Part III - JTC Resource Bulletin, “ODR for Courts”. ODR: a simplification of dispute resolution, source of new issues for the courts

By Pierre Legros

             My trilogy is coming to an end. Indeed, this is the last part of my detailed analysis of the Resource Bulletin “ODR for Courts”, published by the JTC (Joint Technology Committee) on December 12, 2016 (and updated on November 29, 2017). After having clarified why ODR (Online Dispute Resolution) appears to be a real opportunity, which the courts must seize, and how to make its implementation a successful experience, it is now necessary to focus more fully on the issues related to the implementation of ODR and why the courts should be vigilant regarding these issus.         

 

The adaptation of justice to technology, a disruption of procedures and traditions

            Considering previous developments, it seems undeniable that courts can benefit from the appropriate use of technology to improve the effectiveness of conflict resolution, regardless of technological maturity level. As such, rules and laws that inadvertently restrict the use of technology will certainly need to be updated.

However, technology-specific statutes and rules should not be too prescriptive, otherwise they will have to be revisited repeatedly as technologies evolve. As a result, new established norms may take precedence over traditional organizational laws, with the advantage that standards can emerge and be replaced more easily and requiring less formal amendment processes. As a result, amendments to laws and regulations will likely be made more quickly. For example, courts might specify that electronic files must be submitted “in a lossless format,” instead of specifying which lossless format, leaving this to the discretion of those using the system.

With regard to the procedure itself: courts are not known for simplicity and efficiency, as shown by the fact that:

  • Traditional court processes hinge on location and schedule, with a judge as the ultimate destination and highly skilled, highly compensated counsel to assist, if needed, along the way. On the contrary, ODR, by separating the process from the courthouse, the schedule, the judge and the lawyer, may significantly reduce the number and complexity of steps involved in reaching a settlement.
  • Many court processes are traditionally adversarial, facilitating or escalating conflicts. ODR implementation can be a valuable way to reengineer the dispute resolution process because the basis of ODR is to calm conflicts and facilitate exchanges in order to obtain a settlement of the dispute. ODR provides a process in which the parties collaboratively participate in and a settlement that they have mutually agreed upon.
  • Traditional court processes also include built-in delays meant to accommodate the exchange of paper documents. With the introduction of ODR, e-discovery and document exchange becomes much faster and will likely shorten the transmission delays and, ultimately, the duration for the resolution of disputes.

Beyond this simplification of the standard court procedure, ODR also risks causing upheavals in judicial practices themselves:

  • At the procedural level, for example, adjudication is the last step of a traditional dispute resolution process; with ODR, it is the last failure (before going to court). ODR may therefore lead to a complete overhaul of the design of alternative dispute resolution methods, which will tend to become the mandatory initial phase of most low-stake, low-value and even medium-intensity judicial proceedings thereafter.
  • Within the legal professions, judicial personnel must not only be able to consider a different process for achieving court objectives, through promoting alternative dispute resolution, but also be able to convert to the concept of continuous improvement, and thus be empowered to make significant changes.

As a result, court managers currently involved in ODR advise courts not to undertake an ODR initiative until they are prepared to change fundamental court practices.           

 

The acceptance of ODR by all judicial actors, a major challenge for courts       

            Technology is often perceived as the most intimidating aspect of an ODR implementation project, but in reality human factors can have a much more significant impact on the success or failure of an ODR attempt. Despite the range of possible motivations and perspectives, the involvement of all stakeholder groups is essential to the success of ODR.

First, ODR focuses on the “public.” In other words, the litigants, at the heart of the development of the process. In contrast with the prevalence of usability testing and user experience design in commercial sector, courts have shown limited interest in changing court processes to make them more accessible for individuals. The public will therefore probably be the most enthusiastic stakeholder group for projects to implement an ODR platform. Yet, the latest survey analysis published in 2018 by the NCSC (National Center for State Courts), and reproduced below, revealed that only 64% of those surveyed seemed to have an interest in the development of ODR. This percentage might seem low and couldt slightly weaken the previous statement that the “public” would easily adhere to the ODR. That being said, however, the results of PARLe-OPC show much more promising results, with a user satisfaction rate of over 90%. This statistic supports the idea that the success of ODR will depend on its adaptation to the target audience. 

Second, as processes are streamlined and digitized, some court functions will naturally shift to other parts of the organization, or may go away. However, any reduction in the need for judicial staff skills may generate resistance. This is why their support for such a project also seems necessary, if not even essential, to avoid any blockage in its implementation. To facilitate this, the JTC points out that ODR initiatives will free up staff to provide more “value-add” assistance, including the ability to communicate complex legal information in an understandable and usable way to users. ODR may also necessitate the creation of new, more flexible staff positions. Court staff that support a 24/7 ODR process may be able to do their jobs remotely and on a much more flexible work schedule.

