Online Dispute Resolution Spreading in Courts

“Those involved with the development and use of online dispute resolution platforms see opportunities for the systems that extend well past divorces and small claims court.”

Zack Quaintance, GovTech.com, March 20, 2019 — an excerpt:

“Across the country, a system called online dispute resolution (ODR) is taking hold within municipal and county court systems.

ODR is helping individuals resolve legal troubles without having to set foot in the courtroom. So far, it’s being used in small claims court — settling arguments between neighbors over fences, or helping with debt collection issues, among other things — as well in some divorce cases.

The concept behind it is simple: A back and forth online negotiation replaces the need to appear in court, easing the load for overburdened court systems while helping residents get equitable access to justice. This removes the need to take time off work, hire a lawyer or physically spend time in a government building.”

Also:

“Slagle, Gillespie and the panelists at SXSW all agreed that the future for ODR in America’s court system is a bright one, envisioning a time when it will be standard throughout the country.”

Read more here.

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.