Richard Susskind wrote a powerful column for the Financial Times on the move to online courts. An excerpt:

“…the main reason for the digital transformation of court service is unrelated to Covid-19. Rather, court systems around the world are largely broken. According to the OECD, more than 4bn people live beyond the protection of lawyers, the law and courts. In some countries, the backlog is staggering: some 80m cases in Brazil and 30m in India. Even in advanced legal systems, the process is generally only understandable to lawyers, is too expensive for most and civil cases take far too long. There is an acute problem of access to justice. Hardly anyone, anywhere, can afford to take legal action through public courts. It is increasingly unaffordable for large businesses too. Many practices and procedures are arcane in today’s digital societies.

I have little doubt that technology can provide a sustainable set of solutions. But we have to deploy the right systems. Many technology advocates believe greater efficiency can be achieved by automating and streamlining conventional court work. Although well-intentioned, this approach is misguided. It will deliver mess-for-less, rather than a transformed public dispute system fit for the 21st century. Grafting technology on to processes that can date as far back as 900 years is not the answer.

The challenge instead is to develop systems that deliver court services in ways that were previously impossible or even unimaginable. The point is not to computerise current practices. The great power of technology lies in transformation, not in automation.”

Read the full piece here (subscription required):
https://www.ft.com/content/fb955fb0-8f79-11ea-bc44-dbf6756c871a

NCTDR Fellow Michael (Xuhui) Fang has shared a short update paper on the status of ODR in China. Many of us saw the law.com article describing the ways China is pushing ODR as it recovers from the pandemic, but Michael’s piece offers more inside background (as well as photos) on the advances taking place. From his paper:

‘In sum, the Supreme People’s Court is not unrealistic to issue the “Notice Regarding Online Litigation Amid the Coronavirus Battle”. The Supreme People’s Court understands that “Rome was not built in a day.” The reality is that the Chinese courts had used information and communication technology (ICT) as the fourth party to resolve the disputes long before coronavirus outbreak began in China. The spread of coronavirus has forced the Chinese courts to take full advantage of ICT across the country. Not only the three internet courts in Hangzhou，Beijing and Guangzhou but also other Chinese courts have moved trials online. As illustrated above， two people’s courts at the county level and one higher people’s courts at the provincial level applied remote trials to prevent “justice delayed” amid the epidemic. As we know, the face to face process has the risk of spreading coronavirus, violating the quarantine and isolation rule. Therefore, ODR becomes “Only Dispute Resolution” to avoid “justice delayed” in the Chinese court amid COVID-19 Battle. There is no choice.’

Read more: http://odr.info/files/china.pdf

Check it out at https://remotecourts.org/

From the homepage, from Richard Susskind:
“As the coronavirus pandemic spreads and courts around the world are closing, this website is designed to help the global community of justice workers – judges, lawyers, court officials, litigants, court technologists – to share their experiences of ‘remote’ alternatives to traditional court hearings.
To ensure ongoing access to justice, governments and judiciaries are rapidly introducing various forms of ‘remote court’ – audio hearings (largely by telephone), video hearings (for example, by Skype and Zoom), and paper hearings (decisions delivered on the basis of paper submissions). At remarkable speed, new methods and techniques are being developed. However, there is a danger that the wheel is being reinvented and that there is unnecessary duplication of effort across the world. In response, this site offers a systematic way of remote-court innovators and people who work in the justice system to exchange news of operational systems, as well as of plans, ideas, policies, protocols, techniques, and safeguards. By using this site, justice workers can learn from one another’s successes and disappointments. Please do contribute. The idea is that this site is a repository to which users regularly send their news.”

Learn more at https://remotecourts.org/

Vincent Chow on Law.com March 19th:

‘China was promoting online dispute resolution even before the coronavirus outbreak. Now, the government wants to see more of it, as business in the country resumes. But questions remain as to whether it will catch on for international disputes.

“As China slowly sends people back to work in an effort to reboot its economy, the government is advising dispute resolution organizations across the country to bolster their online dispute resolution efforts as it anticipates an increase in domestic disputes emerging from the coronavirus pandemic.

