In the 2019 series of student blog posts for Legal Problem Solving, students are digging into the American Bar Association's 2016 Report on the Future of Legal Services to explore how far we've come in 2019 and what remains to do in the innovation of legal services delivery.
The Ins and Outs of ODR
Online Dispute Resolution “ODR” platforms allow people to resolve issues without seeing the opposing party face-to-face or talking with a lawyer. In fact, some of these programs are designed specifically to keep attorneys out of the process.
The earliest uses of ODR were in the e-commerce arena. In the mid-90s, eBay was looking for ways to get feedback from customers and solve disputes. eBay and the University of Massachusetts introduced SquareTrade, an online ODR platform, to help customers deal with online disputes. While SquareTrade has developed over the years, it has kept its roots and still serves as eBay’s online dispute resolution provider.
eBay’s online dispute resolution process provides a general example of how ODR works. First, the user must create an account on their platform. Then, the customer enters complaint details. The platform will send an email to the other party alerting them to the complaint and providing an opportunity for them to state their position. The two parties can attempt to resolve the issue on their own or involve a mediator for $14. The process usually takes ten days.
Well-designed ODR platforms have capabilities that allow users to make well-informed decisions at their own pace. For example, some systems permit asynchronous communication which grants individuals access to the platform at any time. Other systems may have highly developed triage systems. These triage systems provide users with information about how to make an informed decision when they should seek out traditional court processes, and what additional resources may be necessary at each step of the decision-making process. The triage process may also involve customized questioning for each dispute. Customized questioning and answers allow both sides to get a more holistic understanding of the dispute. Integrated document systems can also turn the participants’ resolution into a document that can be offered to a court.
How does ODR Promote Access to Justice?
ODR’s characteristics make it well-suited to increase access to the legal system for individuals. ODR is typically low cost and does not require a lawyer. This helps reduce the financial barrier to engaging with the legal system. ODR also promotes increased exercising of legal rights by providing people with easy to understand information. This information can help them better understand their rights as they go through their dispute resolution process.
Additionally, ODR permits people to resolve their disputes outside of business hours. Many lower-income people work jobs that prohibit them from taking time off to deal with disputes. 24/7 access allows people to deal with their disputes when they have time to do so. Also, some folks have an aversion to courts. This platform allows people to have their voice and opinion heard without ever stepping into a courtroom.
ODR can also promote more objective results. The process will “downplay” race, gender, weight, and other visible characteristics. The obscuring of these factors can diminish bias and encourage more objective results based solely on the facts of the dispute. Additionally, using ODR may allow courts to easily see a record of what took place during the discussion. This record can be shown to the courts if the parties do end up needing court intervention, and it can improve the court's understanding of what to do in similar situations in the future.
Implementation of ODR in the Public Sector
ABA 2016 Report on the Future of Legal Services includes recommendation 5.4: Court-annexed online dispute resolution systems should be piloted and, as appropriate, expanded.
As the American Bar Association recommended, ODR platforms are slowly expanding into the public sector. U.S. courts are experimenting with ways they can use ODR systems so litigants can reach an agreement with all the benefits that the online platform provides. Municipalities in states such as Nevada, Texas, Michigan, Ohio, and California have implemented ODR programs.
For example, the Franklin County, Ohio municipal court offers a free online dispute resolution process for small claims. Participants may attempt to reach an agreement through the platform for free. If they are unable to agree, then they can go through the traditional court process. This process has been successful so far. This Ohio municipal court saw 76% of cases come to an agreement as compared to 42% of cases handled offline.
Utah is currently piloting the use of ODR in small claims cases in select courts. Also, Maricopa County Court in Arizona began to offer ODR for civil debt cases beginning in February of 2019. However, it appears that courts are heeding the ABA’s guidance very slowly since less than half of the states have ODR systems in their courts. Hopefully, those courts implementing ODR see positive results, such as lower costs to litigants participating in ODR, increased case completion rates, and more objectively fair results. This could sway more courts to implement similar programs and increase access to the court systems for many people who will not have access otherwise.