As much as we’d love to say online dispute resolution (ODR) is a clear-cut topic, it’s not. From questions about funding and whether such a platform actually increases access to justice, to how the states and their various court types have responded to ODR’s availability – there’s a lot of gray area.

Venture into some of these hot-button topics as we ask our friends from the National Center for State Courts (NCSC) about these hard questions surrounding ODR and the changing legal landscape. Through their first-hand experiences and use-case stories, NCSC’s CIO Paul Embley and Consultant Diana Graski provide refreshing, outside-the-box perspective and helpful resources to guide those interested in ODR toward a well-informed decision.

Don’t miss these key conversation takeaways, including:

  • The mixed bag of state-wide and individual court responses to the pandemic, including those who have embraced and adopted court tech and why many still have now.
  • The far-and-wide tools and outcomes that the courts, law firms and other legal counsel are seeking when they research ODR for specific case types, such as civil, traffic, family and others
  • A briefing on the interesting story behind Iowa’s pre-pandemic push for ODR in landlord-tenant cases
  • Deciding when courts become involved in disputes (i.e., waiting until the case is at their doorstep, or taking on a responsibility to provide information and actively participate in dispute minimization)
  • Use cases of outside-the-box funding options, separate from filing fees, that would position ODR as a true path to increased access to justice
  • The various ways of bringing court to the people, such as the Judge who sets up hearings in his RV and in tents
  • Providing citizens with a continuum of options for the future of “going to court” and what that means
  • Establishing personal relationships ahead of ODR adoption that support positive user experiences and helps to bridge people into these new ways of going about the court
  • NCSC resources available to help courts and other legal counsel in their ODR research, such as ncsc.org/jtc and https://law.arizona.edu/utah-online-dispute-resolution-platform-usability-evaluation-and-report

Read the Transcript

Steve Glisky:

Welcome to the paperless productivity podcast, where we have experts, give you the insights know-how and resources to help you transform your workplace from paper to digital while making your work life better at the same time.

Brad Smith:

Well, hello everyone. My name is Brad Smith, your host for today’s podcast. Today’s episode is a third installment of a three-part series discussing online dispute resolution. One organization, the National Center for State Courts, the NCSC is an advocate for ODR movement. The National Center is a nonprofit organization charged with improving judicial administration in the United States and around the world. It functions as a think tank, nonprofit consulting firm as well for the courts and a center of education in the field of judicial administration. I had, I worked with these guys for 32 years and absolutely love what they do.In today’s episode, we’re going to discuss the National Center for State Courts vision in 2021, considering the pandemic and what we’re dealing with and, and certainly beyond that. Because we know 2021 is just a precursor to the next few years as we move forward. Without further ado, I’d like to introduce today’s guest, a good friends of mine, Paul, Emily CIO, and Diana Graski, Consultant with the National Center for State Courts.Hey, thanks for joining us today.

Paul Embley:

Great to be here, Brad.

Di Graski:

Hi Brad.

Brad Smith:

Hey and, and like I said, like, Oh, my gosh, I can’t even believe it was like two years ago, almost this week that we were all in Denver for an ODR summit in-person. And, and I think that so much has changed not only in 2019, but certainly in 2020. One of the questions I do have with you all is considering the pandemic, you know, have, have CIO dealing with the pandemic can change their priorities towards ODR? Or are they scrambling to get their people prepared for working remotely?

Paul Embley:

Yeah, Brad, that is such a great question. And it, the answer is certainly not what I anticipated going in. I thought that everybody would rush to ODR. But what’s happened is there’s almost been this bifurcation where some States such as New Jersey went all in and they said, “wow you know, we had started this initiative, it’s time to accelerate it.” And they rolled out traffic and pretty lightening speed within a couple of months. And then you have other States that where all of their IT resources and, and which is true of every state, all of their IT resources were going into just keeping, you know technology going so that people could have virtual hearings. And, you know, whether that was just you know, cell phones and telephonic or whether that was Zoom or WebEx or whatever it was. And so, it really ended up being a mixed bag much more so than, than we anticipated. You know, if you had to look at the division, I would say more put their initiatives on pause than went forward. But those who went forward they really embraced it and, and you know, did things in pretty, pretty quick times.

