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<xTITLE>Resolving Legal Battles, One Text Message at a Time</xTITLE>

Resolving Legal Battles, One Text Message at a Time

by Veronica Cravener, Jessica Kavinsky
December 2020

The Franklin County Municipal Court (FCMC), located in Columbus, Ohio offers online, text-message mediation.  This article highlights the data from mediations completed entirely online, by text message, in one of FCMC’s mediations programs—the pre-file mediation program—from January 1, 2018 to June 30, 2019 (the pilot period, pre-COVID-19).  Also, data from these online text-message mediations are compared to the data that exists from the pre-file mediations completed during the same time period either by phone or in-person. 

Resolving Legal Battles, One Text Message at a Time

By: Veronica Cravener, Jessica Kavinsky

Introduction

Though COVID-19 has changed the way we communicate, you probably don’t immediately reach for your smartphone to send a text message to a court mediator, when you want to resolve a legal dispute.  However, at the Franklin County Municipal Court, located in Columbus, Ohio, you can do just that.  The Franklin County Municipal Court (“FCMC”) has a long tradition of offering mediation (a way for parties to resolve a dispute outside of a courtroom where parties decide the outcome), and since January 2018, FCMC has offered online, text-message mediation.  This article highlights the data from mediations completed entirely online, by text message, in one of FCMC’s mediations programs—the pre-file mediation program—from January 1, 2018 to June 30, 2019 (the pilot period, pre-COVID-19).  Also, data from these online text-message mediations are compared to the data that exists from the pre-file mediations completed during the same time period either by phone or in-person.  

What is FCMC Pre-File Mediation and How Do Parties Participate?

Prior to filing a lawsuit at FCMC, parties can request mediation through the Court’s pre-file (pre-lawsuit) mediation program.  Participation is voluntary for all parties.  A mediation is only held if all parties accept the request to mediate.  The program mediates almost any civil, non-domestic issue (e.g. landlord-tenant, money lent, consumer-business, and so on).  These disputes tend to be for amounts less than six-thousand dollars, but high emotion and disagreement.  Parties have three participation options—in person, by phone, and online (by text message).  The following briefly describes the characteristics of online text-message mediation versus phone and in-person mediation during the pilot period.  

Online text-message mediation at FCMC is similar to text-messaging on a smartphone—essentially mediation by text message, one text message at a time.  During the pilot period, users were connected to their mediator via a private online text-messaging space on the online mediation website.  Neither party could see what the other party shared with the mediator, unless a party gave permission to the mediator to share information with the other party.  In other words, the default setting was a ‘caucus’-style online mediation—basically the online equivalent of how a mediator has a private phone call with one party in a phone mediation or a private in-person conversation in a separate room with one party in an in-person mediation.   

Additionally, online text-message mediation was asynchronous and available 24/7—no appointment required.  Both the parties and the mediator were able to login to the online mediation website at any time of day that worked for them.  From there, both the parties and the mediator were able to do all of the same things that they would otherwise do in an in-person or phone mediation session—share information, share settlement offers, ask questions, and decide whether or not to reach agreement—only it occurred online, via text, one message at a time.  If parties reached agreement, the mediator prepared a written mediation agreement for parties to sign electronically through the mediation website. 

On the other hand, when parties chose in-person or phone mediation, mediation occurred in real-time, for one two-hour session on a particulate date/time based on the availability of the parties and the mediation program.  During the scheduled mediation date/time, parties were either together in a joint-session the entire time, or separate in ‘caucus’ the entire time, or a mix of both.  If parties reached agreement in mediation, the mediator prepared the mediation agreement that parties signed in-person or circulated for signatures via email or regular mail, if parties were by phone.  It was pretty rare that mediation continued beyond that one two-hour session.

Data Comparison—Online Text-Message Mediation versus Phone and In-Person Mediation

During the pilot period, there were a total of 30 online text-message mediations and a total of 65 phone and/or in-person mediations.  However, for purposes of comparison with the online text-message mediation data, a random sample of 30 phone/in-person mediations was compiled. 

