Reimagining Access to Justice: Should We Shift to Virtual Mediation Programs Beyond the COVID-19 Pandemic, Especially for Small Claims?

Reimagining Access to Justice: Should We Shift to Virtual Mediation Programs Beyond the COVID-19 Pandemic, Especially for Small Claims?

2.16.2022

By Donna Erez-Navot

Two roads diverged in a wood, and I—

I took the one less traveled by,

And that has made all the difference.

—Robert Frost

Since March 2020, and the start of the COVID-19 pandemic, courts around the country have grappled with the dramatic changes in how they function. Most courts in the United States were not prepared for such a sudden and extreme shift, and many were stalled for months without any progress on the filings within their jurisdiction. Some courts were more successful if they had previously integrated automated systems before the pandemic, such as e-filing, video hearings and other technologically supported protocols.[1] Jurisdictions that already had online dispute resolution (ODR) and video conferencing mediation and arbitration in place were able to continue to function.[2] Other jurisdictions, particularly those that were ill-prepared, were stalled once the pandemic began.[3] New York City’s Small Claims Court was completely halted in the beginning of March 2020. But in August 2020, under an Administrative Order by New York City Court Administrative Judge Anthony Cannataro, the courts initiated a new presumptive virtual mediation program in New York City Small Claims.[4] The courts partnered with various law schools, bar associations and community dispute resolution centers (CDRCs) and immediately began mediating small claims cases on virtual platforms.

The umbrella term “ODR” is a broad term that includes all uses of information and communications technologies to help parties resolve their disputes. It includes the online replication of ADR processes, including mediation, arbitration or other ADR processes conducted wholly or primarily online.[5] Some examples include: (1) cases assigned to a court mediator, who facilitates interaction between parties via asynchronous text-based exchanges through a dedicated court-provided system[6]; (2) a judge reviewing court papers from litigants and making a decision based on the papers; or (3) video conferencing mediation, where mediators synchronously work with parties live on Zoom to facilitate a conversation, as seen in the Presumptive Virtual Mediation Program in New York City Small Claims.

ODR is growing, and there are those who argue that it advances access to justice, in part because of its low cost and convenience.[7] Those championing the ODR movement argue that “[f]or minor disputes, the time, money, and real or perceived risks involved with going to court are often not worth the cost or hassle. It is simply more cost-effective and convenient for most people to use ODR for small claims, traffic, landlord-tenant, and similarly smaller or less complex disputes.”[8] Especially for Self-Represented Litigants (SRLs), it may allow for more self-help options for consumers and efficient and effective avenues for proceeding in the court system.[9] However, it may not be a panacea. We need to be mindful of those left out of the “ODR party,” such as the elderly or those who are not as experienced with online processes, as well as individuals who lack access to broadband connections, smartphones and computers.[10]

This article will focus on a small subset of the ODR landscape, specifically on virtual mediation in New York City Small Claims Court. With wide access to vaccines and a reduction in deaths, the COVID-19 pandemic will slowly recess, and the courts will be able to return to more traditional ways of functioning. The primary question that must be considered is whether the continuation of virtual mediation, post-COVID, will be a positive step towards access to justice for litigants, specifically the most vulnerable populations. On the first level, does virtual mediation allow litigants to have better access to the justice system? Meaning, can these litigants literally participate and show up for their court hearings? On a deeper level, we need to ask questions around whether their participation is “better” or whether it is achieving more procedural justice? Do litigants have more of a voice in the process? Do they feel more respected by the process? This article will set the stage for how to achieve voice, but more research needs to be done to answer some of these important questions.