Brad Smith:

And I would imagine that’s the case, I would talk to other States and they’re like, I’m just worried about getting laptops and setting up VPNs for our Judges, because they’re not used to that. One of, one of the questions I did have was when you when you all receive calls and Di since you’re the consultant and, and obviously Paul you’re, you’re probably getting more where IT calls, you know, what stakeholders are actually reaching out to you guys? And, and when they do, because she would think that maybe Clerks, maybe IT may be Court Administrators or Judges, but what information are they looking for when it comes to ODR?

Paul Embley:

Do you want to take that one first and then I’ll weigh in?

Di Graski:

Sure. You know, the, a little bit of background, perhaps first Brad, if that’s okay. Just very recently this winter, the Conference of Chief Justices and the Conference of State Court Administrators met and really reiterated judicial leadership for the provision of remote services. So I, I do believe that there’s good support for remote services from Courts, but like Paul just pointed out that does it necessarily mean online dispute resolution. Right? So, when I think specifically about the kinds of assistance that our state and local court colleagues are looking for around online dispute resolution, I think that they are hoping that there’s a repeatable process for, you know, soup to nuts from how do we select a case type to get started? You know, what are the criteria that we should be thinking about to, you know, what can you do to help us with procurement? Right? So, we’ve got a model RFP that we can make freely available to our court colleagues then you know, either before or, or after the selection of a vendor partner.Our court colleagues have a series of really important design decisions to make. And so, you know, what are the kinds of considerations that they should be thinking about when they decide whether it should be opt in or opt out or whether it should include neutrals straight out of the gate or wait a period of time or let the parties request neutrals. So, you could just a ton of design decisions that need to be made. And you know, each of these has an impact on the success of the ODR initiative and the problem. I’m curious, what you, what you think about that?

Paul Embley:

Yeah. So, so Brad we are your listeners may be familiar with this, you may be familiar with this, but the National Center for State Courts in conjunction or partnership with SJI, the State Justice Institute has recently stood up some implementation labs and one of those labs is around ODR. We have six jurisdictions who have requested assistance. And, and the people who’ve requested assistance have been a wide gamut of people. We have one who it’s a County based, but the State is very interested in how this goes. So, we have another where it’s a statewide effort. We have different case types, we have the typical civil and traffic, but we also have the family cases. And then one of the ones that really somewhat innovative that Di is involved in and that I’m anxiously following is what they’re doing in Tennessee with medical debt and having those cases come through ODR. And you know, I think, I think there’s just such a wide variety that it’s hard to say, “oh, these are the typical people who want ODR”, they, they can be law firms. I know that in one state the Bar is really pushing to have ODR be part of the offering. And you know, that’s not the typical direction that you know, requests come from. But it is varied and wide.

Brad Smith:

Well, that’s, that’s interesting. Cause I, I know that when we were meeting a couple of years ago, you, you had your, your family, your divorce, small claims, landlord tenant you know, frankly we would be considered low hanging fruit and where you could see kind of a quick match of the technology. Are you, are you seeing, you were talking about medical claims are you seeing other areas that are expanding? And are you getting like pings from state agencies? Be it employment, or it could be administrative agencies that are trying to, you know, then understanding or streamline some of their, their complaints as they, as they move forward. And if so, are they, are they using more private sector vendors or are they trying to go in-house?

Paul Embley:

Yeah. So, when we talk about the Courts, the Courts either have their own development staff and they typically develop everything in house. Or, or they are, you know go with vendors, the cot solution. So, so when it’s Courts that, that’s what we talk about we are starting to see an expansion though of ODR. Into some of those areas that you’re talking about, administrative hearings what was I trying to think of, but Di is involved in Iowa and their landlord tenant. And maybe you can talk a little bit about that, Di.