For years, the mediation program collected objective data on its in-person and phone pre-file mediations—attendance, result, and method of participation in mediation.  The mediation program collected this same data on online text-message mediations as well.  However, because the FCMC online mediation option was text-based and available after the mediation concluded, staff collected additional data not previously practical to collect.  Therefore, the mediation program was able to collect additional objective criteria for online text-message mediations –number of settlement offers, number of days in active mediation, and number of messages sent to the mediator.  Additionally, it was able to collect more subjective data for online mediations, such as ‘degree of disagreement’ between parties at the beginning of mediation and the ‘tone’ of party chats in mediation.  The following compares the online text-message mediation data to the phone/in-person mediation data:

Who participated in online text-message mediation and what was the result?

To get a sense of the effectiveness of online text-message mediation and what parties were opting for this option, the mediation program tracked what disputes were “settled/not settled” and the “party type” that participated.  These data points are the same as the “attendance” and “result” data points traditionally collected for the in-person and phone mediations. The online text-message mediation data points were identified as follows:

Settled/Not-Settled:  This was equivalent to agreement or no agreement.  Partial agreements were counted as “settled” for this data set. 

Party Type:  Each party, Claimant (the requesting party) or Respondent (the responding party), was considered to be one party type, either “individual” or “business” regardless of how many people the mediator communicated with on that ‘side.’  For example, when two roommates mediated online versus an entity landlord (where the property manager participated for the entity landlord), the ‘party type’ count was as follows:  one individual and one business.  

See Chart 1, below, for the breakdown of these data points for online text-message mediations and Chart 2, below, shows the breakdown for the random sample of phone/in-person mediations.

CHART 1

Settlement and Party Type (Online Text-Message Mediations)

Disputes Mediated Online, via Text Message (Total)

30 Disputes

 

Settled

15 Disputes

Not Settled

15 Disputes

Party Types

Individual

42 Parties

Business

18 Parties

CHART 2

Settlement and Party Type (Phone/In-Person Mediations)

Disputes Mediated By Phone and/or In-Person                        (Random Sample)

30 Disputes

 

Settled

11 Disputes

Not Settled

19 Disputes

Party Types

Individual

45 Parties

Business

15 Parties

Chart 1 demonstrates that 50% of the disputes mediated online via text-message settled, while Chart 2 demonstrates that only 37% of phone/in-person mediations settled.  (In fact, the settlement rate for all 65 mediations completed by phone/in-person was only 43%).  The numbers for individual and business party types were very similar for both online text-message mediation and phone/in-person mediation.  Party type did not appear to influence participation method.  

How did parties use online text-message mediation?

Interactions with online text-message mediation were party-driven.  The FCMC mediation program did not put any time (or other) restrictions on participants.  The mediation program tracked three indicators of party engagement with the online text-message mediation process—number of days in mediation, number of settlement offers made, and number of messages initiated to the mediator by each participant—to get a sense of how parties were using online text-message mediation.  These data points were defined as follows:

Days in “Active” Mediation:  This refers to the number of days that online text-message mediation was open, where both a party and the mediator were able to type messages and/or upload documents to one another.  The ‘clock’ started running the day that the mediator gave the mediation introduction online (a text-based version of what a mediator would otherwise say in an in-person mediation or phone mediation).  The ‘clock’ ended when either the party or the mediator terminated mediation.  There was a separate ‘clock’ for each side (claimant and respondent).  

Settlement Offer:  This refers to the proposed resolution each side communicated to the mediator during active online text-message mediation.  For purposes of counting the number of settlement offers, each unique offer was counted once.  For example, if a party restated a settlement offer of $1,000, three times to the mediator, it was counted as one offer. 

Messages Initiated to Mediator:  Each text message initiated by the party to the mediator was counted as one message, whether that message contained text or links to documents or photos.  The number of messages initiated by the mediator back to the party was not counted.  

Charts 3-6 illustrate how participants customized their online mediation experience through these three indicators of party engagement with the process.  