The Ministry of Justice issued a guideline on March 3 calling for the accelerated development of China’s “internet arbitration systems.” The guideline emphasizes the importance of online dispute resolution, or ODR, for achieving its goal of getting the economy back on track while still maintaining control over the spread of COVID-19…

The move is part of China’s broader promotion of alternative dispute resolution. The Ministry of Justice has issued several directives in recent weeks encouraging the use of arbitration and mediation to resolve disputes caused by COVID-19 and the stringent government restrictions on the movement of people that resulted…

In the past, online dispute resolution in China was primarily used for resolving internet-related disputes such as e-commerce and domain name disputes. However, the guidelines instruct arbitration institutions to expand its use to include disputes expected from work resumption after an extended break, including debt issues, labor disputes and work injury compensation. Institutions should even defer payment for their services if the businesses are facing financial difficulty as a result of the pandemic, the government has said.

“The Chinese government certainly wants to see more ODR now,” said Ronald Sum, a Hong Kong-based dispute resolution partner at Addleshaw Goddard. “But its support for ODR precedes the current crisis.”

In early December, China’s Supreme Court issued a white paper outlining the government’s strategy to develop the “internet judiciary.” It included measures to improve the court’s online mediation platform, which has resolved over one million disputes since launching in 2016. In the last three years, China has set up “internet courts” with the capability to handle entire proceedings online in the major cities of Hangzhou, Beijing and Guangzhou.

…Hong Kong is also developing its online dispute resolution capabilities. Later this year, the city will launch its first online dispute resolution platform, eBRAM. The platform will employ blockchain and artificial intelligence technology and is designed to address concerns among practitioners about the feasibility of replicating entire dispute resolution proceedings online…

“Parties, tribunals and the courts are more willing than ever to rely on technology to resolve disputes in Hong Kong,” she said.

Sum, former chairman of the International Chamber of Commerce Hong Kong Arbitration and Alternative Dispute Resolution subcommittee, believes that the outbreak has improved both practitioners’ and businesses’ attitudes towards online dispute resolution. He expects Chinese parties’ demand for online dispute resolution services to increase moving forward.

“The pandemic has changed people’s thinking generally on what work can be done remotely—dispute resolution is no exception,” he said…

“Domestic acceptance [in China] of ODR is higher than it is internationally,” Sum said. “You see this reflected in Chinese society broadly, where people are very receptive to technological changes—for example in e-payments and e-commerce. Therefore, although ODR is developing fast in China, the systems are being designed to fit domestic disputes rather than cross-border disputes.”

Vincent Mu, a Shanghai-based partner at Llinks Law Offices and an arbitrator at the Shanghai International Arbitration Centre and the HKIAC, also expects to see more online dispute resolution developments in China. However, he is unsure whether it is wise to move entire proceedings online.

“Hearings are about communicating with the judges, the arbitrators and other participants of the proceedings,” he said. “Where an important case is concerned, I would always prefer to plea the case in a face-to-face manner.”’

Read more at
https://www.law.com/legaltechnews/2020/03/19/china-pushes-for-increase-in-online-dispute-resolution-as-it-reboots-economy-397-32043/ (registration required)

Great post by Mimi Zhou, Co-Founder of the Oxford Deep Tech Dispute Resolution Lab, on how the Chinese courts are adapting to pressures from the pandemic. From the piece:

“The disruptions caused by COVID-19 bring to the spotlight Richard Susskind’s case for online courts in the UK and globally, especially on the ground of promoting access to justice. The more pressing question is whether we are ready for the delivery of virtual justice outside a brick-and-mortar courtroom? In a forthcoming article in the Journal of Personal Injury Law, I examine how Chinese courts have deployed new technologies as part of a wider policy framework aimed at enhancing judicial efficiency and transparency. This policy has created highly advanced technological infrastructure allowing Chinese courts to conduct more online filings and hearings during the crisis.”

I’m sure many of you are hearing from people asking about ODR, many of whom weren’t that interested in it before the crisis. Someone mentioned to me today how the outbreak (and all the shelter-in-place orders) are marketing ODR more effectively than every conference and paper on ODR ever has. Even after the crisis subsides I suspect that our global society will never go back to the way it was before the outbreak.

