JTC Resource Bulletin

Case Studies in ODR for Courts:

A view from the front lines
Version 1.0
Adopted 29 November 2017
Abstract
Pioneering ODR efforts are unfolding around the world. Many courts and justice
organizations are looking for signs that ODR technologies are beyond the major pitfalls
of early adoption (the “bleeding edge”) and that successes can be leveraged and
replicated. The use of information and communications technology (ICT) to help parties
resolve their disputes is an encouraging trend with notable benefits to parties with
disputes and the organizations (public or private) chartered with resolving those
disputes.

For more information on this topic, contact [email protected].

Document History and Version Control

Version Date Approved Approved by Brief Description
1.0 11/29/2017 JTC Release document

ii
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
Richard Schauffler, Research
Additional Contributors

Sue Brown Ann Thompson

ClaimsPortal (United Kingdom) Thomson Reuters
Robert Ciolek Martin Ward
14A District Court (Michigan) ClaimsPortal (United Kingdom)
Alex Sanchez Corry Van Zeeland
Franklin County (Ohio) Municipal Court Rechtwijzer, Legal Aid Board (Netherlands)

iii
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
Rodney Maile
Hawaii Administrative Office of the Courts Kelly C. Steele
Florida Ninth Judicial Circuit Court
The Honorable Sigfrido Steidel Figueroa
Court of Appeals, Puerto Rico Jeffrey Tsunekawa
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

iv
Table of Contents
Abstract ............................................................................................................................ii
Document History and Version Control ............................................................................ii
Acknowledgments ........................................................................................................... iii
Table of Contents ............................................................................................................ v
Introduction ..................................................................................................................... 1
Case Studies ................................................................................................................... 1
Franklin County, Ohio Small Claims ········································································· 2
Washtenaw County, Michigan Online Traffic Pleading ·················································· 4
Ottawa County, Michigan Family Court Compliance ····················································· 6
Utah Courts Small Claims ······················································································ 7
New York State Unified Court System Consumer Debt ················································· 8
British Columbia Civil Resolution Tribunal ································································ 10
UK Ministry of Justice Personal Injury Claims Portal ·················································· 12
Netherlands Rechtwijzer ······················································································ 14
British Columbia MyLawBC ·················································································· 17
Lessons from the Front Lines ........................................................................................ 18
Appendix A: ODR Resources ........................................................................................ 19

v
Introduction
Information technology has been used successfully in the dispute resolution process in
the US and abroad for over twenty years. Billions of disputes have been resolved using
Online Dispute Resolution (ODR), but ODR is utilized in only a small fraction of US
courts. ODR presents new, untapped potential for helping courts to increase fairness
and access to justice while decreasing costs for both courts and parties in a dispute.
Not handling at least some aspects of dispute resolution digitally is costly to courts as
well as to the public.

Digital-first services are not only an attractive prospect for cash-strapped courts
and regulators, but also the medium of choice for a generation of digital natives
that has grown to expect online interaction in all areas of life – including lodging a
complaint. 1

Why ODR? The court’s “customers” are primarily tech-savvy, and digital natives are not
the only ones with technology expectations. Digital adopters of all demographics are the
norm, rather than exception today. They bring private-sector technology expectations to
public-sector court procedures and are increasingly dissatisfied with the courts’ sluggish
adoption of technology. As Mirèze Philippe, Special Counsel to the ICC International
Court of Arbitration, observed, “We offer everything online except justice. Users expect
online solution services.” 2

This paper draws on the acumen of ODR pioneers and scholars, as well as the
experiences and insights from practitioners at the forefront of ODR use in courts. An
overview of current ODR initiatives can help court leaders see possibilities as well as
pitfalls for their jurisdictions. A related publication, “ODR for Courts” covers maturity
factors and provides specific implementation recommendations.

Case Studies
Pioneering ODR efforts are unfolding around the world. Many courts and justice
organizations are looking for signs that ODR technologies are beyond the major pitfalls
of early adoption (the “bleeding edge”) and that successes can be leveraged and
replicated. While there are many excellent examples of ODR in use in the private
sector, the following case studies come from the public sector, courts specifically.
Currently the US lags well behind Europe and the Pacific Rim in adoption of ODR. 3
Because the most ambitious and successful ODR initiatives today are going on outside
the United States, this paper describes court-based ODR both at home and abroad.

1 Case, Lucinda. “The Impact of ODR Technology on Dispute Resolution in the UK.” Legal Solutions UK and Ireland

Blog, Thompson Reuters, 2016.

