Part II - JTC Resource Bulletin, « ODR for Courts ». The implementation of ODR, towards a successful experience
By Pierre Legros
The first part of my trilogy of blog posts, which analyzed the JTC (Join Technology Committee) Resource Bulletin “ODR for Courts” showed that the definition of ODR (Online Dispute Resolution) is extremely broad. Therefore, there is not just one, but many possibilities for integrating such a process into the judicial system.
The multiple options for court-integrated ODR
From an economic point of view, the JTC Resource Bulletin, mainly aimed at court managers, strongly advocates for a full integration of ODR at the court level, rather than a parallel private market for out-of-court dispute resolution development. However, a public-private partnership is strongly recommended, so that courts do not have to develop their own individual ODR platform. For example, the company Court Innovations is doing this in Michigan 61st District Court Online Case Review, Michigan 14A District Court Online Case Review and Ohio Municipal Court Online Dispute Resolution.
From a legal point of view, not all cases are suitable for ODR. However, even for those cases, certain processes or parts of the case might still be handled online. In situations where cases are too complex to be fully resolved online, ODR can offer valuable process improvements. Therefore, as part of a first implementation of the ODR, courts should not only identify disputes which be handled through online resolution, but also specify the optional or mandatory nature of the site or application.
Drawing on a “small steps” policy, the JTC Bulletin advises keeping the first ODR initiative relatively simply. Doing so will help facilitate a progressive buy-in from all stakeholders in the justice system to this technological development in conflict resolution. The objective will obviously be to leverage the knowledge gained in the first pilot project, so that the experience can then be extended to more complicated processes and case types. With these tips in mind, JTC recommends starting the first ODR initiative with cases either that have an accumulated backlog, or with cases that are primarily transactional in nature such as :
In parallel, in its latest survey analysis published in 2018, the NCSC (National Center for State Courts) released interesting results, revealing public opinion and confidence in state courts. There is a clear distinction in the type of cases the public is ready to consider for ODR, as shown in the table below, which shows the percentage of people who would consider using ODR for different civil legal needs
(“<50 / 50+” refers to age; “Non-Coll / Coll” refers to college level; and financial figures refer to salary).
From this table, we can see that that ODR is viewed as a cost-effective way to resolve small claims. Traffic tickets, consumer debt, and small claims are all seen as a good place to start. Housing disputes and receiving a verdict or settlement are of less interest right now, but interest in these areas could gain traction over time. Younger voters with higher educational backgrounds or higher incomes are more likely to opt for an online resource over the courthouse. However, no group finds an online alternative for dealing with family matters to be appropriate, which adds weight to the suggestions proposed by JTC.
The case proposals mentioned above are those recommended by the committee for the first implementation of ODR in a jurisdiction. Once the first project proves to be a success, the field of possibilities will naturally expand. In this regard, it must be noted that the first pilot project of the PARLe-OPC platform is on the way to success, as shown by the following latest figures :
That is why, after initiating the second use of the PARLe platform in partnership with the Condominium Authority Tribunal of Ontario (CAT), the Cyberjustice Laboratory will soon launch PARLe-CNESST on July 15th, 2019. In collaboration with the Commission des normes, de l'équité, de la santé et de la sécurité du travail du Québec, the ODR platform will, for the first time ever, deal with a new type of dispute (between employee and employer), going beyond small and low-intensity disputes. In other words, the Laboratory is embarking on a new innovative pilot project, going beyond the recommendations made by the JTC. That is why the results will need to be closely monitored. However, to ensure its success, it is important to read the prerequisites and good recommendations provided by JTC in their Resource Bulletin.
Some prerequisites and recommendations for implementing a successful ODR project
Courts must weigh a variety of legal, technical, practical, and ethical considerations as they evaluate the potential for ODR in their jurisdictions. Like a company, courts must first establish their own “business plan” or rather “technology plan” in order to prepare for implementing ODR. In practice, each court must first assess its business needs, namely its management of: court records, calendars and procedures, personnel, finances, and maintenance of technology and facilities.
Once these business needs have been identified, each court should look into the issue of cost and funding. Court budgets may be impacted by many factors, such as the political climate, global economy, crime rate, and overall case filings. A budget shortfall is an opportunity to reimagine court services. Although there are some direct costs associated with any technological initiative, there are also significant costs associated with inaction, which can and should be avoided. With clear goals, careful planning and intentional spending, courts may be able to make transformational changes within existing budgets.
In some cases, courts may even choose to share costs with users, partner organizations or stakeholders, while grants or one-time funding can help launch a project. In other cases, online settlement may be funded by stakeholders other than the courts, keeping in mind the objective that costs of using ODR must be lower than the costs of traditional “in-person” transactions. The first solution is undoubtedly the best one: not only in terms of cost recovery, but also on behalf of Justice, because state-funded ODR mechanisms, such as the PARLe project, are then only a logical extension of the state's sovereign mission, thus eliminating any conflict of interest associated with external private funding.
