OUR FINDINGS
The cornerstone of the OPEN Project is feedback from focus group participants who resemble self-represented litigants being asked to use online dispute resolution (ODR).
Overall, the participants thought ODR was very appealing, and the court communications they viewed were relatively straightforward and easy to understand. The focus groups confirmed that lack of information and inaccessibility are important barriers, but they also revealed other reasons that parties do not use ODR.
Positive Perceptions of ODR and Court Communications
Overwhelmingly, our focus group participants noted that handling a case online would be much easier and more convenient than going to the courthouse. Several people said ODR could save them time and money, and they would not have the hassle of arranging for time off work or finding childcare. Some participants also described issues they would be happy to avoid, such as finding or paying for parking at the courthouse and being wanded by security upon entry. One person stated, “Nobody in their right mind wants to be in the courtroom.”
Seems like a very simple way of solving an issue because you don’t have to go to court.
ODR can also ensure people in conflict do not have to confront one another in-person, which a few people expressed as particularly desirable. In general, many participants liked the ability to handle a case from the comfort of one’s home, with one person emphasizing the added privacy this affords.
BARRIERS TO ODR USE
Although participants liked the idea of handling their case online and found most of the court communications to be easy to understand, their feedback highlighted several concerns that might hinder people from using these online programs. We identified five barriers to using ODR. These included concerns about negotiating via text, a lack of trust in the courts, feeling overwhelmed and unsure of how to proceed, and challenges with technology.
Barrier 1: Text-Based Communication Concerns
Participants had concerns about text-based ODR.
After reviewing all of the court communications in our focus group session, none of the participants understood that the ODR process was text-based. Some thought it was an online court hearing, while others thought parties would meet via video. After we explained text-based ODR, some participants were concerned about losing nonverbal communication, misinterpreting text and the ability for the opposing party to say "nasty stuff in a text versus saying it out loud." For many participants, having a third party observe the negotiations or a transcript of the conversation maintained for an established period of time would increase their comfort with text-based ODR.
Language is like 10% verbal. You need all that nonverbal stuff.
Key Takeaways
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Participants wanted someone to facilitate their communications with the other party.
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Courts may want to consider offering different options for resolving disputes online, as the Akron Municipal Court has done for its small claims and eviction ODR program. Once parties there register for ODR, they are offered three options: negotiate via text with the other party, mediate via text or mediate via video.
Barrier 2: Skepticism & Lack of Trust
Participants questioned the legitimacy of court documents and ODR platforms.
Participant discussions often related to trust. While some were skeptical about the mailed court documents, like the notice and statement of claim, many more participants questioned whether one of the ODR platforms was a legitimate website.
I just would prefer a more official state seal. Something that’s an actual representation of the court.
This skepticism led some participants to want court reassurance of the legitimacy of the documents and many to be reluctant to register to use ODR. Participants told us that documents and websites would look official if they had an official seal, court contact information or a .gov ending.
Key Takeaways
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Courts can ensure they provide an initial notice through the mail that includes an official seal and the court name and contact information.
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According to our focus group findings, consistency across all court communications, such as using the same official seal and court name on the website and the mailed documents, may help parties perceive the resources as legitimate.
Barrier 3: Emotional Response
Participants’ initial reaction to receiving a notice of lawsuit was feeling overwhelmed and unsure of their ability to respond correctly.
When presented with the prospect of being sued, the participants were almost unanimous in feeling overwhelmed or intimidated. These feelings were often associated with the amount of information provided, the formatting of the court documents and a general lack of confidence in their ability to navigate ODR without the help of court staff.
This is a lot. It’s overwhelming just thinking about it. Reading this is overwhelming. You know what I mean? It’s too many options.
Participants wanted help from court staff or someone knowledgeable.
Our participants expressed a strong desire to contact someone who could help them understand and navigate ODR. Participants felt the ability to speak to someone who is knowledgeable about ODR would provide reassurance and allow them to feel more confident moving forward with ODR. Over half of the participants said they would call the courts if they had questions on the court documents.