New York City’s Presumptive Virtual Small Claims Program

Since 2019, New York State has been moving to greatly expand their ADR initiatives. Chief Judge Janet DiFiore updated the New York Excellence Initiative on May 14, 2019 to include “presumptive ADR.”[11] Under this initiative, some civil actions were automatically directed to an ADR forum, in an attempt to resolve disputes more efficiently and effectively. Less than one year later, beginning in March 2020, COVID-19 hit New York City with such devastation and force that the courts had to shut down completely for a few months. In August 2020, under an Administrative Order by New York City Court Administrative Judge Anthony Cannataro, New York City Small Claims Court initiated a new presumptive video conferencing mediation program that vigorously continues today.[12] “In less than one year, the truly presumptive model has allowed more than 800 cases to be mediated, and newly trained mediators have been able to utilize these opportunities to meet the requirements for other court rosters.”[13] Over 53% of mediated cases have resulted in settlements.[14] According to the leaders of the New York City Small Claims Mediation Program, there is no intention to return to in-person mediations, and virtual mediations will be the current format for the near future, if not longer.

Key Highlights of the NYC Small Claims Presumptive Virtual Mediation Program include:

• Partnership between courts and bar association lawyers, law schools and CDRCs: Since its inception, the New York City Small Claims Court has partnered with all the local law schools, CDRCs and bar associations. There are virtual meetings with the ADR Coordinator to update on protocols and triage any issues. Cases are assigned to particular mediators or organizations through an initial email, where the litigants are also copied. Mediators are expected to quickly contact the parties via email and/or phone to set up the virtual mediation session. Mediation sessions can occur during the weekday hours (if a court-assigned interpreter is necessary) or whenever is convenient for the parties and the individual mediator. After-hours time slots and weekends are also available in order to accommodate the litigants’ work schedules and/or childcare needs. In light of the fact that the mediations are conducted on virtual platforms and litigants do not appear in court, the scheduling is extremely flexible to meet the needs of the litigants.
• Court interpreters assigned to interpret every mediation: The court assigns a formal court interpreter to every mediation session when language access is an issue. While this is a huge investment by the court, it ensures that the parties are able to understand and participate in the mediation process, and it allows the mediator to focus on his or her task of being the neutral third party. Some jurisdictions disallow mediators to also serve as interpreters, in order to ensure the impartiality of the mediator.[15] New York’s ethical codes may allow the dual role, but in order to ensure neutrality of the mediator and high-quality interpretation, it is vital to have a court-assigned interpreter present.[16]
• Pre-mediation development work and technological support by mediators to prepare SRLs: One of the hallmarks of the New York City Virtual Mediation Program is the pre-mediation case development work of the mediators, which ensures that parties are able to access the technology and understand the mediation process before they enter into the virtual mediation session. For example, the Cardozo Law School Mediation Clinic requires every student to call and/or email the parties before the session and offer a tech-prep session. Many of the SRLs take us up on this offer. In the Small Claims Mediation Program, before COVID, parties would show up for their first court appearance and be offered a free mediation session out in the hallway. Now, the parties are given an opportunity to talk to the mediators on the phone, prepare themselves emotionally and legally for their session, schedule the session for a convenient time for them and feel comfortable with the technology before they have to join the first mediation session.

Lessons Learned From Other Jurisdictions

Research, including conversations with several ADR court administrators, CDRCs and ODR leaders about the virtual mediation processes and with program directors in Nebraska, Oklahoma, Texas, Michigan and others, revealed that some programs were already prepared for the pandemic and were using virtual platforms for years, especially in the rural parts of the U.S.[17] However, over the past two years, many courts and programs have found that their appearance rate has skyrocketed when they moved hearings and mediations to a virtual platform.[18]

Indeed, many programs were proceeding similarly to our NYC Small Claims Mediation Program. Some were using court interpreters, while others were not. Some were using the mediators to help prepare litigants for the challenges of online virtual mediation, while others were using court staff, such as clerks and others, to ensure proper access to technology. The biggest difference and highlight was the use of online systems and pro bono lawyers for SRLs for informed decision-making, as seen with the Michigan and Oklahoma programs, among others.[19] States are looking to begin utilizing ODR platforms, such as those developed by Matterhorn and others, to also help fill the information gaps for SRLs.[20]

Best Practices for Dispute System Design of Virtual Small Claims Mediation (DSD)

Some older research suggests poorer outcomes for individuals on virtual platforms in legal bail hearings[21] and recent studies about virtual platforms and their effectiveness are still being conducted.[22] Nevertheless, there are best practices for dispute system design for virtual mediation that should be implemented for all litigants, but especially the vulnerable, unrepresented parties who are very likely to appear in virtual small claims mediation in New York City.

