Online Dispute Resolution, Courts and Tribunals: What Are the Threshhold Issues?

Many people are only starting to get used to the idea of ODR – Online Dispute Resolution. ODR uses increasingly familiar things, like online communication and information sharing, and uses the internet to combine them with dispute resolution. But what is stopping us from combining ODR with our justice systems?

In his CBA Legal Futures Initiative report, Key Trends in the Marketplace, Professor Richard Susskind invited us to contemplate whether court is a service or a place. If we commit to the view that it should be a service, then ODR would seem poised to become a key delivery channel.

While traditionally disputing parties went to a place – namely a courtroom – to settle disputes, parties don’t have to meet in person to participate in the dispute resolution process. In text based versions of ODR, they don’t even have to communicate at the same time – they can do it asynchronously, like we do with email.

ODR can support self-guided resolution with a single party, negotiation, facilitation, mediation and various forms of adjudication. From a process design perspective, the options are nearly unlimited.

ODR’s development in part, reflects the rise of the internet. As people started using the World Wide Web for new types of transactions, new types of disputes arose. Traditional justice systems were unsuitable for resolving these new disputes because they were too slow, too expensive or inaccessible for other reasons. The sheer volume of disputes alone would have overwhelmed traditional justice providers. In response, the internet ‘created’ its own dispute resolution processes outside the formal justice context.

We are now coming to a shared realization that our formal justice systems are too slow, too expensive and generally inaccessible for most disputes. Volumes are also a problem (at least in proportion to available resources), as evidenced by the backlogs clogging our courts. Justice providers are also beginning to realize the difficulties posed for self-represented litigants who struggle to navigate the complexity, confusion and delays inherent in traditional dispute resolution systems.

Many people are coming to share Susskind’s view that ODR can be part of the solution. But, if this belief is accurate, why hasn’t it already happened? ODR, as a concept, has been around since at least 1999. Since then, our justice problems have continued to worsen, and we have started using technology and the internet for a lot of different things. But not for resolving disputes.

Courts and tribunals generally haven’t taken steps to explore ODR, even on a limited basis. This lack of initiative is due in part to a general opposition to conducing justice and dispute resolution processes through technology. However, it is also part of the larger phenomenon of change-resistance that blocks meaningful change in justice systems.

Before we consider details around implementation of ODR in our justice systems, we must confront bigger threshold questions. We need to better understand the fundamental issues preventing our justice systems from transforming by applying technology to create modern processes capable of meeting the needs of its users. We also need to know who should stand up and take the initiative.

In an upcoming CBA Futures Twitter Chat, we want to explore some of these threshold questions to understand why ODR hasn’t been adopted by public justice systems.

• Does ODR belong in justice systems at all, or does justice have to be done face-to-face and only in specific, brick-and-mortar facilities?
• Is ODR still too risky and unproven?
• Can ODR meet the needs of ordinary justice users? Some of the time? Most of the time? Hardly ever?
• Is the ‘digital divide’ too great to overcome if we want to use ODR for offline disputes?
• Are ODR systems too expensive to build, staff and maintain?
• What roles (if any) would judges, lawyers and mediators play in a new age of ODR justice?
• If we decided to try ODR, what types of cases would we start with? What cases would we have to avoid, and why?

Join us for a CBA Futures Twitter Chat on April 29 at 1:00 Eastern / 10:00 Pacific to explore these questions. We’ll be using the #cbafutureschat hashtag.

About the authors / Twitter Chat hosts:

David Bilinsky is a Practice Management Consultant and lawyer for the Law Society of British Columbia. He is a Fellow of the National Center for Technology and Dispute Resolution (NCTDR) at the University of Massachusetts. He is also a Fellow of the College of Law Practice Management and past Editor-in-Chief of ABA’s Law Practice Magazine.
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