Di Graski:

Sure. This is a really interesting, and we think innovative approach it actually. The idea arose in Iowa before the pandemic hit that they would like to offer an online dispute resolution service to landlords and tenants. You know, different jurisdictions call it different things. But in Iowa, it’s forcible entry and detainer, other jurisdictions might call it unlawful detainer. It’s the eviction cases. Right? And so, before the pandemic the Iowa judicial branch went to some stakeholder meetings and talked with landlords and tenant advocates. And what they learned from the landlords is that the timeline in most jurisdictions, pre pandemic for getting an eviction order was a matter of days. So, it was a very, very rapid. And so, the landlords were very frank with the Iowa judicial branch. And just said,” if, if you’re going to offer us this online dispute resolution service, after we’ve already filed, that is of no value to us. We believe we’ve done everything we can do to reach a good settlement with our tenant. This is the last straw as far as we’re concerned.” But then you push it upstream, you know, if you, if you offer us an online dispute resolution service as early in the beginning of a brewing dispute between a landlord and a tenant, that could actually offer us some value. Okay. Then the pandemic hit, and as, as folks know the landscape of eviction moratoria of rental assistance programs, funding the Center for Disease Control. I mean, it shifts weekly over the past year and will probably continue to shift rapidly. And so now Iowa is envisioning their landlord tenant ODR as, as a way of matching landlords and tenants, not only with legal information, but also with community resources and up-to-date information about programs that might be available. So, I think that’s just really interesting application of an ODR platform.

Paul Embley:

And Brad, I wanted to piggyback onto that. You know, just to emphasize that what Di was saying is that this is pre-filing, which has typically not where Courts have gone in the past. But it’s, it’s one of those things that I think the Courts are going to need to think about and, and consider when, when do we get involved in legal disputes? You know, do we, do we only wait until somebody comes to our doorstep? Or do we have some responsibility to provide information? Or even some platforms to people to try to work through their dispute and try to get it resolved before we even go to court. And I know there’s a lot of thought that’s been put into that out in the academic world, but you know, now Courts are starting to face that and say, “you know, when does our involvement in disputes begin?”

Di Graski:

Right. Can, can Courts play a role in dispute avoidance or dispute minimization? Or however you want to say this concept of intervening upstream and helping the parties find the resources or the information or the mediation or whatever services might cause that dispute from getting bigger.

Brad Smith:

Right. I, I have so many questions. I mean, because everything you brought up you know, Di you’re mentioning, you know, we have, you have the kind of one side, good cop, the other side of bad cop. It’s, it’s interesting because you certainly want to be ahead of the curve and in the two jurisdictions you brought up. Which were Iowa, which is a statewide proprietary case management system, as well as New Jersey and statewide for proprietary case management system. And I could see the, certainly the advantages of, in terms of volume that is coming into the courts and, staffing the, the backlog which may have been caused by the pandemic. On, on the other hand, I can also see that there are some jurisdictions that rely on statutory fees that the State of Louisiana, for example, their clerks are not funded by the State. And so, if you gave them a pre, you know, contact to the courts, they’re not filing a statutory fee, they’re solving the dispute prior to that. And so that gets into a whole new thing in terms of funding. I mean, like we certainly create access to justice it’s been a, a mantra that we’ve had for years. But we also understand that the realization that if you don’t have funding and you’re not and unfortunately the, the judiciary is always like 1% or less than 1% of the state’s budget. Then the reality is how do we, how do we move forward and how do we keep these systems up and running?

Di Graski:

Yeah.

Paul Embley:

Brad. Go ahead, Di.

Di Graski:

Oh, okay. But Paul, I hope you don’t forget your thought either. This, this brings to mind our, our colleagues in Ottawa County, Michigan, who were real, have been real pioneers in the use of online dispute resolution for child support enforcement cases. And Brad, I understand not every State or not every County considers child support enforcement, a judicial function. Many of them, it’s a purely administrative function. And I, so I get that, but in Ottawa County, the Courts play a big, big role in child support enforcement. And so, what, what our court colleagues I think have been brilliant about funding is they are finding partners like the Sheriff’s department who absolutely do feel the brunt of having to serve arrest warrants for failure to pay child support and would have to, you know, pay to hold somebody in custody. Or, you know, their, their federal grant opportunities where jurisdictions are rewarded financially from federal Health and Human Services department for achieving certain thresholds in child support enforcement collection. So, there are ways of thinking about a funding streams that are separate from filing, you know, court filing fees.

