In the first of a series of articles, Darin Thompson examines ODR issues at a time when they may become of special relevance in England and Wales
In April 2014, the Civil Justice Council (CJC) announced the creation of a new Advisory Group to explore the use of Online Dispute Resolution (ODR) to resolve civil disputes. The group is chaired by SCL President Professor Richard Susskind and includes a collection of members drawn from academia, government, industry, dispute resolution and justice.
In a series of four articles for SCL, I will examine a range of issues concerning ODR in the justice context, and demonstrate how some of the inevitable implementation challenges can be overcome. It is my hope that this information will contribute to the broader debate over the costs and benefits of ODR, and influence justice system decision-makers to move from abstract exploration to tangible implementation.
In a larger sense, these articles should support the 'normalization' process where stakeholders become accustomed to the idea of ODR and accept it as a real subject for discussion within the context of civil justice and dispute resolution.
As a cautionary note, my analyses are deeply biased. I carry the perspective of a proponent with some experience in this area, at least with respect to conceptualizing, designing and legislating ODR in the public justice context. I am also committed to the view that the time has come to rethink and redesign some of our justice processes, and that technology must provide some of the building blocks for the new architecture.
This article provides a general introduction to ODR, before considering its potential role in the justice system. I go on to argue for the principle of user-centricity, or putting the needs and interests of users at the heart of the system, and recommend modern design approaches meant to optimize the resulting processes.
ODR involves the application of technology to dispute resolution processes. It leverages the capacity of the internet to support the creation, sharing and retention of dispute resolution communications as well as its ability to support multiple forms of interactions, including asynchronous text, voice and video.
ODR can support a range of dispute resolution processes, from direct party-to-party negotiation to mediation and adjudication. In some systems, a neutral facilitates interactions. In others, the technology plays the role of facilitator.
Some ODR platforms allow a single user to engage with an automated system to manage or resolve a problem. For example, a user working with an artificially intelligent expert system may receive information or support to resolve a problem unilaterally, avoiding the need to involve others.
ODR is distinguishable from other justice and dispute resolution technologies such as digitized court forms or electronic filing systems. It moves beyond simple automation of offline practices, and uses technology to create new functions, new processes, and new value.
The most well-known example of ODR is the eBay/PayPal system, which is said to resolve 60 million disputes annually. Over 80% of these disputes are resolved using software alone, and do not require interventions of third-party human neutrals.
Despite these impressive statistics, ODR adoption has remained conspicuously low, particularly considering the concept was developed as early as 1 999. Technology-based services have become deeply entrenched in our business, social and governmental interactions, but not in dispute resolution or justice. We use the internet for almost everything – but not for resolving disputes.
Bringing ODR into the Justice Context
It should come as no surprise that the formal justice sector has not widely adopted ODR technologies. The inherently change-resistant posture of modern justice systems is particularly resilient when it comes to technology, whether or not it involves ODR.
The CJC's exploration of ODR should be encouraging for proponents of ODR and other justice technologies. Symbolically, it is noteworthy for a court to undertake this analysis so openly. Moreover, the appointment of Professor Susskind, one of the world's most widely recognized champions for legal technologies, as the group's chair suggests the right questions will be asked and appropriate weight will be given to ODR's potential benefits vis-à-vis potential risks or drawbacks.
Justice System Implementation
Even if the CJC Advisory Group produces a positive report on the potential of ODR for resolving civil justice disputes, the road toward implementation can be a difficult one. Implementing any change in a justice system is difficult. Add technology to the mix and the challenges increase significantly.
The challenge of justice system ODR implementation is deepened by the fact that there are virtually no precedents to follow from other courts and jurisdictions. There are some excellent examples of ODR's potential in the private sphere, but the context is dramatically different, as are the users, the administrators, the interests, and risks, not to mention the public's expectations.
There is a vibrant community of scholars and ODR platform providers who meet regularly at conferences and share information through dispute resolution and legal technology publications and events. Despite the enthusiasm and ongoing commitment to ODR from this community, much of the discussion relating to the public justice systems remains relatively abstract, experimental and academic. New small-scale pilot projects and other initiatives have come to light in recent years. However, there is no abundance of evidence or experience available on the subject of large-scale ODR implementation in the justice context.
The Private/Public Justice ODR Divide
The system design approaches used in most of today's successful private ODR systems will not transfer automatically to a civil justice system environment. The differences between contractually-based, e-commerce environments and public justice systems are significant.
Private ODR systems are often situated within 'walled gardens' or closed ecosystems where a vendor or designated industry authority controls the connection between the dispute resolution mechanism and the market itself. In many cases, participation in ODR is mandatory in exchange for the right to buy or sell within that ecosystem. It follows that a person who objects to the notion of ODR or its processes can opt out by leaving the 'walled garden' or refraining from transacting in the specific marketplace altogether.
