The Court ODR Podcast

Court ODR Podcast: Interview with Katherine Alteneder Mills

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Colin: Welcome to the Court ODR podcast. My name is Colin Rule, CEO of ODR.com. And I’m delighted today to have my friend Catherine to talk about an email exchange that just recently took place that I thought surfaced some great, great topics for us to discuss. So Catherine, thank you so much for joining today.

Katherine: It’s my pleasure, Colin.

Colin: Why don’t you say a little bit about yourself before we get started?

Katherine: Yeah, my name is Katherine Alteneder Mills and I for 10 years led the self-represented litigation Network and before that was in Alaska and started the country’s first remote self-help center that went all phone and internet in 2001. So I’ve been working with Pro se litigants now for 20 some odd years, building online environments for them, but then also in the last 10 years working to help bring justice system professionals together who work on issues around self-represented litigants. So whether that’s services in legal aid, the courts, the private bar, how technology integrates, librarians, and so forth. So it’s just a delight to get to talk to you about this.

Colin: Absolutely, absolutely a delight. And I thought the email that you posted, and now SRLN News hosted, Margaret is helping with that at Stanford, right? So I highly recommend that everybody sign up for the mailing list because it’s under your management, it it has become I think the most vital and exciting conversation around access to justice in the US.

So, but this this email that you posted was a really interesting point and it’s it really focused on what do we call people who are coming into the court system? And I thought you made some really interesting points. I mean, Alaska obviously has been on the leading edge of this for a long time and and you and Stacy, I think are largely responsible for some of that forward thinking. But you said when you were first hired by the Alaska court system, the administrator, renamed the clerk’s office to customer service. Which I think is a really and and again as a Silicon Valley guy, that really resonates with me. But tell me a little bit about about how that went over.

Katherine: Yeah, well, right about the time I started, so this is in 2001, Stephanie Cole, who was the administrator at that time, and and a strong advocate for the courts who I think at that time was leading the Cosca side of CCJ Cosca and did really important white papers on how courts might begin to serve self-represented litigants. And so she, you know, and and it’s something so small. I mean, I remember these little signs that that, you know, had been printed out on paper, cut in half and laminated. And she walked around and literally like dumped them on people’s desks and was like, we are now a customer service. Like that’s what we do.

And you know, there was a lot of grumbling. Like what, you know, oh, what’s this stupid little sign on the desk? But you know, because like they’re still doing the same job. But I could see how we when we grounded conversations and serving the public. And so we were and I was just starting the self-help center at that time. And my staff came from the clerk’s office. And being able to talk about the people we spoke to as customers really changed the interaction, right? And and I make the point in the in the post that, you know, you’re as a customer between the relationship between a customer and a customer service agent is more problem solving. You know, you have this common goal of a resolution whether it’s trying to find the right dress or the right form rather than one side trying to extract something from another.

And I think that obviously that improved the the public’s experience with the court, but it also improved, I think the the job satisfaction for the the court employees who before I, you know, there was this culture of like somebody’s trying to drag something out of you, right? We’re like this wall that’s going to hold them back. I get to just sort of be a helpful constructive problem solver. Of course you can’t do that if you don’t have resources, you know, things like forms and instructions. So that’s why content is so critical to to be able to do it. Sure. But yeah, no, I think it helped everybody.

Colin: Well, it’s interesting. So the nature of the grumbling, you think, at the beginning was people just the way they saw their role in advance of the the word “customer” being sort of thrust into the discussion, right? What do you- and you said you thought they were kind of holding back the tide. I mean, I do think again, as someone who I’ve run big customer service teams and you know, there is sort of a a stereotype of on the business side, quote-unquote, the customer is always right. You know, we need to delight the customer. We have to make sure they have a a good experience. But of course, that’s not always the case in the courts. Sometimes people are coming for unhappy things. So it’s hard to get somebody to be delighted by a situation that they’re probably not very happy to be involved in in the first place. But what what do you think the nature of the grumbling was?

