by Karl Bayer, Victoria VanBuren, and Holly Hayes
The Pew Charitable Trusts (“Pew”) has reportedly issued a call for the establishment of a national body to standardize online dispute resolution (“ODR”) procedures in civil courts across the United States. According to a recent organization publication, a national set of standards is warranted due to the rapid expansion of state and local court ODR programs.
State and local courts across the United States are beginning to adopt an adjudication approach known as online dispute resolution (ODR) that allows parties to resolve civil cases online without ever setting foot in a courthouse.
In 2012, no jurisdiction had launched ODR, but today dozens of pilots are underway to adapt the technology—first used in the private sector to handle disagreements over commercial transactions—to civil court systems. Many stakeholders are hopeful about the possibilities to streamline court business processes and remove obstacles to quick resolutions, but some voice concerns about power imbalances and differences in access to courts, issues that necessitate additional discussion and evaluation.
Last year, Pew partnered with the National Center for State Courts (“NCSC”) to survey and support a variety of localized ODR programs. The goal of the partnership is to make court “ODR, a digital space where parties can convene to work out a resolution to their dispute or case, useful and successful.”
Experts with a range of perspectives came together Nov. 30 in Arlington, Virginia, to discuss online dispute resolution in a session organized 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.
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.
Participants of the joint Pew/NCSC session also examined some of the potential pitfalls of ODR.
If not implemented properly or evaluated regularly, 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, such as those involving traffic or child support 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.
According to Pew, creating a national body to standardize the use of ODR by the courts may help address these potential downsides and increase fairness.
To allay these concerns, a national body could create standards for successful use of ODR in civil courts. Participants said state courts would benefit from principles for the fair and effective implementation of this technology; guidelines for developing ODR governance models; basic principles for piloting specific case types; and practical considerations for outreach, access, and ways to opt out of ODR. Other nations also can offer guidance. For example, the court system in Australia has established principles for access to justice that help guide ODR implementation. A similar model could be effective for its adoption here.
In the future, “Pew plans to partner with stakeholder groups to evaluate the effects of ODR on court systems and the people who use them.”
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