This contractual, market-based approach allows private ODR to focus more on efficiency, speed and outcomes than traditional justice systems might. Lawyers, academics and other commentators have suggested these market-based systems lack necessary levels of transparency, predictability or fair process. Some ODR systems have been accused of consistently favouring one type of party over another. In the public justice system context, such defects, whether real or imagined, will not be tolerated.
Guiding Implementation with Defined Objectives
If the CJC Advisory Group recommends the use of ODR for the resolution of civil disputes, foundational implementation work must involve a clear articulation of the underlying motivations for applying technology to public justice processes. These objectives must then guide the subsequent conceptualization, design, development and implementation of the ODR system.
There is too much at risk to simply set out to 'do ODR' without first recognizing the reasons for doing so. A failure to appropriately guide implementation activities could result in a disproportionate focus on the technology itself, rather than on the benefits it is meant to deliver. It can also make the work more susceptible to critics, whether they object to the notion of justice technology or system change in general.
A project that expends too much effort reacting to critics will inevitably be pulled off course. These distractions further obscure the impetus for ODR, which is to deliver significant new benefits for civil justice users through technology.
Some foundational principles can be borrowed from examples of ODR in the private sphere. Some principles will carry forward from traditional justice. Some new principles and approaches will have to be invented.
ODR as a Platform for Justice Innovation
Despite the apparent shortcomings of some private ODR systems, traditional justice does not hold a monopoly on ideals like transparency, predictability and fairness. These ideals can be addressed in new and different ways, through technology-based processes within a civil justice ODR system. However, successful design will require an appropriate balancing or blending between established justice interests and principles and newer, faster, simpler ways of providing dispute resolution to the public.
Obviously, it will require the acceptance of the internet and digitally-based communication channels, as opposed to courthouses, as the new fora for delivering justice. The significance of this difference must not be underestimated by civil justice ODR system designers.
The interests and ideals associated with the justice status quo need not be rejected altogether in order to create an environment for innovation and improvement in justice. But the inertia of courts and their traditional approaches to justice must not overtake the development of new systems using ODR. Refocusing justice on service as opposed to vigorous procedure, and on users as opposed to providers, such as courts, judges and lawyers, will illuminate the way forward and ignite much needed reforms and innovations.
In the traditional justice context, system providers like judges and lawyers tend to place considerable emphasis on vigorous process. Interactions tend to be slow and costly, procedures are complex, and rules of court are long and difficult to understand. These characteristics tend to serve the interests of providers and their good faith perspectives on justice and the rule of law. But they also tend to conflict with interests of users who value accessibility, understandability, affordability and timeliness.
Users also tend to place a high value on outcomes. They are the ones experiencing the disputes on a personal level. They want to achieve rapid, affordable resolutions and move on.
Resolving tensions between traditional system interests and user interests is not a zero sum equation. Indeed, a speedy and affordable outcome will be undesirable for users if the process is unfair. But there is room to rebalance system interests and user interests within a new system using ODR.
Designing ODR for Users
Well-designed ODR processes will emphasize user needs. This ideal is easily recognized but often underemphasized in justice system design or redesign activities.
Well-meaning lawyers, judges and public servants can carry the spirit of user-centricity a long way. They can make reasonably well-informed assumptions about user interests and attempt to include them in a system design or redesign process. But this 'proxy' approach can be validated and improved significantly through techniques borrowed from design processes developed outside the justice context.
Surveys, interviews, focus-groups and a range of user experience design techniques can identify key ODR usability and user satisfaction features. Insights determine the value users put on outcomes as opposed to process, their willingness to engage with various technology-based communication methods, the level of complexity they can tolerate and the amount of time and effort they are willing to put in ODR dispute resolution processes.
User experience design work can also identify sample use cases and scenarios to guide ODR process and technology design work. It can result in development of user personas or archetypes against which the developing ODR system can be continuously evaluated.
Customer journey mapping and other design exercises can help to identify places where users will interact with the ODR system and help to optimize these 'touchpoints'. This type of exercise will also help designers understand the relationships the touchpoints create between users and the ODR system.
Soon after the conceptual design work begins for the ODR system, user-centric design methodologies and techniques should be put into action. Feedback gained from these efforts will inform ongoing design work and identify necessary changes and improvements.
It will be difficult to weave user-centric design into an ODR system if it falls into the pattern of a typical justice technology mega-project. Designing for users will ultimately require multiple versions or iterations before the conceptual work is complete. This approach depends on project flexibility and agility, as opposed to the more rigid approaches where all deliverables are defined at an early stage of the project.