Katherine: It was more along the lines of it just seems silly. You know, because their job had trivial right? Yeah. You know, like what’s this window dressing? What’s this going to do, right? We have this little laminated card now. Like what what do we do with that?

And and but but as, you know, training and things like that changed and and of course, you know, people overwhelming majority of people coming to court. Right. Everybody, in fact, probably other than the people getting married, are coming for something sad has happened. But the court staff isn’t responsible for the sadness that’s underlying that, right? And what they can be is part of the solution of helping that person come up with options to move forward and to navigate that system.

Colin: Absolutely.

Katherine: So yeah, no, I think it just, you know-  and also the element of it didn’t sound as official.

Colin: Right? Like I see that. I can see that, right.

Katherine: Sounds very official and it it, you know, this is a general pushback that often people have against plain language and all of that. That we have to sound, you know, very austere and prestigious and this is the court and you know, there has to be, you know, sort of this formality. And customer service didn’t sound formal and fancy enough. And would that undermine their authority? And I think over time, they came to see that in fact, it freed them, to have a different kind of authority.

Colin: Well, and I do think words matter. You know, I don’t want to get all Michelle Foucault on everybody, but you know, the language you use to describe something shapes the way you think about that thing. So when someone is using a certain term and then you come in and suggest a different term –  I’ve had this in when I’ve tried to do some, you know, process change stuff. People, people fight back. They’re like, well, why, you know, why? Does this does this matter? Like why why are you changing the word? It’s that’s not a you’re not changing the process, you’re just changing the language. But over time, as you say, you can see the nudge that comes from that new language and orientation.

And I do agree with you. I think people that are coming into the courts when when they’re called a litigant or something like that, they’ve never been a litigant before. They don’t really know what that means, you know, but the court knows what it means. And you come in and say, well, you’re a litigant and this is the role that litigants play, and I’m a court clerk, and this is the role that I play. But when you say customer, well, everybody has an experience of being a customer. And you know, as you say, that’s often a good thing. And I like that problem-solving orientation. I always say that to my customer service reps. I said, look, it’s not you versus them. It’s not a negotiation. We’re aligned  trying to find a solution, right? Like if if we both of us are on the same side of the rope pulling, it’s not that we’re on either side of the rope pulling against each other. And I think the language can do a lot to to to change that. What was the language before it was customer?

Katherine: I think it was just “litigant.” I mean, I don’t know.

Colin: “Litigant.” Yeah. Well it was a long time ago, 2001. Yeah.

Katherine: Well, and I didn’t work for the court but I literally started when this came in, you know, like the idea that they were going to have a self-help center and perfect timing. These all these things were well wrapped up in in one another. But you know, it didn’t change, right? I mean, just because the clerk’s office became customer service. It didn’t change the fact that everybody had, you know, their own language and they, you know, as you as I think we saw in that that string that was on A2JN list serve, you know, it’s litigant, it’s pro per, it’s pro se. I’d never before I worked for the courts, I’d never heard the term “pro per.” I was like, what is that?

Colin: That’s that seems very lawyer-y to me, you know. That’s something that lawyers know what that means and no one else does.

Katherine: But I knew “pro se.” I just didn’t know “pro per.” And so I think, you know, whatever role the different, court staff played, they used different language. And I tried to make that point in the post that even though we can find a word that we think accomplishes all the things we’ve been discussing, improvements. Sure. We still have to use the language that’s how the person is going to be addressed by folks in the system. So, you know, judges say “parties.” Like that’s usually what…

Colin: Yeah, and I say “parties.” I, you know, I don’t want to say that dispute resolution is doing any better than the courts because I definitely say cases and parties. Oh, we have a case, we have a dispute. Who are the parties to the dispute? But I I think I like “customer” a lot better. The other question I want to ask is, you know, and I think John posted a follow-up to your message saying, you know, this is tied to the whole UPL issue, right? Because if somebody is a party or somebody’s a litigant and I’m a clerk, I have, you know, they have to figure out the process themselves. I’m administering my part of the process, but if they’re a customer, then sometimes you, you know, you want to give them a little help, you want to give them a little guidance, right? If we’re in problem solving mode, and and so that sort of gets to the whole issue about, well, what’s what’s appropriate for a clerk to say to a litigant as opposed to a customer. So I think there’s an interesting relationship between those two concepts.

