Darin Thompson continues his series of articles on online dispute resolution. In this second article in his series, he looks both at some conceptual matters affecting the foundation of the approach to ODR solutions and at some highly practical issues that flow from his preferred approach.
The Civil Justice Council's (CJC's) Advisory Group on online dispute resolution (ODR) is currently exploring the potential role of ODR in resolving civil disputes. As I explained in my first of four articles for SCL, ODR involves the application of technology, including the internet, to dispute resolution processes.
This article considers those processes in more detail in the justice system context. In the first part, I consider the foundation or authority required to create the ODR processes. Next, I introduce various options for those processes from a dispute resolution perspective, considering questions of voluntariness among users as well as the level of adversarialism. The third part of this article examines the notion of proportionate procedures. Lastly, I make an appeal to incorporate the rules, processes and procedures associated with ODR directly into the software or platform, increasing access to justice by saving users from having to find, interpret and apply complex analog rules and forms on their own.
I. Foundation and Authority for Justice System ODR
An early decision must be made whether to embed ODR inside or outside the existing civil litigation process. The malleable nature of ODR lends itself to a wide range of dispute resolution processes, including administrative tribunals, ombudsman processes or informal alternative dispute resolution (ADR).
My current analysis assumes the CJC's involvement signals an interest in ODR for the courts, or for processes that are situated within a larger framework that involves the courts in some respects.
Codification of ODR
There are a wide range of options for codifying ODR.
One option could be a specialized pre-action protocol. ODR could represent a low cost and highly accessible ADR step disputants would take before commencing a civil action. Presumably, it could help settle some disputes before they are filed before the courts. However, this approach could create confusion around who should pay for ODR, how its processes would be structured, and whether its outcomes could be enforced.
ODR processes could also be contained in a practice direction, allowing for an appropriate mix of structure and flexibility within the court's broader process. For example, selected cases could be diverted into ODR for attempted resolution, and would return only if they are not fully resolved. The telephone mediation processes conducted through the Small Claims Mediation Service could serve as a model for an approach that moves cases out of, and then back into, the litigation stream.
A deeper commitment to ODR could involve codification in the Civil Procedure Rules. This approach would increase pressure on justice system administrators to create a system that is more permanent, more robust and less risk tolerant.
Pilot projects can mitigate risk in the justice context. An ODR pilot project could also ease the new processes and technologies into the existing system while minimizing institutional resistance.
Presumably, if an ODR pilot project showed positive results after a period of time, it could expand or, 'scale up' to higher case volumes. Conversely, an unsuccessful ODR pilot project could simply end, with a reversion to status quo processes.
Pilot projects lend themselves to systems that favour tentative, incremental change over disruption and transformation. Potentially disruptive justice technologies like ODR may be more palatable to naturally risk-averse justice stakeholders if they are portrayed as experimental, pilot projects.
Pilot projects are not free from drawbacks. A system that lacks the full features available to ODR may fail to demonstrate its true potential and lead to a conclusion that it should not be implemented on a permanent basis. The temporary and experimental nature of a pilot can also suggest a lack of confidence among justice stakeholders and deter stakeholders and users from taking it seriously. Lastly, incremental pilot projects could betray the positive benefits of transformative justice reform and technology-driven disruption.
Codifying ODR with a Phased Approach
As an alternative to pilot projects, risks associated with civil justice ODR could be managed by treating it as a 'pilot-like' initiative within a phased implementation approach. For example, a practice direction or rules could limit the applicability of ODR to low value cases (eg £5,000 or less), disputes with particular characteristics (eg debt only, consumer only) or disputes with specific types of parties (eg only disputes between two businesses).
Over time, the scope of cases could be expanded to include more types of disputes and parties. ODR could start small and scale up to take on a larger share of civil justice disputes.
The flexible nature of ODR will provide a wide range of options. Risks may be unavoidable, but they need not be prohibitive.
II. From Voluntary and Collaborative to Mandatory and Adversarial
ODR can be implemented as a mandatory or compellable process, or on a purely voluntary basis. It can also be used for a variety of dispute resolution techniques ranging from the collaborative to the adversarial.
Voluntary vs Mandatory
Offering ODR on a voluntary basis for disputants is consistent with a risk avoidance approach. Voluntariness can be seen to 'redistribute' some of the risk from the system or its administrators onto users. In other words, disputants would be presumed to accept some risk by consenting to use ODR on a voluntary basis.
While voluntariness can help to redistribute risk, it can also be limiting. A voluntary system that depends on the willingness of all parties to try ODR will be subject to respondents who are likely to refuse any request made of them to participate in a resolution process – regardless of whether it involves ODR. A consequence would be low uptake, and an impression that ODR is unpopular among users.
