Rather than digitizing litigation procedures and practices, successful ODR models re-engineer how dispute resolution processes can be designed to benefit users.
This includes inverting dispute resolution design and redirecting investment to the early stages of dispute resolution, rather than to courts or judicial resources.
This process of redesigning distinguishes ODR from previous justice innovations that use technology to streamline or enhance existing processes.
Furthermore, by uncoupling the court process from both physical premises and paper-based processes and rethinking the procedures required to deliver a just system, proponents contend that ODR has the potential to overcome the intrinsic tension between ‘efficiency’ and ‘justice’ in the civil justice system.
While ODR contributes to ongoing efforts to use technology to improve the civil justice system, it also represents a fundamentally different approach to reform.
Therefore, several ODR projects have been introduced in different countries from around the world. We refer below to the ODR developments in Australia, Canada, the United Kingdom, the Netherlands, the United States, and the European Union.
Check out our comparison article for ODR in the UAE, Canada, and the UK; Online Dispute Resolution in the UK, Canada and UAE.
Onlie Dispute Resolution in Australia
Court and tribunal ODR is in its infancy stage in Australia. While ODR is utilized within some state-funded alternative dispute resolution schemes, the Australian Dispute Resolution Advisory Council notes that ODR has not enjoyed the support and development that should be expected in a country with a geographically remote population that is an early adopter of technology.
In 2018, the NSW Government indicated its support for integrating aspects of ODR into existing court processes and infrastructure, providing a faster and cheaper way for parties to access the civil justice system.
This commitment seeks to further the guiding principle of the Civil Procedure Act 2005 (NSW) and the Civil and Administrative Tribunal Act 2013 (NSW) to ensure that civil disputes are dealt with in a way that is just, quick, and cheap.
In NSW, ODR will build on existing digital initiatives to streamline court processes such as the Online Court, e-Registry, eSubpoenas, and the Audio Visual Link technology.
Other notable civil justice system ODR projects are the Victorian Civil and Administrative Tribunal (VCAT), Small Claims project, and the Legal Services Commission of South Australia Family Law platform.
The VCAT project involves piloting an ODR platform in a number of small claims with a view to expanding the platform in the area of small claims and possibly minor criminal and larger civil matters.
Australian-based firm Modron has been engaged to develop the platform, which will incorporate video chat and text chat.
The Legal Services Commission of South Australia has received seed funding from the Commonwealth Government for a national ODR platform to assist separating couples to resolve family law disputes.
This platform will help parties reach an agreement by providing relevant supporting information, such as agreements that have assisted other couples and previous judgments, to illustrate how judges have treated similar disputes.
Onlie Dispute Resolution in Canada
Established in British Columbia in 2012, the Civil Resolution Tribunal (‘CRT’) is Canada’s first online tribunal and the first in the world to be integrated into a public justice system.
It is currently the mandatory forum for small claims disputes under $5,000 and strata property claims of any amount. In April 2019, the CRT began determining some motor vehicle accident and injury claims up to $50,000.
The CRT’s mandate is to provide ‘accessible, speedy, economical, informal and flexible’ dispute resolution services.18 It does this through a participatory and collaborative approach to dispute resolution which assists parties to reach a consensual agreement, with adjudication as a last resort. The CRT has four stages:
- Solution Explorer: a free online tool that uses ‘guided pathways’ to help a person navigate options to resolve their dispute.
- CRT Intake and Negotiation: The initiating party enters the details of the claim. Notice is served on the other side and parties have the opportunity to negotiate directly.
- Facilitation: An expert facilitator helps parties reach a consensual agreement using mediation, conciliation or early neutral evaluation. If an agreement is reached, this can be turned into a binding order. If the parties cannot resolve the dispute, the facilitator helps parties prepare for adjudication.
- Adjudication: A tribunal member considers the parties’ evidence and arguments (usually in written form) and then issues a binding determination. Hearings usually occur ‘on the papers’, but telephone or video conferencing hearings can be held if credibility or complex issues arise.
The CRT’s performance is rigorously evaluated through detailed qualitative and quantitative analysis. The CRT publishes selected statistics in a monthly blog. Such data reveals that the majority of claims (70 percent) are resolved at the facilitation stage and very few claims require adjudication. Most participants (69 percent) agreed that the process was easy to understand and 82 percent agreed they were treated fairly throughout the process.
Onlie Dispute Resolution in The United Kingdom
Another international example of the aspirational use of ODR is the United Kingdom’s (‘UK’) £1 billion Transforming Our Justice System reform program, a wide-ranging courts modernization program that aims to reduce the justice staffing pool by 5,000 and save £265 million a year through lower administration and judicial costs, fewer physical hearings and fewer courthouses.
Through this program, the entire process for civil money claims will be automated and digitized by 2020. The ‘Money Claim Online’ pilot, launched in March 2018, is the initial release of this platform.