2 Technology Panel, Equal Access to Information and Justice Online Dispute Resolution ODR 2017 Conference,

Paris.
3 Ambrogi, Robert. “Is There a Future for Online Dispute Resolution for Lawyers?” Robert Ambrogi's LawSites, 11

Apr. 2016, www.lawsitesblog.com/2016/04/future-online-dispute-resolution.html.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 1
The following case studies illustrate a variety of technologies, philosophies, and
approaches. They include successes as well as unforeseen challenges in the
application of ODR technologies to court processes. Some courts have overcome those
challenges and for some, the outcome is still unknown. Their learning experiences are
instructive and can be applied more broadly, regardless of geography or jurisdiction.
Anecdotes of project successes and failures hint at key factors that can influence,
inform, and encourage the application of ODR to a variety of court processes.

Franklin County, Ohio Small Claims

Mediation is part of the court culture in Franklin County, Ohio. For more than 30
years, mediation has been an integral component of dispute resolution processes
from pre-filing through post judgment. Motivated by the results of NCSC’s 2015
public opinion study, 4 Franklin County’s manager for the Municipal Court Small
Claims Division and Dispute Resolution Department launched an ODR initiative
to help make mediation services more accessible and convenient. When Alex
Sanchez presented the idea to the court, the response was very positive. “[ODR]
is a straightforward and cost-effective way to resolve disputes and provide
access to justice.” In essence, “Why wouldn’t we do that?”5 With the active
support and encouragement of court and judicial leaders, the system went live
less than a year later.

Potential users are invited by mail to use ODR; information is provided in the
same envelope as a summons and complaint. Interested parties go to the
website, provide email and cell phone contact information, and select potential
resolution options from a few simple check boxes. After establishing a password,
users enter the Negotiation Space – a web page only accessible by the two
parties and a qualified, professional court mediator. Parties can send messages
and files asynchronously any time of the day or night, and make and accept
offers, including payment arrangements. If the parties come to agreement, they
sign electronically and the agreement may be submitted to the court if an active
lawsuit is pending. If the parties do not reach an agreement, they can proceed
with other legal options if no lawsuit has been filed, or proceed through the
traditional court process if a lawsuit is pending.

The ODR system may be used to resolve any civil dispute including city tax
issues, small claims, credit card debt, landlord-tenant issues, and other disputes
under $6,000. The City of Columbus Division of Income Tax is the highest
volume filer in the Small Claims Division. City tax cases also comprise the
highest number of default judgements based on failure to appear at trial.

4gbastrategies. The State of State Courts. The National Center for State Courts, Nov. 2015.
5Embley, P.L. “Interview with Alex Sanchez, Manager, Franklin County (OH) Municipal Court Small Claims Division
and Dispute Resolution Department.” 2 Nov. 2017.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 2
 Prior to implementation,
default judgments based on
failure to appear
represented 55% of cases.
In the first year of
implementation,
approximately 78% of city
tax cases handled through
ODR were resolved either
through short-term
agreements that resulted in
full dismissal (55%) or
through some form of long-
term payment plan (23%).

Users accessing the ODR

system represent all
income levels from low-to-
Figure 1 - Franklin County, Ohio ODR login page
moderate income (40%)
and middle-to-upper
income (42%), based on
census data derived from
user location.

Nearly 30% access the

system outside traditional
court hours. Approximately
17% of users reside
outside the county and/or
state and would likely have
had significant difficulty
resolving their cases
without the ODR process.

According to Paul Khoury, attorney for the City of Columbus, online negotiation is
working well. “Communications with citizens via online negotiation are cordial,
we’re working out payment arrangements, and those arrangements are being
followed.” 6

The system’s success garnered recognition from the Ohio State Bar Association,
which awarded Franklin County its Judicial Administration and Legal Reform
Committee Innovative Court Practices for 2017.

6Cravener, Veronica M. “Resolve Your Case from the Comfort of Your Home.” Lawyers Quarterly, Columbus Bar
Association, 2017, p. 19., www.cbalaw.org.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 3
 Noteworthy:

 The website uses very brief videos, hosted on YouTube, to introduce the
system and explain key processes.

 Technical support, mediation assistance, and language translation

services are available to system users by phone.

 A card with information about the online system including URL and
telephone contact information is provided with the Summons and
Complaint mailed to defendants.

 There is no cost for users to resolve a dispute using the online dispute
resolution system, including professional mediation services. If the parties
cannot come to agreement, they can choose another process, including
filing a lawsuit (which does carry a fee). Mediation can still occur after a
lawsuit is filed.

