Are Online Dispute Resolution Processes Necessarily Access to Justice Strategies?
As a PhD student studying the use of knowledge technologies and access to justice strategies, I am following with interest the development of the Civil Resolution Tribunal (CRT) [Civil Resolution Tribunal Act, SBC 2012, c.25;] in BC – an online dispute resolution process which will provide an alternative to the courts for small claims and strata property disputes. I want to share some thoughts regarding online dispute resolution processes and to pose the possibly provocative question: Are online dispute resolution processes necessarily access to justice strategies?
You might ask how an online process could not be an access to justice strategy. The CRT, for example, is designed as an alternative to the court process. It aims for a low cost (even no-cost), timely, simple, and self-directed dispute resolution mechanism. Studies demonstrate cost (in particular), complexity (another important factor) and time (to a lesser extent than the other two) are significant factors that influence people’s decisions in civil justice matters. So why question the impact of strategies, such as the CRT, on access to justice?
My primary concern relates to the self-directed aspect of these processes. For many of us the notion of sitting at our computer after work resolving a small debt matter seems quite plausible. An online process relieves you of taking time during your work day to travel to the courthouse and wait for your case to be called. Instead, you sit at your computer, navigate to the online dispute resolution site and negotiate a resolution. This seems like access to justice. However, this image is not one that may be shared by all. For some, these processes could create new barriers not only because they will require access to a computer and the internet, but because they will require the individual to work through the process on her/his own. These processes could become an isolating, disempowering and ultimately unsuccessful experience.
There have been a number of process strategies (think rule reform) in Canada in the past few years. While these strategies do have an impact, concerns of access to justice have not diminished and, arguably, have even increased of late. Why is this? One reason is that, while the CTC factors (cost, time, complexity) are important, they are not the only factors that influence an individual’s decision on whether to engage in a civil justice process. More importantly, they are not necessarily the first factors that influence these decisions. Studies demonstrate that an individual’s sense of disempowerment is a powerful and early factor that influences action or inaction. Not surprisingly, it is the most vulnerable members of society who are least likely to take action on a justiciable dispute. Canadian research indicates as many as 34% of law-related problems experienced by low to moderate income Canadians are abandoned or remain unresolved (Currie, A National Survey of the Civil Justice Programs of Low and Moderate Income Canadians, 2005). Similar results have been found in studies in Britain and the United States.
Online dispute resolution processes are solitary processes conducted between parties through computers. Various studies (see Julie MacFarlane’s study of self-represented litigants, 2013;) demonstrate that most individuals with a justiciable issue seek advice (sometimes legal, sometimes other) for dealing with the matter at some stage before and during proceedings. A seminal study from Great Britain (Genn, Paths to Justice, 1999), found that 90% of individuals with a justiciable issue sought some form of advice at some time. Other studies have noted the importance of in-person assistance. For those who feel disempowered in the face of a justiciable issue or who are vulnerable, a self-directed process is unlikely to encourage their participation.
Further, there is evidence that 42% of the working-age population in Canada score below the threshold needed by adults to participate fully in the knowledge economy (The Daily, Statistics Canada, January 2008;.). These individuals are challenged to read, follow directions, and fill in forms. This does not bode well for their success with an online dispute resolution process.
Online dispute resolution processes have the potential to create convenient and lower cost spaces for people to negotiate and resolve problems. In this sense, they may be successful. But, should we expect a little more from access to justice strategies? Should access to justice strategies be designed to challenge barriers that prevent individuals from participating in current dispute resolution mechanisms and to create real opportunities for those individuals (as well others) to seek resolution to a justiciable problem? I believe the answer is yes. We should watch with interest the BC process for what it can tell us about the success of online dispute resolution strategies to challenge access barriers.
I find this post technically accurate but unduly discouraging in tone. I agree that it’s not just the convenience of doing something after hours online that will cure all access to justice issues. The barriers are more diverse than that, and often harder to remove. Ab Currie’s study is very good, and Julie Macfarlane’s more recent report also first rate.
Some ODR systems, it is true, are designed to work with the full panoply of traditional in-person procedures, such as the ADR Chambers e-video mediation: very useful to save costs to parties, but not puporting to address the issues raised here.
But the designers of the CRT and many other ODR systems (there is an excellent Dutch model, the ‘youstice.com’ model, and others) are working to overcome the barriers inherent in complex court-like procedures. They build in guides and explanations at every step, often in images as well as or instead of in words, so that one needs to know nothing about the court system or the legal system to get to a resolution. Their builders are aware of the real-world difficulties of people who find themselves in disputes.
‘ODR’ by definition is about ‘disputes’; not all ‘justice’ issues, and thus access to justice issues, involve disputes. We can’t criticize a dispute resolution system for not addressing problems that are not disputes.
