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.

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