Washtenaw County, Michigan Online Traffic Pleading

The 14A District Court in Washtenaw County, Michigan partnered with
Matterhorn to address high volume Civil Infractions. System users plead their
traffic violation cases in their own words from the convenience and comfort of
home. For cases that qualify, mediation is offered, adjusting the charge to
“impeding traffic,” which does not negatively impact the individual’s driving record
and auto insurance.

To protect public safety, the system filters out infractions by individuals with more
than a certain number of violations in the past 3-5 years, construction zone
violations, those tied to a traffic accident or incident with a school bus, or other
more serious infractions. Those cases are handled in a traditional court setting,
as are the cases of individuals who opt not to use the ODR process.

The entire process takes less than 15 minutes for users, and doesn’t require time
off work, child care, or transportation. Approximately 50% of system users
complete the process using a smart phone or other mobile device. The court
benefits from a lower administrative cost per case tied to reductions in the need
for courtroom space, court dockets, and magistrate time. Cases are resolved
more quickly and parties pay their fines faster and far more consistently leading
to fewer default judgments. The online process also reduces foot traffic into
courthouses, improving building security.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 4
 Law enforcement agencies also
benefit when individuals use the
system. ODR reduces the number
of hearings officers must attend,
keeping more officers on patrol
without increasing the cost to their
department. Citizens like the system
because it does not require travel,
or take time away from work and
family responsibilities, and the Figure 2 - Washtenaw County, Michigan ODR website
resolution does not negatively
impact their car insurance rate.

Based on the success of the first

project, 14A District Court launched
a second ODR initiative, this time to
address the problem of outstanding
warrants. When someone fails to
appear for their assigned court date
(pre-judgment), a bench warrant is
issued for their arrest. With the
threat of arrest, many are afraid to
come to court, which escalates the
negative impacts of even minor
offenses. ODR provides a
mechanism to have the warrant recalled without appearing in person before a
judge or magistrate and gives the individual a new court date and opportunity to
resolve the matter.

The program has been so successful in Washtenaw County that 30 more

counties are moving forward with similar initiatives. Today, ODR is being used in
Michigan for family court compliance, small claims, parking tickets, and
outstanding warrants.

Noteworthy:

 Washtenaw County, Michigan’s ODR is an “opt in” system. Partner

agencies actively encourage participation, but using the online process is
not required.

 ODR has improved timeliness not only for those who use the ODR
system, but also for those using traditional court processes.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 5
  Before ODR, only 51% of fines were paid within 30 days. For cases that
go through the ODR system, 92% of fines are paid within 30 days. 7

 The success of a few projects has created a cascade of ODR initiatives

throughout the state.

Ottawa County, Michigan Family Court Compliance

In many jurisdictions, the traditional method for resolving an issue with a parent
who fails to pay child support is to schedule a “show-cause” hearing and order
the parent who is out of compliance to attend. If the parent fails to attend the
scheduled hearing, an arrest warrant is issued.

Negative impacts to
individuals accused of
failing to pay child support
are significant: Michigan’s
state Office of Child
Support will place a lien
on financial accounts of
noncustodial parents
(“obligors”) who are out of
compliance. This can also
negatively impact others
who have no financial
obligation to the child, but
who share a bank
account, vehicle title, or
real estate with the
obligor parent.

Prior to the pilot Figure 3 - Ottawa County, Michigan Friend of the Court ODR page
implementation of family
court compliance ODR, Ottawa County’s 20th Circuit Court dealt with as many as
100 very unhappy people each week at show-cause hearings. Hearing days
were stressful for court staff who shepherded parents through the hours-long
process: check-in, followed by meetings with Investigator (case manager) and
court-appointed attorney, and finally an appearance before the judge.

Court staff would juggle schedules for parents, case managers, attorneys, and
judges to facilitate meetings and appearances, identify no-shows, and begin the
process of issuing failure-to-appear warrants. Much of their time the rest of the
week was spent preparing for hearing days, sending letters and communications

7Cartwright, M. J. “Online Case Resolution.” Equal Access to Information & Justice Online Dispute Resolution – ODR
2017. International Court of Arbitration, June 2017.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 6
 about balances and hearings, organizing files, and answering calls. Managing
warrants and hearings are time-consuming processes.

Hearing days were also stressful for parents. If financial difficulties caused an
obligor parent to miss a child support payment, spending a day at the courthouse
exacerbated the financial strain as well as the frustration.

