ODR & COVID-19: Guest post from Prof. Stacy Butler (Arizona Law)

[Editorial Note: Stacy B. runs a remarkable legal innovation program at her law school. You can check it out here] 

What Covid-19 Might Mean for Online Dispute Resolution

When the Covid-19 outbreak hit, the Innovation for Justice Program at the University of Arizona James E. Rogers College of Law and Pew Charitable Trusts were in the midst of evaluating the usability of the Utah State Court’s online dispute resolution platform for defendants in debt collection cases.  Like the rest of the world, we’ve been forced into a full-time remote existence.  As we work to pivot our research, we are discovering new challenges and opportunities related to online dispute resolution. 

A year ago, before anyone was thinking about the possibility of a global pandemic, approximately 50 county and statewide court systems in the United States were experimenting with online dispute resolution (ODR).[1]  Now, in the midst of Covid-19-imposed social distancing protocols, courts are rapidly moving to a “remote court model,” leaning on video- and teleconferences and on-the-briefs decision-making to keep courts in operation, while a backlog of cases builds.[2]  Covid-19 is going to force a permanent shift in court processes.  As Colin Rule, vice president of Online Dispute Resolution at Tyler Technologies, Inc. writes: “The courts were already struggling with existing caseloads before the crisis, and now they will be burdened with this additional backlog once processes resume. Combined with the huge number of newly laid-off citizens, the caseload in the courts may swell to unprecedented levels, and citizens will not be able to wait years for issues to be resolved.”[3]  Increased adoption of online dispute resolution – which promises a court-annexed, public-facing, digital space to resolve disputes quickly – seems imminent and inevitable.[4]

BUT … there are logistical challenges we haven’t prepared for.  Courts that have adopted ODR have leveraged in-person contacts to make the transition.  In New Mexico, for example, when courts began piloting ODR for debt collection cases, the state judiciary’s communication officer visited local libraries to introduce the program to librarians and leave brochures for library patrons.[5]  Those in-person opportunities are no longer available.  Adoption, testing and customization of ODR also takes time – time that now seems in short supply as case backlogs grow.  Some ODR programs rely on volunteer facilitators/mediators, a service model that may not scale well.  And ODR is nascent in the U.S.: there aren’t many well-developed, tried and tested choices for courts.  In fact, our project is the first to evaluate the usability of a U.S.-based ODR platform.  We are testing questions such as: are information and explanations about ODR and its justification available in a way that all users can find, understand, and act on?  Do changes within the ODR platform have an impact on users’ decisions? What impact does changing the user interface design or sequencing of information and features within the ODR platform have on the pathways or procedures that users select and pursue?  For now, those are unanswered questions, and a mass onboarding of ODR in courts across the U.S. without answers to those questions is risky.

Prior to Covid-19, Utah was piloting the only home-grown ODR platform in the country, making it available for small claims debt collection cases in three counties.  Initial user engagement in Utah’s ODR platform was impressive: of the first 2,000 cases tested in the platform, only 28 users opted out.[6]  But our Utah stakeholders recently walked us through the practical reality of how ODR is operating now.  Utah’s ODR platform requires the plaintiff to file electronically, and then personally serve the defendant with a summons and affidavit that directs the defendant to the ODR platform.  With shelter-in-place restrictions, personal service is not happening.  Small claims cases continue to be filed, but not served.  Without service, no new cases are moving into the ODR space.  Utah is preparing now for the possibility that it may need to automatically extend service deadlines for the cases in this particular bottleneck. 

Even if cases are served, there is a real question about whether defendants will respond and log in to ODR.  By the time social distancing protocols permit in-person service, the defendant being handed the summons will likely have been unemployed and sequestered for several months, possibly with health issues, while new debts – medical debt, consumer debt, back rent and more – have piled up.  ODR is intended to help parties negotiate a settlement, generally one that involves the defendant paying some amount.  For defendants facing insurmountable debt post-Covid, where is the incentive to engage? 

If ODR fails in the face of these Covid-19-related challenges, the new status quo could be worse than the old.  Federal Reserve statistics show that a large share of Americans cannot come up with $400 to deal with an emergency, which means many households are poorly positioned to deal with the financial impact of Covid-19.[7]  Absent more aggressive debt postponement/forgiveness policies, debt collection filings are going to increase this year, and defendant responses to debt collection actions are going to decrease.  Pre-Covid, a majority of debt collection cases filed ended in default judgments against debtors.[8]  Post-Covid, ODR may just grease the default judgment wheel.  ODR makes it even easier for plaintiffs to file debt collection actions and obtain default judgments: no physical court appearance required.  As default judgment rates increase in the year ahead, we should be measuring whether jurisdictions with ODR in place have higher rates of default than courts without it.