Katherine: Yeah, and and I think when we talk about UPL in the courts, it’s very different than when we talk about UPL outside the courts because the well that is the the the the grounding of, you know, John’s seminal article in I think 95 or 96 of distinguishing legal information from legal advice. Right. is that in in practice in the courts, the the ethical control is whether you’re neutral and impartial. And is this something that you can distribute equally to all people?

So if you, you know, I’m an advocate of people taking an educational model to thinking, you know, you if you could go down to your local community college and teach a class that says this is how it all works, why can’t we do that in the building? Sure. That isn’t UPL telling somebody this is how it all works. But it has to be distributed equally because a key piece, I think of the UPL analysis is are you giving advantage to, you know, one, are you being an advocate to one side –

Colin: Absolutely.

Katherine: If you’re being a customer service agent that’s that’s giving everybody the same help, I think you get in practice, both in practice and in policy, UPL doesn’t, really come into play. And and so this is a funny thing about about UPL and people who, you know, like like me who had the really the good fortune to to work in the sort of early golden years of courts developing self-help. It wasn’t until I started working on the national level that UPL even crossed my radar because as long as I was neutral and impartial in court, I was fine.

Colin: Yeah. Yeah. Well, I think that some again, John talked about, you know, the sign on the wall that says we cannot provide any legal information. And I just I’ve worked with a lot of courts when you walk in, right there, it’s the biggest sign that you see. And he’s like, I really am trying to get rid of that sign.

You know, one of the things we talk about in dispute resolution, because there’s a lot of talk about neutrality. Is anybody really, truly neutral? And is neutral something that you want? Like if you have a customer service rep who’s helping you solve a problem, is neutrality a helpful thing or does it kind of of off-putting, you know, for someone to say, well, you know. I one of the things Ken Cloke, who’s a big thinker in in mediation, he’s talked about omnipartiality. So instead of, you know, impartiality, we’re omnipartial. We want everybody to get a good outcome. So, you know, we’re going to try and I think that’s a good orientation for a customer service rep, right? Like, look, I want to help you and I want to help you. I’m not going to give an advantage to anybody, but I want to provide as much help as I can to the two of you within the bounds of not providing an advantage to one party or the other party. So I that’s kind of an interesting orientation too. Like a customer service rep can be omnipartial or a customer orientation can make you, I want to help everybody as much as I can while, as you say, staying away from putting my thumb on the scale.

Katherine: Yeah, and and I think keeping in mind too that neutrality… passivity is not neutrality. Right? And that is often how neutrality is interpreted in our sector. Passivity always favors the bully, always favors the stronger party. It is the farthest thing from being neutral.

Colin: Well, there’s a great quote from Desmond Tutu. It says, you know, if the elephant is standing on the mouse’s tail and you say you’re neutral, the mouse does not appreciate your neutrality. So, yeah.

Katherine: Yeah. So, so that’s where I think the the the thing about somebody coming at it a customer service perspective is you kind of chat your customer up, right? You figure out what they want. Do they want a dress or do they want pants, right? And and you know, what’s the weather like? And you know, you find out some information so that if the goal is to walk out of the store with some clothes, what are the right clothes? If the goal is to walk out with the right form, you you’re going to have to understand a little bit about their scenario. And that engagement is not a partial activity. It’s fact finding, right? To figure out how to be constructive and have engaged neutrality.

Asking questions is I think something that people, you know… Richard Zorza wrote quite a bit about this whole idea on engaged neutrality and and what looks like and how it creates transparency. And then we understand what’s happening. And part of what happens when we have you know, neutrality that is in fact not neutrality is that it’s just opaque, right?

