 4 Appendix C Online Dispute Resolution Pilot Project Plan for Florida’s Trial Courts

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

Page 5 Appendix C Online Dispute Resolution Pilot Project Plan for Florida’s Trial Courts 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: 2: Court 4: If Resolution 1: Small 3: If ODR is Issues Notice Reached, Claims Selected, Parties to Appear; Action Attempt Settlement Filed Provides ODR Resolution in Agreement is Option Online Platform Generated

6: Mediator Interacts 7: If Resolution 5: If Resolution is not with Parties in ODR Reached, Settlement Reached, Case is Platform Agreement is Referred to Mediator Asynchronously Generated

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

Page 6 Appendix C Online Dispute Resolution Pilot Project Plan for Florida’s Trial Courts 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:

2: Case Set for Pre- 3: If ODR Selected, Parties Interact in 1: Dissolution of Trial Hearing; Parties Online Platform to Marriage Action Filed Presented with ODR Resolve All, or Portions Option of, Disputed Matters

4: If All Matters 5: Unresolved Resolved, Marital Matters May be 6: Judge Enters Final Settlement is Resolved by Court at Order Generated Final Hearing

Page 7 Appendix C Online Dispute Resolution Pilot Project Plan for Florida’s Trial Courts

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: 1: Citation 2: Defendant 3: Case Assigned 4: Defendant Issued; Selects ODR to CTIHO; CTIHO Enters Plea and Defendant Option Rather Initiates Case Requests than In-Person Activity in ODR Accompanying Hearing Hearing Platform Requests

5: CTIHO Reviews 6: Defendant Defendant Driving Accepts Offer Online; 7: CTIHO Enters Record; Makes Offer Order Generated for Order in ODR Platform CTIHO Review

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.

Page 8 Appendix C Online Dispute Resolution Pilot Project Plan for Florida’s Trial Courts

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 Proposed Sample Size in Circuit County Case Type 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.

Page 9 Appendix C Online Dispute Resolution Pilot Project Plan for Florida’s Trial Courts

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 Total Maximum Estimated Proposed Estimated State Pilot Sample Funding Local Funding Circuit County Pilot Case Type of Cases4 Needed5 Funding6 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

Page 10 Appendix C Online Dispute Resolution Pilot Project Plan for Florida’s Trial Courts 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.

Page 11 Appendix D 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 Pilot Case Summaries by Judicial Circuit

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 Pilot Case Summaries by Judicial Circuit

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 Pilot Case Summaries by Judicial Circuit 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 Pilot Case Summaries by Judicial Circuit 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 Pilot Case Summaries by Judicial Circuit

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 Pilot Case Summaries by Judicial Circuit

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. Summary of Pre-Pilot Baseline Survey Data APPENDIX E THIRD JUDICIAL CIRCUIT

Figure 1. Time spent traveling to court and in court Figure 2. Costs incurred going to court 120 115 $70 $65 $60 100 $50 $50 80 $40 60 49 $30 $20 40 $11 $10 20 $0 $0 $0 $0 0 Transportation Parking Average Time in Minutes Childcare Wages Lost Traveling to Court In Court Other Costs Total Average Cost

Figure 3. What role did you play in the case Figure 4. Attempted to resolve case before court date

Claimant 25% Yes 75%

Respondent 75% No 25%

No Response 0% No Response 0%

0% 20% 40% 60% 80% 0% 20% 40% 60% 80%

Figure 5. I got my entire case done in a reasonable amount of time Strongly 13% Disagree Disagree 6% Neither Agree 13% nor Disagree Agree 50% Strongly 19% Agree No Response 0%

0% 10% 20% 30% 40% 50% 60% Summary of Pre-Pilot Baseline Survey Data APPENDIX E THIRD JUDICIAL CIRCUIT

Figure 6. I had the information I needed about court proceedings to resolve my case Strongly 6% Disagree Disagree 13% Neither Agree 6% nor Disagree Agree 44% Strongly 31% Agree No Response 0%

0% 10% 20% 30% 40% 50%

Figure 7. The court's hours of operation made it easy for me to do my business Strongly 6% Disagree Disagree 0% Neither Agree 0% nor Disagree Agree 69% Strongly 25% Agree No Response 0%

0% 20% 40% 60% 80%

Figure 8. The mediator was neutral and impartial

Strongly 13% Disagree

Disagree 0% Neither Agree 0% nor Disagree

Agree 31% Strongly 56% Agree

No Response 0%

0% 10% 20% 30% 40% 50% 60%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E THIRD JUDICIAL CIRCUIT