Ottawa County’s Friend of the Court (FOC) office works with obligor parents who
are not in compliance. FOC seeks to engage with parents ahead of court
hearings and works to resolve the matter. Caseworkers look for underlying
causes of non-payment, and can refer parents to employment and training
resources, file support motions if support is set too high, or file for changes in
custody or parenting time.

The county piloted the family court compliance ODR system in the fall of 2016.
The system provides a secure way for court staff and case managers to
communicate with both custodial and non-custodial parents, provides automated
notifications via SMS messaging and/or email that help parents comply with court
orders, and facilitates resolution before situations have to be addressed in a
court hearing.

 In the first year of implementation, hearings are down by 27%. Failure-to-

appear arrest warrants are down by 36%. Show-cause hearings are now
held just two days a month. This has freed up courtrooms and docket time
for other kinds of hearings.

 Getting parents to pay child support is essential not only for the well-being
of children and custodial parents, but also for the financial stability of the
court. Child support payment compliance rates impact federal funding for
court programs including Ottawa County’s Friend of the Court office.

 Following the success of Ottawa county’s pilot program, several other

Michigan county Friend of the Court offices are moving forward to
implement similar systems. Discussions are underway with the state’s
Office of Child Support about using the system state-wide.

Utah Courts Small Claims

Shortly before the economic downturn in 2008, Utah courts launched an
ambitious process reengineering effort with a goal of changing court culture for
the long-term. It turned out to be a prescient maneuver that became a key
survival strategy when the recession hit. Mandating electronic filing and
electronic service, and implementing a paperless electronic record system
helped the Utah Administrative Office of the Courts weather the budget impacts
that saw some state agencies endure 20% budget cuts. 8 Nearly ten years later,

8 Durham, Christine M., and Daniel J. Becker. “Reaping Benefits and Paying the Price for Good Business Decisions:

Utah's Reengineering Experience.” Future Trends in State Courts, National Center for State Courts, 2010.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 7
 Utah has significant experience refining business practices and implementing
technology. The Judicial council’s mandate today is to leverage technology to
create new, on-demand services to promote access to justice.

To that end, Utah is nearing implementation of an ODR system for Small Claims.
With limited financial implications (disputes under $10,000) and relatively simple
existing procedures, small claims is a good starting point for what is intended to
be a broader utilization of ODR technologies. Utah will not need to amend
statutes to allow for the online court, but will need to address laws governing
venue and, in the justice court, the statutes governing territorial jurisdiction. Rules
of civil procedure will be amended to allow complaint and summons to be
delivered by mail or using electronic means. State statutes already allow for an
electronic signature with the attestation that the filer intended and did file the
document as true and original.

The ODR system for Small Claims is currently in development and is slated for
pilot in early 2018. Once implemented, ODR will be Utah’s sole small claims
court process.

Noteworthy:

 Discussions about mandatory e-filing began in late 2011; the rule

mandating e-filing on civil cases including probate was adopted in April
2012. New rules were adopted four different times to address the
changing status of e-filing capabilities for citations, civil, criminal, and
juvenile. In each case, Utah allowed for voluntary e-filing for one year prior
to the mandate.

 Utah’s court system is unified state-wide (an exception in US court

systems), which has facilitated both procedural changes and technology
adoption.

 The first user-facing dispute resolution resource Utah implemented was a

standalone website to help SRLs fill out forms and get process
information. Later, a website (also standalone) was created for lawyers to
e-file and access case information. The ODR project began as yet another
standalone site. Stakeholders recognized that building standalone apps by
case type was not a good long-term architecture and determined to
integrate all of these resources to provide a better user experience.

New York State Unified Court System Consumer Debt

Debt collectors in New York rely on state courts to collect on consumer debts. In
recent years, consumer debt cases have grown to 35% of all New York State
court dockets in courts of limited jurisdiction. These cases represent a
disproportionately large segment, straining court resources, overwhelming the
capacity of legal services providers, and taking a toll on consumers, who often
consent to unfavorable judgements and settlements without understanding their

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 8
 options. A startling majority of consumer defendants fail to file answers and/or
don’t appear in response to a summons because they are too intimidated (or
confused) by the process to appear in court in their own defense, resulting in
default judgements. 9

The impact on consumers can be devastating and wide-ranging: bank accounts

may be frozen and wages garnished, limiting an individual’s ability to meet basic
day-to-day financial needs. Damage to an individual’s credit report can negatively
impact opportunities for housing, financial supports, and some kinds of
employment for years after a judgment.

