Video: ODR in the courts presentation from NAPCO in September 2017

View the presentation on ODR in the courts from the National Association for Presiding Judges and Court Executive Officers (NAPCO) meeting in September 2017.

Paul Embley of the National Center for State Courts and MJ Cartwright of Matterhorn spoke on Online Dispute Resolution: Coming to a Trial Court Near You. The 2017 NAPCO conference was held in Scottsdale, Arizona in late September.

Embley and Cartwright shared some of the insights gathered by the National Center for State Courts.

The presentation slides

Here is the link to the presentation PDF (warning: large file)

ODR in the Courts Video Transcript

Paul Embley

Alright, we’ll go ahead and get started.

So I can tell you everything you need know about ODR in about two minutes and then you can go out and enjoy the beautiful fall weather or we can go through the slides…!

So, I’m Paul Embley. I’m with the National Center for State Courts. MJ Cartwright is my co-speaker.

When Gordy contacted me about ODR, he said well so we’d really like to have a judge who speaks and I said well, We have one judge in the nation who knows about ODR and he sits on the Supreme Court of Utah so he’s not available. So we don’t have a judge with us, unfortunately.

What you’re gonna see or what you’re gonna hear is actually a preview of the paper that is in draft form right now that will be coming out so if you want to take notes you can but there’s a lot more detail that will be in the paper. But pretty much everything that we’re covering is actually in the paper.

So what is online dispute resolution or ODR? ODR has been in existence for about 25 years. It has been used wildly successfully in the private sector that is one of the reasons why you’re seeing caseloads going down. But eBay for example handles six million disputes a year using ODR technology and I have to say that’s not a very current statistic that’s about four years old so I don’t know if they’re staying flat at six million or if that’s increased.

I was surprised I went to an ODR conference last year and I was amazed at the number of firms that are using ODR to resolve disputes ultimately so that they don’t end up in the court environment.

Another big big powerful thing is that ODR is a great leveler. It levels that power struggle that we quite often see in the courts where somebody will…I don’t think we’re going to talk about it but in the Rebooting Justice book, if you hopefully you’ve read that. If you haven’t you definitely want to read Rebooting Justice. It talks about landlord-tenant issues and how many, what percentage are self represented on the plaintiff side and how many landlords ultimately retain counsel and so there’s just a lot of power imbalances that it does potentially fix.

[ODR] decreases court costs, which is another big thing that people coming to our courts complain about.

And the other is that while we know that our system was set up to be an adversarial system. Sometimes it is beyond adversarial and quite contentious and [ODR} does have the ability to really tease that apart. We have seen this in a number of the divorce proceedings that
go on where people go online and actually they can talk to each other after the divorce is finalized versus going out mortal enemies.

So, I love this quote from Mirèze Philippe, from France:

We offer everything online except justice. Users expect online solution services”
Mireze Phillipe, Special Counsel to the ICC International Court of Arbitration.

Okay there’s another quote here that I definitely want to read. It’s a little bit longer one but this is from a person who wrote a book about ODR.

It is an uncomfortable truth that court systems around the world are creaking—they are too costly and slow, and they are unintelligible for the great majority of non-lawyers. More, these paper-based institutions appear increasingly outmoded in a society in which so much daily activity is enabled by the internet and advanced technology. Conceived in the Dark Ages and reformed in the nineteenth century, these court systems became unfit for many purposes in the late twentieth century. Now they seem destined, if unchanged, to be inappropriate for most disputes of the twenty-first.
Technology Panel, Equal Access to Information and Justice Online Dispute Resolution ODR 2017 Conference, Paris.

That’s a pretty bleak indictment of where where things are today. We absolutely have opportunities.

Some stats from the Pew foundation: only 13% of Americans don’t use the Internet. This is from 2016, so as you can imagine that changes more towards the single digits every day (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/fact-tank/2016/09/07/some-americans-dont-use-the-internet-who-are-they/)

I found it very interesting that in this same Pew research that they found that for people over sixty that 86% of them are doing online banking and so forth. So even the people that you would expect not to be using the Internet, we have a vast majority who actually are. And then they’re doing shopping, banking, it’s not just you know searching for cat videos or whatever.