Third, there is also the probable resistance of bars, which could well contribute to crippling ODR development. Indeed, with self-help platforms – such as JusticeBot – citizens will be empowered to resolve certain legal issues without the advice of a lawyer. These professionals might consider ODR a threat. However, this should not prevent the courts from adopting evolving technologies that better meet the needs of the digital society of the 21st century. In any case, it is not for the judiciary to stagnate, but rather for the lawyer to evolve. Especially since ODR may well offer new opportunities for lawyers, especially as mediators or arbitrators on the platform, or in States that adopt limited scope representation rules (also called unbundling).

As a result, the JTC Bulletin recommends courts first implement ODR to resolve disputes such as complaints from small claims or minor traffic violations that historically have not required lawyers and   required only minimal court staff, thus avoiding resistance that could delay or derail the project. The JTC also stresses the need to involve all stakeholders in the design and implementation of the process, in order to achieve progressive buy-in and ensure its success. This participation of stakeholders in the project is one of the key foundations that explain the success of the PARLe-OPC platform.                             

 

The necessary evaluation of success: the litigant or new “king customer” of Justice

            Based on the Agile method, ODR is, by its nature, an application of technology that focuses on the courts’ “customers,” i.e. the litigants, because the foundation of the project is to improve access to justice. Focusing primarily on the courts' “customers,” their needs, and their preferences, is also another important cultural change, both for judicial staff and for the trial philosophy itself.

However, this repetitive use of the term “customer” in the JTC Resource Bulletin raises questions about the very value of Justice today: in this consumer society, would Justice become a service like any other, where the “customer” is king? This semantic use can be shocking, as the litigant no longer becomes a mere consumer of Justice. But, at the same time, it corresponds to today's society where everyone legitimately expects to have everything, anytime and anywhere. From a terminological point of view, this raises questions about the legal definition of a consumer. Generally, a consumer is defined as compared to a trader, with whom he is bound by a consumer contract. However, a consumer is defined by European Directive 2011/83/EU on consumer rights as “any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession”. But justice is not a “service” like any other and courts are not intended to make profit, on the contrary, it is a public service of general interest. Consequently, it would be much more appropriate to substitute the term “user” to designate the litigant for the terms “consumer,” “client,” or “customer,” because the litigant is nothing more than a user of the public service of Justice, wishing to exercise their rights.

In any case, in order to assess the success of an ODR project, it is essential to measure the positive impact of the process both on legal outcomes and on the use of the service, which must be satisfactory to the user and allow for wider access.

  • On one hand, measures of the effectiveness of ODR on legal outcomes include: time to disposition, cost per case to both litigants and courts, settlement rates, default rates, and both financial and non-financial impacts on clients and communities. ODR can also improve court outputs, increasing the volume of cases resolved and decreasing case backlogs.
    However, the report warns courts about the need to be wary of the figures obtained, as an increase in number of disputes resolved prior to case filing will reduce the number of cases filed and may artificially skew case processing statistics. On the contrary, a decrease in case filings may simply mean the claims process is too lengthy, complex, or costly.
  • On the other hand, measuring procedural satisfaction is also essential, as citizens have high expectations of courts, and their satisfaction with court procedures impacts their perception of the legitimacy of the judicial process, as well as their willingness to accept legal outcomes. This includes trying to understand whether users felt they were treated respectfully, felt heard, understood the instructions and implications of the process, believed the process was fair and impartial, and whether the technology worked well, etc.

To summarize, the JTC Bulletin suggests a methodology, inspired by benchmarking, to measure the success, of the implementation of ODR with maximum objectivity. The table, reproduced below, details the desired results that court must address, the data measurements to be made and an advice on how to express the results

 

The digital divide in society, a limited access to the justice of tomorrow?

            Concerns about limited access to technology by some parts of the population have prompted some judicial leaders to justify delays in the full exploitation of technology, including ODR.

However, studies confirm that Americans have almost universally adopted technology: 97% of Americans aged 18 to 49 use the Internet. Use varies somewhat by income, but even among the lowest income populations, Internet use exceeds 80%. Conversely, justice groups estimate that only about 20% of low-income Americans have access to the civil justice system, and statistics are not much better for other income groups. Ironically, this means that a much higher percentage of the population has easier access to technology than to justice through the courts…

In view of the enormous potential for improving users' access to justice, courts can still renounce to ODR options in the face of the digital divide. Nearly 50% of American adults with household incomes under $30,000 do not own a computer or have broadband Internet access at home, and broadband availability is still limited in some rural areas. Nevertheless, the proliferation of smartphones in recent years has considerably reduced the digital divide. In November 2016, more than ¾ of American adults had a smartphone, compared to 46% in November 2012. Access to ODR is therefore mainly a problem if websites are not adaptive, in other words if they can only be used from computers (desktop or laptop).

