The woman’s last name was called a few times in Collin County Court in north Texas before she finally appeared, 15 minutes late, with a baby in her arms and tears in her eyes. As Ben White, the court’s senior IT manager, watched her rush into the courtroom, he assumed the woman couldn’t find a babysitter and her job didn’t offer paid time off. He wondered if the money she was losing by being in court that day might cause her to go into debt.
“I realized right then that ODR (online dispute resolution) was meant for her,” said White, a panelist at the recent 2019 ODR International Forum, attended by about 210 people from 17 countries.
eBay, Alibaba and hundreds of other companies have been using online dispute resolution for several years to resolve disputes related to the sales of goods and services. Only within the last few years have courts seen ODR as a realistic way to resolve lawsuits by allowing litigants to use their phones and computers to resolve cases without stepping foot in a courtroom.
The forum, co-sponsored by NCSC, was an opportunity for court technologists and administrators, academic researchers and private-sector entrepreneurs -- from nations such as Singapore and New Zealand to England and Israel – to share ideas and experiences about what has worked well, and what hasn’t. In the United States, ODR is scattered in municipal courts in 17 states, used mostly for small-claims cases, but some courts also used it to settle traffic and family law cases.
Here’s a snapshot of what was said at some of the sessions:
Maximilian Bulinski, an ODR researcher, shared some analysis he conducted:
Utah’s pilot project
The newsiest bit of information from the conference occurred when Utah court officials released the first results from the state’s widely watched ODR pilot project, which involves three courts.
In the largest of the three courts, the filing time went from 10 minutes to four minutes, and judges’ caseloads shrunk from 50-plus hearings a day to five. Default judgments also dropped, a sign of increased participation by defendants.
Overall, court staff prep time per case dropped from 9 minutes to 5 minutes, freeing up clerks’ time. The time it took for cases to be disposed decreased from 144 days before ODR to 84 days with it. Officials also were thrilled to report that of the 2,000 or cases filed to date, only 28 parties opted out, and some of those were encouraged to do so for various reasons. Mediators also reported needing to spend less time on cases than they anticipated.
“We want to think outside the box to bring access to justice, and we want get a lot of input from a lot of people with the understanding that if we have to change the rules, we will change the rules,” said Heidi Anderson, chief information officer, Utah State Courts.
Utah Supreme Court Justice Deno Himonas, who delivered the conference’s keynote address, said the justice gap is wide, and it continues to grow. The World Justice Project's 2019 Rule of Law Index ranks the United States tied for 99th out of 126 countries on "accessibility and affordability of civil justice." In 2015, the U.S. ranked 19th out of 102 nations.
“It’s time to bridge the gap,” Himonas said. “Deliver new services. There is no cure all, in my opinion. What it’s going to take is the building of a new legal ecosystem.”
He said law schools are doing a good job of producing “thoracic surgeons,” but most litigants don’t need that. Himonas is a champion for ODR, but he also praised what’s happening in Washington state and in Utah, where licensed paralegals have begun giving legal advice to people who can’t afford lawyers.
“Would it be ideal if everyone had access to an attorney, and it was affordable?” he said. “Yes, but that system has failed.”
What’s happening in Columbus, Ohio?
Speaking of gaps, Columbus, the nation’s 14th largest city, has a growing wealth gap. It ranked 5th in the nation in economic segregation in 2015, according to a University of Toronto study. Of all the court cases filed in Franklin County, where Columbus is located, 80 percent involve debt collection, and many of those are due to evictions because many people can’t afford to pay their rent.
Franklin’s voluntary ODR program is small, with only about 1,000 cases filed since it launched in October 2016, but, like Utah, it views its results as promising. Default judgments dipped from 54 percent before ODR to 44 percent with it. One third of the participants used it during non-office hours, which pleased court officials there. Four out of five users reported positive outcomes, and 95 percent of all parties said they would use it again.
“They said they felt like they had control,” said Alex Sanchez, the small claims and mediation supervisor for Franklin County Municipal Court.
To see Franklin County’s data, go here.
