In my previous entry, I shared the features of online dispute resolution, or ODR, that had me excited about the myriad ways technology is shaping the way we approach dispute resolution. But as is so often the case with technology, the flip side of new opportunities is the potential for abuse (as the Facebook CEO Mark Zuckerberg’s recent testimony before Congress demonstrates). Here are my three biggest concerns I’ve identified in researching ODR and talking with courts about it.
ODR is Not a Crock-Pot
In an age where Amazon can reliably create our shopping lists for us and the timeline for self-driving cars to rule the road is being projected in years, not decades, it is tempting to think that the computerization of dispute resolution will be a fully automated process that will free our courts to just ‘set it and forget it.’ This canard, which has also plagued non-digital ADR as well in a slightly different format, presupposes that there is no need for regular human intervention.
In reality, implementing ODR into our courts will not only require a watchful eye, but probably several sets of them. The recent requirement to e-file cases in my home state of Illinois provides a good example. Circuit Court clerks across the state geared up for nearly two years to launch this change, and many are still working through a transition period where they are still utilizing paper filings as a redundancy and staffing personnel to help answer litigant questions.
Similar precautions, and then some, would be needed to introduce ODR into a court ecosystem. There would need to be rigorous education and outreach offering, both prior to and coinciding with program launch. Staff would need to be available to address technical issues and procedural questions. Ongoing monitoring to assess the program’s success, making necessary adjustments to the program, and reporting back to judges and court administration are all aspects that require human intervention. While that involvement may decrease over time, ODR is not a crock-pot: you can’t just throw everything together, hit start and expect things to work out.
Garbage In, Garbage Out
Look, I get it: technology is really cool. A not insignificant part of ODR’s appeal is that it represents the cutting edge, and all the possibilities therein. For courts, who often get a bad rap for being out of touch, adopting ODR would be a clear way to demonstrate modernity. However, if the only goal of your ODR program is to bring technology into the fold, well, uh, that spells trouble. Or in the words of the esteemed Dr. Ian Malcolm…
Any ADR program worth its salt should identify the needs that program seeks to address, and set forth goals to help the program meet those needs. Nothing about ODR should exempt such projects from continuing to fulfill these requirements.
I’ve had several conversations with folks interested in implementing ODR where the first question they have is “What platform or software would you recommend we use?” While this might seem like a logical starting point, your first question should be “What problem(s) do we hope to solve with technology?” Are you seeking to assist self-represented litigants? Are you trying to make mediation accessible for disputants in remote areas who would otherwise not have access? Are you trying to minimize the amount of time disputants spend in court?
Figuring out what you’re trying to do with your ODR program should dictate the technology you should use, not the other way around. This process will also allow you to articulate the goals that make sure the technology is serving the disputant, rather than burdening them with added complications.
In my last piece, I touched on how ODR could further the Access to Justice cause. But it would be negligent to not additionally set forth the risks it poses in that respect.
For one, while the proliferation of smartphones has made internet access seem ubiquitous, you can’t take that to mean everyone has reliable internet access. Phone data plans are often more expensive and provide slower and less reliable internet than home broadband. Data from Pew indicates that people of color, as well as individuals with lower levels of income and educational attainment –demographic groups that are historically underserved by courts – are more likely to be dependent upon this inferior internet.
As an entity providing ODR, you therefore ought to be concerned with designing systems that cater to these facts. Your ODR platform should have “responsive”, or mobile-friendly, design. Your platform should have safeguards in place for people who rely on public computers – I’ve seen this implemented to great success in the MyLawBC project, whose platform has different settings depending on whether you’re using a public or private computer. Consider whether you can provide one or more dedicated computer terminals at your courthouse to allow people to access the program.
There are myriad other access-related considerations for designing your ODR platform. What languages will it be available in? How will people with disabilities use the technology? Are you using language at a 4th-grade reading level like Access to Justice advocates recommend?
And these are the “easy” issues! I’m still waiting to see a good answer as to how ODR can effectively safeguard against the risks of coercion and duress in cases where issues of intimate partner violence are present.
Don’t get me wrong, even with all these risks and challenges, I’m still really excited about the possibilities ODR presents. As a field, ADR has been largely unafraid of experimentation in pursuit of better approaches to conflict, and it is only natural that the next logical step would be to embrace the technological advancement that is so at the forefront of our culture. Courts could be at the epicenter of an ODR revolution. To find success in that effort, they should strive to be clear in their mission, and careful in their execution.