Access to Justice and ODR by Daniel Rainey

From the Bold Measures in ODR Blog

Access to justice has traditionally been defined as access to the courts. The World Justice Project just published the 2019 review of 126 countries, ranking them on an access to justice scale determined by an array of factors related to the independence and fairness of their court systems. The US, by the way, ranked as #20 in 2019 (down from #19 in 2018) – just behind the Czech Republic and just ahead of Spain. Venezuela, it will not surprise you, ranks last as #126.

This definition of A2J as A2the courts has some ramifications for the development of ODR. The basic approach being taken by justice-related ODR developers is to improve the performance of various aspects of the legal system. This is a noble (no sarcasm intended) and largely successful approach.

The promises of ODR for the legal system have focused on easing entry, saving time, saving money, and reducing caseloads. Early in the development of legal ODR, document assembly programs, case management programs, time management programs, and other very useful apps turned inward to the management of courts and law firms. The new wave of ODR is focusing outward, toward the parties who approach the courts for justice, often working in conjunction with ADR programs already in use by the courts.. These new ODR platforms are delivering very well on the basic promises.

Entry has certainly been eased. Using mobile technology and greatly simplifying some of the complex systems that have traditionally been barriers to entering the justice system, ODR has allowed for filing cases and participating in dispute resolution from anywhere, at any time. In the UK, where an ODR project has been underway for a couple of years, and in several states in the U.S., only a very small percentage of potential cases have been kicked out of ODR systems for lack of technology access.

Time has certainly been saved. For example, a family court using ODR in the U.S. has reduced the time it takes to complete a case from 8 weeks (in traditional court) to 6 days.

The vast majority of parties who use ODR platforms find that it is fair, and a vast majority of those parties would recommend the ODR approach to others.

As artificial intelligence is used more and more in the development of ODR systems, what commercial online service desks refer to as “containment” – the ability to keep the party interacting with the AI rather than being sent to a human helper – will improve. At the moment, it seems common for commercial online service desks to shoot for 80% containment – achieving that level of service for legal ODR would have a huge impact on caseloads, court costs, etc. That day is coming. Soon.

So what’s wrong with our conception of A2J as A2thecourts? Nothing, really. But there is what one could call a blind spot in our push to integrate ODR into the courts. Great technology, highly accessible, with great containment rates, will without doubt make “justice” in the form of access to the courts available to those who are currently disposed to approach the courts in the first place. A problem, not with ODR but with the courts, is that a majority of justiciable issues that crop up in society never get as far as consultation with a lawyer, or as far as filing as a self-represented litigant. Because of cost, or lack of knowledge about rights, or, as I have often said, for poor people courts are generally where things happen to you, not for you, estimates of unpursued potential issues from the ABA are as high as 70%.

If we really want to increase access to justice, we need to target not just easy access to the courts for traditional parties, but apps and education for those who have traditionally been voluntarily disenfranchised by their own fear or reluctance to approach a court, online or offline.

APEC’s New Online Dispute Resolution Framework

“APEC Embraces ODR”

Great article on LinkedIn from Mike Dennis, who many of you know from his work leading the US delegation to the UNCITRAL ODR Working Group.  From the piece:

“Last week, I served as an ODR adviser to the APEC Economic Committee at the APEC Senior Officials Meeting (SOM 1) in Santiago, Chile.[iii]The Committee endorsed a pilot for a Collaborative Framework for Online Dispute Resolution of Business-to-Business (B2B) disputes involving micro-, small-, and medium-sized enterprises (MSMEs).

APEC will partner with platform hosts and ODR providers, including regional arbitration and mediation centres, that comply with APEC’s ODR Collaborative Framework and Procedural Rules.

In turn, the Economic Committee will promote partnering ODR providers on its web page and encourage MSMEs to resolve low-value dispute using accredited ODR providers. This is excellent news for small businesses across the APEC region, most of which lack a viable solution for their disputes at present.”

Also:

“The time is now to create an APEC ODR legal framework that benefits businesses and individuals across the region.

ODR e-justice is an essential component of economic growth. Use of ODR promises MSMEs access to commercial justice, with tailored procedures that bring down costs, delays and burdens in proportion to the economic value at stake. It makes transactions more efficient, reduces risk and boosts small business competitivity by lowering costs for both buyers and sellers.

The APEC ODR Framework will therefore reduce barriers to entry into international trade, help create markets where none exist, establish trust between business partners, and promote a culture of contract-based relationships. It will benefit the millions of small businesses who have no access to effective dispute remedies. It will help the most vulnerable MSMEs, such as women-led businesses, compete and flourish in the global supply chain.