Our online shopping and purchasing preferences, 15% are buying online every week (Smith, Aaron, and Monica Anderson. “Online Shopping and Purchasing Preferences.” Internet, Science & Tech, Pew Research Center, 19 Dec. 2016,www.pewinternet.org/2016/12/19/online-shopping-and-purchasing-preferences/). I know I’m always online and I’m approaching the sixty mark. I do have the advantage that I did grow up in Silicon Valley, so I do use that as my excuse.

Another interesting fact that we don’t display here is that 20% of those who are connected actually do not have Wi-Fi in their home. They have gone completely to using their mobile phones as their hotspots so we’re seeing even that that area disrupted. I’m pretty confident that if I surveyed I’d get a hundred percent of you all have Wi-Fi in your home. The younger generation is coming up and they’re they’re not even using Wi-Fi in their home they just have their cell phone.

“Poor people have access to the American courts in the same sense that the Christians had access to the lions when they were dragged into a Roman arena.”
Retired California Court of Appeals
Justice Earl Johnson, Jr.

So unfortunately many of our people who come to our courts kind of feel like they’re being drug before the Lions. Because it’s a process that they don’t understand that they really don’t want to be part of and they’re coming in.

So now is the time for ODR, and the two-minute version or the 30-second version I would give is: ODR is coming to you whether or not you like it, so it would be a lot better for you to get out in front of it than have it done to you. And we’ll talk a lot about why it is that you want to do that.

So OTR is not just old technology with you know we’re not putting lipstick on a pig here. This is actually fairly new technology that’s come along because of some of the enablers that Professor Marchant was talking about. Things like artificial intelligence, and I really don’t like that “artificial intelligence” word. I really like “deep learning” and “cognitive computing” because those aren’t going to become judges, you know. Robots are not going to become judges.

What am I missing, anything so far?

Okay, so do any of these lines look familiar to you: Los Angeles, or Alabama, or New York, or El Paso…okay, any of those look familiar?

So, I have been working in the courts for 15 years now. I will tell you that every
time I go visit a court it is confusing to me. If it’s confusing to me, you know somebody who at least once a month visits a new courthouse, it’s got to be very, very confusing for the person who has come in your court, you know, for the first time or the even the second time.

So how do we increase that comfort level with our processes so that people have a
favorable experience?

Quantify success: so this is ultimately what the promise of ODR is. And your mileage may vary but hopefully it’s this and more.

The legal outcomes: people who are surveyed love the outcomes. They love the outcomes because of the procedural satisfaction. They felt like they were part of the process, not just listening to you know a judge and two lawyers duke it out and not understanding. And then at the end of the day being given a piece of paper and saying take this down to
the clerk. And they’re going, “I have no idea what just happened.” They actually feel like they are part of the process.

The costs: once again we do surveys, and we look at how do people perceive the courts. One of the big issues that they say is “I would rather take a thousand dollars in two weeks,
than a hundred thousand in three years. Because they understand what that cost is to them: they want immediate satisfaction.

Then ultimately the expanded access is a huge, huge thing. We have people who aren’t accessing the courts and people just can’t for whatever reason. And we’ve not made it
any easier for them.

So, things to consider: your court culture. If your court culture is not accepting of change, probably don’t want to do this, okay. If you’re not open to innovation, you probably don’t want to do this. So I don’t want to paint a bleak picture, but court culture really does need to embrace this.

One of the things that we’ll talk about is British Columbia and what they were able to do with their, what they call CRT, or their their civil tribunal. One of the things that that
they have done is they’ve done a really great job of bringing people in. These were people who ultimately really did not have access to the courts. And so they’ve provided this process for them. Part of their culture is that they actually have a board where people
can take a yellow sticky put it on and say “this needs to change.” And then they
meet once a week and they actually review those things. They say, “hey let’s take this one further” and “well, we can’t do that because of statute, so let’s work on getting statutes changed.”

They have this continual process where they want to improve and that is part of their culture. Is that part of yours? Or does everything come down from the top down?

Leadership: we have found that in every single one of these there was a strong leader who pushed for the change. And it usually is somebody like a chief judge or Supreme Court justice or somebody with a very strong personality who’s willing to see it through. Because
there’s going to be a lot of arrows that that person takes and so they have to have the endurance and they also have to have that cachet.

MJ Cartwright

and the authority to act.

Paul Embley

Governance is another big one. ODR involves a lot of your stakeholders, we’ll talk about stakeholders in a minute. Just having some kind of a governance structure so that as you go through and you decide what should we change and how should we change it. That is really key.