Figure 9. The mediation process met my expectations Strongly 13% Disagree

Disagree 0% Neither Agree 0% nor Disagree

Agree 53% Strongly 33% Agree

No Response 0%

0% 10% 20% 30% 40% 50% 60%

Figure 10. I am satisfied with the outcome of my mediation

Strongly 19% Disagree

Disagree 6% Neither Agree 13% nor Disagree

Agree 50% Strongly 13% Agree

No Response 0%

0% 10% 20% 30% 40% 50% 60%

Figure 11. I would recommend mediation to my friends and family

Strongly 13% Disagree Disagree 0% Neither Agree 13% nor Disagree Agree 56% Strongly 19% Agree No Response 0%

0% 10% 20% 30% 40% 50% 60% Summary of Pre-Pilot Baseline Survey Data APPENDIX E THIRD JUDICIAL CIRCUIT

Figure 12. I was confident in my ability to advocate on Figure 13. I have regular access to the Internet my own behalf No 0% 81% Not at all 0% 0% Yes Comfortable 7% No Response Slightly Comfortable 33% Neutral 60%

Somewhat Comfortable Very Comfortable 0% No Response 19%

Figure 14. Primary Internet device Figure 15. Percentage of respondents with multiple Internet devices Computer at 0% 0% Home 8% 0% 100% 100% Computer at Work Tablet 80% 15% Smart phone 60% Other

No Response 40%

20% 77% 0% Yes - Multiple Devices

Figure 16. I would be comfortable resolving my case online

Not at all 44% Comfortable 19% Slightly Comfortable Neutral 0% Somewhat Comfortable Very Comfortable 6% No Response

13% 19% Summary of Pre-Pilot Baseline Survey Data APPENDIX E THIRD JUDICIAL CIRCUIT

Figure 17. Age of survey respondents

Up to 24 0%

25-34 6%

35-44 38%

45-54 31%

55-64 19%

65 or Older 6%

No Response 0%

0% 10% 20% 30% 40%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E FIFTH JUDICIAL CIRCUIT

Figure 18. Time spent traveling to court and in court Figure 19. Costs incurred going to court 45 $150 $133 44 $140 $130 44 $120 $110 43 $100 $85 $90 42 $80 $70 $58 41 40 $60 $50 $40 $33 40 $30 $20 $13 39 $10 $0 $0 38 Transportation Parking Average Time in Minutes Childcare Wages Lost Traveling to Court In Court Other Costs Total Average Cost

Figure 20. What role did you play in the case Figure 21. Attempted to resolve case before court date

Claimant 20% Yes 53%

Respondent 79% No 41%

No 1% No Response 6% Response

0% 20% 40% 60% 80% 0% 20% 40% 60% 80%

Figure 22. I got my entire case done in a reasonable amount of time Strongly 2% Disagree

Disagree 5% Neither Agree 11% nor Disagree

Agree 13% Strongly 24% Agree

No Response 46%

0% 10% 20% 30% 40% 50%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E FIFTH JUDICIAL CIRCUIT

Figure 23. I had the information I needed about court proceedings to resolve my case Strongly 4% Disagree

Disagree 2% Neither Agree 8% nor Disagree

Agree 23% Strongly 24% Agree

No Response 39%

0% 10% 20% 30% 40% 50%

Figure 24. The court's hours of operation made it easy for me to do my business Strongly 5% Disagree

Disagree 2% Neither Agree 5% nor Disagree

Agree 24% Strongly 30% Agree

No Response 35%

0% 10% 20% 30% 40%

Figure 25. The mediator was neutral and impartial

Strongly 2% Disagree

Disagree 0% Neither Agree 6% nor Disagree

Agree 11% Strongly 35% Agree

No Response 47%

0% 10% 20% 30% 40% 50% Summary of Pre-Pilot Baseline Survey Data APPENDIX E FIFTH JUDICIAL CIRCUIT

Figure 26. The mediation process met my expectations

Strongly 3% Disagree

Disagree 2% Neither Agree 12% nor Disagree

Agree 12% Strongly 25% Agree

No Response 47%

0% 10% 20% 30% 40% 50%

Figure 27. I am satisfied with the outcome of my mediation

Strongly 6% Disagree

Disagree 0% Neither Agree 12% nor Disagree

Agree 13% Strongly 22% Agree

No Response 48%

0% 10% 20% 30% 40% 50% 60%

Figure 28. I would recommend mediation to my friends and family Strongly 2% Disagree