Paul Embley:

And another point, Brad, that I was going to make, and I appreciate Di pointing to you know, alternative ways of thinking about things. We need to really be paying attention to the world beyond our ecosystem. And when we look at what has, what has disruption done to these other industries. I’m going to use you know, news as an example where you know, technology took, you know, for most people took away that home delivery of the paper, newspaper, and now the delivery comes the you know, the web, but people, people in the news industry are scrambling saying, “how do we pay for this?” How, you know, and, and they’re looking at working differently deals and, and figuring that out words are not going to be immune. You know, we’ve been able to hide behind, well, we are the only people out there who can resolve a dispute. Well, people are finding other ways to resolve disputes because of, you know, the, the lack of access and, and so forth. And, and so we need to be paying attention to how are other solving this and getting ahead of the game instead of thinking, oh, we’re immune from this and it’s just not going to happen. And so, hopefully Courts would be looking at how to work with their legislative bodies and to their other funding sources and say we have some opportunities here let’s rethink the way that we, you know, and I, we kind of have to use air quotes, but “how do we pay or how do we fund this whole justice system?” Because you know, maybe the way to that we’ve been doing funding is not sustainable long-term but it also could lead to new opportunities.

Brad Smith:

Sure.

Di Graski:

Could not agree more Paul and Brad, if I could just pile on what Paul’s saying right now. You know, I think about the bookmobile, right? So public libraries probably decades ago, figured out that you could have a van and put some books in it and have a schedule where you actually go out to the people and provide them with library services where they are. Right? And then, you know, there was kind of the, the food truck idea. Right? So, food trucks as an app, as an option to restaurants. Well, now the pandemic you know, over the past year, look at how that model of taking your service out to the people who need it, rather than demanding that they come to your big box. We, we see that with animal shelters going out to do immunizations or neuter surgery. We see food banks, and setting up you know, free lunch programs for kids at their neighborhood schools, rather than making people come to the, to the actual big box food bank. There are so many examples, breast cancer screenings, mobile dental clinics. Immunizations, now COVID immunizations actually taking it to the people. What if, you know, if Court’s really embrace that idea how, what could they do if they were freed from, from that big box idea? Like these other service providers, it’s exciting.

Paul Embley:

And, and Brad, you know, you’ve got us going on something that we’re passionate about and ODR is part of that. But, there’s a Judge in Salt Lake City who right at the beginning of the pandemic said, you know what? I have an RV. I’m going to go out and I’m going to have people come to court and you, you can, and he goes in his RV and, and it’s painted and, and all that. And, and he’s hearing court, you know, they’re on street side, you know, doing the social distancing and all of that. Well, that same Judge said, “now, wait a minute, where do we have a lot of legal issues?”, we have it in these homeless cities or homeless towns, you know, the places where they, you know, everybody gathers well. So now he has set up a tent, you know, in the middle of this tent city, you know that his court and he’s taking care of warrants, he’s taking care of, you know, all of these legal issues that, that people who are, you know, in this stage of life who need this help. He’s going out to them. And so ODR is just yet another means we have of going out to people. And when you, when you tie ODR into, you know, portals and being able to discover what remedies you, what options you might have, what remedies may be available to you. All of a sudden, we’re becoming that, that mobile clinic that is going to people and no longer making them make that Trek into our courthouse.