CHART 3

Days in Mediation, Settlement Offers, and Messages Sent—Online Text-Message Mediations

Average Number of Days a Party is in Active Mediation

77 Days

Range for the Number of Days Parties are in Active Mediation- All Parties

9 Days – 197 Days

Average Number of Settlement Offers Made by a Party

1 Settlement Offer

Range for the Number of Settlement Offers Made- All Parties

0 Settlement Offers – 4 Settlement Offers

Average Number of Text Messages Initiated to Mediator by a Party

16 Messages

Range for the Number of Text Messages Initiated to Mediator- All Parties

0 Messages – 89 Messages

Essentially, Chart 3 illustrates the high, low, and average for each data point.  However, the mediation program also wanted to get a sense of what was happening in between the highs, lows, and averages for these data points.  Therefore, frequency was also calculated for these data points.  

Charts 4, 5, and 6 show the frequency for the number of days, settlement offers, and number of text messages for online text-message mediation. 

CHART 4

Frequency of Total Days in Mediation—All Online Text-Message Mediation Parties

CHART 5

Settlement Offer Frequency—All Online Text-Message Mediation Parties
CHART 6

Frequency of Messages Initiated to Mediator—All Online Text-Message Mediation Parties
In a nutshell, this data demonstrates the following for how parties used online text-message mediation.  Some parties completed mediation in a shorter time period, others in a longer time period.  Some made multiple settlement offers, others just one.  Some had more contact with the mediator, others less.  In general, since no parameters were placed on parties, parties customized the mediation process to suit their needs.    

On the surface, it appears that online text-message mediation was more time consuming (an average of 77 days online versus a two-hour session on one day by phone or in-person).    However, this surface number does not tell the whole story.  The experience of an online text-message mediation was comparable to short, quick bursts of attention (enough to send or respond to a message sent by the party or mediator), while the experience for an in-person/phone mediation typically required one two-hour long stretch of attention from parties.   Additionally, in online text-message mediation, the mediator did not hear from each party every day during the “active” time.  Often times, there was gap in communication between mediator and party—sometimes for a few days, other times for weeks at a time. Each message to the mediator was similar in length to a text message—some just a few words, others a couple sentences or even just links to pictures or documents.  It was very rare to see a message of a paragraph or longer.  Essentially, online text-message mediation was set up to allow participants to fit the mediation process in to their everyday lives, rather than accommodating their lives to the process.  

In terms of settlement offers, most participants made between zero to two settlement offers in online text-message mediation.  The mediation program was not able to track the number of settlement offers for in-person or phone mediations.  

In terms of the number of messages initiated by a party to a mediator in online text-message mediation, most participants fell in the zero to thirty messages range.  The mediation program was not able to track the number of communications to a mediator in phone or in-person mediations.  

Was online text-message mediation effective when parties disagreed?

Finally, the mediation program collected another set of data related to the effectiveness of online text-message mediation.  A mediation program staff member reviewed the chat history of each mediation for two additional data points—the ‘amount of disagreement’ between parties and the ‘tone’ of each chat.  The ‘amount of disagreement’ was tracked to determine whether there was a certain type of dispute that gravitated towards the online text-message mediation option.  Was online text-message mediation just appealing to parties who already acknowledged the other party’s position (e.g. a debt owed) or was it also a viable option when parties completely disagreed on the subject matter at issue in mediation?  Also, the ‘tone” of mediation chats was tracked to determine whether online text-message mediation was productive.   Were parties able to maintain their composure online or would online mediation simply be used as the equivalent of an online shouting match?  The data points were defined as follows:

Amount of Disagreement:  This determination involved a subjective analysis of the amount of disagreement between parties at the beginning of online text-message mediation.  Levels of disagreement were defined as follows:

Complete Disagreement:  Parties had different positions on the issue(s) being addressed in online mediation.  For example, a tenant said there were no damages beyond normal wear and tear and tenant should receive the entire security deposit back; while landlord said there were damages beyond normal wear and tear that completely exhaust the security deposit and no money is owed to tenant. 

