Part I - JTC Resource Bulletin, « ODR for Courts ». Dispute resolution in the digital age, a necessary evolution of the courts for the benefit of everyone
By Pierre LEGROS
In a short time, Online Dispute Resolution (ODR) has grown to become a distinct and particularly effective dispute resolution mechanism, especially for low-stake and low-value claims. “ODR for Courts,” a Resource Bulletin published by the Joint Technology Committee (JTC), provides an introductory guide to ODR and describes several ODR models, which I will analyze through a trilogy of blog posts.
This Bulletin, published on December 12, 2016—and updated on November 29, 2017—both identifies the main challenges facing courts that are attempting to implement ODR, and offers a range of options and recommendations to make their attempts successful. In parallel, a companion JTC publication – “Case Studies in ODR and the Courts: A View from the Front Lines” – provides concrete ODR case studies being developed or implemented, more or less equivalent to the platform PARLe – Plateforme to Assist in the Resolution of Litigation Electronically – developed by the Cyberjustice Laboratory.
In order to understand fully the spirit of this Bulletin, it is necessary to dwell more fully on its author. The JTC is an ad hoc US committee, established jointly by COSCA (Conference of State Court Administrators), NACM (National Association for Court Management) and NCSC (National Center for State Courts). The mission of this committee is to improve the administration of justice through technology. It promotes a vision that courts must take advantage of technology, not only to deliver justice quickly, fairly and economically, but also to improve access to justice, access to information, while ensuring the protection and security of personal information. In order to achieve this objective, the JTC develops technological standards for courts and also ensures the education and adequate training of court leaders in technology matters, such is the ambition of this Bulletin “ODR for Courts”, which we will begin the detailed analysis.
First, it seems essential to define “ODR”, a polymorphic concept that extends well beyond the online conflict resolution stricto sensu. From there, we will then be able to study, more specifically, the potential benefits of online dispute resolution for Justice.
ODR, a variable-geometry dematerialization of amicable dispute resolution procedures
Over the past two decades, online dispute resolution has proven to be an effective tool for resolving individual e-commerce disputes, as evidenced by the success of the eBay platform, which settles 60 million disputes per year. From this observation, it seems legitimate to believe that courts have significant opportunities to take advantage of this method of dispute resolution to expand their services, while reducing costs, improving the experience of litigants and, consequently, their satisfaction.
The JTC Resource Bulletin defines ODR as “a digital space where parties can convene to work out a resolution to their dispute or case.” ODR, therefore, is not only limited to being used to resolve disputes that arise online, but can also be used to resolve disputes that arise in every day life in an online format. In other words, any request for online case processing that leads to a settlement, jurisdictional or not, can be broadly described as “ODR”. More precisely:
- In substance, the principle of this method of conflict resolution is to leverage technology to provide the same customer-centric access, anywhere and anytime, that Internet offers for any other type of service.
- In form, ODR can be presented to users in the form of a website, such as the previously mentioned PARLe platform, or application, such as the “JusticeBot” chatbot currently being developed by the Cyberjustice Laboratory.
In addition, an ODR tool can also utilize a variety of information and communication technologies (ICT) ranging from a simple chat service or videoconferencing to cognitive computing.
In view of this broad definition, we can thus deduce that there is no single “correct” way to implement ODR. On the contrary, the possibilities seem almost infinite. Court managers can use both flexibility and creativity to design ODR processes that :
- either stand alone and preface a court process (in order to help parties to amicably resolve their dispute, rather than file a suit in court); or
- are integrated with courts and their information systems; or
- are substituted for courts (out-of-court dispute resolution).
With more specific regard to the second option, it should be noted that ODR can be partially or fully integrated into the court, depending on whether the system performs any or all of the following operations: triage problems; manage and update files; provide legal information in plain language to the litigant; self-diagnose conflicts; de-escalate conflict between parties; structure negotiations; propose solutions; initiate essential recalls; mediate; arbitrate; deliver a decision; or register settlements, etc..
As part of this comprehensive approach, JTC defines ODR not as an alternative to traditional court proceedings, but rather as a “high-tech upgrade” of existing court dispute resolution processes. However, this vision seems somewhat simplifying. In fact, I will explain more precisely in the last part of this trilogy of blog posts (mettre en lien le blogue n°3 quand il sera publié), that ODR risks profoundly disrupting both the traditions of justice and the current procedural rules. Therefore, rather than being interpreted as a simple “technological upgrade” of current procedures, ODR should rather be analysed, from my point of view, as making possible new procedural models through ICT.
Nevertheless, the report laudably insists that the goal is not to replace courts with computers—or even robots, as seems to be emerging in Estonia—but rather to strategically apply technology to certain dispute resolution processes to make them more accessible, efficient, convenient, and cost-effective. On the contrary, technology can be used to automate some or all of the steps in a resolution process, or even to create an additional path into court (like a 24/7 service), thereby broadening access to justice for the greater benefit of both courts and litigants.
ODR, a real opportunity for both courts and litigants
Originally limited to non-binding, out-of-court dispute resolution between private parties through online commerce platforms, ODR is now used by courts to resolve many low-stake and low-value cases. Although ODR is not appropriate for all case types, it seems to be a powerful tool for those that are more transactional in nature, with less complex facts, and that occur in high volume.
As with any sector affected by automation and robotization, JTC argues that off-loading repetitive, nonvalue-adding tasks to technology can help courts better utilize their material (courtroom) and human (clerks and judges) resources on more complex cases—which naturally require more human participation. Indeed, judicial resources are expensive and the added value of human intervention in low-complexity cases is limited. In contrast, more sensitive cases represent usually only a very small percentage of court’s workload. This is illustrated in Figures 1 and 2 below, from the Bulletin, which demonstrate the correlation between case volume and reliance on technology, and case complexity and reliance on human intervention. From this observation, ODR seems to appear as a means of relieving court congestion and, at the same time, improving access to justice.
Assuming that an ODR platform may be accessed anytime, anywhere, and is not reliant upon the parties and the court (or a third party mediator or arbitrator) convening on a shared schedule, disputes could be moved through the system more quickly. Therefore, online settlement could help courts to improve the speed of their performance. For example, , developed by the Cyberjustice Laboratory in partnership with the Office de la Protection du Consommateur du Québec, seem to support this statement: the average processing time for a case on the platform is 26.4 days, compared to an average of 11.5 months for a case in court.
Further, what is more interesting with the implementation of ODR, is that it seems to reduce the length of time required to resolve conflicts that do not pass through the online platform, as judicial authorities now actually have more time and human resources to devote to traditional in-person cases. This is evidenced by the diagram below from the JTC Resource Bulletin :
As a result, a well-designed ODR system could potentially leverage technology to enable courts to effectively resolve high-volume/low-complexity cases, while freeing up human resources to resolve low-volume/high-complexity disputes. Thus, it would seem possible to get closer to a “reasonable time” to settle any type of dispute, online or offline.
From the perspective of the litigant, ODR also has many benefits, as shown in the table below:
Taken together, all these advantages and benefits could simultaneously increase the number of cases handled, reduce the costs of proceedings, and ultimately improve the satisfaction of litigants. Moreover, not all ODR experiments have been systematically followed by success, so it is important to moderate the optimistic – even idealistic – vision that is prominent in this Bulletin. Nevertheless, JTC not only sings the praises of ODR, but also helps court managers make ODR a successful experience, which will be the theme of the second part of my trilogy of blog posts.
This content has been updated on 06/19/2019 at 15 h 39 min.