Disagree 0% Neither Agree 12% nor Disagree

Agree 19% Strongly 20% Agree

No Response 47%

0% 10% 20% 30% 40% 50% Summary of Pre-Pilot Baseline Survey Data APPENDIX E FIFTH JUDICIAL CIRCUIT

Figure 29. I was confident in my ability to advocate on Figure 30. I have regular access to the Internet my own behalf No 7% Not at all 4% Yes Comfortable 23% No Response 13% Slightly 15% Comfortable Neutral 79% Somewhat Comfortable Very Comfortable 9% No Response 16% 35%

Figure 31. Primary Internet device Figure 33. I would be comfortable resolving my case online Computer at Home 19% Not at all Computer at 30% Work 46% Comfortable 22% Tablet 1% Slightly 4% Comfortable Smart phone Neutral

Other 5% Somewhat Comfortable No Response Very Comfortable No Response 10%

25% 15% 5% 18% Figure 32. Percentage of respondents with multiple Internet devices 60% 54%

40%

20%

0% Yes - Multiple Devices

Summary of Pre-Pilot Baseline Survey Data APPENDIX E FIFTH JUDICIAL CIRCUIT

Figure 34. Age of survey respondents

Up to 24 1%

25-34 13%

35-44 24%

45-54 21%

55-64 19%

65 or Older 9%

No Response 13%

0% 5% 10% 15% 20% 25% 30%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E NINTH JUDICIAL CIRCUIT

Figure 35. Time spent traveling to court and in court Figure 36. Costs incurred going to court 90 85 $150 $140 $140 80 $130 $120 70 $110 60 $100 $89 49 $90 $77 50 $80 $70 40 $60 30 $50 $40 $31 20 $30 $14 $20 $8 10 $10 0 $0 Average Time in Minutes Transportation Parking Childcare Wages Lost Traveling to Court In Court Other Costs Total Average Cost

Figure 37. What role did you play in the case Figure 38. Attempted to resolve case before court date

Claimant 15% Yes 56%

Respondent 80% No 41%

No Response 5% No Response 3%

0% 20% 40% 60% 80% 100% 0% 20% 40% 60% 80%

Figure 39. I got my entire case done in a reasonable amount of time Strongly 8% Disagree

Disagree 6% Neither Agree 10% nor Disagree

Agree 36% Strongly 39% Agree

No Response 1%

0% 10% 20% 30% 40% 50%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E NINTH JUDICIAL CIRCUIT

Figure 40. I had the information I needed about court proceedings to resolve my case Strongly 7% Disagree

Disagree 2% Neither Agree 9% nor Disagree

Agree 37%

Strongly Agree 43%

No Response 1%

0% 10% 20% 30% 40% 50%

Figure 41. The court's hours of operation made it easy for me to do my business Strongly 8% Disagree Disagree 6% Neither Agree 11% nor Disagree Agree 33% Strongly 41% Agree No Response 1%

0% 10% 20% 30% 40% 50%

Figure 42. The mediator was neutral and impartial Strongly 7% Disagree

Disagree 0% Neither Agree 1% nor Disagree

Agree 19% Strongly 71% Agree

No Response 1%

0% 20% 40% 60% 80% Summary of Pre-Pilot Baseline Survey Data APPENDIX E NINTH JUDICIAL CIRCUIT

Figure 43. The mediation process met my expectations Strongly 7% Disagree

Disagree 2% Neither Agree 10% nor Disagree

Agree 26% Strongly 55% Agree

No Response 1%

0% 10% 20% 30% 40% 50% 60%

Figure 44. I am satisfied with the outcome of my mediation

Strongly 7% Disagree

Disagree 5% Neither Agree 14% nor Disagree

Agree 24% Strongly 48% Agree

No Response 1%

0% 10% 20% 30% 40% 50%

Figure 45. I would recommend mediation to my friends and family

Strongly 8% Disagree

Disagree 1% Neither Agree 11% nor Disagree

Agree 25% Strongly 52% Agree

No Response 2%

0% 10% 20% 30% 40% 50% 60% Summary of Pre-Pilot Baseline Survey Data APPENDIX E NINTH JUDICIAL CIRCUIT

Figure 46. I was confident in my ability to advocate on Figure 47. I have regular access to the Internet my own behalf No Not at all 2% Yes 12% 3% Comfortable No Response Slightly Comfortable 16% Neutral 10% Somewhat 84% Comfortable Very Comfortable