Colin: I like that. I like that engaged neutrality. I haven’t heard that before. I’m going to go look that up. That’s that’s a that’s a great frame.

The the last question I want to talk to you about because you touch on this at the end of your post. You talked about the term SRL. Self-represented litigants as opposed to unrepresented litigants. And I’vebeen hearing, you know, dialogue back and forth about that, but not for using that with the parties, not for using that with the customers, using that internally, so that we have clarity around who it is that we’re working with. Because you say that the term unrepresented seems like a very non-neutral way to talk about people and inadvertently validates in the minds of professionals the biases that exist against SRLs. So can you can you talk a little bit about that because you you you probably thought about that more than anybody.

Katherine: I would, you know, just also refer to John’s post who really, you know, was there on the ground as they fought for using the term self-represented. As he wrote, it emphasizes the litigant’s capability rather their incapability. You can represent yourself, you can do that. It conveys agency.

I think the more we do to get the justice system professionals to look at the public like that, right? The the better, right? That’s, you know, the the unending bias against people that don’t have lawyers: that somehow if you have a lawyer, you’re a better person than if you don’t have a lawyer.

Colin: Mm.

Katherine: You know, there there’s certainly that alone, much less the whole issue that there’s no way you can navigate this system without a lawyer, or there’s no reason to expect that you can. I mean there’s just so many… and I think Victor Quintanilla’s research on the bias that’s operating here in doing represented status, is really significant. And something that as professionals, thinking, you know, we often think about well, how are we going to just manage these people as opposed to let’s talk about how the language affects us. I mean it goes to our conversation. How did customer service affect the court staff? How does using the term unrepresented party? You know, right away that just sounds like somebody you’re supposed to disregard. Right.

Colin: Well, you’re defining them by what they’re not, right?

Katherine:  You’re just running amuck. I mean we can’t have people running amuck. It’s it’s like an unsupervised child, right? Not something… but it has that tone, right? It is definitely got, you know, it’s looking down on people, it’s saying that they’re just not qualified to be doing this on their own.

Colin: Yeah, yeah.

Katherine: And not only are they absolutely qualified. you know, I mean people, these are people problems, right? That have legal solutions. But people can manage their lives. They’re trying. And I think the paternalistic view of them as as just unsupervised children is very harmful to the people doing the work because then it reinforces again that these these people are extracting something from me. If they were only represented, I wouldn’t have to do XYZ. Right?

Colin: Well, I wouldn’t have to explain this or that or this term because presumably they’d have someone there that speaks the same language as me. But again, it loops me back to customer because – customer, you know, nobody comes in and, you know, at the front door of Target and says, well, where’s your representative here? You know, how are you going to be able to navigate the shelves? It’s like, no, no. Everybody could everyone is a self-represented customer, you know? So using that term, it you’re not defining someone with a lack right out of the box. You know? So I think it really is interesting.

And I want to learn more about some of the research around the stigma too because that’s not something I’ve heard about. But but I so appreciate you sharing the time today to think through this. I think this is a great ongoing conversation. I think one of the reasons why it resonated so much with your post is because I agree so strongly. And I think it’s just because I’ve spent a lot of time in the private sector and customer is the word here. So it it’s it’s a little bit weird when I come into the courts and there’s all these other terms for people coming in. And I and I love, I love that lens. I don’t know if it provides total clarity, but it definitely it’s a different way of looking at people who are trying to just find solutions to problems. It’s like, well, and yeah.

Katherine: And and I would add too, I mean, if one, so when I train on this, I often draw from the customer service literature of like training people to do customer service, right? part of framework of customer service is considering their before, during and after experience. And if we apply that to what we’re doing in the courts in terms of the resources we provide and how we do it, so what is their before experience? You know, that’s what’s on your website or your, you know, the other people in the community who are talking about what you’re going to need for XY and Z. So the more education we frontload and get you ready for your customer service experience, then you have the during the actual event. And afterwards, whether you have to, you know, there’s an enforcement action or there’s some follow-up things that you need to do that we’re… we’re thinking of the entire arc of the experience, not just that moment when they’re in the “clerk’s office” saying what form do I need.