Consumers with legal counsel are often able to negotiate better outcomes.
However, options are limited for consumers who cannot afford a lawyer. Pro
bono assistance is available to some low-income consumers through legal
services providers funded by Legal Services Corporation (LSC). Nationally, LSC-
funded organizations will serve approximately one million Americans in 2017,
addressing a range of legal issues including healthcare, housing, child custody,
disability, education, and others, including consumer debt. 10 In New York alone,
however, nearly double that number appear without counsel in state courts
annually. A significant portion of these litigants are defendants in consumer debt
matters.

The demand for legal aid services far outpaces available resources. Only a small
portion of those who qualify actually receive legal counsel. Less than 5% of
defendants in New York consumer debt matters appear with counsel. In 2013, a
task force now known as the New York State Permanent Commission on Access
to Justice recommended that the New York State Unified Court System explore
piloting an ODR platform for consumer debt cases to address the issue.

With a grant from the State Justice Institute, the New York Unified State Court
began to design an ODR platform to help consumers triage debt problems, locate
appropriate legal assistance, and complete negotiation and mediation. The
system would have been more convenient and cost-effective for consumers,
decreased caseloads in limited jurisdiction courts, and reduced some of the
strain on legal services providers, freeing up resources to address more complex
issues. Parties would have been able to complete negotiation and mediation at
their own convenience, instead of having to take time off from work and make
transportation arrangements. Eliminating the requirement to physically appear in
the courthouse would have greatly lessen transportation costs and barriers,
particularly in rural areas.

9 Larson, David Allen. The New York State Unified Court Online Credit Card Debt Collection System: Can Ethical
Principles Save a Pilot Project? ODR 2017: Equal Access to Information and Justice Online Dispute Resolution,
Paris. June 2017.
10 Legal Services Corporation. 2017. The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income

Americans. Prepared by NORC at the University of Chicago for Legal Services Corporation. Washington, DC.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 9
 Legal service providers mounted an all-out assault on the project, claiming that
an ODR process would put vulnerable populations at risk for careless or
unscrupulous creditors. The resistance was so significant that the Commission
recently opted to discontinue efforts to develop ODR for consumer debt and will
instead explore a different case type for an ODR pilot.

Noteworthy:

 The November 2015 report to the Chief Judge proposed using volunteer
mediators for the online mediation component of the platform.

 The initial recommendation to consider the use of ODR came from the
Permanent Commission on Access to Justice, a commission established
by the Chief Judge. The NY Courts partnered with the Commission and
the ABA to pursue funding, design the platform, and plan for
implementation.

 The Task Force to Expand Access to Civil Legal Services in New York
proposed limiting use of ODR to only low-income unrepresented parties,
and ironically recommended that every litigant be “explicitly advised on the
record by a judge that declining to participate in the online dispute
resolution pilot” would have no adverse consequences.

British Columbia Civil Resolution Tribunal

British Columbia first began experimenting with ODR in 2011. Two small,
separate ODR initiatives were launched, one to resolve disputes related to
residential property tax assessments and the other related to consumer
protection. In 2012, British Columbia passed the Civil Resolution Tribunal act,
paving the way for the use of technology and ADR to resolve condominium
(strata) disputes. An amendment to the CRTA in 2015 made the CRT the
mandatory forum. Before the Tribunal was established, condominium disputes
had to be heard in British Columbia’s Supreme Court — an exorbitantly
expensive process that discouraged most from ever pursuing a complaint.

The Civil Resolution Tribunal (CRT) is a stakeholder-designed solution. The

public, community advocates, and legal experts were active participants at every
stage of development. The system went live in mid-2016, and is by all accounts,
delivering beautifully on the objectives of CRTA, which include “accessible,
speedy, economical, informal and flexible” 11 dispute resolution for condominium
property disputes.

In the first year, more than 10,000 individuals started “explorations” using the
strata Solution Explorer. As a front end to the CRT, the Solution Explorer is a free
tool designed to help individuals resolve issues without having to make a formal

11 Salter, Shannon. “Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution

Tribunal.”

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 10
 CRT claim. Information entered into the free, anonymous Solution Explorer feeds
into the CRT system if the individual decides to go forward with a claim.

About 600 “explorations” ended up as actual claims, meaning that the system’s
“navigator” resources (including a dispute letter generator and person-to-person
negotiation) helped an overwhelming majority resolve their disputes without
formal intervention. Of the 600 that began a CRT claim, many have come to an
agreement. The cost of converting an agreement into an official court judgement
is minimal ($25 Canadian). Even so, some choose not to do so, either finding it
unnecessary or preferring not to have a formal court order if the subject matter is
particularly sensitive or confidential, since orders are publicly accessible.