ODR is the cornerstone for the next global justice system in APEC. Because small businesses employ the majority of workers in the private sector, APEC ODR will help build the capacity for economic growth in APEC economies based on trade not aid. ”

Read more here.

Measuring quality? by Ian Macduff

From the Bold Measures in ODR Blog

“And what is good, Phaedrus, and what is not good — Need we ask anyone to tell us these things?”
― Robert M. Pirsig, Zen and the Art of Motorcycle Maintenance: An Inquiry Into Values

“ISO 9001:2015 sets out the criteria for a quality management system and is the only standard in the family that can be certified to (although this is not a requirement). It can be used by any organization, large or small, regardless of its field of activity.”
“The standards provide guidance and tools for companies and organizations who want to ensure that their products and services consistently meet customer’s requirements, and that quality is consistently improved.”
– https://www.iso.org/iso-9001-quality-management.html

This blog is part of a series leading up to the 2019 ODR Forum in Williamsburg, Virginia. There are two motivating themes or challenges that shape this entry. The first is that the overall objective of the 2019 Forum is to begin to measure success and progress (or not) in the last two decades of development in ODR and, as the Forum website states, to look at best practices for gathering the necessary data for that measurement. The second theme arose more by way of provocation at the recent (February 2019) annual commercial mediation competition in Paris, in which my colleague Greg Bond reminded me and the audience of mediators and law students that “quality” remains a metric, albeit elusive, that we’re obliged to consider.

On the first point, I’ll leave it to those who will be attending the Williamsburg Forum to determine the measures of success in ODR. The second point – Greg’s challenge – arose in the context of a panel discussion on the future[s] of mediation and, in particular, the ways in which digital technologies are already changing how we interact, solve problems, manage information, enhance access to legal and other resources and so on. I sought briefly to summarise some of the observations made and conclusions reached at the 2018 ODR Forum, and in particular to comment on the attention given to issues of ethics, equity, transparency, and accountability in the development of resources for online access to justice. Greg’s response was that, while he took issue with none of this – indeed, welcomed the prospect of enhanced access to dispute resolution resources – he was concerned at least to flag the importance of questions of “quality” in considering the services offered and institutions developed.

The immediate difficulty of course, as Pirsig found in his quest for “quality” was that it is a persistently elusive notion, neither wholly subjective nor wholly objective; neither wholly inherent in what we observe or entirely residing in the perceptions of the observer. As the ISO standards quoted above also suggest, “quality” is something that standards are designed to ensure . . . but quality itself is not necessarily reducible to a standard.

This question becomes important, too in the wider context of enhancing access to justice – whether through alternatives to courts or the development of digital pathways – given the mix of “drivers” and criteria for success in mediation or access to justice programmes. For fiscally-challenged justice systems, success – and quality – may well have more instrumental and efficiency criteria. For those who begin in a critique of or challenge to the “legalism” of conventional legal processes, success is likely to be measured in the enhanced autonomy and choices of disputants. For those who have been concerned that conventional processes typically exclude minority or indigenous peoples, the measure of quality will more likely turn on the degree to which indigenous processes are recognised and implemented. And so on.

The difficulty created by the last four decades of mediation, and all the more so by the contemporary digital, information-based development, is that the innovations are, almost by definition, scattered, distributed and networked, with a variable level of connection to the mother ship of law and state institutions. As Prof Luciano Floridi has discussed in a number of publications, a “distributed ethics” in the era of information brings a particular set of challenges to institutions, to their alternatives, and to conventional criteria of “quality”. Indeed, it’s almost written into the DNA of many of these alternative developments that the criteria of their legitimacy and success are not necessarily those of the mainstream institutions.

And yet it’s also clear that quality matters, for which reasons we see a plethora of standards of professional conduct; certifying bodies such as the International Mediation Institute, for example, have established clear criteria which need to be met by mediators and qualifying bodies; and may well become a question for courts to answer as to whether practitioners have met or failed to meet professional standards.

I doubt that Greg Bond’s challenge was an invitation to a conversation about Robert Pirsig’s “metaphysics of quality” or the question as to whether quality precedes any intellectual construction of it. But the fact that the question was raised is a reminder of the array of “qualities” that we might look for in the development of any practice or institution or innovation. As the question suggests, the quality – the attributes – to be measured are not just those of the instrumental efficacy of the innovation but rather those of the ends and the values that the innovation might be designed to meet. And those ends, those qualities, will be as diverse as individual autonomy, cultural appropriateness (but not appropriation), fiscal restraint, respect for public values (and not merely private ends), legal and constitutional coherence, gender and other forms of equity . . .