But what about people outside the 18-49 age group average referred to in the above-mentioned study, and more particularly older people who sometimes do not even have a mobile phone or even an Internet connection? France has created a new term to describe this category of population affected by “illectronism” – for digital illiteracy – some of whom are considered “abandonnists,” having resigned themselves to not changing their habits and therefore to abandon dematerialized procedures.

      

Despite the difficulties of access for this category of the population, the JTC Resource Bulletin is rather optimistic. Based on the observation that the courts, which have attempted to provide paper-based alternatives to online processes, have found that users are simply not interested[1], the JTC concludes that people who do not have Internet access at home will still be able to obtain one through a family member, or in a public library, or a local Wi-Fi access point. As a result, librarians, social workers, teachers and advocates for the homeless and victims of domestic violence may become the newest professionals in ODR in the future. Again, it is appropriate to stand at a certain distance from the JTC's incentive argument, because in the end, the proposed solution will only displace the problem. Rather than physically traveling to go to court, for example to face-to-face mediation, the person will have to travel to the library or to a family member's home. As a result, the cost and time savings for these population categories may be less than for others.      
      

Data protection, a key issue in the dematerialization of judicial procedures

            The protection of personal data is one of the major new legal challenges of the 21st century, both for the legislator and for citizens. The awareness of the problem is very real. In 2017, a study by the CSA Institute showed that “9 out of 10 French people say they are concerned about protecting their personal data online.” Legislative initiatives in this area are constantly proliferating on all continents, in particular: the Japanese My Number law that came into force in January 2016, the GDPR (General Data Protection Regulations) that recently came into force on May 25, 2018, which has largely inspired both the Brazilian GDPL and the California Consumer Privacy Act, which will come into force on January 1, 2020.

In addition, it must be noted that many countries have long since established a data protection authority, as shown on the map below:

ODR naturally brings new technical and legal issues to courts. Indeed, courts instituting such a procedure under their governance will then be responsible for processing and maintaining files. As part of this process, courts must first carefully define who owns the ODR system data, how it will be protected, how it can be used, and how and where audit trails are maintained.

If peer-to-peer negotiation ensues in software provided or licensed by the court, the court has to determine in advance what information should be private and what information may be accessible; while also determining for whom it is private, when, and how. Negotiations and private communications between the parties are not part of the court file and should therefore not be kept or communicated to the court. Courts will also be responsible for final agreements, judgments and any documents formally filed as part of the court file.

The obligation to inform users is also an important part of the implementation of such a process. Once a system processes personal data, stakeholders need to know, before they start:

  • How the process works,
  • Who manages it,
  • Who will have access to the data, and
  • How much it will cost at each step of the process.

In accordance with the principle of transparency, processes and algorithms that have an impact on decisions should be available for review.

Moreover, since most ODR implementations have to prove their worth, particularly in order to obtain the gradual support of all parties concerned, the judicial institution will certainly have to publish the results of the pilot projects, whether or not they are positive. Traditionally, courts have not been data-driven organizations. Once again, this will be a real cultural change for court managers, who will have to evaluate and analyze the data that guide the process in order to ultimately improve the process. The intentional publication of data could expose inefficiencies, injustices, or reinforce prejudices, but above all it will help to ensure the fairness and transparency of the ODR process.   

 

            In conclusion, despite these new challenges facing courts implementing ODR, it is nevertheless clear that ODR offers considerable potential to help correct current imbalances in access to justice. However, while ODR seems to have a promising future, it is not necessarily a guarantee of success. The objective of this trilogy of blogs was precisely to show both the advantages of and problems with ODR, while proposing solutions and recommendations for good practices.

Technologies will not solve all the problems of justice but can help to mitigate them:
costs, delays and simple accessibility. Technologies are also an excuse to rethink judicial
and quasi-judicial processes and to imagine new ways of settling disputes.”
       
– Karim Benyekhlef –

 


[1] Anticipating a need for a non-technical alternative for populations with limited access to technology, British Columbia’s CRT created a parallel paper forms process. However, only 20 paper applications were filed in 2016. For January-November of 2017, the number was 13.

This content has been updated on 07/04/2019 at 18 h 25 min.