Key Points for Dispute System Design to Ensure Access to Justice

• Ensuring procedural justice and party voice through both pre-mediation work and specific session design. Research shows that specific, targeted outreach can improve online court use, especially for disadvantaged communities.[23] Continuing the great work of the current cadre of volunteer mediators and supporting their pre-mediation work with litigants is key. We also know that particular design choices made in online platforms could enhance – or diminish – opportunities for full participation.[24] For example, if one party must use the telephone because they don’t have sufficient broadband, as is often the case in New York City, it is best practice for all the parties to call in using the phone. Zoom has call-in options so that you can still use breakout rooms, or mediators can choose to use a simple conference call. Finally, quantitative and qualitative data in the form of exit surveys and case outcome statistics need to be gathered to ensure effective ADR processes. NYC Small Claims has begun this challenging data collection using a web-based exit survey link (that is used by many programs across the state) that can be placed into the zoom chat or emailed to parties and attorneys after the mediation sessions.
• Ensuring that procedural & legal information is provided at the outset and throughout the process.[25] Similar to the ODR Programs in Texas and Michigan, there should be access to legal information before and during the process.
• Offering court-appointed interpreter services for Zoom mediations. There are ethics opinions that require the mediator not to take on the dual role of mediator and interpreter.[26] In addition, family members fulfilling the role of interpreter is not best practice. Continuing in the New York manner – assigning court-appointed interpreters to the Zoom platform – would be best practice.
• Providing access to broadband internet or kiosks for parties who lack basic access to internet. Approximately 7% of individuals in the U.S. lack access to internet.[27] While there has been an increase in access because of low-cost smartphones, many low-income parties still lack access and struggle to participate in virtual mediation.[28] The NewYork State Unified Court System has begun to think about solutions to this issue, such as providing kiosks for use in court and other solutions.[29] This needs to be a priority for the future of the courts, if virtual presumptive programs are to continue as the norm.

The New York City Small Claims Virtual Mediation Program has been one of the biggest success stories of the past two years. Despite a global pandemic, local bar associations and attorneys, law schools and the courts have been working together tirelessly to ensure access to justice for our most disadvantaged communities. Virtual mediation will be a permanent part of the legal practice in New York City and, if designed properly, it can provide litigants with a rich opportunity to be heard, expand access to justice and support the overburdened courts through the pandemic and beyond.

Donna Erez-Navot is the assistant director of the Kukin Program for Conflict Resolution at Cardozo Law School, where she also directs the Cardozo Mediation Clinic. Prior to joining the faculty at Cardozo, Erez-Navot was the founding director of the Mediation Clinic at UW Law School. The author is grateful for the research assistance for this article provided by Cardozo Law student Elan Kirshenbaum (’22). This article appears in a forthcoming issue of New York Dispute Resolution Lawyer, a publication of the Dispute Resolution Section. For more information, please visit NYSBA.ORG/DISPUTE.

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[1] Noam Ebner and Elayne E. Greenberg, Strengthening Online Dispute Resolution Justice, 63 Wash. Univ. J. L. & Pol’y 65, 69–70 (2020); see also Joint Tech. Comm., JTC Resource Bulletin: Case Studies in ODR for Courts 1 (Jan. 28, 2020), https://www.ncsc.org/__data/assets/pdf_file/0020/16517/2020-01-28-odr-case-studies-v2-final.pdf; Robert J. Condlin, Online Dispute Resolution: Stinky, Repugnant, or Drab, 18 Cardozo J. Conflict Resol. 717, 718–19 (2017).