One way of thinking about this might be found in the theme running through Cal Newport’s book, Digital Minimalism: On living Better with Less Technology(2019): rather than thinking in terms of a rejection or denial of technology, the minimalists begin with the values that matter, then work out their relationship to technology and its uses on that basis. The risk of not doing so is that technology – and the designers behind it – come to provide the reasons for its expanded uses.

Why ODR Now by Daniel Rainey

From the Bold Measures in ODR Blog

The NCSC has established a blog to lead up to the International ODR Forum in Williamsburg in October. They have invited everyone to contribute to the blog with short notes and commentary about ODR, and during the run up to the ODR Forum there will be many blog entries, and many topics explored on a variety of subjects related to online dispute resolution. One thing about which I think most of us who deal with ODR would agree is that the idea of, and the reality of, ODR has been expanding rapidly in the last couple of years. Why now?

For the past two decades ODR has been acknowledged as an approach to disputes, but it seems that ODR has in the past year or two been on the tongues of dispute resolvers in just about every mode and venue. It is the classic example of an “overnight success” that is anything but overnight.

ODR’s first blooming began in the 1990’s in e-commerce, addressing the bounded universe of disputes there with algorithms and online work by “real” mediators. What we are seeing now is the blooming of ODR in the courts, for what I suggest are much the same reasons that we saw ODR being developed in e-commerce. The courts offer huge numbers of cases, many of which are bounded by forms, rules, and processes that lend themselves to assistance by algorithm driven ODR platforms. The payoffs in saved time and saved money are also analogous to the payoffs in e-commerce. The promise of those payoffs in the court systems around the world are, I think, driving the emergence of ODR beyond e-commerce. There are two areas in which I still don’t see a lot of progress in ODR.

First, we are not seeing yet the development of a true justice layer for the Internet. In the “real” world we interact in a social layer and a commercial layer, with a justice layer available to resolve disputes created by our social and commercial interactions. That justice layer is driven by venue, standing, and rules that recognize borders. On the internet we have an active social layer (perhaps too active) and a commercial layer, but no real justice layer that operates in the cyber-world we have created with our online social and commercial interactions. The closest we’ve come to a justice layer of the Internet are the private justice systems created by e-commerce platforms, joined and ruled by the the fine print behind the “I Agree” button that we click almost automatically. The court ODR that is being developed is, at least at this point, not revolutionary. Court ODR has, so far, taken the traditional functions and structures of court systems and converted them or adjusted them to the use of online tools. And, significantly, the court ODR platforms are designed to operate within the same venues, and with the same borders, that control non-ODR court processes. The EU has taken small steps to stretch ODR across borders (although the idea of borders in the EU are not, themselves, traditional). But the major attempt to create an agreement about how to handle cross border disputes not managed as a private justice system, the UNCITRAL ODR Working Group, basically failed.

Second, we are not yet seeing ODR platforms in widespread use for sole practitioner dispute resolvers or for small firms and non-profits without the financial resources or the case loads to support large scale ODR platforms. Even though most dispute resolvers are using technology to some degree, it is probably the case that most do not think of their use of mobile phones, document sharing platforms, and, heaven forbid, e-mail, as ODR. The gap in the market seems to be for ODR platforms with secure document handling and storage, designed for dispute resolution, with the ability to communicate, brainstorm, and create agreements that are user friendly and cheap enough to be used by those who are not operating in large e-commerce or court systems.

19th Annual ODR Forum, Williamsburg, VA, USA Oct. 28-30, 2019

The Nineteenth International Online Dispute Resolution Forum will be held in Williamsburg, Virginia, USA on October 28–30, 2019. It is being hosted by the National Center for State Courts in collaboration with the National Center for Technology and Dispute Resolution at the University of Massachusetts Amherst. The call for proposals and information about the conference, the main annual meeting of the ODR field, is available on www.odr2019.org.

New Book on Online Arbitration

New book by Dr. Ihab Amro entitled ‘Online Arbitration in Theory and in Practice: A Comparative Study of Cross-Border Commercial Transactions in Common Law and Civil Law Countries’ now available. This book is based on post doctoral research conducted under the supervision of Prof. Dr. Tibor Varady, S.J.D. Harvard Law School.

From the publisher’s website:

“This book presents an overview of online arbitration and electronic contracting worldwide, examining their national and international contexts, and assessing their ongoing relevance. It offers solutions to the salient challenges facing both online arbitration and electronic contracting, dealing first–hand with online arbitration as an online dispute resolution technique for solving both traditional and electronic commerce disputes that may arise out of the breach of contractual obligations in international commercial contracts, while also comparing between common law and civil law countries.

