Recently, the Internet Bar Organization hosted a fascinating online discussion entitled The Future of Justice: How Technology is Shaping the Dispute Resolution EcoSystem. The four speakers—two from the U.S., one from India, and one from China—highlighted the promising characteristics of online dispute resolution systems that could lead to greater access to justice for millions of global consumers. They also addressed some, though not all, of the challenges online dispute resolution presents to the justice landscape.
First, they drew a helpful distinction between technology-assisted dispute resolution (TADR), which incorporates technology into traditional dispute resolution systems, and online dispute resolution (ODR), which uses technology (cell phones, online chat, email, video conferencing, etc.) throughout the dispute. We’ll use the same distinction here.
Second, they described what constitutes a “just” dispute resolution process, and how ODR can incorporate these elements. The U.N. Working Group III and international business organizations have been working to incorporate these characteristics in rules and guidelines for ODR. The elements, which should look familiar to offline dispute resolution practitioners, are: impartiality of personnel and decision makers; accessibility and convenience; efficiency and speed of process; reasonable cost; transparency; and (most importantly for online systems) neutrality of the process (which takes shape in the technological platform).
As I come from the court ADR perspective, I am most curious about how ODR may impact the elements above as they relate to developing trustworthy, efficient systems of justice (court or otherwise), accessible to all.
Different than a physical courtroom, ODR does provide the opportunity to stay in one’s home or local community to resolve a dispute, even if the dispute crosses national borders. ODR systems function in a way that may be easier to understand than the specialized language of lawyers and the courts, too. And ODR does not rely solely on a person, who has particular time and financial constraints that may limit the ability to resolve the dispute, to be present at all times. But, I have a lot of questions about whether ODR actually provides access to justice similar to, or better than, traditional justice systems like courts.
Access to ODR must first mean access to technology. Chittu Nagarajan from India made the point that even rural Indians have cell phones. But, reading deeper into the numbers only 70% of Indians possessed such technology and most of those were not “smart” phones that would allow for online or video interface. This leaves out more than 30% of the population from an online dispute system. Even fewer people have access to computers that are connected to the internet at a fast enough speed to make online dispute systems a viable alternative to the clogged court systems. Would ODR and the digital divide create an even greater justice gap than already exists, both in the developed and the developing world?
In exploring ODR processes, parties may first need to be assured of the legitimacy of the platform and informed about the extent of confidentiality before feeling comfortable participating. This is the advantage courts have over other, private-sector systems. In the U.S. at least, people see the courts as a place of legitimacy and trustworthiness, where they can be assured of a fair system. Larger, established organizations such as eBay are more likely to be perceived as trustworthy and secure than lesser known dispute systems, since users have come to trust them with sales purchases and other services. But, do systems designed for profit jeopardize the neutrality of the process, the neutrality people expect from court ADR?
In the wake of recent internet security breakdowns, I also wonder how ODR processes will ensure a sufficient sense of security within the process. Vikki Rogers from the Institute of International Commercial Law introduced the possibility of oversight, whether by the courts, the government, or a private agency, and emphasized that building participants’ trust in the provider would be crucial to any ODR program’s success. But I wonder if governments that are just beginning to discuss privacy online are really equipped to regulate ODR. Instead, governments could be focusing on improving current justice systems—including adding technological methods for communication and resolution—to adapt and change based on the people who need access to them. ODR’s growth also raises the question of whether ODR leaves parties satisfied that they have been heard and given a fair opportunity to participate in the dispute resolution process. Satisfaction levels would likely vary in relation to the particular mode of ODR – parties might respond differently to a video chat, for example, than to a text-only communication or a phone conference. If a party’s having her “day in court” is a substantial factor in achieving satisfaction, then a process that involves little or no face-to-face contact, as in most ODR, might be considered inadequate. One ODR provider called Smartsettle promotes visual blind bidding, in which the parties make numerical offers and the neutral chooses the most “generous” offer; this efficient, numbers-based process would not likely satisfy a party who is concerned with the personal as well as the more technical aspects of the dispute.
Another valuable characteristic of traditional legal systems is difficult to find in most ODR systems—a venue for redress if someone does not agree with their treatment in or decision made in ODR. The panelists discussed three possible paths a disputant may take if they do not agree with an ODR outcome: seek redress within the ODR system, connect to the courts, or agree to accept the resolution since no better alternative exists. Some ODR systems have redress mechanisms built in. So, if you do not agree with the outcome of a negotiation, you can seek mediation, then arbitration, then a jury panel, all within the online platform. As for connecting to the court system, disputants in “developed” countries may go to the courts if they do not agree with a decision. But, disputants in developed and developing countries may not have laws that allow them to take online disputes to court or they may not have a court system that will give them speedy, cost-effective resolution. However, one of the advantages of ODR may be that disputants will have much faster access to a resolution than traditional methods, ADR or otherwise.
With all the innovations in technology, I still wonder if technology can provide adequate legitimacy, quality and access to justice outside the court system.
*Thanks to RSI’s summer intern Nora Kahn for her significant contributions to this post.