“Whoever controls the courts, controls the state.”
In addition, the JTC Resource Bulletin provides a dozen recommendations – based on feedback from judicial staff who have been involved in an ODR implementation – to make ODR a successful experience:
- Focus on the public and involve them in design and testing
An ODR initiative should begin by considering the court experience from the public’s perspective. Ideally, and for the greatest benefit, ODR should be co-designed and rigorously user-tested by the public it seeks to serve.
- Start with problem triage / self-help tools
This includes not only the provision of advanced self-diagnostic tools to help users sort and solve their own problems, but also tools to access clarified applicable legal texts, so as to be understood by any user. For example, the computer software “JusticeBot” uses Artificial Intelligence to enable tenants and landlord to obtain simple legal information, particularly for those wishing to terminate a lease in the province of Quebec.
- Make ODR an “opt out” process by limiting scenarios for opting out
To effectively neutralize the power imbalances inherent in small claims disputes, ODR must be the process, not an alternative to a process, in order to avoid any direct referral to the court which would prove to be abusive.
- Provide escalation and/or enforcement mechanisms
In principle, parties should voluntarily comply with agreements reached in the ODR settlement framework, as they will have been directly involved in the negotiation. For less congenial situations, there must be the option of an enforcement mechanism to encourage parties to come to agreement, to adhere to it and then to execute it promptly.
- Offer “live” help
ODR systems should offer assistance using a variety of technical and non-technical methods, including some form of “live” help to meet the needs of those with: disabilities, language barriers, technology access issues, etc. Observing where and why users access live assistance is key to subsequent improvement in both the process and the technology used to administer it.
- Forget multiple forms, prefer ONE GOOD form
Court personnel, lawyers, and judges may think about disputes in terms of which court and which form, but the court’s customers will not. Using decision trees and machine learning – as Google did – would help to anticipate questions and lead users to the correct path: through automation, ODR can directly submit the dispute to the right court, on the right form.
For example, the PARLe-OPC platform invites a party to create an account and then complete two distinct online forms: the first form is used to describe the cause of the dispute and the second form is used to submit a settlement proposal. The Laboratory chose to conceptualize these forms by proposing options in plain language, intelligible and non-legal (although partly designed by lawyers): the first form thus offers options such as “goods are not as described,” “goods are defective,” etc., while the second form allows consumers to request a partial or total reimbursement. Each one allows for the ability to give more details and upload documents.
- Keep the process really simple
The more complex a process, the higher the likelihood that individuals will fail to complete it. Court process experts recommend that processes be limited to no more than six or seven steps that can be completed in a relatively short period of time. In particular, processes should avoid any duplication in the information gathering stages and request only the information strictly necessary for the resolution of the conflict. The required time-period will vary by case type, jurisdiction and other specific circumstances.
- Use an agile development process
ODR is best implemented using agile or iterative development techniques. Each subsequent release can and should enhance functionality or the interface to better meet user needs. As users are involved throughout the process they will likely experience some aspect of the system that does not immediately meet their needs or expectations. Adjustments to the user interface are an indication that the court is listening and responding to user feedback, not that the system was poorly designed.
- Implement ODR in phases
A phased implementation allows the implementation team to learn from and respond to any issues that arise from a pilot, before rolling out to a broader audience. Moreover, awareness and acceptance in the stakeholder community can reduce – or eliminate – resistance based on unfamiliarity or mistrust.
- Consider flextime and/or offsite staff roles
One of the major advantages of ODR for users is its “anytime and anywhere” Internet presence. Some court personnel may need to work non-traditional hours; some may work from home or satellite locations.
- Leverage Contract/Vendor Relationships
“Build or buy, that is the question.” In most instances, buying a customizable off-the-shelf product is likely a better business decision than building one from scratch. Indeed, a host of issues are associated with internal “one of” development efforts, including documentation: user training, and resources for ongoing development and long-term support.
The market for customizable off-the-shelf software is robust and competitive, making high quality software accessible to organizations with limited technology expertise. Strategically outsourcing labor can augment gaps in staff skill-sets.
- Measure success
Courts must not only regularly measure their performances since they must also pay particular attention to user feedback in order to continuously improve the process.
ODR likely cannot be adapted to apply in all cases and will therefore not replace courthouses. In addition, the implementation of an ODR platform requires a certain amount of time for market research, verification of prerequisites and follow-up on the JTC recommendations. Indeed, as we will see in the last part of my trilogy of blog posts, the implementation of ODR necessarily implies taking into account new difficulties for the world of justice. As ODR actually becomes more and more a reality, it must be understood that implementation should be done in small steps.
This content has been updated on 07/04/2019 at 18 h 17 min.