Read more here:
https://www.law.ox.ac.uk/business-law-blog/blog/2020/03/virtual-justice-time-covid-19

The National Center for State Courts has just released a new paper from Thomas M. Clarke and Paula Hannaford-Agor entitled “Measuring the Impact of Access to Justice Programs: An Assessment Tool for Funders and Policymakers.” The paper presents a rubric for evaluating the cost-benefit of various strategies for expanding access to justice, with a particular focus on Litigant Portals and Online Dispute Resolution. The equation they use to calculate the objective comparable value of any individual A2J capability is:

The paper then applies this calculation to a variety of A2J approaches, including online dispute resolution. An excerpt from the analysis of ODR’s benefits:

“First, calculate the proportion of people who did not use other legal services who benefitted from ODR: 190,000 people who accessed ODR x 76% who did not use other legal services x 75% who received a positive outcome from ODR = 108,300. Then calculate the number of people who got a better outcome using ODR than with other legal services: 190,000 who accessed ODR x 24% who also used other legal services x 44% who received a suboptimal outcome with other legal services x 70% that received a better outcome using ODR = 14,045. Then add the two results: 108,300 + 14,045 = 122,345 (5% of 2.43 million people targeted for ODR).”

While the model is not simple to explain (as you can see) a thoughtful rubric such as this one will be very helpful in comparing different A2J approaches moving forward, and will be valuable to anyone attempting to calculate Net Present Value for ODR investments in the courts.

Check out the full paper here.

NCSC’s JTC ODR case studies paper has been updated with new case studies as well as updates to previous ones. From the new paper:

“The JTC first released a publication on the topic of Online Dispute Resolution (ODR) in 2016. When Online Dispute Resolution and the Courts was published, only one US court had implemented ODR, and just a handful of US courts were seriously considering it. Within a year, significant enough change had occurred in the national ODR conversation that the paper was withdrawn and updated. A companion paper, Case
Studies in ODR for Courts: A view from the front lines, was created, featuring a cross section of successes and misfires in what were then groundbreaking ODR efforts. This paper builds on that foundational work, to continue the conversation.

Since 2016, the shift in US courts’ practical experience as well as interest in ODR has been seismic. Dozens, if not hundreds of courts from large and small jurisdictions all over the US have online dispute resolution implemented for some case types and are looking for ways to expand use. Many more ODR project initiatives are underway. Some courts now have several years of ODR case data to evaluate and share.

The ODR implementations highlighted in this paper represent a variety development processes and platforms, ranging from in-house development to customizations of software created by an international collaborative. There are cloud-based SaaS products, as well as adaptations of platforms designed for other purposes, including BeInformed and SalesForce.

The following ODR implementations illustrate a sample of technologies, philosophies, and approaches to the use of technology in dispute resolution. Additional case studies will be added in coming months, with the most current examples featured at the top.”

Read the updated paper here.

https://bit.ly/2tOnaCx

While much of the world is mourning the loss of the great basketball player Kobe Bryant, I also want to take a moment to mark the passing of the influential thinker and researcher Clayton Christensen, author of The Innovator’s Dilemma and the father of the theory of disruption, which has shaped technological change ever since. A few of his quotes relevant to the growth and evolution of ODR:

“Empowering innovations transform something that is complicated and expensive into something that is so much more simple and affordable that a much larger population can enjoy it.”

“When an entrant competitor attacks the low end of any market, the rational reaction of the incumbent firms is to abandon rather than defend it – because the low end is the least profitable of their possible investments.”

“The reason why it is so difficult for existing firms to capitalize on disruptive innovations is that their processes and their business model that make them good at the existing business actually make them bad at competing for the disruption.”

“There just isn’t anything more invigorating than to read an article or hear about an entrepreneur using the term ‘disruptive technology’ that makes no reference to me as the source. When it’s clear they really got the idea and they use it as if it were in everyday parlance, that’s the ultimate triumph.”

It’s never easy to say goodbye to those who inspire us, but we can carry forth their influence if we remember the lessons they taught us and the example set by their hard work and achievements. RIP. (h/t Orna)

Great set of comprehensive statistics around Franklin County’s ODR program have now been released. Two results that stood out to me:

Kudos to the Franklin County team for their great work in compiling these metrics and key performance indicators, and for embracing transparency by sharing them widely. Check the full set out here:

https://sites.google.com/view/fcmcdataproject/about