No Response 20% 5% 47%

Figure 48. Primary Internet device Figure 50. I would be comfortable resolving my case online Computer at 15% Home Not at all 61% 32% Computer at 0% Comfortable Work 2% Slightly Tablet Comfortable 15% 5% Neutral Smart phone Somewhat Other 17% Comfortable No Response Very Comfortable No Response 9% 18% 4%

22% Figure 49. Percentage of respondents with multiple Internet devices 80% 65% 60%

40%

20%

0% Yes - Multiple Devices

Summary of Pre-Pilot Baseline Survey Data APPENDIX E NINTH JUDICIAL CIRCUIT

Figure 51. Age of survey respondents

Up to 24 5%

25-34 20%

35-44 27%

45-54 18%

55-64 15%

65 or Older 5%

No Response 11%

0% 5% 10% 15% 20% 25% 30%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E TENTH JUDICIAL CIRCUIT

Figure 52. Time spent traveling to court and in court Figure 53. Costs incurred going to court 60 $170 $155 $160 $150 58 $140 $130 56 $120 $110 $100 $83 54 $90 $77 $80 52 51 51 $70 $60 50 $50 $40 $30 $30 48 $20 $14 $11 $10 46 $0 Average Time in Minutes Transportation Parking Childcare Wages Lost Traveling to Court In Court Other Costs Total Average Cost

Figure 54. What role did you play in the case Figure 55. Attempted to resolve case before court date

Petitioner 48% Yes 68%

Respondent 45% No 25%

No 7% No Response 7% Response

0% 20% 40% 60% 80% 0% 20% 40% 60% 80%

Figure 56. I got my entire case done in a reasonable amount of time Strongly 16% Disagree

Disagree 11% Neither Agree 18% nor Disagree

Agree 25% Strongly 18% Agree

No Response 11%

0% 5% 10% 15% 20% 25% 30%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E TENTH JUDICIAL CIRCUIT

Figure 57. I had the information I needed about court proceedings to resolve my case

Strongly 5% Disagree

Disagree 0% Neither Agree 25% nor Disagree

Agree 30% Strongly 27% Agree

No Response 14%

0% 5% 10% 15% 20% 25% 30% 35%

Figure 58. The mediator was neutral and impartial

Strongly 0% Disagree

Disagree 2% Neither Agree 9% nor Disagree

Agree 30% Strongly 48% Agree

No Response 11%

0% 10% 20% 30% 40% 50% 60%

Figure 59. The mediation process met my expectations

Strongly 9% Disagree

Disagree 5% Neither Agree 16% nor Disagree

Agree 18% Strongly 36% Agree

No Response 16%

0% 10% 20% 30% 40%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E TENTH JUDICIAL CIRCUIT

Figure 60. I am satisfied with the outcome of my mediation

Strongly 16% Disagree

Disagree 2% Neither Agree 32% nor Disagree

Agree 16% Strongly 20% Agree

No Response 14%

0% 5% 10% 15% 20% 25% 30% 35%

Figure 61. I would recommend mediation to my friends and family

Strongly 9% Disagree

Disagree 5% Neither Agree 16% nor Disagree

Agree 18% Strongly 36% Agree

No Response 16%

0% 10% 20% 30% 40%

Figure 62. The court's hours of operation made it easy for me to do my business Strongly Disagree 2% Disagree 0% Neither Agree nor Disagree 25% Agree 27% Strongly Agree 34% No Response 11%

0% 10% 20% 30% 40%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E TENTH JUDICIAL CIRCUIT

Figure 63. I was confident in my ability to advocate on Figure 64. I have regular access to the Internet my own behalf No Not at all 16% 11% Comfortable Yes 11% Slightly 5% No Response Comfortable Neutral 84% Somewhat Comfortable Very Comfortable 5% No Response 23% 30% 16%

Figure 65. Primary Internet Device Figure 67. I would be comfortable resolving my case online Computer at 16% Home Not at all 11% Computer at 0% Comfortable Work 11% 23% Tablet Slightly Comfortable Smart phone Neutral

Other Somewhat Comfortable No Response Very 27% Comfortable 50% No Response 5% 32% 20% 2% 2%

Figure 66. Percentage of respondents with multiple Internet devices 80%

62% 60%

40%

20%

0% Yes - Multiple Devices

Summary of Pre-Pilot Baseline Survey Data APPENDIX E TENTH JUDICIAL CIRCUIT

Figure 68. Age of survey respondents

Up to 24 0%

25-34 34%

35-44 11%

45-54 27%

55-64 7%

65 or Older 5%

No Response 16%

0% 10% 20% 30% 40%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E ELEVENTH JUDICIAL CIRCUIT

Figure 69. Time spent traveling to court and in court Figure 70. Costs incurred going to court

60 $110 $97 50 $100 50 $90 $80 40 $70 $60 30 $50 $42 $40 $35 18 20 $30 $19 $17 $20 $8 10 $10 $0 0 Average Time in Minutes Transportation Parking Childcare Wages Lost Traveling to Court In Court Other Costs Total Average Cost

Figure 71. What role did you play in the case?

