During the recent holiday break, I was preparing an online order to replace an aging mobile phone. I had a few questions, so, with great trepidation, I clicked the button to “Chat Live with Agent.”
As the agent logged on, I prepared myself for an hour-long bureaucratic struggle. But much to my surprise, the agent was prompt, communicated clearly, and completed my transaction in just minutes. My expectations were definitely exceeded.
Returning to work after the New Year, I reviewed a state court strategic plan to expand access to justice. With my surprisingly efficient customer service chat still fresh in my mind, I read with interest the description of Online Dispute Resolution (ODR). Could the same technology used to sell an iPhone possibly be used to resolve a court case? As a court planner, I found ODR intriguing, both as a procedural innovation and also for its potential to affect courthouse space needs.
The Next Phase of ADR
Alternative Dispute Resolution (ADR) is certainly not a new concept. Most courts offer some form of ADR or mediation service. We wrote about the potential space savings from ADR nearly a decade ago.
More recently, the balance between larger courtrooms and smaller hearing rooms continues to evolve as part of the hybrid courthouse concept. But ODR is something different.
ODR allows parties in a dispute, perhaps aided by a mediator, to resolve their issues through a public-facing digital platform. This goes beyond paying a traffic fine online or agreeing to a debt payment schedule. It provides the ability to interact in real-time to legally resolve a dispute without appearing in person.
- Utah was among the earliest adopters of ODR in 2019, affectionately termed “Pajama Court” by some. Focused initially on small claims cases, Utah’s courts committed to ODR in part to reduce the rate of default in civil cases when one party didn’t show up to court. One of Utah’s Supreme Court justices observed, “Justice is a thing. Justice is not a place.”
- In Michigan, as part of the statewide Justice for All strategic plan, MI-Resolve was implemented in 2020. According to the Michigan Courts website, Mi-Resolve “is an online system where you and the other party can have a text-based conversation along with a trained mediator to see if you can resolve the matter.” Mi-Resolve is free and can be accessed 24/7/365, and its use is confidential.
- In 2021, Texas adopted a statewide framework for implementing ODR. The framework “provides a roadmap for Texas’ 254 counties to explore virtual mediation, online case filing, and other court processes that fall under the ODR umbrella,” according to Pew Charitable Trusts, which provided technical assistance. As with the other early adopting states, Texas officials cited increased access to justice as one of the key objectives of implementing ODR. The officials hope to create a model other states can follow as they explore ODR technologies.
BENEFITS OF ODR
From these and other sources, it seems clear that ODR is in a relatively early adoption phase and is likely to become more widespread. Here are a few benefits likely to contribute to the expanded use of ODR:
- Access to Justice - Courts nationwide continue to strive for the best ways to make justice available to residents, particularly those in legal deserts, where residents lack access to legal resources and services. One of the primary advantages of ODR is the convenience and accessibility it provides by removing geographical barriers.
Parties involved in a dispute who would otherwise need to travel to a courthouse, potentially at great distance and expense, can resolve their dispute from home or another convenient location. The expanded use of ODR provides a tool to help courts address the issue of legal deserts.
- Space Savings - As a court planner, it is not difficult to envision the potential space savings from the expanded use of ODR. In addition to small claims, some early adopting courts have used ODR for traffic, misdemeanor, and family court dockets. If more cases can be adjudicated online, then eventually, the number of judges, mediators, court staff, courtrooms, judicial chambers, and staff offices needed to process the same caseload would logically shrink.
Some judges, mediators, and court staff might specialize in ODR and related processes, enabling them to work remotely. As construction and materials costs continue to soar via inflation, any space-saving opportunities are worth exploring.
- Efficiency - ODR can save time and expenses for both litigants and courts. Participants in traditional legal proceedings can incur significant attorney fees, court costs, and opportunity costs related to lost wages and travel. ODR can reduce or eliminate all of these.
From the court’s perspective, judicial and court staff time can be focused on adjudicating cases with higher stakes and more serious charges, leading to greater overall efficiency. In general, streamlining dispute resolution in cases where it makes sense to do so is beneficial for all involved.
CHALLENGES FOR ODR
As promising as these benefits appear, more widespread adoption of ODR will encounter challenges. Here are some areas of potential issues courts may encounter:
- Access to Technology - Although access to justice is a key benefit of ODR, that access is predicated on residents having commensurate access to needed technology. Whether it is a mobile phone app or a web-based portal on a laptop, desktop, or Chromebook, users require high-speed wireless Internet access or a high-speed data plan. In addition, they require a baseline of expertise to use the technology and successfully navigate the ODR process.
Some residents may lack the financial resources to acquire the technology required for ODR, while others may lack the training and expertise to use the technology. Courts will need to address these issues as part of ODR implementation.
- Lack of Interpersonal Contact - As many courts experienced during the pandemic, remote video proceedings enabled court business to continue during building closures, but they also created new challenges. Among these was removing interpersonal contact from important aspects of the proceedings. For example, judges and jurors could not easily read body language and non-verbal cues from witnesses. Similarly, the lack of interpersonal contact could hinder resolving online disputes.
Not only are in-person cues unavailable to online litigants, but the drawbacks of online engagement could also create challenges. As an Internet message board or group chat can demonstrate, context, tone, and nuance can be lost between parties in a discussion, often leading to increasingly harsh rhetoric.
With the continued advance of technology in so many areas of our lives, the expansion of ODR in courts seems more or less inevitable. The opportunity for courts to gain efficiency, reduce space needs, and expand access to justice within their communities is worth pursuing.
As with any wholesale expansion of technology-based services, there will be problems to solve and hurdles to overcome. But over time, ODR can enable courts to save space and focus on the most difficult and labor-intensive parts of their mission while making justice more available and user-friendly for litigants. After all, who wouldn’t want to go to court in their pajamas?