Figure 4 - British Columbia Civil Resolution Tribunal home page

The electronic Tribunal doesn’t use technology to replace the role of adjudicator.
Rather, the system uses technology, which is a customization of the SalesForce
platform, to serve notice of the dispute, facilitate direct negotiation, and escalate
to mediation with a skilled (human) facilitator. The facilitator can use any
combination of communication methods including email, text, phone, video
conferencing, fax, and where necessary, mail.

Initially, the Tribunal was meant to be an “opt in” system, until it became clear
that a voluntary scheme would allow one party to “veto the other’s ability to use
an accessible dispute resolution forum,”12 forcing the issue back to the costly
Supreme Court process. In 2015, the Tribunal Act was amended to make use of
the CRT mandatory.

12Salter, Shannon, Online Dispute Resolution and Justice System Integration: British Columbia's Civil Resolution
Tribunal (May 9, 2017). Windsor Yearbook of Access to Justice, Forthcoming. Available at
SSRN: https://ssrn.com/abstract=2965745.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 11
 The Tribunal’s success has lead British Columbia to expand its ODR offerings. In
June of 2017, the CRT assumed jurisdiction of small claims under $5,000. Over
time, the threshold will increase until the CRT handles all small claims disputes
under $25,000.

Noteworthy:

 The “Solution Explorer” system first offers information and free self-help
tools to help people identify and where possible, resolve a dispute
themselves.

 The CRT system encourages early resolution through a ramped fee

structure. Users pay only for the services they use to resolve their dispute.
The average fee is about $200.

 Building on the success of small initiatives helped prepared the way for
CRT which, in turn, was implemented for one specific case type (strata)
and then expanded to incorporate Small Claims.

 The system is designed explicitly for the public, with their participation in
initial and ongoing design, implementation, and enhancement. Rigorous
user-experience testing is a key factor in the system’s success.

UK Ministry of Justice Personal Injury Claims Portal

The United Kingdom’s system for handling personal injury claims from £1,000-
£25,000 is the Claims Portal. The Portal’s purpose is to provide a secure
electronic mechanism for document delivery to facilitate the legally required Pre-
Action Protocol for three low value case types: personal injury relating to car
accidents, employers’ liability, and public liability claims.

The system facilitates communication, provides a secure mechanism for

uploading and validating documentation, speeds negotiations, enforces time
limits, and ensures victims receive compensation. If the injured party doesn’t
agree with the settlement after negotiation, he/she can still pursue further legal
proceedings in a traditional court setting, but still receives the settlement amount
last offered.

In spite of being an example of innovation in the use of ODR, it is interesting to

note that the Claims Portal generates paper forms, as that is still the official
record of the court. The Ministry of Justice does not currently have a digital case
management system.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 12
 Figure 5 - UK ClaimsPortal home page

The injury compensation claims process is under the authority of the Ministry of
Justice. The Claims Portal, however, is run by a not-for-profit privately held
company made up of equal parts insurance company representatives
(“compensators”) and claimant community representatives (solicitors). The 13
board members (one independent and six each from compensator and claimant
communities) constitute ongoing leadership and governance. Insurers covered
the cost of system development, anticipating significant savings tied to greater
efficiency in the claims process. In the future, the costs of sustaining and
enhancing the system may shift to a user-pay model.

Use of the portal is mandated by the Ministry of Justice and there is no “opt out”
option. All personal injury claims that fall within the scope of the pre-action
protocols must be processed using the Claims Portal. However, use of the portal
does not restrict a claimant from accessing the court.

Approximately 85% of claims are initiated through law firm case management
systems. At the time the system launched, there was no cost to a claimant for
filing a claim through a lawyer; legal fees were paid by the insurer along with the
settlement amount. Reforms designed to reduce costs have changed this
dynamic, and claimants now relinquish a portion of their award (up to 25%) in
legal fees. Legal reforms will cap fees at £500, and future reforms are likely to
reduce that amount further. These changes may end up creating a pro se

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 13
 components of the system, which currently is designed for use by insurers and
solicitors.

The website was an “afterthought” to – not the focus of - the Ministry of Justice’s
streamlining initiative of 2007-2008. Following the process improvement efforts by a
working group of plaintiff attorneys, the Ministry of Justice agreed to make the
process electronic. An announcement was made and the website created and piloted
in a very short timeframe in 2010. The system is a customization of the CRIF Decision
Solutions platform.

