The COVID-19 pandemic  saw courts that are normally resistant to change trying to quickly adapt to physical closure of buildings.  As Professor Elizabeth Thornburg writes in her new article Observing Online Courts: Lessons from the Pandemic, “[o]ur normally hidebound courts are moving online with surprising speed.” This development provided an opportunity for Professor Thornburg and her students to spend several months observing a variety of court processes. For those interested in the recent rapid institutional adaptation of technology, this is an important foundational work.

Check out this great Tiny Chat video from NCSC that raises many of the big considerations for jurisdictions considering Online Dispute Resolution (ODR) for their courts. From the description:

“Join us as we cross the country in search of awesome roadside America as we discuss many of the big decision points courts need to make before launching ODR. See the sights, learn some lessons, and keep your eyes peeled for a special guest from Michigan” (hint: it’s Doug Van Epps).

Also check out NCSC’s new ODR website, which has lots of useful tools and sample resources: www.ncsc.org/odr

A new smartphone application for consumer disputes was just launched allowing consumers to easily file a complaint and access dispute resolution services. It covers all businesses and consumers worldwide and is supported by a back end multi-level administration and case management system. ADR4ALL enables consumers to upload documents and view the status of their case at any time through their smartphone. Developed by ADR Point and its director, NCTDR Fellow, Petros Zourdoumis, it is co-funded by the European Union. ADR4ALL app is functional in both operating systems (Android and iOS) and it is available for free.

The COVID-19 pandemic and the resulting need for social distancing measures have exacerbated the existing problem of backlogs in the Indian judicial system. There is a growing understanding that the best path forward is to use technology to transform the dispute resolution ecosystem to adapt to the changing demands of justice.

The JALDI (Justice, Access and Lowering Delays in India) Initiative at the Vidhi Centre for Legal Policy has released a new paper titled ‘ODR: The Future of Dispute Resolution in India’ which argues that the future of dispute resolution lies in mainstreaming Online Dispute Resolution (ODR) in India. It also suggests strengthening alternate dispute resolution (ADR) mechanisms in the country as a prerequisite for a robust ODR framework. Further, the paper recommends a phased modular strategy for strengthening ADR and mainstreaming ODR in India.

From the overview:

“In this paper, the broad features of ODR are discussed along with an examination of the present framework and its suitability for ODR. Also mapped are the prerequisites for mainstreaming both court annexed and private ODR in India. The paper also delves into an overview of the principles framework which any ODR platform should satisfy to gain and maintain trust in the system.”

You can read the paper here:
https://vidhilegalpolicy.in/research/the-future-of-dispute-resolution-in-india/

A Panel Discussion and Book Launch Celebration honoring Dispute Systems Design: Preventing, Managing, and Resolving Conflict (2020) was hosted by the National Center for Technology and Dispute Resolution on July 29, 2020 featuring co-authors Lisa Blomgen Amsler, (Indiana University), Janet K. Martinez, (Stanford University), and Stephanie E. Smith, (Stanford University) and panelists Carrie Menkel-Meadow, (UC Irvine & Georgetown University), Larry Susskind, (Massachusetts Institute of Technology), Ayelet Sela, (Bar Ilan University) and Colin Rule, (Mediate.com). Hosts included Leah Wing, Co-director, (National Center for Technology and Dispute Resolution (NCTDR) and U. of MA Amherst), Orna Rabinovich, (NCTDR Fellow and U. of Haifa), and Ethan Katsh (Director, NCTDR). You can watch the engagement with these leading ADR and ODR thought leaders here:

Thought provoking article from mediator Frank Burke:

“Most civil and commercial private mediators and ADR providers offer their clients a binary choice between a half day mediation and a full day mediation as a standard offering, often on a flat rate with one or two hours of prep time, a preliminary call with counsel and open ended follow up as part of the flat fee. Most such mediations are convened and organized to have all the parties and counsel arrive at the same time. Since the onset of the pandemic and the various shut down orders, the use of online dispute resolution has increased exponentially, usually conducted through videoconferencing using Zoom and similar platforms. 

