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Online Dispute Resolution Pilot Program Report Online Dispute Resolution Pilot Program Report Recommendations from the Online Dispute Resolution Workgroup of the Commission on Trial Court Performance and Accountability and the Committee on Alternative Dispute Resolution Rules and Policy January 2021 Online Dispute Resolution Workgroup Members The Honorable William F. Stone, Circuit Judge, First Judicial Circuit, Chair Mr. Matthew Benefiel, Trial Court Administrator, Ninth Judicial Circuit The Honorable Gina Beovides, Circuit Judge, Eleventh Judicial Circuit Ms. Heather Blanton, Human Resources Manager, Twelfth Judicial Circuit Mr. Eric Dunlap, Florida Supreme Court Certified Mediator The Honorable Stephen Everett, Circuit Judge, Second Judicial Circuit Dr. Oscar Franco, Florida Supreme Court Certified Mediator Mr. W. Jay Hunston, Florida Supreme Court Certified Mediator Ms. Jeanne Potthoff, ADR Director, Seventeenth Judicial Circuit The Honorable William Roby, Circuit Judge, Nineteenth Judicial Circuit Mr. Christopher Shulman, Florida Supreme Court Certified Mediator Staff Support Provided by the Office of the State Courts Administrator Lindsay Hafford, Senior Court Operations Consultant Judith Ivester, Court Operations Consultant Kimberly Kosch, Senior Court Operations Consultant Victor McKay, Court Operations Consultant Susan Marvin, Chief of Alternative Dispute Resolution Hengel Reina, Senior Court Analyst II Page 2 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 Page 3 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. Page 4 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 Page 5 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
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