Brad Smith:

Again, you guys I’m like freaking out here because I have so many different questions. Because I believe the brick and mortar courthouse of the past is, is becoming less and less of a priority. And once the Courts kind of figure out that that is the case and then of course we’ve started going into technologies aside from ODR and we, we can broaden our horizon, not only ODR, but it’s, it’s technology in general and how to, how to multiple technology solutions kind of collaborate or blend. So, for example you, you have online dispute resolution, but then there’s a lot of people that just automatically went to Zoom and whether or not it’s GoToMeeting or WebEx or, or, or Teams, but Zoom became the quick thing of choice. Now, can you blend in some people thought that was ODR just because of accessibility, but then again, you, if you could blend Zoom technology with ODR or even take it up a notch, we recently, we’ve had some discussions with a company called Filo that kind of blends a dashboard approach on top of Zoom, which then allows you to have collaboration, private. So you could have a, you could have the defendant, you could have the Prosecuting Attorney, the Public Defender, the Judge, all of them being able to exchange information individually in a secure environment, and then come back together. And, you know, have a conclusion to whatever that issue may be. What are your thoughts on Zoom and, and ODR as, as we move forward?

Paul Embley:

Well, I, I love what Alaska’s vision is and, I think that, that will be, become a shared vision with many other States. But Alaska, you know, they, they love to joke that they’ve been doing social distancing since they were made a State.

Brad Smith:

So true.

Paul Embley:

But, but they, they see it as a continuum. They see people coming into ODR and trying to resolve their case there and, then if they can’t get to a resolution, then why not have that same platform allow for a video hearing? You know whether that’s a tie into Zoom or whether it’s you know another solution that’s tied in. But, but why not have that entire continuum so that naturally is if people need to come to court because they don’t have technology or they don’t feel comfortable using technology and whatever we need to still have that option. And what we’re talking about here is just expanding the array of options that people would have and being able to you know, come in via technology and continue to use that if that’s what they’re comfortable with, or come in physically to a courthouse and continue that way. Or why not have the ability to move between the two depending on the circumstance. So, so absolutely Brad, I think that that is the future of where we’re going to end up with in terms of where ODR can, can lead us you know, and at the same time, continuing to provide additional options and how people can resolve their disputes.

Di Graski:

Absolutely. Paul, I could remember hearing the story at the International ODR Forum that the National Center for State Courts hosted in Williamsburg. Gosh, was that a year and a half ago? It feels like forever ago. It’s a very large geographically, large rural county and Arizona that had dipped its toe in online dispute resolution and online mediation for family cases. But what their neutrals were experiencing was a real slow adoption rate. And what they kind of figured out is that if they put some personal like a phone call or a video conference up front, even before the parties were invited to join the ODR platform, their rates of adoption went way up. Because suddenly there, these were real people really trying to help. And it, and you know, it wasn’t it wasn’t scary anymore. It was legitimate. So, you know, we can, we can see that happening too, where some of these video conferencing technologies could help assist ODR adoption rates by establishing some personal relationships and trust ahead of time. And, and then, you know, folks feel more comfortable just doing the asynchronous chat and the document sharing and the other kinds of things we think about in an ODR platform.

Brad Smith:

When we talked to Courts, I mean, we all know, they all want to look into technology, dip their toe into technology, but they don’t want to be bleeding edge. It freaks people out. And then you’re like, okay so in terms of precedents, like, hey, I don’t mind being second or third. Let the first or second jurisdiction go through the growing pains for lack of a better term. But have we seen, is there certain addictions, be it California, New Jersey, Iowa, Utah have we seen some kind of best in practice and, and being able to note that and say, yeah, they, they did it unbelievably well and we believe your jurisdiction falls into a similar category. I mean, do we have that kind of noted and prepped up? Or is that something it’s kind of an ongoing approach?

Di Graski:

I think it is ongoing Brad, but we do have some lessons learned. And you tell you tell Paul and me, whether it’s possible for you to share a lesson’s learned ODR document with folks who choose to listen to this podcast.