In contrast, a mandatory system would solve the low uptake problem by requiring all disputants to use ODR. It would also make it easier for justice system administrators to estimate case volumes and allocate resources accordingly.
A third option might allow an initiator or claimant to 'compel' respondents into an ODR process. According to this model, the choice would lie with the person filing the dispute and would require or compel the respondents to participate. This option still redistributes some risk, and could be seen as mid-way point between a voluntary or fully mandatory framework.
Compellable or mandatory systems can be constrained in other ways, as well. For example, a compellable ODR system could include a restriction that preserves binding adjudicative processes for the courts. Respondents could also be permitted to apply to have disputes brought against them moved out of ODR and into court.
Collaborative vs Adversarial
From a dispute resolution perspective, ODR can support collaborative processes that resolve disputes by agreement, or adversarial processes that result in binding decisions and orders. These processes can also be combined within a single system.
For example, disputants could begin with an online negotiation in an attempt to resolve some or all of the issues by agreement. Unresolved cases could then be streamed into an ODR-based process involving a neutral third-party who provides a facilitative or mediation-like role. At the conclusion of this collaborative phase, unresolved cases could be streamed into an adversarial process for a resolution by decision.
Collaborative processes tend to be consistent with a risk-mitigation perspective. This thinking holds that disputants using ODR will still retain discretion over the outcome, and will not be forced to accept outcomes that would have been better for them in a non-ODR context. By comparison, adjudicative process will increase the significance for ODR in terms of system reliability and understandability because users will be forced to accept the outcome.
Adversarial processes may also be seen by justice stakeholders to require more traditional, paper-based or face-to-face interactions between disputants and adjudicators. These interactions are more challenging to accommodate through ODR.
Many of the options described above can be used in combination. For example, a fully mandatory system could involve only a negotiation or mediation process that would require agreement by the parties for a resolution. Presumably, unresolved cases could be streamed back into a more traditional offline process for adjudication, such as a courtroom trial.
Alternatively, a fully voluntary system could include a requirement for disputants to consent to an adjudication and agree to be bound by its outcome.
Many arguments can be made for each of these approaches, whether alone or in combination. ODR is capable of supporting nearly any process that may be used within a formal justice system.
III. Proportionality in Civil Justice ODR
ODR's obvious departure from traditional justice relates to its reliance on the internet as the venue for interactions. Instead of in-person meetings, original hard-copy documents and signatures, ODR facilitates exchange of information, communication and resolutions through digitally-based interactions.
Departing from traditional interactions and processes can be difficult. However, the transition can be assisted by embracing the notion of proportionality. In ODR, proportionate processes would start with the simplest and most efficient approaches to any transaction, and escalate to more intensive, less efficient processes as the circumstances require.
A Proportionality-Driven Approach to Notice in ODR
The proportionate approach to ODR rules can be illustrated using the example of providing notice of a proceeding to a person (a prospective 'party') in a dispute.
Traditional rules typically involve mail or personal delivery of documents. In an ODR system, it is naturally preferable to give notice using e-mail or instant messaging. Yet, even ODR proponents must acknowledge that these electronic forms of communication still lack the same degree of certainty we associate with mail or personal delivery.
A proportionate approach to ODR could allow electronic delivery of notice, but consider it valid only when the recipient positively acknowledges receipt in the electronic platform within a specific period of time. The rules could further specify that if no such acknowledgement is received by the system within a specific period of time, the initiating party must 'escalate' to the next, less efficient process, which could involve reliance on mail or personal delivery.
Example of Proportionate, Escalating ODR Notice Process
Some recipients of notice in electronic format would positively acknowledge its receipt, saving disputants time and resources. For those times when electronic notice is not acknowledged by recipients, less efficient traditional methods would still be available.
The electronic notice attempt would not cost our initiator much in terms of time or effort, making it a suitable option within a proportionate notice process.
Other Proportionality ODR Examples
The proportionate approach to ODR rules and processes has potentially broad applicability. Examples include:
Identity of parties
Create an identity authentication system that is consistent with e-commerce or online banking. If the parties put identity in issue, require confirmation through other methods, including attendance at a justice office or before an agent to show photo identification.
Documents and evidence
Encourage reliance on digital or electronic versions of evidence. Escalate to hard copies, originals or physical evidence only if the parties put authenticity in issue or if the outcome of the dispute turns on it.
Encourage reliance on text-based submissions from witnesses. Consider other methods including telephone or voice and video over internet if neutrals consider it appropriate. Use in-person testimony only when necessary.