Colin:Absolutely

Katherine: If the court thinks about and all of our institutions, legal aid as well, like the incomplete arc of the public’s experience as they resolve their legal issue, it will transform how you put together your resources, how you engage in them. Think about, you know, I mean as an as a as an ODR person, right? There’s so much pre- education to do before somebody really is ready to mediate, right? There’s this huge chunk of “before” that goes on there. But but even before that, if the before education, that’s readily available, says one of the options for resolving this conflict is some kind of alternative dispute resolution, whether that’s online or, you know, with people helping you. Then there’s things you can do with judges, and then there’s things that you might do with other actors that that are useful for you depending on your problem. So we we start putting into the minds of people the options of resolution.

That’s the before, right? And then once they’re in locus, like doing THE thing, then they, you know, just as a pedagogical issue, like we get to repeat that again. So, you’ve got options of like how we resolve this and now you’re not telling them that for the first time. Now they’re like, oh yeah, I remember reading about that, right? And so then they, you know, just the stress and the cognitive load of everything going on, like now they’re able to actually use the information you’re giving them because it’s not the first time they’ve heard it. And I think that’s why that before piece is so important.

But the as you know, the literature on customer service, I mean it’s a discipline, it’s a profession.

Colin: Oh, sure. Yeah. There are people who spend 40, 50 years working in customer service. Yeah, and it’s evolving all the time too, as expectations on customers are changing too.

Katherine: And I think, there’s a there’s an article from the Harvard Business review I often use to to train on that shows like how the level of engagement and styles of customer service agents of, you know, of being very passive or proactive or, you know, what you know people need to do. Especially like, you know, customer service like online help, you know, like we’re calling somebody, a help line or something like that. The whole notion of escalating problems, right? And like having a very intentional way you do that. And so I think it it it’s it’s very helpful in so many different ways, of improving and and giving a framework that is useful and operative. There there are people that have done this, right? We can we can learn from others.

Colin: Absolutely.

Katherine: But the one caveat I’ll put in and and not this was in my post and I’ve heard this from folks, if we call people customers and the system doesn’t treat them as customers, then that just offends the heck out of them. It backfires.

Colin: And actually, you know, I wrote a book for the ABA called online dispute resolution and the future of customer service, customer support. And it was really focused on – exactly as you say – you don’t want to give somebody a lot of bells and whistles. You want to make a promise and you want to meet the promise.

And when the customer service teams that I ran at eBay and PayPal, we tracked obsessively something we called NPS, Net promoter score, which tracked and it was one question, how likely, you know, would you be to recommend what you just went through to a friend or family member if they had a similar type of situation? And it was one to 10. And we did that every single engagement. We gathered all that data and we and we talked about the whole customer journey. Because the other thing is, it’s not like there’s one engagement, they come in with one problem and they get a solution and that’s the end. Bcause they be may be back again, right? So you have to think about how all of these customer journeys connect. But I I love this orientation. I think the reason why I wanted to reach out and talk to you more about this Katherine is because I agree so strongly with it and I think there is a lot that we can learn from thinking about it this way.

And I’m not saying that customer service has all the answers. Trust me, there’s a lot of people, you know, they they call up that 1-800 number for Comcast and immediately, you know, you just feel the anxiety settle in to your spine because it’s a painful process. So it’s not the customer service has all the answers. But that orientation of joint problem solving with your customer, I think is a is a really, really interesting one, especially as we move into this new, you know, AI world. Where, people.. they are bringing the expectations of customer service interactions to their interactions with the courts. So, you know, we need to understand all of the all the value we can squeeze out of the customer service orange and then bring to the work that we do. And I thought your post just did a great, great job laying that out. So, I so appreciate you chatting with me today. This was this was fantastic.

Katherine: Thank you. It’s been an absolute privilege and I really admire the work that you do. So thank you for having me.