Rules and statutes: just last week I was/we’re helping a state write an RFP for a case
management system. It said in one of the requirements: “must be able to accept credit card payments.” Not a bad requirement, right? Except have any of you used Apple pay? Any of you
accepting Bitcoin? So while that’s a good requirement, that is limiting because once again we’re not talking about “must be able to accept electronic payment” it’s “must be able to
accept credit cards” and so in that instance they were too specific.

How many of you have rules or statutes that require a wet signature is an another common one, and so forth. So we need to make sure that a lot of people will get a legal intern and they’ll just have them go through rules and statutes and identify those that require paper or require any kind of limits on what they can do with technology.

From the audience

Notarization

Paul Embley

Yeah, notarization is another one. There are so many great examples out there. There are the capabilities to do an electronic notary in some states but not all.

So funding is a big one. We’ll talk a little bit about the system that was in the Netherlands. They had a great system but the funding model just didn’t work out and
so they’re having to reboot and work on their 2.0 version of ODR.

The Bar can sometimes be a great friend and sometimes they can kind of keep things
at bay. This will change their lives. The good news is you heard Professor Marchant say that their innovations committee has actually said “we need to embrace ODR.” So great opportunity, great time for you to meet with your bar and say “hey, we want you to be part of this solution and go forward.”

Stakeholders are absolutely critical. Whether that’s your judge, your court administrator, your clerks. We’ll even talk about some of the stakeholders.

You know, you would rather have parents spending time with their kids, you know, at some of those trying times, rather than being in a court arguing it out, you know, as to who gets custody when and and all that. So great, great solution there.

These are actually two Navy guys, you know there are things that happen in our courts where the military is off deployed. They can be with ODR, they can be part of that process instead of just having to get a Skype update from whoever it is who’s going to court for them.

I don’t know, I would challenge each one of you, and I hope each one of you have
taken the opportunity. I would challenge you to ditch your car and actually try to go to your own court you know using public transportation and, you know, go and instead of going through the back door actually go through, line up in that line and go through the metal
detector and all of that. It’s pretty daunting.

If somebody, I mean we all know the stories, but people who are working two or three jobs can’t get the time off. If they take the time off then they lose their job because there’s
somebody waiting for them, you know, waiting behind them to take that job and we just really don’t do a great service to our stakeholders.

One other thing I would say here is ODR, because it can be an asynchronous process, it actually gives the the people participating time to actually look up legal terms or things that they don’t understand. They can do Google searches on them and so what ends up happening is they actually become more educated about the process in going through this. Because they’re not in this high-pressure volume courtroom where they’re having to try to pay attention and try to know “okay, now if I plead guilty what are the implications there? if I plead guilty but with this reduced sentence…?” So they can actually do some of that research.

I spent quite a bit of time recently in Oakland going through some of their their small claims courts. The people are just bewildered and not knowing “okay, now what are the implications if I take this?” So it gives them that opportunity to do a little bit of research.

MJ Cartwright

Well also that lends itself to those where English is not their first language. As courts you will have translators, but in that moment you may not fully understand what is happening to you and being able to have your friend or your daughter or your mother or whoever who knows English better than you do to take you through
that.

Paul Embley

Excellent point. Then, obviously keeping law enforcement on the streets
and so forth are are some of the other goals of our justice system.

With that, let’s talk a little bit about what is it that you need to have. So a big thing here is: there’s a great report by HiiL. What we can do is we can make sure that people have links to all of these things. (Source: 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. View the paper).

In that particular report, it talks a lot about just how courts have taken these these
procedural affairs and turned them into this highly confrontational processes. We need to do a better job of removing some of that igh contention and be able to bring it back into more what am I trying to say…Rebooting Justice does a great job of saying this. It talks about how just up until the 1900s, it was expected that anybody in this room if you are going to court that you would actually be able to understand the processes. That you would actually be the one who was kind of representing yourself, because it was a conversation that went on.

What we’ve done is, we’ve gone away from that model that was in the 1800’s to this highly specialized highly volatile situation where people are just, you know, out for each other’s blood kind of thing.

Anything you want to say on this one, technology?

MJ Cartwright

Well it’s…this is a really interesting paper that’s come out from IAALS on reforming our civil justice system. (Source 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. Read the report). The emphasis is really in the importance of addressing it now. This is happening now, and looking at your processes, how you’re handling things, and where technology fits, and, quite frankly, where it doesn’t.