Nudging in Singapore
Singapore courts have a relatively mature ODR program, with about 27,000 cases processed. Three out of 10 litigants used it after normal court hours, and eight out of 10 expressed satisfaction with it. Singapore court officials also said their program reduced paper waste, travel time and filing errors – all good things.
The program is like others, in that there is a period in which parties can negotiate in a chat room. Unlike many others, the program “nudges” the parties to settle by pointing out that doing so will save time and maybe money. Singapore also uses its program to resolve motor vehicle-related cases, and at some point, the program points out the likely legal outcome based on the facts presented by the parties, and it encourages the parties to settle.
There was some debate – during and after the presentation – about whether it’s appropriate for an ODR program to do that. One side argued that only a legal professional is qualified to offer that information while others said it’s fine for an ODR program to share the statistical probability of a legal outcome. A compromise position was that ODR should provide legal information but not advice.
The Singapore officials said they don’t have enough data to know if nudging leads to more and quicker resolutions.
What about artificial intelligence?
Conference attendees also debated the role that artificial intelligence should play, if any, in online dispute resolution. Many questions emerged: How can AI best compliment ODR? Why bring AI into this when there are so many bugs to work out with ODR? Do the benefits of AI override the benefits of the human element provided by mediators and judges? What are the ethical considerations of introducing AI to an ODR program? Will AI require a new form of governance?
Some researchers say AI will play a major role in online dispute resolution, and they are trying to find the most effective AI tools.
“What does the future hold for ODR?” said Maria Acevedo of the Cyberjustice Laboratory at the University of Montreal. “We believe it is ODRAI, which is ODR aided by artificial intelligence.”
Not everyone was on board with that.
Richard Susskind, a British professor, author and consultant who has written for decades about the potential for the internet to help courts resolve cases faster, cheaper and more conveniently, said the human element shouldn’t be excluded from ODR. “AI,” he said, “cannot produce a judge who can empathize and do what human judges do.”
Amy Schmitz, a University of Missouri law professor who participated in a panel discussion about ethics in ODR design, echoed that: “We’re not far enough along to say we should accept a robo-judge’s ruling without human involvement.”
Although the conference attendees didn’t agree on everything, they did agree on basic principles that court officials who want a successful ODR program must do:
ODR and bias
ODR advocates have said that it will eliminate bias, or at least reduce it, and a study from Israel supports that. Two University of Haifa law professors examined 6,160 traffic cases -- 2,646 online and 3,514 face to face.
Looking at the fines that drivers paid and the charge reductions they received, there were no significant differences for those who used ODR, regardless of the users’ age, race or gender. For those litigants who went to court, younger drivers and black drivers paid larger fines, and black drivers were less likely to have their charges reduced.
“Bias exists. It’s real,” said Haifa professor Orna Rabinovich-Einy, “but this indicates that younger drivers and minority drivers should consider going online.”
A different type of ODR in Connecticut
Most ODR programs involve a plaintiff filing a lawsuit online, followed by a negotiation via chat, and then, if necessary, the involvement of a mediator. If there’s a resolution, great. If not, the case goes to court.
Connecticut’s traffic court program, which is voluntary, allows motorists to pay the fine or plead not guilty. If they plead not guilty, they can choose to go to court or participate in ODR. If they go the ODR route – and 76 percent do -- a prosecutor, serving in the role as the plaintiff, reviews the facts of the case and makes a settlement offer within two weeks. Eighty-nine percent of motorists/defendants accept the offer and are immediately sent to a payment page.
About 17,500 people have had their cases resolved without going to court since 2018.
The program has been a great time-saver and allows prosecutors to spend more time on habitual offenders, who must go to court, said Stacey Manware, deputy director of court operations for the Connecticut Judicial Branch. She added that much of the money for Connecticut’s program came from federal sources -- the Federal Motor Carrier Safety Administration and the National Highway Traffic Safety Administration – and other states should explore those funding sources.
From Connecticut to …Brazil
A discussion of ODR often leads to Brazil, where the lawsuit backlog is approaching 100 million. The average case is in the pending status for between seven and eight years, and there are more than a few cases that have been lingering for more than 75 years (not a typo). Brazilians who watch this attribute the backlog to judicial intervention and the fact that legal aid there is widely available, leading to the filing of a lot of frivolous lawsuits because plaintiffs have nothing to lose financially.
