The influential Pew Charitable Trusts organisation has welcomed the idea of creating a national body in the US to set standards for the use of online dispute resolution (ODR) in order to drive its uptake across what is the world’s largest legal market.
The show of interest and support by the charity and research group, which handles over $6 billon in assets and has a deep experience of the legal sector, follows a growing wave of interest around the world to both increase access to justice via better use of technology, and enable governments and justice systems to cope with the economic pressures of providing court services at a time of budget limitations.
In a paper on the issue by Erika Rickard, a senior officer, and Amber Ivey, a manager, with The Pew Charitable Trusts’ Civil Legal System Modernization Initiative, and shared with Artificial Lawyer, the charity states that although there are some concerns about ODR it could have a great future in the US. However, to make sure it embeds itself correctly it will need the right standards in place.
‘To allay concerns, a national body could create standards for successful use of ODR in civil courts,’ they said.
Rikard and Ivey added: ‘In 2012, no jurisdiction had launched ODR, but today dozens of pilots are underway to adapt the technology.’
Many stakeholders are hopeful about the possibilities to streamline court business processes and remove obstacles to quick resolutions, they noted.
Rikard and Ivey also argue that: ‘If courts implement ODR appropriately, litigants and the court system could benefit because this approach has the potential to improve customer service, boost efficiency, and reduce costs.’
‘In addition, the technology can make legal outcomes more fair if courts use these tools to spur online and in-person process simplification and modify court rules to increase access to information or legal help,’ they added.
This second point is actually very significant. It’s generally assumed that the legal system is ‘fair’ or at least tries to be – although many experts might say it’s certainly not fair at all because of the imbalance of funding different parties have when engaging in a courtroom dispute. So, if using ODR can make legal outcomes ‘more fair’ that is a substantive change in how the legal mechanism of a nation works.
In short, ODR is not just about economics – which is key – it’s also about a more just society.
But….we are in the legal world here and so there are many questions about getting this right and avoiding risk. Pew notes that some believe if it is not rolled out with the right processes and checks and balances then:
‘ODR could replicate or exacerbate problems with existing court structures and processes, including:
- Power imbalances between opposing parties, particularly in cases that pit institutions against individuals, such as disputes over consumer debt.
- Cases with criminal law implications, in which unpaid fines or fees can result in incarceration.
- Continued difficulties for people who have limited access to legal help because of systemic disadvantages often linked to financial circumstances.’
….and that would not be good. Hence the need for a national body to oversee this development.
That said, some argue that ODR won’t help those who may not easily be able to use such technology. That may be true, but it may also do a lot of good in terms of helping people who may struggle to get to court and also face challenges in defending their claim in court due to physical or other impairment.
Clearly then there is a lot to discuss, and that’s before getting into the nitty gritty of what specific technology to use, and who will be responsible for it.
The exploration of the idea for a national body follows a meeting late last year to discuss online dispute resolution organised by The Pew Charitable Trusts and the National Center for State Courts. The nearly 20 participants represented the American Bar Association (ABA), National Legal Aid & Defender Association (NLADA), consumer advocates, state court systems and governments, universities, and nonprofits. They discussed their hopes for and concerns about the use of ODR in civil courts. And they suggested opportunities for stakeholders to provide guidance to those launching this technology.
In comments shared by Pew, Jo-Ann Wallace, president and CEO of NLADA, said: ‘One of the best uses of technology by the courts is to improve their procedures in ways that favour equity for people in search of justice. Engaging a broad array of stakeholders for input, and especially people who cannot afford legal counsel, is critical to ensuring these systems are fair.’
While, Hon. Carolyn Kuhl, a Los Angeles Superior Court judge and member of the governing council of the ABA’s Center for Innovation, added: ‘In addition to making court access easier though ODR, courts should consider whether procedural rules can be enhanced to ensure a level playing field. For example, in the early stages of an ODR process it is important to be sure that both parties have relevant core information about the dispute or claim.’
We are still at the beginning of ODR in the US and in many other countries, including the UK. But, when organisations such as those above start to really look at pushing this forward then it appears to signal that the age of wide-scale ODR, backed by national justice systems, is arriving.