In the theory of law, this book analyses the international legal framework that regulates e–commerce, and its impact on electronic contracting, including Model Laws and International Conventions such as the Model Law on Electronic Commerce of 1996 and the Electronic Communications Convention of 2005. It also investigates whether the UN Convention on Contracts for the International Sale of Goods of 1980 ‘The CISG’ applies to e–commerce contracts. In addition, it extensively examines the possibility for the enforcement of online arbitration agreements and online arbitral awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.

Regarding the practice of law, the volume examines how national courts apply both national laws and the New York Convention of 1958 when dealing with the enforcement of online arbitration agreements, and whether courts apply the provisions of national laws of arbitration liberally. As such, it encourages the adoption of a more liberal judicial regime in favour of the enforcement of online arbitral awards and online arbitration agreements in national courts.

This book represents a valuable resource for academics, arbitrators, practicing lawyers, corporate counsels, law students, researchers, and professionals who are willing to solve their cross–border commercial disputes through online arbitration.”

Learn more: Online Arbitration in Theory and in Practice

INTERNATIONAL SEMINAR “ALGORITHMISATION OF DISPUTE RESOLUTION” January 29, 2019

Vilnius University is taking part in the Pan-European scientific research and development project Conflict Resolution with Equitative Algorithms | CREA. The project is partly financed by the European Commission. More information is available on internet

Vilnius University and Vrije Universiteit Brussel are happy to invite you to an international seminar where interim findings and results of the CREA project will be presented and other cutting-edge topics of state of play and challenges of algorithmisation of dispute resolution will be debated.

Participation in the seminar is free of charge. Participants are expected to register in advance online, cover their costs of travel and accommodation. We kindly ask you to register online for the event until 21 January 2019 COB at filling the registration form. Due to limited capacity of conference room, participants will be admitted on first come (first registered) basis. Successful registration online shall be regarded as confirmation of admission. Online registration will be stopped when capacity limit will be reached.

Program is here

International Seminar
Algorithmisation of Dispute Resolution
Date: 29th January 2019 (Tuesday)
Time: 9:00 – 17:30 EET
Venue: Vilnius University’s Scholarly Communication and Information Centre (SCIC),
Saulėtekio al. 5, Vilnius, Lithuania
Language: English

Program is here.

New Fact Sheet on Court ODR from Pew

The Pew Trusts just released a new fact sheet on ODR in the courts.  An excerpt:

“Existing digital technologies could provide part of the solution and increase people’s remote access to the courts. In particular, online dispute resolution (ODR) is an electronic tool already in use in the private sector that helps resolve disagreements between consumers and online retailers. Major online retailers and auction sites use ODR to settle more than 60 million disputes a year, with 90 percent of financial cases resolved without the engagement of a judge or mediator. Early research suggests that when applied in a court context, these innovations could make legal processes more efficient and provide hundreds of thousands of Americans with an alternative way to resolve legal issues—especially high-volume cases that clog the courts. However, more study is needed to address concerns raised by some stakeholders about whether and how well the private-sector success of ODR will translate into policy and ultimately the practice of law.”

Read more here.  A PDF version is also available.

 

Final Report of the UK CJC ADR Committee

from Graham Ross:

Following my work, together with  my colleague Fellow, Professor Pablo Cortes, as a member of the ODR Advisory Group to the Civil Justice Council (the public body, sponsored by the UK Ministry of Justice, responsible for overseeing and co-ordinating the modernisation of the civil justice system in England and Wales)  whose recommendations led to the creation of the Online Civil Money court project in England and Wales, I was later invited by the CJC to join a 6 person Working Party on ADR. The focus was on what steps could be taken to increase the use of ADR within the UK’s justice system.

Our Final Report (available here) was issued on the 4th December 2018. Apart from in general, I contributed some specific recommendations on both ODR and the EU’s consumer ADR/ODR law with relevant extracts as follows:

“3.16 Apart  from  the  online  dispute  resolution  systems  which  are  being  established within the Court system as part of Court modernisation and  the online solutions court there are a number of online dispute resolution  systems available privately.  Some of these effectively serve as adjuncts  or frameworks for established ADR techniques like mediation.  But some  modern systems embody more artificial intelligence (“AI”) and their  programmes may contribute creative solutions to the resolution of the  problem or use systems such as blind bidding.  An example is the iCan  Smartsettle system. This is a comparatively new but rapidly developing  area.  We discuss elsewhere the need for standards to be set before  stakeholders begin to trust online dispute resolution provided by private  providers as an acceptable form of ADR to be encouraged in the context  of  court  proceedings.    It  seems  inescapable  that  given  the  wide   acceptance of online processes and services in our social and business  lives dispute resolution is bound to develop in this direction.