[2] See MI-Resolve: Frequently Asked Questions, Resol. Ctr., https://cii2.courtinnovations.com/MITRC/faq; Utah Online Dispute Resolution Pilot Project: Final Report, Nat’l Ctr. State Cts. (Dec. 2017), https://cdm16501.contentdm.oclc.org/digital/api/collection/adr/id/63/page/0/inline/adr_63_0.

[3] Alan Zimmet, A Primer on Virtual Court Proceedings in This Brave New World, 39 No. 3 Trial Advoc. (FDLA) 38, 38 (2020).

[4] Admin. Ord., Hon. Anthony Cannataro, Management of Small Claims Cases During the Coronavirus Pandemic, Civ. Ct. City N.Y. (Aug. 4, 2020), https://nycourts.gov/courts/nyc/SSI/directives/DRP/DRP212.pdf.

[5] Ebner & Greenberg, supra note 1.

[6] Amy J. Schmitz, Measuring “Access to Justice” in the Rush to Digitize, 88 Fordham L. Rev. 2381, 2391, 2396–97 (2020); Condlin, supra note 1, at 738–44; Julianne Dardanes, When Accessing Justice Requires Absence from the Courthouse: Utah’s Online Dispute Resolution Program and the Impact It Will Have on Pro Se Litigants, 21 Pepp. Disp. Resol. L. J. 141, 156 (2021) (quoting Utah Online Dispute Resolution Pilot Project: Final Report, supra note 2, at 10).

[7] Avital Mentovich, J.J. Prescott, & Orna Rabinovich-Einy, Are Litigation Outcome Disparities Inevitable? Courts, Technology, and the Future of Impartiality, 71 Ala. L. Rev. 893, 971–74 (2020); Schmitz, supra note 6, at 2386–87; Joint Tech. Comm., supra note 1, at 2; Brian Farkas, Old Problem, New Medium: Deception in Computer-Facilitated Negotiation and Dispute Resolution, 14 Cardozo J. Conflict Resol. 161, 172 (2012); Condlin, supra note 1, at 719–20; Scott J. Shackelford, & Anjanette H. Raymond, Building the Virtual Courthouse: Ethical Considerations for Design, Implementation, and Regulation in the World of ODR, 2014 Wis. L. Rev. 615, 631–32 (2014); Jeff Trueman, Cecilia B. Paizs, & John Greer, No Need to Panic: Online Dispute Resolution Works, 2 Md. B.J. 140, 142–43 (2020).

[8] Amy J. Schmitz, Expanding Access to Remedies through E-Court Initiatives, 67 Buff. L. Rev. 89, 93 (2019) (citing J.J. Prescott, Improving Access to Justice in State Courts with Platform Technology, 70 Vand. L. Rev. 1993, 1994–96 (2017).

[9] Schmitz, supra note 6, at 2384, 2388.

[10] Id.; see also Heather Scheiwe Kulp & Amy J. Schmitz, Real Feedback from Real People: Emphasizing User-Centric Designs for Court ODR, 26 No. 2 Disp. Resol. Mag. 6, 10 (2020).

[11] See generally Hon. Janet DiFiore, The State of Our Judiciary 2019, Unified Ct. Sys. N.Y. (Feb. 26, 2019), https://www.nycourts.gov/ctapps/news/19_SOJ-Speech.pdf; Press Release, Hon. Lawrence K. Marks, Court System to Implement Presumptive, Early Alternative Dispute Resolution for Civil Cases, Unified Ct. Sys. N.Y. (May 14, 2019), https://ww2.nycourts.gov/sites/default/files/document/files/2019-05/PR19_09_0.pdf.

[12] Admin. Ord., supra note 4.

[13] Cohl Love, The Pilot Episode of Presumptive Mediation: Will It See Primetime?, 14 No. 2 N.Y. Disp. Resol. Law. 1, 30 (2021), https://staging.nysba.cliquedomains.com/new-york-dispute-resolution-lawyer-vol-14-no-2.