As of September 30, 2017, more than 5,875,000 claim notifications had been created
and routed to a compensator through the Claims Portal. Statistics relating to claims
handled through the Portal are readily available to the public, ensuring greater
transparency and accountability.

Noteworthy:

 Stakeholders lead and funded the initiative.

 The Portal website actively encourages 3rd-party innovation by featuring a

“Developer” tab on the main landing page that leads to technical
documentation, release notes, and other information necessary to
integrate with the Portal. Developers receive free technical support
initially.

 Participating law firms have integrated their case management systems

but the official record of the Ministry of Justice is still paper.

 User training for both compensators and representatives is available

through a separate but feature-identical site with simulated process flows.

 The Executive Dashboard, available to the public, provides key metrics

including Portal Service (availability, performance, users) and Claims
submitted, pending, and resolved.

Netherlands Rechtwijzer
Rechtwijzer (which translates roughly to “signpost to justice” or “way to justice”)
was launched in 2007 by the Dutch Legal Aid Board (LAB) and HiiL to facilitate
self-help and mediated settlement in some kinds of disputes. Before Rechtwijzer,
Dutch policy on the resolution of disputes centered around legal aid bureaus
(Bureau voor Rechtshulp) that provided legal advice and representation either
free or on a sliding fee scale depending on income. 13 Later, the Dutch Ministry of
Justice established a network of law “counters” (juridische loketten) that provide

13 Smith, Roger. “I Have Seen the Future and It Works - Maybe and in Dutch.” Human Rights and Rule of Law,

Council of Europe, 5 Dec. 2013, Web 27 Oct. 2017.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 14
 walk-in or call-in legal information and self-help assistance instead of
representation. Online legal resources are an extension of the law “counter.”

The first iteration of Rechtwijzer (referred to as version 0.0 by LAB staff) focused
on problem triage and directed users to legal resources appropriate to the
specific dispute. Diagnostic questions lead to advice for the user in the form of a
table listing possible interventions and professionals able to provide those
interventions.

Figure 6 - Netherlands Divorce Platform Uitelkaar.nl home page

User testing in focus groups showed that end-users didn’t understand the advice
table at all. That lead to the development of Rechtwijzer 1.0, which launched in
2012. Later, Rechtwijzer used interactive capabilities to prepare clients to consult
with a lawyer. Rechtwijzer 1.0 was a “game-changer” in the use of technology

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 15
 because it demonstrated that websites could be interactive, serving up
information tailored to the unique needs of individual users. 14

In 2014, Rechtwijzer 2.0 added problem resolution to the existing triage/advice

platform, incorporating Modria’s dispute resolution software that powers private-
sector retail dispute resolution. The system guided parties through model
agreements, structuring issues and providing a more convenient and less hostile
setting for establishing and evaluating options. It ambitiously sought to
simultaneously address a variety of complex relational disputes including divorce
and separation, landlord-tenant, and employment issues. Advice and information
were integrated with online resolution procedures. Adding the ODR component
sought to enable individuals to work toward solving their own legal issues,
utilizing unbundled and hybrid legal services as needed.

After three years, the project was deemed financially unsustainable, and the
partnership was dissolved. In spite of this disappointing outcome, the project
“failure” is also an example of “fail forward.” A start-up team previously with HiiL
re-built the divorce platform for the Dutch market and re-launched it as
Uitelkaar.nl (“Apart”) in September. Social impact investors were willing to invest
in the new platform because there was a convincing proof of concept.

Noteworthy:

 In the Netherlands, only lawyers can represent an individual in court, but

anyone can provide legal information, advice, and assistance. Quality is
an important concern. The LAB has rigorous quality criteria and grants
access for two years to those who qualify. An independent advice
commission evaluates both new and renewal requests.

 A key element of the Rechtwijzer design was to reduce conflict in disputes

by enhancing collaboration between parties using principles of ‘integrative
negotiation’ (helping users get to ‘yes’ and building on common ground
rather than identifying differences).

 The site was developed by a multi-disciplinary team of scholars aided by

an advisory group made up of judges, mediators, and lawyers.

 Usability research revealed that users skipped “text dense” pages. To

address that issue, text was cut to a bare minimum and presented at a
basic reading level.

 The site does not direct users to a specific professional, but instead
provides an overview of tasks, a list of qualified legal resources, and an
estimate of anticipated costs. The user chooses a professional best suited

14 Smith, Roger. “Classical Lessons from the Rechtwijzer: a Conversation with Professor Barendrecht.” Law,

Technology and Access to Justice, The Legal Education Foundation, 22 June 2017.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 16
 to his/her situation. This approach relies on unbundled legal services:
users retain ownership of the dispute resolution process while seeking
legal assistance with parts of the problem.