You know and it really does have to be done now and that’s really a big emphasis of this
particular report.

Paul Embley

And so one of the things that you’ll see in this report is actually the other technologies. We want to emphasize that ODR can be deployed without doing online portals or without doing these other things. But, an ideal system would have a lot of these components that are part of it. So you can do ODR without, or you can do ODR with. The choice’s up to you, wherever your court is at that at this point.

Then the last thing is we’re all pretty new to this, so M. is gonna go through some of the people who are actually using ODR. There’s really only two live sites that are really doing what we would call true ODR in the world. One is in British Columbia, the other is in Michigan. There are others. You’ll hear about Utah, you’ll hear about New York, you’ll hear about several others who are taking that leap, but this is new to all of us.

There’s an opportunity to use the outside to help you through this. I’ve worked quite closely with them on a number of the papers. They are generally good people. They’re not out to take your firstborn child away from you or whatever, but there are some great opportunities here because, once again, because this is 25-year-old technology, these people have been around the block and they can really help you quite a bit.

MJ Cartwright

A lot of the things that come up in discussions like this are data, security, and these are all important aspects that you need to work through. You have often very good staff and relationships with the particular vendors or companies that are out there can help you because it’s an extension of your court. It’s not their system, it’s your system.

Paul Embley

Right.

MJ Cartwright

With that, I guess I’ll hop into what are the best practices that we’re finding from those of us who are out there in the court system and implementing online dispute resolution.

The first ones, and Paul mentioned this, is looking at online dispute resolution as an opt-out process. If you step back a moment and think, “What does that mean?” Opt-out means that really the initial, the mandate is that you start with the online dispute resolution process. There are some cases where that doesn’t make sense, but for a set of cases you’re going to tell your constituents, “Yes, you should be using ODR first”, and always keeping in mind that there are those who don’t have access, as we talked about earlier, but still it is about having that first line. One of the big advantages of that is that everyone has that first line in which they now have a very consistent exposure to how to interface with your court system, as opposed to a variability that you have depending on who they last spoke to, so that’s one of the big advantages there.

Now, some of the implementations are done as opt-in and can be successful, but some of the benefits of opt-out are actually used in some of the opt-in processes. For example, if it’s not an opt-out process, but someone approaches the courts they say, “Listen you should do this first, it’s not mandated, but you should do this first”, and so all the emphasis is running people through the channel that they should be running through to make sure they have the most consistent information.

The other best practice kinda plays on that, it’s always being able to offer live help. Those people who aren’t as comfortable, or may not have access, or really do have questions they do need to ask, they go through the online dispute opt-out process and then have the ability to get more information if you do really need it and you have questions that aren’t being answered by your court’s ODR system that is implemented. This is an important aspect.

The other one in best practices is on modular design. I think in every court when you look at how do you … as you look to upgrade your systems, how do you do that in a way knowing that new technology will be coming yet again on an ongoing basis? If you think in terms of modular design, and we’re working with this on the next generation component model, let’s say you need a new case management system. How do you do that in a way that you can plug in a new case management system or you can plug in a new e-filing, plug in a different login process because of security issues you may have? You should be able to plug in a new notification system. You may not like your ODR system that you first implement, you might wanna plug in a new ODR system, and if you really do think in terms of a modular design then you can really optimize your investment and have more of the, in technology we like to call it plug-and-play, but you really do get the best solution for your court system and what works for your particular area. There is variability through the court system and what works in one court system may not be the best solution for you in your court system.

The other is don’t limit ODR processes just to formal cases. What we mean by this is: allow your stakeholders and the public to explore a bit and get a comfort level with online dispute resolution. If you think about it, we’re used to using online pretty much everything, but we’re not used to online court, right? How do you get people used to it, more comfortable with it, exploring it? For example, you may, and this happened in cases that I’m familiar with, British Columbia and other implementations, is that you may find you may not want to pursue a certain civil case, for example, based on what you’re learning and you may be able to get with that party directly and decide, “Yeah, we’re just gonna resolve this conflict and not actually file a case here”, and that actually happens quite a bit.

