Towards Cyberjustice Retrospective, Part 3: Another Way to Resolve Legal Disputes

This is the third of a series of blogs, the first of which was published on February 12^th, 2018, highlighting the various papers, studies, and pilot projects conducted by the Cyberjustice Laboratory throughout the course of its “Towards Cyberjustice” Project. Funded by a Major Collaborative Research Grant from the Social Science and Humanities Research Council, this seven-year project has finally drawn to a close and will be the subject of a detailed report to be released later this year. In anticipation of this upcoming report, this blog post will briefly describe its second chapter, which details the Laboratory’s contribution to Online Dispute Resolution (ODR) efforts – a subject that many of our readers will be familiar with given the numerous posts we have written on the subject.

The chapter begins by outlining the genesis of ODR and the elements that favoured its development. The proliferation of modern technology, particularly the democratization of Internet access, has provided an effective medium for the judicial and extrajudicial resolution of conflicts. Despite some major objections to ODR, which lie mainly in the risk of eroding the rule of law through the privatization of such procedures, this chapter notes how integrating dispute resolution procedures into the public sphere can not only remedy this potential problem, but it can also further benefit the judicial system. By freeing up the court from high-volume low-intensity disputes – which make up the majority of cases brought before the courts – backlogs are reduced, thus allowing judges to concentrate more fully on cases involving complex constitutional and statutory questions that could establish significant precedents. Inasmuch, ODR can serve to be a truly effective tool that can successfully strengthen the rule of law and provide justice to many people who may otherwise not have had the opportunity to pursue their case, be it due to high costs, procedural delays or the simple inconvenience of going to court.

After describing the potential benefits of this technologically advanced dispute resolution method, the chapter then proceeds to describe its evolution. With the advent of e-commerce in the mid to late 90’ and the proliferation of online shopping websites where people could purchase items from a merchant whose identity is unknown to them, it became clear that new types of contentious issues would arise as a result of the dematerialization of commercial transactions. With an estimated 1 to 3% of online transactions ending up in a dispute (which represents millions of cases), and due to the multi-jurisdictional nature of online sales, a new mechanism was required in order to address customer complaints following such purchases.

As one of the first major online transactional websites, eBay was among the forerunners in using ODR with its adoption of a negotiation tool developed in 1999 by SquareTrade (with the help of University of Massachusetts researchers) which went on to handle over 60 million disputes each year. The most remarkable characteristic of eBay’s conflict resolution system was its complete independence from any jurisdiction – the only rules enforced were the website’s own commercial policies.

The success of eBay’s ODR system brings two significant matters to the forefront: first, the State does not possess a monopoly on the creation of enforceable rules; and second, as Lawrence Lessig posited, code can truly overwrite laws. While this reality could certainly be beneficial where software programmers take it upon themselves to make cyberspace a safer environment, it may be less so when a company whose main goal is to increase its transaction volume is the entity setting the rules (as opposed to the elected officials who represent the will of the people). Yet, despite this risk, the successful implementation of ODR by eBay serves to demonstrate that not only is this system sufficiently versatile to serve as an alternative to courts, but it could also be an alternative method of enforcing rules.

The chapter then goes on to discuss one of the reasons that most favours the adoption of ODR: the increasing rate of judicial dropout. As reported by our colleague Pierre Noreau and others, the numbers are staggering, with 77% of Quebec citizens reporting that they cannot afford to go to court; 76% claiming that procedural delays are too long; and 83% reporting that they feel uncomfortable in court. All of these statistics have unsurprisingly translated into a substantive drop in the number of cases brought before the courts over the last decades. Considering that the judiciary is financed by taxpayers but does not appear to be benefiting them to the extent that it ought, it is crucial to remedy this lack of efficiency. Information technology offers the potential to help achieve this feat. It is with this goal in mind that both the Office de la Protection du Consommateur and the Ontario Condominium Authority, among others, partnered with the Cyberjustice Laboratory to implement their online dispute resolution support platform, PARLe, which we have presented in previous blogs.

So how should the judicial system go about transforming itself in order to allow for the successful integration of ODR? While eBay’s ODR system triumphed, its success relies on its members’ obligation to adhere to this procedure if they wish to partake in the eBay community; the same incentive does not exist for individuals external to this community. As such, and as we’ve explained in other fora, one of the necessary components for the successful implementation of ODR is providing an incentive to use this procedural method. Within the public judicial sphere, this might entail public authorities stepping in to create a mandatory ODR system, where refusal to partake is punishable by certain costs. Such an approach might motivate merchants outside of closed communities like eBay to try and reach a settlement agreement in good faith.

Variations on this approach have proven successful in several cases. The first is British Columbia’s Civil Resolution Tribunal Act, which integrates alternative methods of dispute resolution as a necessary step of court proceedings. This Act allows case managers to impose dispute resolution methods, including ODR, on the parties to a dispute. A similar effort has been made by Quebec’s Department of Justice, which updated the Code of Civil Procedure to favour alternative dispute resolution methods.

In an effort to demonstrate the benefits of ODR, our report then endeavours to offer several examples of practical implementations of publicly funded ODR, such as the European Union’s Platform for Consumer Disputes, Her Majesty’s Online Court in the United Kingdom, British Columbia’s Civil Resolution Tribunal, Michigan’s Online Court Project, and finally the Cyberjustice Laboratory’s own PARLe platform as implemented by the Office de la protection du consommateur. While this blog post does not permit us to describe all these ODR systems in a manner that would do them justice, our research regarding these different platform confirms what we observed in our previous post: the numbers show that ODR is a very promising avenue for solving disputes, and offer validation to those who militate in favour of the implementation of ODR into our justice system.

The chapter closes with a look towards the future of ODR: platforms using artificial intelligence to help better settle disputes (what we refer to as “ODRAI”). To be clear, we are not referring to platforms where mediators, arbitrators or judges would be replaced by intelligent agents – although these tools are emerging for more playful scenarios – but rather the use of deep learning algorithms that allow for predictive justice in order to help parties better understand their rights and the reasonableness of their arguments.

Obviously, technological developments in this respect are not without their drawbacks. Many have justly expressed concern that algorithms employed in this fashion are induced with biases that risk discriminating against members of already marginalized populations. The future of ODR research will therefore necessarily require an examination into how to best ensure that the algorithmic tools we employ properly reflect the principles of fundamental justice. It is precisely towards this goal that the Cyberjustice Laboratory is now taking its first steps. We will be sure to keep you abreast of our future progress in this arena, but in the meantime, look out for our next blog post highlighting what you can expect to read about in the third chapter of our upcoming report.