 Rechtwijzer is (and was) a voluntary tool (“opt in”), which likely contributed
to the demise of 2.0. The Netherlands is in the midst of legal aid reform
where digital provision will be a consideration.

British Columbia MyLawBC

The benefits of Rechtwijzer’s pioneering efforts are also being felt in British
Columbia. BC’s Legal Services Society (LSS) adapted the Rechtwijzer
triage/advice platform for use as the front-end for their legal self-help site
MyLawBC. While LSS provides legal aid and representation primarily to low-
income individuals, the MyLawBC site is serving a much wider audience.

Figure 7 - MyLawBC website landing page

Built on the Modria platform, the website helps users negotiate separation
agreements and provides triage and advice on court process, wills and personal
planning, and foreclosure avoidance. It also includes resources for domestic
abuse victims, including assistance creating a safety plan.

Noteworthy:

 Similar to Rechtwijzer, a key element of the MyLawBC’s design is to

reduce conflict in disputes by enhancing collaboration between parties,
helping users get to ‘yes’ by building on common ground rather than
identifying differences.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 17
  Use of MyLawBC is increasing exponentially. In the first year, 20,000
people used the service; approximately the same number utilized
MyLawBC in the first six months of year two.

Lessons from the Front Lines

A steadily-increasing number of courts are cautiously implementing ODR in limited
ways, with notable success. While there have been a handful of disheartening setbacks,
these “failures” are both instructive and essential to the overall acceptance of ODR as a
valid court-sponsored dispute resolution mechanism. What is clear from both public and
private sector implementations of ODR is that the use of information and
communications technology (ICT) to resolve disputes provides notable benefits to
parties with disputes and the organizations (public and private) chartered with resolving
those disputes. It is an encouraging trend.

ODR is a powerful tool that can assist jurisdictions in advancing the cause of justice and
rule of law. Recommendation 5.4 of the 2016 report of the American Bar Association
Commission on the Future of Legal Services specifically promotes and endorses the
use of “court-annexed” ODR. 15 The Commission’s report goes on to declare that
“…Court-annexed ODR … would help relieve the overburdened court system and
facilitate judicial efficiency, as well as preserve the constitutional and traditional role of
the courts in dispute resolution.”

Finding a successful business model has been difficult for some ODR projects. That
makes court-connected projects even more important. Courts need sustainable funding
and a reasonable cost/benefit, as well. Courts are not yet tapping the majority of the
potential cost/benefit value.

Court-based ODR implementations to date represent a very small fraction of the

potential program design space. Limited experience with case types, resolution
processes, and almost everything else about ODR program design means that little is
known about what can work and what will be required to expand the variety of case
types that can be resolved using ODR.

Court organizations particularly struggle to give adequate attention to and respect for
the user perspective. As processes in the private sector become more and more user-
centric and finely-tuned to suit individual customer preferences, the public will become
increasingly frustrated with low-tech, inconvenient, and complicated court-centric
processes. ODR can be a game changer for courts that are willing to innovate.

For more information on this topic, contact [email protected]

15 Report on The Future of Legal Services in The United States, American Bar Association Commission on the Future

of Legal Services, August 2016.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 18
Appendix A: ODR Resources
Barton, Benjamin H., and Stephanos Bibas. Rebooting Justice: More Technology,
Fewer Lawyers, and the Future of Law. Encounter Books, 2017.

Case, Lucinda. “The Impact of ODR Technology on Dispute Resolution in the

UK.” Legal Solutions UK and Ireland Blog, Thompson Reuters, 2016.

The Lord Chief Justice's Report 2017. Judicial Office, Royal Courts of Justice, Judiciary
of England and Wales. 2017. Available at www.judiciary.gov.uk.

"ODR and the Courts: The Promise of 100% Access to Justice?" HiiL Trend Report IV
(2016): HiiL, 2016. Web. 30 Nov. 2016.

Online Courts Conceptual Design, Utah State Courts, 27 July 2015, Draft.

Report on The Future of Legal Services in The United States, American Bar Association
Commission on the Future of Legal Services, August 2016.

Salter, Shannon, Online Dispute Resolution and Justice System Integration: British
Columbia's Civil Resolution Tribunal (May 9, 2017). Windsor Yearbook of Access to
Justice, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2965745.

Case Studies in ODR for Courts: A view from the front lines
Version 1.0 Page 19