ODR and the (BC) Courts

We were recently asked to contribute a chapter on ODR and the Courts to an International treatise on ODR edited by Mohamed S. Abdel Wahab, Ethan Katsh and Daniel Rainey. In researching how Courts could and should use ODR, we were pleasantly surprised to see how many court-run ODR projects are currently being implemented or tested around the World. From the United Kingdom’s Money Claim Online and Possession Claim Online, to Australia’s eCourt to the seemingly defunct Subordinate Courts of Singapore’s eAlternative Dispute Resolution (e@dr) project (the website is no longer online), ODR practices and processes are seeping into the judicial system and citizens are reaping the rewards through faster and better adapted access to the courts (or rather to the process replacing the courts in those given examples). We also found that one interesting aspect of state or court run ODR is that it succeeds in overcoming the two main hurdles private ODR providers face, i.e. financing and enforcement. Incorporating ODR practices into the fold or structure of a state-funded legal system favours independence and neutrality on the part of the mediator and/or arbitrator, and the threat of legal sanctions is stronger than it is when the ODR process is privatised.

In the paper, we also acknowledged British Columbia’s current pilot project which uses ODR practices to try and settle a portion of its province’s small claims, i.e. those having to do with consumer contracts. The project had yet to get off the ground when we handed our final draft to the publisher, but we still tried to guess what it could mean for the future of small claims in BC and across Canada. We recently learned that the future is now.

British Columbia is, once again, making the rest of Canada look like we’re dragging our feet. After succeeding in implementing a functional efiling system (Justin) where Ontario failed and Quebec never quite got anything off the ground, BC is now working on creating a Civil Resolution Tribunal with a strong ODR component. According to a press release available here, the tribunal would offer:

24/7 online dispute resolution tools to families and small business owners as a speedy and cost-effective alternative to going to court. The tribunal would address disputes by providing parties with information that may prevent disputes from growing and resolve disputes by consent or, where necessary, by an independent tribunal hearing. Resolving a dispute through the tribunal is expected to take about 60 days, compared to 12 to 18 months for small claims court.

Cases would follow a classic negotiation – mediation – arbitration model except that the arbitration process would be replaced by an adjudicative stage. The ODR component, however, seems to be limited to the negotiation process, even though the mediator will be able to contact parties online. As explained in a document that outlines the proposed business model:

If the parties are unable to resolve the dispute on their own, one of the parties may request access to the online, party-to-party negotiation service provided and monitored by the tribunal (often referred to as online dispute resolution or ODR). Once the party has provided the necessary information and paid the applicable fee, the tribunal will notify the other parties to the dispute, providing specific information about the dispute and options for resolving it.

If the other parties to the dispute agree to participate, the online negotiation tool (or platform) will guide the parties through a structured negotiation phase, with the goal of facilitating a mutually acceptable settlement. The parties can access the platform through the Internet, at their own convenience. The parties can participate in the negotiations at different times, when and where it is convenient for them. The tribunal will provide templates and time lines and tribunal staff may occasionally provide case-specific suggestions to help the parties with their discussions. However, the parties will be expected to lead the process at this stage. The negotiation will end if no agreement is reached within a specified period of time.

An important aspect of the proposed legislation is that it limits the types of cases the Civil Resolution Tribunal would be able to hear. According to the aforementioned press release, the Court will only be able to hear “small claims disputes where the parties decide to take the matter to the tribunal instead of the court, up to a maximum value of $25,000 for debt or damages; recovery of personal property; specific performance of an agreement relating to personal property or services; or relief from opposing claims to personal property”, as well as certain “strata disputes between owners of strata properties and strata corporations”. This to us seems prudent since, although ODR has made great strides in consumer disputes, we’ve yet to collect sufficient data to see how it could or should be used in other contexts. In a way, the limited scope of the tribunal’s reach will reduce the chances of it becoming another example of courts trying to do too much too quickly in incorporating ODR practices in the legal process and, ultimately, having to drop everything and go back to an admittedly broken but more familiar system (such as was the case in Michigan).

When we wrote our paper on ODR and the Courts, we concluded that “the time finally seems right for the emergence of State-run ODR platforms aimed at resolving small claims disputes”, and that “it is interesting to note that the ECODIR prototype has been presented to various departments of justice (in Québec, Belgium and Luxemburg), and all recognized the usefulness and pertinence of such a system for processing small claims”. It seems that the BC government has heard our call or, more realistically, that they came to the same conclusion we did: however it fares outside of the public sphere, ODR has a bright future within the judicial process…

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