Defendant 88%

Attorney/Witness 6%

No Response 6%

0% 20% 40% 60% 80% 100%

Figure 72. I got my entire case done in a reasonable amount of time Strongly 8% Disagree

Disagree 4% Neither Agree 7% nor Disagree

Agree 29% Strongly 51% Agree

No Response 1%

0% 10% 20% 30% 40% 50% 60%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E ELEVENTH JUDICIAL CIRCUIT

Figure 73. I had the information I needed about court proceedings to resolve my case Strongly 8% Disagree Disagree 3% Neither Agree 8% nor Disagree Agree 32% Strongly 50% Agree No Response 1%

0% 10% 20% 30% 40% 50% 60%

Figure 74. The time my traffic court hearing was scheduled made it easy for me to attend Strongly 14% Disagree Disagree 12% Neither Agree 11% nor Disagree Agree 26% Strongly 35% Agree No Response 2%

0% 5% 10% 15% 20% 25% 30% 35% 40%

Figure 75. The hearing officer was neutral and impartial Strongly 6% Disagree Disagree 3% Neither Agree 11% nor Disagree Agree 27% Strongly 53% Agree No Response 2%

0% 10% 20% 30% 40% 50% 60%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E ELEVENTH JUDICIAL CIRCUIT

Figure 76. I am satisfied with the outcome of my case Strongly 4% Disagree Disagree 4% Neither Agree 18% nor Disagree Agree 17% Strongly 55% Agree No Response 2%

0% 10% 20% 30% 40% 50% 60%

Figure 77. The traffic court hearing process met my expectations Strongly 8% Disagree Disagree 4% Neither Agree 10% nor Disagree Agree 30% Strongly 45% Agree No Response 2%

0% 10% 20% 30% 40% 50%

Figure 78. I was confident in my ability to advocate on Figure 79. I have regular access to the Internet my own behalf Yes Not at all 4% 2% Comfortable 4% No Slightly No Response Comfortable 18% 6% Neutral 91% Somewhat Comfortable Very Comfortable 55% 3% No Response 17%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E ELEVENTH JUDICIAL CIRCUIT

Figure 80. Percentage of respondents with multiple Figure 81. I would be comfortable resolving my case Internet devices online

80% 73% Yes No 13% 60% No Response 3% 40% 84%

20%

0% Yes - Multiple Devices

Figure 82. Primary Internet device

Computer at 5% Home Computer at 15% Work Tablet 2% Smart Phone

No Response

6%

71%

Figure 83. Age of survey respondents

Up to 24 20%

25-34 31%

35-44 21%

45-54 12%

55-64 11% 65 or Older 4%

No Response 2%

0% 5% 10% 15% 20% 25% 30% 35% Summary of Pre-Pilot Baseline Survey Data APPENDIX E SEVENTEENTH JUDICIAL CIRCUIT

Figure 84. Time spent traveling to court and in court Figure 85. Costs incurred going to court $160 $150 60 $150 $140 50 $130 44 44 $120 $110 40 $100 $90 $75 30 $80 $67 $70 $60 20 $50 $40 $30 10 $20 $11 $13 $10 $0 0 $0 Average Time in Minutes Transportation Parking Childcare Wages Lost Traveling to Court In Court Other Costs Total Average Cost

Figure 86. What role did you play in the case? Figure 87. Attempted to resolve case before court date

Petitioner 49% Yes 74%

Respondent 49% No 15%

No Response 3% No Response 10%

0% 20% 40% 60% 80% 0% 20% 40% 60% 80%

Figure 88. I got my entire case done in a reasonable amount of time

Strongly Disagree 10%

Disagree 8% Neither Agree nor 15% Disagree

Agree 31%

Strongly Agree 28%

No Response 8%

0% 10% 20% 30% 40% Summary of Pre-Pilot Baseline Survey Data APPENDIX E SEVENTEENTH JUDICIAL CIRCUIT