The other is that if you can’t resolve it and you cannot resolve this in a certain timeframe or certain number of steps and processes, what’s the next thing you need to do? You have to have ways in your system to handle this and most cases can be resolved quite quickly and in very few steps, but there are those cases that don’t. You’re familiar with these types of cases and so how do you escalate them? Do you have someone who’s a mediator who’s part of the court system? Do you have a third-party mediator? Do you actually escalate it to a formal hearing? All of those paths need to be in place because you are going to need those.

Paul Embley

MJ, we talked this morning about the need for tracking your metrics. I know British Columbia….I’m probably stealing some of MJ’s presentation here, but British Columbia knows that if they don’t resolve an issue in two weeks or within one hour of staff time that really does need to be escalated and they know that because they’ve done the metrics. They’ve looked at those and they’ve said which cases languish and what are the characteristics of that. They know that, so for each one of you start tracking those metrics right out of the gate.

MJ Cartwright

Yup, that is absolutely important. The other is, this looks really yummy, but the whole thing is start with the cases that are the higher volume cases, the ones that are typically the simpler cases, or there may be cases that you really are not addressing, which British Columbia had found with their condo dispute resolution that they were dealing with.

Don’t start off with the complicated cases because ODR is really meant to handle the high volume simpler cases. Start there and you’re gonna have much more success, and we find that across the board. It will vary in your court. When we started working with certain courts they wanted to start on the types of cases that we didn’t think the data showed as being a good starting point, but they, “No, no, no, these are the cases we need to start. We live and breathe this and this is really what impacts our court and our dockets.”

The other recommendation in best practice is don’t think in terms of just forms. Online dispute resolution is not just a way to fill out a form and get into court. You think about the people who come to court, as Paul was saying, you don’t think in terms of forms, “Which form do I need to fill in”, in fact, you don’t even think in terms of which court I’m supposed to go to. Right? How do you actually help people through this?

If you think in terms of online dispute resolution as having different paths, different decision trees, different logic that you are actually helping people through making sure they’re getting fair and consistent information, which is important. At the end of the day, you’re actually gathering the right information to put into the right forms and agreements that you need from a legal system to file and have in place, but all these data exist there for you to utilize and then the form is just the end result that really is kinda behind the scenes when you look at it from a technology standpoint. You as the party involved in the dispute, you see that your dispute is being resolved, you’re providing information and it’s being put in the right format. You don’t have to worry about that.

The other one is calculators. We use calculators in some many parts of our lives. Not only is it, yeah, it’ll help you figure out when you’re adding something up or you’re looking at an analysis of something, but when it comes to the court it’s looking at child support payments, for example. Looking at ability to pay numbers. These are important, not just because it helps you with the public and the parties who are trying to figure out the case, but they’re also communicating in very consistent communication with the court system, so you know what the judge or what the court system is going to do based on a common set of calculations that you can see. It’s a great communication tool, as well as helps you figure things out.

Another recommendation seems so straightforward, but it’s happened so often where it’s not is you gotta keep it really simple and you really want to remove the redundancy that really is in the systems. When you are … we talked about fewer steps, how do you make sure that a certain time has not gone by that you’re not moving things through? Should you really be under 10 steps? Can you even do it under 5 steps? What are the number of steps that you really need to take people through the process and keep them informed of the process as they go through, so they know where they are? This is something that’s not done every day. As people working in the courts you’re used to the process, you’re used to how long certain things take. The rest of the world really is not. I know there’s more on this one that I’m missing.

Paul Embley

An example is that Utah when they put together their ODR system, and they’re still in the process, but they actually had to create a skunk works team to look at their processes, and they went from over 40 steps in a process down to in the single digits. Now, they’re still not as economical as they maybe could be, but they found there were a lot of steps that they no longer needed. How many of our processes are built around an envelope being stamped and sent in? We allow for two weeks for this, well you know what technology can take that away, so we no longer have to have two weeks built into this process. We can have it immediate and we can go on to the next step waiting for the mail kind of thing.

MJ Cartwright

Yup, exactly. The other thing on removing redundancy is ask information that you need when you need it. You think about forms that you fill out for going to the doctor’s office and you have to fill out the same form again and again before electronic health records. Hopefully they’re in your physician’s office now. This is true with the courts. I mean when people put information into online dispute system they wanna know that it’s information that’s being used and you don’t have to re-ask it or you’re not asking information you may not really need at that point in time.