“4.16.Online dispute resolution may well enjoy greater popularity,even if  provided privately,once people get used to the ODR techniques being  used in the online court.   There is at present, it is thought, a great deal  of unfamiliarity and it is an area which needs standards to be set and in  particular reassurance to be given to potential litigants about the security  and confidentiality of their communications.   “

“5.6…….As we said in out Interim Report, “We can see that if  ODR  techniques become woven into the design of the Court system then the  debate whether or not to compel ADR may simply become obsolete” (IR  2.7)     In general the existence of the Online Court project presents the  opportunity for expansion of its use of ODR techniques especially those  that go beyond simply enabling communications to take place online and  embrace those systems that exploit Artificial Intelligence to empower  litigants to reach settlement more easily. This should enable it to handle  large increases in case load.”

5.12  More important are the Consumer ADR Regulations  and the Online ADR Regulations, the which will be preserved as part of  UK law.  Anything involving EU Institutions is more difficult.  Agreement  is likely to need to be reached with the EU to permit the EU’s ODR Portal  to continue to operate by referring to UK consumers to UK approved ADR  providers as at present.  Failing this an independent UK Portal will need  to be created.

7.10(4)  Private initiatives in relation to ODR should be applauded and  promoted and, we hope, accepted by the Courts once appropriate  standards are in place;

7.21 We referred in our interim report to the need for some standards to be  set for the seemingly huge variety of techniques available within ODR if  it is to gain wider recognition as a privately available ADR service rather  than just an aspect of the digital court. We think the respects in which  standards  may  be  required  are  most  obviously  confidentiality  and  security.  Where there is an evaluative or advisory component in the  online inter‐action then clearly issues of accuracy and quality could arise.    We wonder whether it will be advisable to offer the public a link to a  private ODR provider (on the Alternatives website) until standards are  established and the provider commits to follow them. It is recognised  that  the  newly  formed  International  Council  for  Online  Dispute  Resolution (www.icodr.org) is developing global standards for ODR and  already has a set of principles on its website.  As the ICODR comprises the  body of universally acknowledged leading experts in the field, it would be  unwelcome for those less knowledgeable and less experienced to seek to  develop standards of their own.

8.3 The Dispute Resolution techniques most likely to be deployed at the  outset of the dispute are consumer conciliations and ombudsman services  provided under the schemes that were reviewed in our interim report.   We remain of the view that careful consideration needs to be given to the  scope of the consumer ADR Directive and to the position that, outside  statutory schemes, suppliers of services in England and Wales are at  present able to do no more than to cite the theoretical possibility of  conciliation conducted by a particular body and are under no obligation  in any given case actually to use those ADR systems even where the  consumer wishes to do so.

8.4. In  fact  as  matters  stand  there  is  evidence  that  even  the  existing  requirements of the Consumer ADR and ODR Regulations are being  ignored and flouted to an extraordinary extent.  Steps clearly need to be  taken by way of enforcement to ensure that at least that step is being  taken.

9.18. Online dispute resolution in all its many forms must establish a set of  standards in order to gain further acceptance.

9.19. There  should  be  a  review  of  the  operation  of  the  Consumer  ADR  Regulations to ensure that the existing rules are complied with and careful  thought should be given to their further reinforcement, so as to increase  the use of consumer conciliation in this area.

Read the full report here: https://www.judiciary.uk/wp-content/uploads/2018/12/CJC-ADRWG-Report-FINAL-Dec-2018.pdf

ODR Melbourne meeting

The ODR Melbourne meeting has just kicked off.  Review the program for the meeting here.  About the meeting:

The Sir Zelman Cowen Centre at Victoria University is convening the Online Dispute Resolution (ODR): The State of the Art Symposium on 21-22 November 2018 in Melbourne.

The symposium will:

  • provide an intensive and experiential learning opportunity for strategic decision makers in Australia interested in ODR as a mechanism for improving efficiency and access to justice through technology
  • showcase, and critically review, the variety of ODR approaches and technologies being adopted nationally and internationally
  • create a network of practitioners and policy makers with a specialist interest in developing ODR in Australia.

Australian policy makers, judicial officers, court and tribunal administrators and complaint handling agencies are invited to engage with leading international experts to learn about ODR solutions being adopted nationally and across the globe.”

The conference is also hosting an ODR playground where the latest technology and platform will be available for demo and experimentation.  Speakers and bios are available here.