I oftentimes get overwhelmed as well. I have a learning disability and have trouble reading to understand. My first reaction would be having someone better make me understand.
Key Takeaways
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To promote access to justice and enhance program participation, courts should consider providing a contact person who is knowledgeable about ODR for parties to get their questions answered.
Barrier 4: Lack of Clarity
Participants wanted only essential information that was well-formatted.
To address the sense of overwhelm that many participants experienced when looking at the court documents, some indicated they did not want redundant or non-essential information. They also discussed formatting, particularly the use of white space.
Participants found the formatting of the text to impact their comprehension as well as their sense of overwhelm. Increasing white space, using bullet points and fill-in-the-blank questions, can reduce the amount of content on a page and make the information more manageable.
Word choice appeared to affect whether information was understood.
One of the most common barriers to comprehensibility according to our focus group participants was the use of confusing words. Our participants frequently identified “ODR” as confusing in the court documents. In all groups, people expressed a desire for “ODR” to be spelled out and defined early in the document. “Plaintiff,” “Defendant,” and “small claims” were also commonly identified as confusing in our focus groups.
Once they throw in that one Latin word, or that one over-10-letter word, then you're like, what?
Participants wanted pictures and videos.
Many people said they like having pictures or visual aids. In particular, participants who openly described challenges with reading, or knowing people who struggle to read, said pictures would be very helpful.
Just get you a visual. I like to see what you're saying. I like to see it. Because I'm also a hands-on learner, so I got to see.
Fourteen participants, including some from each state, explicitly said videos would be useful as an option in addition to the mailed court documents. Seven participants specifically expressed their appreciation for the Hawaii and New Mexico videos because they provided clear instructions, with images of the registration website and a cursor, or small hand, gesturing toward the places on the webpage being discussed.
Key Takeaways
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Our focus group data confirmed the benefits of formatting that includes: question-and-answer or fill-in-the-blank questions, bullet points and extra white space to separate sections and key information.
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Clarity requires the use of plain language and early definition of legal terms.
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Participants appreciated step-by-step directions in the documents and videos.
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Simple images on court documents are helpful, especially for those who struggle to read.
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Courts do not need to create sophisticated videos. Participants liked simple videos with step-by-step instructions that highlighted what the narrator was saying.
Hawaii Notice to Defendants of ODR
The court seal helps documents appear official and trustworthy.
This image has too much detail and was distracting for a few participants.
It’s helpful to define key terms the first time you use them. Some people wanted a clearer definition of Plaintiff and Defendant.
The big blue arrow and bold text made it easy for most participants to know the first step required.
It was not clear to participants how someone without internet or average digital literacy skills would file for an exemption from ODR since they would need to go online to do this.
Participants liked being able to see a screenshot of the website where they could get help.
Some participants expressed appreciation for information about ADA accommodations.
Many participants thought these phone numbers were the court contact information for assistance with ODR.
Barrier 5: Technological Challenges
Participants liked the information provided on the websites but needed clarity on what to do next.
Participants felt the ODR platforms were concise and relatively easy to understand. Both sites contained additional information not on the court documents, such as explanations about ODR, a video tour, links to more resources or contact information for the courts. The participants who viewed the Akron Municipal Court ODR and Mediation webpage thought it was informational and direct. This webpage included the clearest directions for the first step to take. In the three groups that were asked to view this webpage, many people quickly identified the orange button to click in order to begin ODR.
However, some participants in the three groups that viewed the TurboCourt site had difficulty identifying where to create a new user account. And a few participants who viewed the Akron Municipal Court webpage and ODR platform were unsure of which option to select as the defendant in order to begin using ODR. One participant could not identify hyperlinks that were not blue and underlined. Creating large buttons with plain language titles, such as “Start Here for ODR” could help address this confusion.