Brad Smith:

Yes. I mean, all right, I’m just, I’m throwing this out there because I’m in a consultant role. The whole idea of what we do with these podcasts is to be vendor neutral. I mean, we’re here to help the more attention, the more ability to get the word out has always been my drive in this industry. There’s no reason a world that someone would just commit themselves to 32 years of government if they didn’t love it. And I’ve always felt like the collaboration between the National Center and or vendors, some, some people look at vendors as, oh, they’re just trying to make money. But the whole idea is we’re also trying to help Individuals in the industry and we truly love it. And so yes, I would suggest that anyone that listens to this podcast can reach out to you and Paul and Di and get the right information at the right time.

Paul Embley:

So, so there is the Joint Technology Committee together, a number of resources and people can easily find that by going to ncsc.org/jtc, and they if you look at the publication section, there’s some case studies on ODR, there’s judicial perspectives on ODR and a number of other great resources. But that back to your question, Brad, one of the things that I’ve observed is that there, there are a number of really good implementations, but the commonality between them all is that they have had an individual who is absolutely passionate about ODR. And it doesn’t, you know, in Utah, it is one of the Justices from the Supreme Court,  in Ohio, it is, you know Court Administrator and you know, you go to various places and that is the, that is to me, more indicative of whether or not you are going to have a stellar ODR implementation or not. It’s that passion and that drive because those people will continue to improve that, you know, they, they may start out with something that is, is less than perfect. We always talk about a minimally viable product, you know, get it out there. And then let it evolve. But those people continue to refine that and continue to better that product. So, so there are some great examples that are out there, but more importantly, yeah, I would look to the examples of those people who have been passionate about it.

Brad Smith:

Yeah. I, I always feel like it’s just as any considering all the years, whether or not it was electronic legal research or e-filing or electronic dashboards for Judges, you always have to have your champions you know, someone that’s talkative enough and it’s always easier to share. I mean, one, you all have the advantage of being a National Center. Two, it’s always great having a peer to peer conversation for someone that’s passionate. And so, it doesn’t appear from an outsider that a vendor’s trying to sell them something versus trying to assist people and make their lives easier. And I think that, that’s one of the, you know, that’s the fine line. I mean, how do you, you know, how do you leverage technology or ODR to, to make everyone’s lives easier? Whether or not you’re a Neutral Attorney, Judge Clerk in, in that respect.

Di Graski:

Yeah, I think I would also add that we’ve got some folks in, in the judicial space who are really passionate about the user experience and engaging with users and really putting them first.

Brad Smith:

Right.

Di Graski:

And, and it’s super important. Brad and Paul, did you guys happen to see that funny, funny video last week of the, of the user testing with the little blocks, you’re putting them in different slots and the user figured out that all of the different shape blocks would all go through one slot and the developers just crying. Basically, we in the court sometimes create too much of an echo chamber. We’re designing systems that on the face of things are for our constituents for our residents, but we never asked them what they want. And, we never asked them for their feedback about how well it’s working for them. So I, but I do see that there being a change in that thinking, and there are some very zealous advocates for user testing in the, in the ODR space, but in court technology more generally. Right?

Brad Smith:

Right, right. I couldn’t agree with you more. And as a matter of fact, I just, I wanted to thank you guys for all your time. I mean, you, you guys are like, you know, your favorites in my book regardless, and I really appreciate your guys’ time.

Paul Embley:

Well, thank you, Brad.

Di Graski:

Thank you, Brad.

Paul Embley:

It’s been a pleasure.

Di Graski:

Thank you, Brad. And your, your colleagues for helping to bring some of these visions to fruition?

Brad Smith: Cheers guys.

Brad Smith:

If you haven’t already done. So download part one and part two of the ODR series, if you would like to learn more about the opportunities online dispute can bring to your court system or practice, we encourage you to visit our ODR specific website www.resolvedisputes.com for an expanded walkthrough and or to request a demo.

This concludes our podcast today. Thanks, and have a great day.

Steve Glisky:

Thanks again for joining us on this podcast. To learn more about image soft, please visit image soft, Inc com that’s image soft I N c.com. If you haven’t already done. So be sure to subscribe to paperless productivity, where we tackled some of the biggest paper-based pain points facing organizations today. We’ll see you next time.