By: Scottie Fralin

In today’s technology-dependent world, so much is accomplished on the Internet: consumer transactions, networking, job and school applications, event registration, and the list goes on. It’s hard to think of something we can’t accomplish online. However, filing or responding to a legal complaint typically must be done at the courthouse during regular business hours. This facet of our legal system poses a significant impediment to many pro se litigants who may have limited access to transportation or inflexible work schedules. Enter Online Dispute Resolution, an emerging tool that may be able to bring more people onto the same legal playing field. Online Dispute Resolution (ODR) “refers to a wide class of alternate dispute resolution processes that take advantage of the availability and increasing development of internet technology.”[1] ODR’s advantages include lower cost, high efficiency, and greater flexibility—both geographically and with regard to the formalities of the traditional legal processes.[2]

 

ODR’s most significant benefits are the reduction of costs and time.[3] Traditionally, resolving a dispute requires parties to pay potentially high attorney’s fees, court administration charges, and travel costs.[4] The proceeding itself might last for months or years before resolution.[5] Alternatively, ODR allows parties to save time and money while achieving social harmony through consensual solutions, where both parties end up satisfied with their stance in a mutually beneficial agreement.[6]

 

ODR is a process by which parties to a dispute engage in negotiation and mediation online.[7] ODR is primarily taking hold within municipal and county court systems to resolve small claims cases.[8] It’s being used to settle arguments between neighbors over fences, to settle debt collection issues, and to finalize divorce proceedings.[9] Though ODR technology best fits low-amount, high-volume disputes, it has recently matured to the point where more traditional ADR and litigation areas are within reach.[10]

 

As early as March 2019, a panel was held about ODR at South by Southwest (SXSW), the technology, film, and music conference in Austin, Texas.[11] Significantly, the panel noted that in the 1990s, only 4 percent of individuals in courts were not represented by lawyers.[12] Now, in 75 percent of civil cases, one side does not have a lawyer.[13] Utah was the first state in the U.S. to launch ODR as a tool, and as a result, the state has seen a fast and sizeable drop in defaults among eligible small claims cases.[14] Prior to launching ODR, 71 percent of those cases resulted in a default, and now, that number is down to 53 percent.[15] As the platform grows, it can move beyond small claims cases to traffic, misdemeanors, family law, and more.[16]

 

One source cites over 50 courts across the United States already using ODR, with Michigan district courts comprising the majority.[17] Another source claims that ODR is now being used by more than 50 jurisdictions throughout the 50 states.[18] The very new nature of ODR probably accounts for the differing available statistics on ODR’s true prevalence in the U.S. Either way, ODR’s potential influence on the U.S.’s established judicial practices is surely something to look out for.

 

One issue to look out for as ODR continues to take hold in our legal system includes the limited range of cases where ODR can be applied—i.e., typically, this alternative is used to negotiate a small dollar figure, which leaves out the possibility of innovative negotiating.[19] Critics of ODR also point out its impersonal nature, noting that some key dynamics of mediation may be lost when parties engage with each other at a distance and in front of computer screens.[20] Lack of regulation and enforceability are also concerns, as is accessibility because a continuous internet access is necessary to carry out ODR.[21] Thus, while the time saving and cost cutting aspects of ODR provide better access to justice, the technology still has its issues and convenience still comes at a price for some.

[1] AndraLeigh Nenstiel, Online Dispute Resolution: A Canada-United States Initiative, 32 Can. U.S. L.J. 313 (2006).

[2] See Joseph W. Goodman, The Pros and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation Websites, 2 Duke l. & T. Rev. 1-16 (2003).

[3] See John Chopyk, Serving Justice Online: Online Dispute Resolution as an Alternative to Traditional Litigation, lawless.tech (Sept. 11, 2018), https://lawless.tech/serving-justice-online-online-dispute-resolution-as-an-alternative-to-traditional-litigation/.

[4] See id.

[5] See id.

[6] See id.

[7] See id.

[8] See Zack Quaintance, Judges, Private Sector Spread Online Dispute Resolution in Courts, GovernmentTechnology (Mar. 20, 2019), https://www.govtech.com/public-safety/Judges-Private-Sector-Spread-Online-Dispute-Resolution-in-Courts.html.

[9] See id.

[10] See Loic E. Coutelier, The New Frontier of Online Dispute Resolution: Online Divorce Mediation, American Bar Association (Aug. 9, 2017), https://www.americanbar.org/groups/young_lawyers/publications/tyl/topics/dispute-resolution/new-frontier-online-dispute-resolution-online-divorce-mediation/.

[11] See supra note 4.

[12] See Zack Quaintance, SXSW 2019: Utah, ‘Pajama Court’ and Resolving Cases Online, GovernmentTechnology (Mar. 11, 2019), https://www.govtech.com/civic/SXSW-2019-Utah-Pajama-Court-and-Resolving-Cases-Online.html.

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See The National Center for Technology & Dispute Resolution, Courts Using ODR, http://odr.info/courts-using-odr/ (last visited Mar. 21, 2019).

[18] See supra note 4.

[19] See supra note 3.

[20] See id.

[21] See id.