As online dispute resolution (ODR) rapidly gains in popularity among courts in the US, Amy Schmitz provides the field with a rationale and guide for researching its provision of access to justice, or A2J. In her article, “Measuring “Access to Justice” in the Rush to Digitize” (Fordham Law Review, forthcoming), she outlines ODR’s promise for increasing A2J for those who are involved in the court system and reviews the current status of research regarding A2J before discussing in detail what research should be done and how it can be undertaken. Schmitz calls for research about how people deal with their legal disputes, with comparisons over time among differing social groups and demographics. In sum, research should look into who can access the courts, how they do it and what resolutions they obtain.
To answer the question of who can access the courts, Schmitz says courts should collect data on age, race, gender, income, education and representation status for all those who enter the courts. This information should be compared for those who use ODR and those who use in-person processes to see if ODR is opening new doors to the courthouse: Are self-represented litigants and others who weren’t accessing the courts before the implementation of ODR now more likely to do so? How do demographics affect whether a person accesses the court? Schmitz argues that this research should reach beyond court users. She notes that simply looking at those using the courts will not get at the reasons why disputants of different backgrounds and education levels aren’t availing themselves of the option to access the courts when ODR is implemented and how they seek solutions to their problems outside the court system.
Similarly, Schmitz recommends that research be done on how people access the courts by comparing ODR to in-person processes on what happens once disputants access the courts. She proposes the comparisons be made on time to disposition, the number and types of engagements the parties have with the process, dropout rates and whether ODR participants are more likely to engage with the system at off-work hours. Additionally, researchers should conduct focus groups with ODR users to find out whether they understand information provided to assist them to navigate the ODR process, and whether it is helpful to them. Researchers should also look at objective data about whether the information leads to fewer procedural errors and dismissals as compared to those who use in-person processes.
Research must also examine the effect of ODR on parties’ sense of procedural fairness, as well as whether parties’ experience of procedural fairness varies among users of different demographics. Here again, Schmitz recommends focus groups be conducted in addition to the more common method of surveying ODR and in-person court users.
Some are concerned that ODR cannot provide the same sense of trust between parties as can be built into in-person processes. Schmitz sees this as another avenue for research. Trust-building can be studied through real-time surveys that explore the emotions those using ODR are experiencing as they move through the process, reflecting their trust in the other party. This will help to understand whether reducing access to in-person processes in favor of ODR diminishes the trust-building attributes of court processes.
Schmitz says it is essential to know whether ODR affects case outcomes if we are to understand the impact of ODR on A2J. How do outcomes compare between ODR and in-person processes in high power imbalance cases, such as debt collection? It would be helpful to know whether those going through ODR are more or less likely to default or be required to pay the full sum as opposed to paying a lesser amount. What about representation? Do those without representation have outcomes more similar to those without lawyers when they use ODR as compared to those who use in-person processes? How does ODR affect default rates? This information is not only important for understanding the impact of ODR, Schmitz argues, but to provide the transparency needed to “foster fairness and trust” in the process.
Implicit in Schmitz’s call for research is that courts must partner with researchers by collecting more data than is currently collected about cases and litigants, and by providing access to researchers. For those wanting to know more about what data to collect, American Bar Association Section of Dispute Resolution Advisory Committee on Dispute Resolution Research has written a draft of its recommendations on what data courts should be collecting regarding ADR, which we are currently reviewing to determine what our final recommendations will be. If you would like more information about this project or would like to provide feedback on the recommendations, please email Nancy Welsh, the committee chair, or you can contact me directly.