It might have been constructive for the writer to have mentioned some of the more creative initiatives, rather than simply bemoaning the potential shortcomings of ODR. I don’t think anyone has ever claimed that any kind of ODR will be a cure-all for access to justice issues – I suspect even the CRT is held out as an improvement, not a solution.
Thanks for sharing your views in this post, Kathryn. This is an important discussion. I’d like to offer some slightly different perspectives.
Simply put: where you see the potential for specific ‘ODR problems’ I see process design challenges and opportunities. Specifically, I see a need to mitigate challenges around access to technology or self-directed dispute prevention by providing a sensible mix online and offline, as well as self-guided and human supported processes.
By way of example, the CRT will (according to an earlier Slaw post) provide a range of service channels including telephone, video and in-person meetings. It will also offer active (human supported) case management and adjudication. It’s unclear whether your characterization of the CRT didn’t take these features into account, or whether you consider its proposed mix of services and processes deficient either way.
I suspect the characterization of technology as “isolating” to be much more one-dimensional than my own view. Online and offline interactions are indeed different. But technology is not necessarily antisocial. The opposite is often true: it can support a range of interactions, even if they don’t replicate their offline equivalents. It can create new interactions in a dispute resolution context that wouldn’t otherwise happen. If our choices were limited to offline channels.
Technology also has an empowering side in addition to the “disempowering” aspect highlighted in your post. The internet is a very fast and cheap medium for delivering specialized (including ‘expert’) knowledge and tools to users, and communication between people. Many people believe it democratizes knowledge (and consequently, power).
Carrying this idea to the subject of Prof. Macfarlane’s work, I believe her findings identify the need for a wider range of support people than is currently available to litigants in traditional court processes. Asynchronous, remote ODR processes should make it easier, more convenient and maybe even more affordable for disputants to get help from a full range of support people during the dispute resolution process.
The ‘digital divide’ and literacy challenges are obvious concerns. Online technologies can provide multisensory information, including dynamic images, audio and video for people who absorb information better in non-textual formats. But, few people will claim that ODR is a perfect solution. In fact, ODR is only a small part of larger efforts among governments, PLEI providers and others to provide more justice-related support and information to users online. At the same time, we should be careful not to oversimplify problems of access to justice as if they depend on whether a person will be asked to read, follow directions and fill in forms. A more complex view should help us create better responses.
In the end, I believe many of the deficiencies you attribute to ODR would be more appropriately characterized as service design issues. Very good and very bad processes can be designed and delivered through any communication channel, including well-staffed front counters.
I strongly support your desire to be aspirational in increasing A2J. I believe good service design will be a key to improving access, whether or not the process involves ODR.
During an upcoming CBA Futures Tweet Chat on April 29 at 1:00 Eastern / 10:00 Pacific, David Bilinsky and I will be inviting the Twittersphere to join us for more discussion about ODR. We’ll be using the #cbafutureschat hashtag. More details here.
I would love to have a few hours to discuss this topic with the author. However, time being a rare resource, I’ll simply make the following observations:
I cannot disagree with much of the author’s analysis, but I have a fundamental problem with the idea that access to justice strategies need to be “shared by all”. If 42% of adults do not have the capacity to use ODR technology, that still leaves 58% who do. If those 58% (or even half of them) choose to use ODR processes to settle their disputes, then their cases won’t be put on the docket and, therefore, will free up time for those who, for one reason or another, cannot use ODR.
Furthermore, those who are more comfortable behind a keyboard than a conference table would probably prefer ODR to going to court, so why forbid them that possibility simply because, for some, “these processes could create new barriers not only because they will require access to a computer and the internet, but because they will require the individual to work through the process on her/his own”? After all, it is clear that ODR isn’t a one size fits all solution, but neither are the courts. Yet, no serious scholar has ever suggested that we should privatise all dispute resolution because courts are not available to 100% of the population. So why is that argument being used to suggest that ODR isn’t an appropriate mechanism.
The author asks: “Should access to justice strategies be designed to challenge barriers that prevent individuals from participating in current dispute resolution mechanisms and to create real opportunities for those individuals (as well others) to seek resolution to a justiciable problem?” To that question, I answer: Of course. But that is exactly what ODR does. It offers access to justice for those who cannot take a day off to go to court, to those who are not comfortable with conflict, and to those (and they are more and more numerous) that rather communicate through a screen than in person.
As for the suggestion that ODR somehow stops individuals from seeking counsel, it’s actually quite the opposite. Since ODR mechanisms are normally asynchronistic, a party can take his or her time to fill out the online forms, show them to people they trust and ask for advice every step of the way, something that is not possible in a courtroom. In this sense, ODR actually favours those who seek help from third-parties, it does not hinder them.
That being said, it’s always great to welcome another scholar into the field of ODR and I hope to read more of the author’s work.