ODR in the time of Covid-19 also presents a serious equity risk: new ODR spaces may develop and launch without the involvement of those who need access to justice the most during this pandemic.  In 2017, the National Center for State Courts recommended that, “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.”[9]  Three years later, we are conducting the first observation-based usability test of an ODR platform in the U.S. to encourage this type of participatory co-design between courts and communities.  Before the outbreak, that testing involved in-person engagement with potential ODR users in person, watching them navigate the platform from a smartphone and collecting data about speed and ease of use and user satisfaction.  It also included participatory design workshops with the low-income community, engaging them in identifying problem areas within the ODR platform and listening to their ideas about how ODR could better work for them.  Now, while sheltering in place, we are working on creative ways to complete our research.  There is no substitute for face-to-face engagement with people who need access to our civil legal system.  That real-time human feedback provides powerful and meaningful insight into how under-represented populations feel about their civil legal system, what type of access they need, and what features encourage their engagement.  Courts were not particularly inclined to apply this type of user-centric design before Covid, and the resource challenges associated with the pandemic diminish the odds that under-represented populations will have a voice in the design of next-gen ODR.  And once those platforms go live, only those with the economic and technological wherewithal to participate in the new online forum will be providing usage feedback to courts.

These risks can be mitigated if courts resist Covid-19 urgency long enough to create space and time to be thoughtful about the move to ODR:

• Map your processes and bottlenecks: Court closures and case stays vary state by state. Assessment of ODR’s usefulness should begin by identifying whether your court is experiencing a pile-up of cases that cannot be filed, are filed but not served, or are served but not being heard. When barriers lift, will ODR help with those problem areas?  Or does your court need to think about ODR for future, post-Covid-19 cases?
• What do you need ODR to do? ODR works well for high-volume, low-complexity, low-stakes cases.  What backlogs or anticipated incoming waves of court filings could be best addressed through ODR implementation?
• Assess your ODR options: There are only a handful of private-market ODR vendors. Understand the features each can offer, and their willingness to customize their platform to your court needs.  If they cannot offer what you need, consider following in the footsteps of the Utah State Courts and build your own.
• Where in the life of a case should ODR exist? Some ODR platforms are offered to litigants before they file, some are offered after filing.  Some require users to opt-in, and some give users the chance to opt-out.  All of those options need to be re-evaluated in light of Covid-19.  If a court is experiencing a post-filing bottleneck, a pre-filing ODR space may divert new cases and ease pressure on court systems.  The challenge will be educating court users during a global pandemic that pre-filing ODR is available.  ODR systems that require an opt-out are now going to require increased attention to the procedural fairness of service of process and user onboarding processes.
• Don’t let existing court rules and procedures stand in the way: ODR presents an opportunity to improve court processes for the people who need them. Now is the time to question whether rules and procedures created in a low-tech era need to be adapted for the new, virtual world.
• Involve your users: The best time to receive input from the potential users of your ODR system is before you launch it. Once the platform is live, changes will be much harder.  IAALS offers a simple guide for engaging users in court services here.   The Nielson Norman Group, world leaders in research-based user experience, have lots of advice about remote user engagement here.  Realistically, courts making an effort to include users in ODR implementation will have limited time, resources, and user-testing experience.  For those courts, any user engagement is better than none, so focus on these four questions:
  • For the case type you are considering, who are your users (plaintiffs and defendants)?
  • What do you want to know from those users? Think about what your ODR system should accomplish: procedural fairness, dispute resolution, user satisfaction.  What needs to work well in your ODR platform for those goals to be met?
  • If social distancing is still occurring, how can you reach your users? Some will have technology access and could be surveyed or engaged in early prototype testing online. But keep those without technology access in mind – can you reach them by phone?  Or can you talk to an organization that can advocate for the interests of that population?
  • When in doubt, use inclusive design. Microsoft’s inclusive design theory posits that designing for those with permanent disabilities results in designs that benefit people universally.  If your court only has limited space and time to engage users in your ODR design, engage your most vulnerable users first.

Learn from those who have paved the way: The National Center for State Courts provides comprehensive information about ODR in the U.S. here: https://www.ncsc.org/Topics/Technology/Online-Dispute-Resolution/ODR.aspx

 

[1] https://www.pewtrusts.org/en/research-and-analysis/articles/2019/06/04/online-dispute-resolution-moves-from-e-commerce-to-the-courts

[2] For a comprehensive review of the global remote-court trend, see https://remotecourts.org/.  For a state-by-state inventory of how U.S. courts are moving to virtual operations, see https://www.ncsc.org/. 

[3] https://www.naco.org/blog/court-during-covid-19-crisis

[4] If China is an indicator of next steps for U.S. courts, as it has been an indicator of most Covid-19-related trends in the U.S., online courts are coming.  See http://www.xinhuanet.com/english/2020-02/18/c_138795315.htm (internet courts in Hangzhou, Beijing and Guangzhou had accepted close to 120,000 cases as of Oct. 31, 2019). 

[5] https://www.ncsc.org/~/media/Files/PDF/About%20Us/Committees/JTC/2020-01-28%20ODR%20case%20studies%20v2%20FINAL.ashx

[6] https://www.ncsc.org/~/media/Files/PDF/About%20Us/Committees/JTC/2020-01-28%20ODR%20case%20studies%20v2%20FINAL.ashx

[7] https://www.brookings.edu/blog/up-front/2020/04/01/covid-19-and-the-economy/

[8] https://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/08222018-Debt-Collection-Default-Judgments.ashx

[9] https://www.ncsc.org/~/media/Files/PDF/About%20Us/Committees/JTC/JTC%20Resource%20Bulletins/2017-12-18%20ODR%20for%20courts%20v2%20final.ashx