User-friendly Civil Justice
Feedback obtained through agile and iterative design processes can be used to continually inform and refine the legal and more explicitly dispute resolution-focused design work. Lawyers, judges and other dispute resolution professionals can evaluate their work against the feedback obtained through various user-centric design methodologies.
The broad application of design approaches that place users at the centre will promote user-friendly services and outcomes through ODR. By extension, it should help us begin to address problems around access to justice. It should also create fertile ground for new civil justice processes that people do not simply have to resort to use, but ones they may want to use to resolve disputes.
Successful implementation of justice system ODR will depend on solid design and optimized processes. Design methodologies may include creation of an ODR system's business architecture and workflows. Without dwelling on the semantics of business architecture, workflow or process design, it is sufficient for this article to recognize a desire to identify and model activities, tasks and procedures that would bring civil justice ODR into reality.
Basic Process Diagrams
The business process for an optimized civil justice ODR system must be designed to be fast, efficient, understandable and fair. As a starting point, the task seems quite simple:
Simple ODR Process Diagram
Soon after the serious process design work begins, the elegance of a simple model succumbs to a barrage of details, many of which threaten to add complexity, cost and time to a civil justice ODR system.
Immediate process design questions arise around 'where' the initiator engages the system (is it on the courts' website or elsewhere?) and how this engagement happens (electronic only, or paper too?). Within the frustrating level of detail in these questions are many potentially significant implementation challenges too important to ignore. Solutions must be created and modelled.
Workflows must also consider ways the system prompts users to act, and the resulting inputs and outputs for the ('back stage') case management and business intelligence reporting systems. The 'Swim Lane' diagram (downloadable as a pdf from the panel opposite and see below) shows a more detailed representation of these activities, and linkages between different actors, systems and processes that would support ODR in a civil justice context – only with respect to the 'Initiator engages system' step.
Swim-lane Diagram - Initiator Engages System
Designing and end-to-end ODR system requires considerably more detail than is shown here. While this prospect may seem daunting at first, it is ripe with opportunities to radically redesign and improve justice processes.
Multidisciplinary Design Teams
Building these processes presents an ideal collaboration opportunity for justice or dispute resolution system experts, process designers and more technologically focused conceptual designers. Each of these contributors should draw on their respective areas of expertise and contribute to the design of a system optimized to resolve disputes, serve users' needs and create new value within the justice system.
Creating Different Processes – The 'Information' Example
The creation of ODR workflows will test the formal justice system's commitment to think differently about its processes. For example, it is inevitable that traditionally justice-minded people will gravitate toward reliance on 'forms' to collect information in the ODR process. In an attempt to embrace the electronic nature of ODR, they might concede the use of fillable electronic forms that essentially resemble digital mirror images of paper forms.
Optimized business processes and workflows will discard historic obsessions with things like forms and their digital impersonators, focusing instead on the value of the information - rather than the form it comes in. Business architectures can be designed to extract tremendous value from information using technology. But letting go of historically-based obsessions with things like forms and paper documents is a prerequisite.
If we collect the right information directly from users in digital format, it can be easily transformed into a highly valuable part of the ODR process. Specifically 'tagged' digital information can be used and reused throughout a resolution process, saving users from entering it repeatedly, and alleviating the need for registry staff to manually enter it into case files and administrative databases.
A business architecture could be designed to feed specific bits of information into real-time dashboards, displaying up-to-date business intelligence and evaluation information. It would show system administrators what is happening within the system, how well it is working and whether users are satisfied with it.
Optimizing Civil Justice Workflows
An optimized ODR system cannot be created by following the historical approaches of creating a set of complex rules with little concern for process design, and then deciding at some point to automate selected processes and activities.
A successful system will require new approaches and business architectures that optimize processes and linkages between users, technology, justice administrators and the activity of dispute resolution itself.
In Pursuit of Civil Justice ODR Success
Goals such as speed, economy or simplicity will not flow automatically from ODR. Its proponents must recognize that ODR is not, in itself, a panacea for all of our justice system ills. It certainly can be the means to mitigate many of our current challenges as part of a larger initiative. Guided by some of the approaches outlined above, a civil justice ODR initiative will stand a better chance of success.
My next article will consider the authorities and procedures for ODR in the public justice context.
Darin Thompson is a lawyer with the Ministry of Justice in British Columbia, Canada. He currently serves as the Acting Legal Officer for the BC Civil Resolution Tribunal, a new, fully online tribunal that will begin operations in 2015, handling small claims and condominium disputes. He has helped to initiate multiple projects using ODR and is a member of the Canadian delegation to the United Nations Working Group on ODR.
In 2014/15, Darin will serve as an adjunct professor, co-instructing new Legal Information Technology courses at the University of Victoria Faculty of Law and Osgoode Hall Law School.