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Online dispute resolution pilot goes statewide

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Lady justiceDespite some technical problems and COVID-19-related issues, a Florida courts pilot program testing online dispute resolution (ODR) has been expanded statewide.

The Florida Courts Technology Commission got an update on the ODR test at its April meeting, including a report on the six-county pilot program run last year and the follow-up administrative order from the Supreme Court issued March 15.

“The court reviewed the results of the initial pilot and in March of this year issued Administration Order SC21-10, which allows expansion of the pilot to all circuits,” said Roosevelt Sawyer, who oversees court technology programs for the Office of the State Courts Administrator.

The order allows the expanded test in one of three case types covered in the initial pilot — small claims, civil traffic, and divorces that do not involve children — plus any other “high-volume, low-complexity case type” with permission from the Supreme Court, Sawyer said.

Counties would have to submit a plan for those tests as well as progress reports, he said.

The report from the Online Dispute Resolution Workgroup contained its recommendations based on the pilot, as well as recounting challenges faced by the pilot program. The workgroup was chaired by First Circuit Judge William Stone and included members of the court’s Commission on Trial Court Performance and Accountability and the Committee on Alternative Dispute Resolution Rules and Policy.

Among the recommendations were:

• ODR at least initially should be limited to high-volume, low-complexity cases such as civil traffic and small claims. “ODR does not seem to be a viable solution for more complicated cases. Cases involving complex civil litigation and high claim values would not be suited for ODR. Criminal cases are also not recommended for resolution through these means,” the report said. Once ODR is established for simpler cases, it could be expanded to slightly more complex matters such as evictions, debt collection, child support, and paternity cases.

• State law and court procedural rules should be amended to acknowledge and define ODR, require that participants provide an email address, allow a vendor processing fee, and allow maximum use of electronic notarization.

• Imposing a user fee to financially support an ODR system and have that separate from any mediation fees that arise from the case. “In all cases, the fee structure should be made clear to the user,” the report said.

• Courts pursing an ODR project should set up a management team that includes representatives from court administration, court staff, and clerks of court. That team should set a plan for the program, including ways to measure its effectiveness.

• ODR programs should be “opt-out” efforts where everyone filing that type of case is automatically included in ODR but has the option to use regular court processes. That will provide a more sustainable base that an “opt-in” program where users must deliberately choose to participate in the ODR program. Local programs should have the final decision about going opt-out or opt-in.

• Data collected from ODR programs should include, but not be limited to, “average case processing time, staff workload associated with processing cases in ODR versus through traditional methods, nature and duration of engagement in the platform by user type, and user satisfaction.”

The original six counties testing ODR program had mixed results. They were set up to use operating software from private vendors, and that proved problematic as three counties had problems with vendors and never got a program launched.

Part of that was caused by delays in setting up the programs, which pushed their initiation until early 2020, when the courts also began dealing with COVID-19 problems, which created more difficulties.

Of the three circuits that got beyond the starting phase, one had trouble attracting users and another uploaded 622 cases to the system, but in around 80% of the cases, one or both parties declined to use the ODR system.

The ODR program in the 11th Circuit, which focused on civil traffic cases, did successfully handle 1,530 cases with 80% of the users saying they liked the program. They reported using the ODR system took an average of six minutes, as opposed to the 63 minutes it would have taken to physically visit a courthouse to deal with their case.

The other five participating counties designed their programs to handle small claims or divorces without children, which were slightly more complex. The report noted that using mediation in ODR has its own special challenges, because there are existing laws and rules governing mediation, including how it will be paid for.

“[F]or now, application of ODR in Florida seems best suited to low-complexity case types where an individual engages with the state, or where two parties attempt to negotiate with one another. The pilot also demonstrated that implementing an ODR service is resource-intensive, particularly in terms of staff time, and its success is dependent on a complex interplay of factors. ODR is an emerging technological frontier nationally and a new process in Florida. Over time, as familiarity and experience with ODR grows, greater ease and success implementing ODR services are expected,” the report said.

The Supreme Court, in its administrative order, said the pandemic and other factors preventing getting enough information to fully evaluate ODR, so it was expanding the pilot to any circuit interested in setting up its own program. Those programs must be in civil traffic, small claims, divorces without children, or anther “high-volume and low-complexity case type” approved in advance by the chief justice.

Those setting up pilots must inform OSCA before opening the program, file a status report by September 1, and a final report no later than September 1, 2022.

Links to the report and the AOSC21-10 can be found on the Supreme Court’s website here.

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