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Just Court ADR

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Do Android Mediators Dream of Electric Agreements?

Just Court ADR, January 30th, 2018

With the new year being still fresh enough that some of us, and hopefully not just me, continue to write 2017 on their checks, the future is at the forefront of many of our minds. Whether we’re setting ambitious goals for the year to come, or just looking forward to putting the previous year behind us, I think it’s pretty natural for us to spend this time of year fixated on the road ahead. For me, this has translated into thinking a lot about the cutting edge of the ADR field: Online Dispute Resolution, or ODR.

I’ve been fortunate to have access to a lot of great resources and contacts over at Tyler Technologies, Court Innovations, the New York State Unified Court System and the American Bar Association (specifically the Center for Innovation, Center for Pro Bono and the Section of Dispute Resolution). I’ve also been able to learn a lot from, and keep up with the latest developments following; if you are fairly unfamiliar with ODR, these are two great places to start.

Though I feel like I still have so much to learn about this field, I’ve greatly enjoyed sharing the iota of knowledge I possess with my colleagues. Last year, I chaired the ODR Subcommittee for the Future of the Law Summit put on by the Chicago Bar Association (CBA); you can find the outline of our recommendations here. In November, I got to make additional presentations on ODR to the CBA’s ADR Committee and the Circuit Court of Cook County’s Law Division Court-Annexed Mediation Seminar. I’ve also had the opportunity to speak with a handful of court administrators throughout the country about ODR.

Through all these discussions, the one constant I’ve had is a refreshing lack of blank faces. Whether someone’s response is jubilant enthusiasm, healthy skepticism or just a constant stream of questions, it’s clear ODR is a topic that gets people buzzing. In that vein, I thought I would share the things that excite me about this emerging field (before focusing my next entry on the challenges it must overcome).

Access to Justice
If implemented properly, ODR could be a huge boon to individuals typically underserved by the justice system.

Imagine the case of someone who works a retail job and who has spent all of their paid leave for the year attending to a medical situation. They now have considerable medical debt on which they have defaulted.

Meanwhile, the hospital has sold the debt to a collection mill, who is taking the debtor to court. Notice of the suit is improperly served, and the debtor does not even know they are being sued. Even if they did have notice, they would be unable to take valuable time off of work to defend themselves in court. As a result, a default judgement is rubber stamped by an overburdened court, and the non-appearing defendant’s wages become garnished as a result, exacerbating the very issues which have led to this outcome. This is not justice.

An ODR solution, carefully overseen by court administration, could address many of the problems we see here. Service could be conducted electronically, going to the defendant’s email and/or as a text message. Software could ensure that debt collectors are submitting appropriate evidence in support of their claims. An asynchronous chat platform could allow the parties and/or their counsel to negotiate a settlement outside of court, and failing that, a video mediation could be scheduled. Judges and court administrators could oversee the process (outside of the communications, which would remain confidential to the parties and attorneys) and either outright mandate use of the ODR platform, or incentivize plaintiffs to file online by offering a reduced filing fee.

These are just a handful of examples of how integrating more technology into the court system has the potential to tip the scales of justice backs towards even.

Streamlined Dispute Resolution
We live in a world that is constantly evolving and we expect the institutions which govern that world to keep up. Our court system might not have been built with rapid technological change in mind, but that doesn’t mean it can’t adapt. By bringing ODR into the fold, courts can leverage the advances to computing power which have broadened people’s access to the world around them. And to be perfectly blunt, if brick-and-mortar courts do not offer digital options for dispute resolution, there’s no reason to believe that people won’t turn to someone who can provide these services online, as people have done for shopping, hailing a cab, or booking a place to stay.

Luckily for the courts, there are carrots to go along with the sticks. Innovations in e-filing have already streamlined docket management for many courts across the country, and certain components of ODR can be built on top of that infrastructure. Further, as we have seen in traditional ADR, under the right circumstances, ODR can potentially resolve cases more quickly and economically than traditional litigation. And by allowing disputants to guide themselves to resolution using decision wizards and other software that lays out their options in plain language, they are more invested in the final agreement, which research has long told us will make them more likely to comply, keeping them out of court.

Continuous Improvement
Through webinars and product demonstration, I’ve gotten to see several of these platforms in action. While the front-end capabilities are rightly exciting people, the back-end analytics could be the part that really revolutionizes how we approach conflict. At RSI, we’ve been espousing the cruciality of collecting reliable data about court programs for two decades, and made it the hallmark of the programs we administer. We even designed a model survey toolkit that just about any court can adapt to help them collect the data.Collecting good data is so important because it allows the court to make decisions about program design that have material consequences on the lives of citizens.

In the past, even a well-resourced program would need to devote countless work-hours to collecting, cleaning, analyzing and reporting on the data. This effectively put the timeline for making and implementing recommendations on how to improve programs into months, if not years.

Now, however, many ODR solution have built-in, real-time data tracking. Reports can be generated with a few clicks of a button. Down the road, through advances in artificial intelligence and natural language generation, platforms could make recommendations about how to improve the experience, or even automatically make such improvements. Technology has the potential to significantly decrease the burden and increase the speed at which our courts have the capacity to improve their services.

Danger, Will Robinson
I hope you’ve enjoyed this exploration of the exciting possibilities that ODR has: there is a Star Trek quality to the promise that ODR yields. However, for all its potential upside, there is still great risk at that intersection of technology and justice – call it the Black Mirror effect. I’ll be dedicating my next post to exploring the challenges ODR must overcome.

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