Figure 89. I had the information I needed about court proceeding to resolve my case Strongly 8% Disagree Disagree 0% Neither Agree 8% nor Disagree Agree 41%

Strongly Agree 38%

No Response 5%

0% 10% 20% 30% 40% 50%

Figure 90. The mediator was neutral and impartial Strongly 3% Disagree Disagree 0% Neither Agree 3% nor Disagree Agree 31% Strongly 59% Agree No Response 5%

0% 10% 20% 30% 40% 50% 60% 70%

Figure 91. The mediation process met my expectations

Strongly 5% Disagree Disagree 0% Neither Agree 16% nor Disagree Agree 34% Strongly 39% Agree No Response 5%

0% 10% 20% 30% 40% 50%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E SEVENTEENTH JUDICIAL CIRCUIT

Figure 92. I am satisfied with the outcome of my mediation Strongly 8% Disagree Disagree 3% Neither Agree 23% nor Disagree Agree 21% Strongly 38% Agree No Response 8%

0% 10% 20% 30% 40% 50%

Figure 93. I was confident in my ability to advocate on Figure 94. I have regular access to the Internet my own behalf Not at all No 13% 10% Comfortable Yes 8% Slightly No Response 8% Comfortable Neutral 77%

Somewhat Comfortable Very 33% Comfortable 26% No Response 15% 10%

Figure 95. Primary Internet device

Computer at 15% Home 46% Computer at 0% Work Tablet

Smart phone

Other 28% No Response

5% 5%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E SEVENTEENTH JUDICIAL CIRCUIT

Figure 96. Percentage of respondents with multiple Figure 97. I would be comfortable resolving my case Internet devices online 23% 60% Not at all Comfortable 13% 48% Slightly Comfortable 8% 40% Neutral 21%

Somewhat Comfortable 20% Very Comfortable No Response 0% 36% 0% Yes - Multiple Devices

Figure 98. Age of survey respondents

Up to 24 0%

25-34 10%

35-44 23%

45-54 15%

55-64 26%

65 or Older 21%

No Response 5%

0% 5% 10% 15% 20% 25% 30%

Figure 99. I would recommend mediation to my friends and family Strongly 5% Disagree

Disagree 0% Neither Agree 16% nor Disagree

Agree 34% Strongly 39% Agree

No Response 5%

0% 10% 20% 30% 40% 50%

Summary of Pre-Pilot Baseline Survey Data APPENDIX E SEVENTEENTH JUDICIAL CIRCUIT

Figure 100. The court's hours of operation made it easy for me to do my business Strongly 3% Disagree

Disagree 0% Neither Agree 18% nor Disagree

Agree 36% Strongly 33% Agree

No Response 10%

0% 10% 20% 30% 40% APPENDIX F APPENDIX G

Platform Usage Data from the 11th Judicial Circuit – Civil Traffic Infraction Implementation

FL11JC OCR Statistics Time of Day Logins/Case Time on Platform APPENDIX G Time of Day – Public and Court Staff

Public Use Court Staff

31%

After Hours 45% After Hours Weekend Weekend 52% 9-5 58% 9-5

11%

3%

Data from Event Tracking of Activities on the Site such as Logins and Attachments for cases May-September 15, 2020 APPENDIX G Logins/Case - Public

Public Use of Matterhorn - Logins/Case 1,600 1,500

1,200

800

400 Count of Cases 100 42 25 15 15 3 0 1 2 3 4 5 6-9 10+ Logins per Case

Data from Event Tracking of Activities on the Site: Case Creation and Logins for FL11JC cases May-September 15, 2020 APPENDIX G Avg Time – Public and Court Staff

Public OCR Users – 6 Minutes Court Staff – 8 Minutes 6:27 8:39 Average time per session Average 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 H 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

strongly disagree disagree

neutral

agree

strongly agree

Understood Status Handled Fairly

strongly strongly disagree disagree disagree disagree neutral neutral agree agree strongly agree strongly agree

Appendix H Exit Survey Data from the 11th Judicial Circuit Civil Traffic Infraction Implementation

Likely to Recommend Able to Appear

very unlikely unlikely Yes neutral No likely very likely

How did you hear about the option to resolve your case online?

from the police officer from the police officer info printed on the ticket info printed on the ticket from the court's website

from the court's phone… from the court's website from a staff member at the… from the court's phone tree or Answer via an emailed link from… voicemail postcard from a staff member at the court word of mouth via an emailed link from the other court 0 10 20 30 40 50 postcard Count of People

Appendix I 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.