This broad use of videoconferencing around the world has lead to a phenomenon referred to as Zoom fatigue (see https://ideas.ted.com/zoom-fatigue-is-real-heres-why-video-calls-are-so-draining/). Psychologists attribute this fatigue to the higher levels of concentration caused by staring at a computer screen for long periods, often looking at multiple images of participants on the screen, leading to eye strain and sensory overload. All of this is exacerbated in mediation, given the emotions caused by conflict and the high levels of interactivity between the mediator and the parties as they move through trust building into often difficult conversations to bridge the gaps between parties. Given the medium, mediators must also be thinking about eye contact and reading facial expressions, which is second nature in a face to face conversation but which takes effort in a videoconference. Exhausted mediators and parties cannot do their best work. Good, durable settlements and settlement agreements require careful attention…”

Read more: https://www.mediate.com/articles/Burke_Shorter_Sessions.cfm

Taylor Worsham, writing on July 9, 2020 in The Sault News:

‘The Michigan Supreme Court Office of Dispute Resolution recently announced the availability of its completely free MI-Resolve online dispute resolution tool in Chippewa, Luce and Mackinac counties.

MI-Resolve provides an efficient and accessible way of resolving disputes that are typically filed as small claims, general civil or landlord-tenant cases in the district court. Michigan is the first state to have an online dispute resolution system for every citizen in the state.

“Keeping the virtual doors of justice open to everyone in Michigan has never been more important,” said Chief Justice Bridget M. McCormack. “Confronting the COVID-19 crisis makes closing the justice gap all the more urgent. Opening up online dispute resolution to Chippewa, Luce, and Mackinac county residents represents a huge step toward achieving that goal.”’

Read more here

During the global COVID-19 pandemic, and at a time when social distancing is required to save lives, technology has been vital to human connection. This turn in society has forced even the most reluctant practitioners and overburdened institutions to rely on technology to assist in the handling of disputes. Suddenly, online dispute resolution is at the forefront of conversations about providing access to justice and repair of human relationships from courts to alternative dispute resolution. The National Center for Technology and Dispute Resolution, birthplace of online dispute resolution over twenty years ago, is enthusiastic about this upsurge in its use. And as we stand in solidarity against state brutality, we think it now more important than ever for all of us to work for racial equality and all forms of human rights, further innovating the use of technology in the name of access to justice for all.

Over last weekend there was a very high level meeting of leaders in the justice sector to discuss the future of ODR in India, convened by Agami and Omidyar Network. From the press release on the meeting:

“In a first, NITI Aayog, in association with Agami and Omidyar Network India, brought together key stakeholders in a virtual meeting on 6 June 2020 for advancing online dispute resolution in India.

ODR is the resolution of disputes, particularly small- and medium-value cases, using digital technology and techniques of alternate dispute resolution (ADR), such as negotiation, mediation, and arbitration. While courts are becoming digitized through the efforts of the judiciary, more effective, scalable, and collaborative mechanisms of containment and resolution are urgently needed. ODR can help resolve disputes efficiently and affordably.

Senior judges of the Supreme Court, secretaries from key government ministries, leaders of industry, legal experts, and general counsels of leading enterprises, explored the opportunities and specifics of what lies ahead.

The common theme was a multi-stakeholder agreement to work collaboratively to ensure efforts are taken to scale online dispute resolution in India.

In his welcome address, NITI Aayog CEO Amitabh Kant said, ‘This historic meeting is the start of a collaborative exercise that sets into motion the use of technology towards efficient and affordable access to justice in our post-pandemic response.’

Justice DY Chandrachud, speaking on technology and access to justice, remarked, ‘Above all there needs to be a fundamental change in the mindset—look upon dispute resolution not as relatable to a place, namely a court, where justice is “administered” but as a service that is availed of.’

Stressing on the need of ODR during the ongoing Covid-19 pandemic, Justice Sanjay Kishan Kaul said, ‘Let us target Covid-related disputes first [through ODR] because those are people who would like for their disputes to be resolved quickly, particularly in this context. This is an important part of economic revival.’

Justice Indu Malhotra spoke of the nuanced specifics that could be considered for scaling ODR. ‘Making ODR or ADR voluntary may defeat the purpose. It should be made mandatory [for specified categories], and it should cover about three [sessions] so that parties don’t feel that it’s a mere formality.’

Justice (Retd) A.K. Sikri brought forth the advantages of ODR—convenient, accurate, time-saving, and cost-saving.

Anoop Kumar Mendiratta, Law Secretary, Government of India, articulated that, ‘Private ODR and ADR providers need to be complemented to ensure that online resolution can reach different industries, locations, and parts of the country and also support the public institutions in a big way. The government is open-minded.’

Nandan Nilekani, Non-Executive Chairman of Infosys, gave his vision for justice delivery. ‘The future will be a hybrid model that combines the best of both worlds—offline courts, online courts and ODR. We will have to reimagine the whole process of justice delivery to work in the hybrid system and this will require good data…’”

Read more here:
https://pib.gov.in/PressReleasePage.aspx?PRID=1630080