The OPEN Project
Improving access to justice for self-represented litigants through effective communications
RSI's goal for the ODR Party Engagement (OPEN) Project is to help courts improve their education of parties about online dispute resolution (ODR) in small claims cases.
This project provides courts with relevant information and new tools to communicate effectively. By providing these things, we hope to make access to justice more equitable for self-represented, diverse populations who are either required or offered the opportunity to use text-based court ODR for these cases.
To uncover what parties need from courts, we conducted focus groups around the country to ask individuals with backgrounds similar to those of typical self-represented litigants for their thoughts and feedback on ODR and court communications. This website and the report below summarize our research and findings.
Why We Undertook this Project
In evaluations of text-based ODR we conducted with the University of California, Davis from 2020-2022, we identified an information gap as one reason for low participation. The evaluations point to a need for better information to apprise parties that an ODR program exists and how to use it. Parties also need more information about ODR in order to make knowledgeable decisions regarding whether or not they will benefit from participating.
In small claims ODR programs, generally the first thing parties are told to do, via a notice they may not understand, is to register on a third-party platform for a process they likely never heard about. The programs often do not have a designated staff person to help parties navigate the process. Without a person who educates the parties and answers their questions at the start, parties need other forms of support.
What Is Online Dispute Resolution?
Text-based online dispute resolution (ODR) allows parties to negotiate and/or mediate by exchanging messages via an online platform.
The platform enables parties to communicate both synchronously and asynchronously and to upload and view relevant documents. ODR is touted as a method for increasing access to justice by being more convenient, less costly and less intimidating to the parties. The promise is that these features will improve access to justice and reduce the default rate, especially for debt cases. Courts are drawn to ODR for these reasons, as well as for the hope that ODR will improve their efficiency. However, early evaluations of text-based ODR programs have found only 21% to 36% of parties registering for ODR in mandatory programs, and New Mexico suspended its voluntary ODR program because of lack of participation (1).
THE PROMISES AND PITFALLS OF ODR
The Importance of Effective Court Communications
Informing parties properly is especially important given the increase in self-represented litigants.
Without the assistance of an attorney, many people need to rely on court communications to learn how to register for and use ODR. But many people in the US struggle to read, and legal terminology can be particularly challenging. According to the Program for the International Assessment of Adult Competencies, 48% of US adults struggle to perform tasks with text-based information, such as reading directions, with 19% only capable of performing short tasks (2).
Creating communications that use language and formatting that are accessible for people with low literacy will also make the information easier for parties with strong literacy skills. A recent readability study of court forms found that simplifying the text used in the forms increased participants’ understanding of the purpose of a subpoena from 23% to 70% (3).
Why Focus on Individuals with Low Literacy?
Effective court communications could increase participation in court programs and access to justice by narrowing the information gap. To do this, it is necessary to create communications that speak to the general public, including people from all racial/ethnic backgrounds and people who have low income and low literacy and cannot afford an attorney.
In the US, about half of the adult population struggles to consistently read lengthy, dense texts to complete tasks or accurately answer questions.
Literacy rates are lower for people with less than a high school education and who are unemployed. Additionally, a large percentage of people aged 16-65 struggle with digital literacy, or the ability to use digital technology to find information, complete tasks or communicate.
Focus Group Recruitment and Participants
We conducted focus groups to hear from individuals whose backgrounds are similar to those of self-represented litigants, particularly those with low incomes and low literacy.
Our goal in designing our research was to obtain a diverse array of perspectives from different regions of the country while creating homogeneous groups that would encourage open participation. We selected a former mill town in rural New Hampshire with a primarily white population; a suburb of Houston, Texas, with a large Latino population; and Baltimore, Maryland, where we recruited Black participants. We held two focus groups at each site with participants who resemble typical self-represented litigants.
IMPROVING ODR USING FOCUS GROUP RESEARCH
How We Conducted the Focus Groups
The purpose of the focus groups was to obtain insights from participants on materials courts send to parties who are required to participate in ODR.
We selected materials from Hawaii and Ohio, two states that we knew had thoughtfully developed comprehensive informational materials geared toward self-represented litigants. We also used a video from New Mexico that we thought was easy to understand.
During the focus groups, we asked participants to review a number of court materials:
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Hard copies of a Hawaii Statement of Claim and Notice to Defendants about ODR that they would receive in the mail from the plaintiff if they were involved in a small claims lawsuit.
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Various sections of a Hawaii “Guide for Defendants,” an Ohio “Planning your Online Dispute Resolution Preparation Questions” guide and an Ohio “Dispute Resolution Guidance.”
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Home pages for either the TurboCourt or the Matterhorn ODR platforms. In addition, those who reviewed the Matterhorn ODR platform also reviewed the ODR page on the Akron, Ohio, court website. It should be noted that we did not ask participants to use the ODR platforms; therefore, their feedback is limited to the ODR platform homepage.
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Three instructional videos on how to use ODR from Hawaii, New Mexico and Ohio.
We then asked participants for their first reactions to the materials as well as how comprehensible they were and the barriers participants might encounter when attempting to follow the instructions or use the website.
At the end, we asked participants about their understanding of ODR, what they thought of text-based ODR and, for some, whether they would prefer to participate in text-based ODR or ODR via video. The focus groups lasted 90 minutes each.