The other one is all of these recommendations that were highlighted here, there’s an element of involving user testing and user interactions, not only in what we should be doing, but how it’s working. When you’re out as public using the system you wanna make sure that it is, indeed, doing what you think it is, people understand what’s there.

Whether you are sitting on your court committees, you’re sitting with a software team, and they start saying, “Oh, I know it needs to be in there, I know it needs to be in there”, when in fact this is the public interface. Odds are they don’t know what needs to be in there. They’re not looking at it through the user. Getting that user involvement is very critical to the ease of use, the simplicity, the fact it will be used, and it really helps with the buy-in process overall.

That really leads to the…when I described the user experience and the process is that right out of the gate you’re not gonna think of everything. Just like when you may have to change a case management system or e-filing or how you do notifications or how do you do ODR. The whole thing is that you don’t have to have all of the answers to get going.

You pick a starting point that works for your court. What are those requirements, what sort of updates need to happen to your current system. You make those happen. You make them happen in ways that work for your court when you configure them. You test them with the public. You test them with your court. You test them with any other stakeholders. You release that out with all the appropriate communications that need to be out there. You are measuring it, you’re reviewing it, and you actually look again, “Alright, how are we gonna get this better”, and this is a continuous process that this is the way to get it out there and this is truly the way to get it working in a way that’s gonna work for your court and the communities.

What I’ll do, and I think we’re under 10 minutes right now, I’ll go through just some highlights from what’s going on in different parts of…I guess the world since we have British Columbia in here.

Shannon Salter’s the chair of the Civil Resolution Tribunal, she calls it the CRT, this was put into place to really handle those condo dispute cases that really weren’t being handled. Their focus was on increasing access, reducing the time it takes to handle these and getting rid of their backlog and all the delays they had in the system, reducing the cost and the cost comes from many aspects, not just the legal fees, but the travel it takes to get around British Columbia is not always that easy and many of our states it’s not that easy, and also just the number of the number of cases they had to deal with there. That was kind of the driving mechanism for them.

Question from the audience

Are you saying that to go through this process takes 7-11 months or that’s what they-

MJ Cartwright

That was for their cases, their small claim cases were taking that long, yeah.

Paul Embley

In court.

MJ Cartwright

In court, yeah. Yeah. Yes, absolutely, absolutely. They’ve implemented their system and they started with the condo disputes. They have had over 100,000 people, actually, explore their system. They have less number of cases that are actually active and better resolved, but really one of the nice metrics they’ve come up with is that people have resolved their cases, like I mentioned earlier without having to file through the system. They didn’t want their cases to be public, or for a variety of other reasons, they could sit down and resolve that case. It’s a facilitator. It’s not just about running cases through the court fast, it’s about resolving the case.

Paul Embley

One example is that part of their process they actually have a form letter where you can download that form letter, you can put in your landlord’s name and you can send it to them saying, “Hey, I need a little bit of extra time on my rent.” Well, did the court resolve that case? Not really, but it gave them the tool, so if you’re going from 100,000 down to they actually resolved 600 cases … well, one metric would be look you’re only doing 600 cases and the other would be, wow, you’re actually doing 100,000 because helping these people get to a resolution. One thing that Richard Susskind said, he was mentioned, but he’s from the U.K., he says, “Is court a place or is it a process”, and too often we have treated court as a place where people have to come.

MJ Cartwright

Yeah, yeah. Where they’re going in British Columbia is that they started off with the condo resolutions. They, this summer, launched with their small claims and also putting into place a really robust evaluation system as well, so that we can really see some of the numbers. They have measurements in place, but really looking at larger evaluation process and then looking next year to expand that out to some of the larger dollar … raising the limit on the small claims that can go through the online dispute system.

Paul Embley

I think we should skip to Michigan.

MJ Cartwright

Yeah.

Paul Embley

You have some metrics there.

MJ Cartwright

Yeah, New York, just so you know that it is in process and looking at designing with customer debt cases, consumer debt cases. Utah, they’re in the process of design and really, as mentioned, upgrading their systems, their processes at the same time they’re doing this.

In Michigan, which I know the system very well, is that we started working with courts, as I had mentioned, and we were going in there saying, “Hey, let’s start resolving some of your outstanding warrants.” Like, “No, no, no, we need to start with some of our civil infractions.” We go into another court, “No, no, we need to start with our family court cases. We need to start with our small claims cases.” Like alright, alright, so let’s start with what makes sense for your court. Then just even ability to pay, which kinda sits on top of all of these types of cases to make sure you can determine in a very consistent way how someone can actually do this.