In Brazil, only about 12 percent of cases settle, but those who use ODR settle at a rate of 80.6 percent. Creditors settled 74 percent of the time, a very high rate for debt-collection cases.
Marco Rodrigues, professor of civil procedure at Rio de Janeiro University, said ODR there is easy to use. He said he knows firsthand because he once used it to resolve a dispute with an airline.
“Access to justice is not access to the judiciary,” Rodrigues said. “I hope ODR is a solution to the Brazilian backlog.”
Not all ODR cases are considered equal
Online dispute resolution began with small-claims cases in mind, but it has branched out into more complex cases, including family law.
A couple of counties in Arizona are trying it on a small scale. In one county, 13 percent of the 46 cases were resolved, and 41 percent of the parties opted out. While those numbers are not great, they reflect the difficulty in resolving these types of cases. On the bright side, 80 percent of the users said the platform allowed them to effectively communicate, and court officials think it’s a good fit for less complex cases, though many ODR advocates say it’s a good platform for cases involving domestic abuse because the parties are not physically together during negotiation and mediation sessions.
Mediators, who are involved from the start in the Arizona pilot project, say ODR is convenient and less stressful. There’s no yelling, for example, but they say it’s harder to build rapport with litigants, you can’t read body language, and it’s harder to gauge the level of conflict. And because the communication is via chat, sometimes the mediators suspect that a boyfriend or a girlfriend is doing the typing for the litigants.
The Arizona representatives said other courts who use ODR for family-related cases should keep in mind that:
Using ODR for these cases is a culture shift, and progress will be slow.
Flexibility is important. Be willing to make changes.
It’s important to set ground rules for the litigants, who should be respectful and not curse during negotiations.
The more comfortable mediators are, the better ODR should work, so give them as much training as possible.
Despite the limited success of Arizona’s pilot project, court officials plan to evaluate it after it ends in March and recommend a statewide project.
A for-profit version: intelligent dispute resolution
ODR got its start with the eBays of the world, so it should come as no surprise that the private sector has created an online dispute resolution app to resolve divorce cases in which children are involved. Jonathan Verk, co-founder of the company, Hyphenus, said he got the idea for it after he experienced a very difficult divorce and concluded that judges, “who don’t know the color of a child’s eyes, shouldn’t make important, generational parenting decisions for that child.”
Verk calls what his company does intelligent dispute resolution because its app, CoParenter, goes beyond what ODR programs can do. For example, the app learns how parents talk with each other and suggests how they should talk with each other. It warns users about their tone and their choice of words, and it can be used even if one of the parties decides to opt out. It also creates parenting plans that delve into minutia, such as who is responsible for picking up Johnny from tennis lessons on Tuesdays and Thursdays, and when parents must make payments for braces or summer camp.
Verk said CoParenter has resolved more than 10,000 disputes, created more than 7,800 parenting plans and has a 90-percent retention rate. He said it resolves cases faster than courts and at $13 per month, is cheaper than hiring a lawyer and a private mediator. He estimates that his company has saved the courts about $1.6 million but, more importantly, has reduced stress for thousands of families.
He said 85 percent of the couples who agreed to use it resolved their cases with it. And if the case ends up in court, the app has already compiled a lot of information, and that will benefit the courts.
The final word
The final word goes to Richard Susskind, who is as pro-ODR as they come, said, “I believe in the future, cases will be conducted online unless there’s a compelling reason to do it in courtrooms – maybe in five to 10 years.
“It’s a sensible way ahead, but it’s challenging stuff – judges without courtrooms and justice without lawyers. …Will it be digitally exclusive? Of course, but I worry more about people who are illiterate. …Critics compare ODR with a perfect system of justice that doesn’t exist. With ODR, we’ll see an increase in access to justice.
“…Once I was speaking at a conference for neurosurgeons in Boston, and I told them, ‘People don’t want neurosurgeons. They want health.’ And I’ll tell you, people don’t want courts. They want the outcomes that courts can bring.”
The 2020 ODR International Forum will be on May 6-7, in Dublin, Ireland.