Some participants lacked digital literacy.
According to data from 2020–2021, in the United States, individuals who have at most a high school diploma and those who are in the lowest income bracket are least likely to have reliable internet access, at 59% and 57%, respectively (5). Individuals with low-income and those with at most a high school education are also more likely to rely solely on smartphones to connect to the internet, compared to the U.S. adult population as a whole (6). The participants were very aware of these technological limitations. In every focus group, participants brought up the difficulty technology raised for them or others.
In addition to the lack of technological devices and internet access, five participants raised the issue of digital literacy. One participant in his 60s said, “I'm just stuck in a different generation, so it's hard for me to start comprehending. I'm working on it. It's just taking me a long time.” Lack of digital literacy was also seen in how the participants interacted with the TurboCourt site on tablets. They did not know they could zoom in on the site to see it better.
Some people are not good with computers, so going to another website would be a problem.
Delivery method may impact whether information is received.
We found significant variation in the focus group participants’ preferences for the method of receiving information about their lawsuit as well as differences in the frequency in which they checked mail, email and text. Participants were most likely to prefer to be notified by mail, but a significant portion indicated this was their least preferred way to learn about a lawsuit. They were least likely to prefer email and least likely to check their email daily.
Phone plans may be intermittent, and sometimes people change their phone numbers and email addresses or move to a new residence, all of which increases the challenge of reaching someone. Notifying people about a lawsuit using multiple methods of contact is likely the most effective way to address these issues and increase the percentage of people reached.
Key Takeaways
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Courts should use large buttons or other design elements to clearly indicate what the parties’ next step should be.
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Courts should have prominently placed help links on the homepage.
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Hyperlinks should be blue and underlined when they are not formatted as buttons.
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Courts and ODR providers should ensure that their sites are optimized for smartphones and tablets, including formatting for these devices.
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Courts should provide appropriate help to parties who do not have access to the internet or who have low digital literacy, such as in-person or phone assistance.
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Courts will benefit by using various means of communication to notify individuals about legal proceedings and related information.
Akron Municipal Court ODR & Mediation Homepage
The court seal and name helped participants determine the site was official and trustworthy.
The court contact information was viewed as useful and adds to the perception of the site as official.
Some participants looked for a search bar.
Participants liked the idea that ODR provides options for handling their case, but some people were uncomfortable reading that ODR is mandatory here.
Participants easily identified what to do first due to the large, plain language start button.
Hawaii TurboCourt Webpage
Some participants wanted a Help or FAQ page, a video tutorial, or to speak with someone over the phone. All wanted to get their questions answered as quickly and easily as possible.
The absence of an official seal and court name raised concerns about whether the site was official or a scam.
Participants were not sure where to start to create a new user account.
People liked the clear step-by-step instructions. But they were not sure where to find the questions described in Step 1.
“Follow us” reinforced the sense that the site was not official.
Social media login option seemed suspicious to some.
CONCLUSION
Our findings indicate that for courts to have high ODR participation rates and ensure access to justice for all parties, they need to:
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Send parties the initial notice of ODR via multiple delivery methods
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Offer easily understood and well-formatted documents
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Provide information in more than one way and offer alternatives for parties who lack reliable internet access or who do not have digital literacy
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Ensure court websites and documents appear trustworthy by including an official seal and court name
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Provide court contact information on all communications and ensure that at least one staff member can knowledgeably answer ODR questions
Taking these steps could provide most self-represented litigants with the support they need to begin registering and participating in ODR with confidence. In turn, this would reduce the number of people needing to contact court staff with questions about ODR.
It is important to note that some participants’ need for help, their desire for more than one method of communication and their preference for a facilitator all indicate that courts need to consider the resources that may be required to implement text-based ODR. While these may require additional resources, the ultimate goal of increasing participation in ODR should alleviate other burdens on the court, thus freeing some resources for this crucial task.
For more details on the OPEN Project and our findings, download our Full Report.