[14] Lisa M. Courtney & Glen L. Parker, Presumptive ADR: Improving Options for Litigants in the New York State Unified Court System, 14 No. 2 N.Y. Disp. Resol. Law. 1, 31 (2021), https://staging.nysba.cliquedomains.com/new-york-dispute-resolution-lawyer-vol-14-no-2.

[15] Mediator Ethics Advisory Comm. Op., Susan Dubow, Opinion Number: 2017-002, Fla. Sup. Ct. (Dec. 13, 2017), https://www.flcourts.org/content/download/216906/file/MEAC2017-002.pdf; Mediator Ethics Advisory Comm. Op., Christy Foley, Opinion Number: 2021-002, Fla. Sup. Ct. (June 29, 2021), https://www.flcourts.org/content/download/763172/file/meac-opinion-2021-002.pdf; see also Alexandra Carter & Shawn Watts, The Role of Language Interpretation in Providing a Quality Mediation Process, 9 Contemp. Asia Arb. J. 301, 311–12 (2016).

[16] Committee on Professional Ethics, Opinion 1178, New York State Bar Association (Dec. 13, 2019), https://staging.nysba.cliquedomains.com/app/uploads/2019/12/Opn-1178; see also Carter & Watts, supra note 15, at 311–12.

[17] Video Conference Interview with Michelle Hilliker, Director of the Michigan Community Dispute Resolution Program (June 21, 2021) (hereinafter “Hilliker Interview”); Video Conference Interview with Paul Embley, former CIO and Technology Division Director at the National Center for State Courts (Aug. 6, 2021).

[18] Video Conference Interview with the Honorable Matthew G. Wright, Presiding Judge for the City of Little River-Academy, Texas (June 30, 2021).

[19] Hilliker Interview, supra note 17; Video Conference Interview with Phil Johnson, State Director, Alternative Dispute Resolution System, Sup. Ct. of Oklahoma (July 6, 2021).

[20] Hilliker Interview, supra note 17.

[21] Schmitz, supra note 6, at 2384–85.

[22] Timothy Hughes, Promoting Witness Honesty in Virtual Hearings and the Lessons to be Learned from Social Science: A Conversation with Dr. Ula Cartwright-Finch, 14 No. 2 N.Y. Disp. Resol. Law. 1, 12 (2021), https://staging.nysba.cliquedomains.com/new-york-dispute-resolution-lawyer-vol-14-no-2.

[23] Id. at 974; see also Margaret Hagan, The Justice is in the Details: Evaluating Different Self-Help Designs for Legal Capability in Traffic Court, 7 J. Open Access L. 1 (2019).

[24] Mentovich, Prescott, & Rabinovich-Einy, supra note 7, at 971.

[25] Ebner & Greenberg, supra note 1, at 86.

[26] See Mediator Ethics Advisory Comm. Op., Susan Dubow, Opinion Number: 2017-002, supra note 15; see also Mediator Ethics Advisory Comm. Op., Christy Foley, Opinion Number: 2021-002, supra note 15.

[27] Andrew Perrin & Sara Atske, 7% of Americans Don’t Use the Internet. Who Are They?, Pew Rsch. Ctr., Apr. 2, 2021, https://www.pewresearch.org/fact-tank/2021/04/02/7-of-americans-dont-use-the-internet-who-are-they.

[28] Emily A. Vogels, Digital Divide Persists Even as Americans with Lower Incomes Make Gains in Tech Adoption, Pew Rsch. Ctr., June 22, 2021, https://www.pewresearch.org/fact-tank/2021/06/22/digital-divide-persists-even-as-americans-with-lower-incomes-make-gains-in-tech-adoption.

[29] Cardozo Journal of Conflict Resolution, Panel 3: Assessment, Direction, and Vision for the Future, YouTube, Nov. 10, 2020, at 9:29–14:22, https://www.youtube.com/watch?v=U22kYbLYydM&ab_channel=CardozoJournalofConflictResolution (remarks by Judge Edwina Richardson-Mendelson, Deputy Chief Administrative Judge – Office for Justice Initiatives).