Backstopping the Proportionate Approach
There is no denying that proportionate ODR rules may create some risks that do not exist in traditional justice and dispute resolution systems. However, it is not necessary to immediately squander all of ODR's potential efficiencies to strive for higher ideals pursued by traditional processes. In fact, ODR can link to those procedures to reinforce or 'backstop' its more efficient approaches.
For example, ODR rules could be backstopped through penalties or offences for abusers. Punitive measures could be created to deter abuses unique to ODR. Specific examples might include punitive measures for people who knowingly provide false or misleading information relating to identity or evidence in an ODR process.
Another form of backstopping might involve diverting some disputes out of ODR and into traditional processes through operation of rules or on a discretionary basis. For example, cases or disputants suspected to be a higher risk of abuse could be streamed into a court process for some or all of the resolution phases. Here, the slower, less efficient offline processes could be used to buttress online ones in appropriate circumstances.
Even if attempts to backstop proportionate processes are not failsafe, proportionality recognizes that abuses will probably not be widespread, and that the harm that does occur will often be remediable. Rather than default to slower, more expensive, complex and complicated process to prevent things that 'might happen' – but rarely do happen – proportionate ODR rules and processes can strike a balance between optimized processes and potential risks or abuses.
Implementing a Practical System in the Face of Perceived Risks
Rather than go down the path of creating vigorous process and protection against harm for every case like we have in our current systems, civil justice ODR can benefit from proportionate processes. ODR rules can leverage the benefits of technology, and backstop them with more traditional offline processes when the circumstances require. This symbiotic arrangement of new and old processes is well within our reach.
IV. Building ODR Rules into Procedural Code
Prof. Larry Lessig's assertion that 'Code is law' may be unpacked on several levels, many of which are entwined with philosophical and political overtones. But on a basic level, the notion of software code as a regulatory tool can become very concrete in an ODR system.
Rule and Code Synergy
Rather than attempt to codify all or most of the processes in a separate set of rules, an ODR platform can, or should, regulate many procedures within its code and the resulting processes and interactions. This approach helps to overcome some of the challenges traditional court rules pose for access to justice.
In ODR software, the rules meant to structure or guide interactions can be coded, 'built in' or 'baked in' to the technological architecture. When the software design process occurs in conjunction with the development of the dispute resolution processes on a procedural level, the result can bring a range of benefits to users and system administrators.
Consider for example a case where a claimant seeks default judgment in court. A party will likely have to consult at least three different rules and subrules to determine whether a default application can be made. This person will then have to determine what conditions must be met, after which he or she will have to decipher the process to follow, and what forms to use.
(Simulated) Rules and Forms in a Traditional Dispute Resolution System
If our user is unable to understand the process and does not have the help of a lawyer, he or she may require detailed explanations from court registry staff.
Now consider the same process within an ODR platform where the conditions, the steps and the mechanism for making the request are 'baked in' – to the extent possible – so they can be followed more intuitively by a user.
Screen Showing Procedures and Case Management Functions 'Baked In' to ODR Platform
In this example, the ODR platform's automated case management system could be configured to automatically alert our user that a timeline has passed. Its internal business rules could prompt action and make the procedural options directly available to the user, bringing up the relevant information 'fields' to collect the necessary information or satisfy other conditions associated with the procedural step.
Presumably, the platform would associate other relevant data within the case management system, saving the user from having to identify, locate and enter it manually.
Justice system administrators should be able to spend less time explaining processes or helping users fill out forms at registry counters. The quality of information contained within the case management system should also benefit from higher levels of consistency and quality.
Mixing 'Baked In' Procedures and Codified Rules
Consistent with the overall design scheme for ODR within a formal justice system, reliance on 'baked in' procedures need not be 'all or nothing.' It may be helpful, if not necessary, to supplement the ODR platform's built in rules and procedures with codified or written rules.
Rules, Processes and Technology Architecture
For software designers, the incorporation of processes and rules within a technology-based architecture will be second nature. For most justice system stakeholders and dispute resolution system designers, the task will seem much more difficult, at least to begin with. But these difficulties must be overcome in order to fully leverage the benefits of ODR in a civil justice system, particularly when it comes to increasing access for users.
V. Rules And Processes For The Age Of The Internet
Implementing ODR in a civil justice context will require deep consideration of a range of legislative, policy and dispute resolution system design issues. The creation and refinement of this content will involve varying degrees of risk, but will also lend itself to various risk management strategies including pilot projects and phased-in ODR. Whatever shape the resulting processes ultimately take, the software can be designed to 'code' many of its rules and procedures directly into the system, promoting simplicity and increasing access for system users.
My next article will consider the unique challenges of bringing justice processes into an online environment.
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.