We’ve been very fortunate to work with the Michigan State Court Administration Office and putting together numbers and results that we’ve been able to really maintain as we’re adding more and more courts into what we’re doing. There’s clearly more access.

What we’re finding by looking at the ability-to-pay upfront you’re actually getting more payments faster because you’re addressing it right out of the gate. The other is faster resolution and really reducing the court staff time and even for cases that require law enforcement or police reducing the time for them to have to be in court. The numbers have been really off the charts.

One set of numbers that I find incredibly fascinating is that not only do you close cases faster, but just looking at a subset of courts in Michigan you can look at a very efficient court you could look at a very inefficient court right out of the gate and what happens when you bring in online dispute resolution you make both of those courts efficient.

It doesn’t matter if you’re living in really a hard hit area in downtown Detroit or you’re in a little richer area where your court is in one of the suburbs of Michigan. You not only get access to justice you get efficient access to justice. That was just a phenomenal … I mean you expect it to happen, but to see the numbers unfold that way …

There’s number there of the courts, but one is a Highland Park court, which is really running at almost 80 days to close a case. Now it’s about 14 days. You’re looking at East Lansing, which is a very efficient court, running at under about 30 days and now they’re at 14 days as well. You as the public, as really a constituent, leveraging the system it’s not just access, it’s efficient access.

You look at these things that we’re doing out there and the progress we’re starting to make is that if you look at it from a continuous improvement process you don’t have to wait to get this going.

Those are some of the highlights and recommendations, things to consider in your court, and we hopefully have some time for questions. Yeah, John?

Question from the audience

What do you recommend in the way of a business model for online dispute resolution program? We’ve heard in the keynote that Rechtwijzer tanked. What model do you have this in your paper or best practices? How do you pay for it? How do you sustain it?

Paul Embley

Right. You absolutely have to have a funding stream that you can guarantee is going to be there. Unfortunately, every single state is different, so ideally your funding model will be based on the number of cases resolved. Now, the question is what’s resolved in the British Columbia example. Were 100,000 resolved or were 600 resolved? You have to have some kind of a funding model that is tied to the performance of the system. Opt out is another big, big recommendation that we make. Rechtwijzer wonderful system, but it was build around family matters and divorce. Well, you can imagine that if MJ and I are getting a divorce and I go to MJ and I say, “Hey, there’s this wonderful online system why don’t you use it”, what is she gonna say?

MJ Cartwright

Yeah. A lot of these systems were started with grant funding, and you do have to figure out a way to have-

Paul Embley

Continuous.

MJ Cartwright

Continuous funding that is part of, in the courts we work it’s part of their operating budget, and also on the cost saving side. A balance of things that they look at there, but it has to have an ongoing stream to operate.

Paul Embley

Yeah. I think we just got the shepherd’s hook, unfortunately.

A question from the audience

Is there a metric that’s used where in all they systems you’ve looked at what percentage of the cases needs a mediator or is mediator-assisted versus where the parties were able to resolve themselves? I know that in BC one of the problems was there was funding for mediators and the funding got lost after the system was developed. In California, we’re trying to use, we have a statue called Dispute Resolution Programs that creates some funding out of these things for mediators. We’re trying to figure out, the BC folks built this thing, we’re going to launch in a couple of months for small claims in Orante County. We’re trying to figure out where the cost distribution would be between for mediators because we think we have covered keeping the system running. Are there any metrics for that, that you are aware of?

Paul Embley

None that I know of.

MJ Cartwright

Yeah. I know we’re measuring and looking at some data right now, but we don’t have the metrics yet for that.

Paul Embley

When you get those please share.

Paul Embley

Alright, thank you.

MJ Cartwright

Yes, thank you.

ODR in the Courts Resources

At the time of the presentation, the NCSC papers mentioned were not yet available to the public. These papers are available now from the Joint Technology Committee research publications site.

  • JTC Resource Bulletin: Case Studies in ODR for Courts: A view from the front lines PDF (version 1.0, adopted 11/29/17)
  • JTC Resource Bulletin: ODR for Courts PDF (version 2.0, updated and adopted 11/29/17)
  • Learn more about Matterhorn online dispute resolution outcomes.
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