Partial Disagreement:  Parties agree to some extent on the issue(s) being addressed in mediation, but there was still some disagreement between parties.  For example, parties agreed that Respondent owed Claimant some amount of money, but they disagreed on the amount.  

No Disagreement: Parties positions were agreeable on all issues in mediation.  

Tone:  This determination involved a subjective analysis of the overall emotion conveyed by the message and was classified further as follows:

Positive Tone: A message was marked as having a positive tone if it included the following:  expressions of gratitude/appreciation/politeness (e.g. Thank you!, Please…, Thank you for your time) and the rest of the content was either a neutral tone or if it did contain a negative tone, the number of instances of positive far outweighed the negative.  

Neutral Tone:  A message was marked as having a neutral tone if it included the following:

explanation of one’s position, links to pictures or documents, chats which asked questions, chats which made settlement offers or accepted/declined settlement offers.  A message which contained both one instance of positive tone and one instance of negative tone in the same message was marked as neutral.  

Negative Tone: A message was marked as having a negative tone if it included the following:  words in all capital letters (unless all chats were otherwise in capital letters); statements that one would file a lawsuit if there was no agreement at mediation, statements which were critical of/complained about the other party, statements which complained about mediation in general, and the rest of the content was either neutral tone or if it did  contain an instance of positive tone, the number of instances of negative far outweighed the positive.  

Chart 7 shows the breakdown of these two data points related to the effectiveness of mediation.

CHART 7

Amount of Disagreement and Tone—All Online Text-Message Mediation Parties

Amount of Disagreement Between Parties at Beginning of Mediation

Complete Disagreement

21 Disputes

Partial Disagreement

7 Disputes

No Disagreement

2 Disputes

Total Number of Messages Initiated to Mediator-All Parties

934 Messages

Positive Tone 

242 Messages

Neutral Tone 

630 Messages

Negative Tone 

62 Messages


In general, Chart 7 illustrates that most of the parties who used online text-message mediation in this pilot period were parties who were in complete disagreement with each other at the beginning of mediation.  The mediation program was not able to track the degree of disagreement between parties at the beginning of phone and in-person mediation.  

Additionally, the tone of the messages in online text-message mediation was overwhelmingly either positive or neutral—meaning either hopeful, appreciative, or descriptive of the situation—which the mediation program considered to be productive to the mediation process.  Of the total of 934 messages analyzed, only 62 messages (about 7%) were negative in tone.  Overall, whether parties reached agreement or not, parties were able to maintain their composure and effectively utilize the online mediation website.  The mediation program was not able to track tone for phone or in-person mediations.

Conclusion

In mediation, parties have always decided things like: what information they are willing to share or not share with the other side, what settlement offers they are willing to make or not make, and ultimately whether or not they will settle the dispute.  However, through online text-message mediation, parties can now make the task of ‘resolving a legal dispute’ fit into their everyday lives.  While online text-message mediation may not be the right fit for every participant or every dispute, it is a viable option to help parties resolve their legal dispute, one text message at a time.

Biography



Veronica Cravener is the Small Claims and Mediation Supervisor at the Franklin County Municipal Court. In her role, Veronica mediates various civil case types for the Court and supervises the Court’s mediation programs which utilize online dispute resolution in addition to other participation options. Her previous ADR roles include teaching Alternative Dispute Resolution as an adjunct faculty member at Columbus State Community College and mediating eviction cases at the Franklin County Municipal Court as a mediator for Community Mediation Services of Central Ohio. Veronica received her J.D. from The Ohio State University Moritz College of Law and her B.B.A. from the University of Notre Dame.


Jessica Kavinsky is a student at Ohio State University studying International Studies and German. She is pursuing a career in social science research and peace studies. She currently holds a research apprentice position at The Ohio State University and is completing a thesis on education in post genocide societies. She also has been working with the International Association for Genocide Scholars as a policy brief editor, and serves as the curator of TEDxOhioStateUniversity. She was a contractor for the Franklin County Municipal Court Small Claims Division & Dispute Resolution Department during the summer of 2019, where she provided community outreach research and assistance. She will graduate from Ohio State University in Spring of 2021 and will move on to graduate school.