Money Claim Online is a starting point for the development of the ‘digital by design and by default online court’, a single online system for criminal, civil, family and tribunal cases. Money Claim Online allows people with money claims up to £10,000 to issue a claim, file a defense, and attend mediation.
It also allows without-prejudice offers to be made and accepted and constructs agreements based on these terms. The website will be expanded to include facilities for negotiation and settlement questioning parties and adjudicating between them and online hearings.
The pilot has collected data on user experience and dispute resolution pathways, which revealed that 80 percent of users said the service was very good and easy to use.
The number of matters in which defenses were filed rose from 22 percent to 40 percent and the default rate dropped from 53 percent to 24 percent. Fifteen percent of cases were referred to mediation but only 27 percent of those went to the mediation appointment.
In a related development, the proportion of incorrectly completed divorce forms dropped from 40 percent to under 1 percent among users of the Digital Divorce Service.
ODR processes are also utilized for appeals against parking and traffic fines in the UK’s Traffic Penalty Tribunal. Parties can upload evidence, including video and voice files, to an online platform for instant sharing.
Continuous online hearings through asynchronous messaging between the parties and the adjudicator can take place over several days. Decisions made on this information alone (e-decisions) are the norm, but telephone and face-to-face hearings are available in certain circumstances.
Decisions are uploaded for viewing by the parties and then sent by post if the decision has not been viewed within two days, though this is rarely necessary.
Around 80 percent of Traffic Penalty Tribunal cases are resolved through e-decisions. Seventy-five percent of appeals are closed within 21 days. Telephone inquiries have been reduced by 30 percent and there has been a significant saving in the costs incurred by local authorities in dealing with disputes.
Onlie Dispute Resolution in The Netherlands
Rechtwijzer (‘Signpost to Justice’) was an online platform for resolving relationship disputes, such as divorce and separation, landlord-tenant disputes, and employment disputes.
Due to the ongoing nature of the relationships in many of these disputes, the platform focused on facilitating consensual and sustainable results. Rechwijzer enabled an online dialogue between the parties and also offered mediation, adjudication, and a neutral review of all agreements.
However, funding for the website was discontinued as it was deemed financially unsustainable after three years.
Onlie Dispute Resolution in The United States
In the United States, Matterhorn is a cloud-based ODR platform currently in use in 40 courts across eight states.
It can be bought off-the-shelf and adapted to court systems that deal with high-volume claims including small civil claims and claims about non-compliance with child support payments.
It features real-time or asynchronous communication, sends reminders to parties about upcoming dates for filing documents and hearings, and is optimized for mobile phone use.
A third party (facilitator, mediator or arbitrator) can assist with the resolution of claims. Matterhorn user data has demonstrated its platform increases access to justice and user satisfaction while decreasing the burden on court resources.
Thirty-nine percent of users reported that they would not have been able to attend court in person to resolve their dispute. Ninety percent found the website easy to use and 92 percent understood the status of their case throughout the online process.
Cases closed in 14 days rather than the 50 days recorded for traditional court processes, and court staff completed their work 20 percent of the time.
Like Matterhorn, Modria is a customizable ODR platform for US and international courts. Modria provides parties with a diagnosis of their issue and the likely process for resolution, which helps them to decide whether to proceed with their case.
If they do proceed, the platform collects intake information and opens a web chat between the parties to facilitate a resolution. Either party can request that the dispute be escalated to a mediator or an arbitrator.
The dispute resolution process can be tailored to different types of disputes, from simple debt cases to complicated child custody cases.
This ODR platform has resolved more than one million disputes around the world and claims to resolve cases in half the time taken by traditional processes.
Onlie Dispute Resolution in The European Union
The European Union’s ODR platform facilitates the resolution of consumer complaints arising from online transactions in European Union countries.
The ODR platform provides a single point of entry for disputes between consumers and traders, and channels consumer disputes to one of over 300 certified external ADR bodies.
It allows parties to choose their own language and includes automatic translation. Moreover, it mandates deadlines to ensure a prompt resolution, such as 30 days for negotiation and 90 days for ADR.
More than 24,000 disputes were submitted in the first year of operation and 44 percent were resolved bilaterally outside the platform in the initial negotiation stage.
In April 2018, the European Union launched the New Deal for Consumers policy. One objective of the policy is to give consumers better tools to enforce their rights and to obtain compensation. As part of this strategy, the European Commission stressed the importance of strengthening ODR.
As such, it seems likely that the European Union will adopt more ODR processes in the coming years.
Conclusion: Evaluating ODR
These examples demonstrate the enormous potential of ODR to reform the civil justice system by increasing access, resolving disputes earlier, and reducing costs.
The integration of ODR into the public justice system can both improve efficiency and reframe the way the civil justice system operates regarding high-volume, low-value disputes.
For governments, courts, and tribunals, ODR’s most attractive feature is its potential to reduce the cost of the administration of justice.
ODR can achieve this by:
- Allowing courts to process large numbers of claims with little human input.
- Potentially increasing the number of claims filed that require little cost to manage, thereby increasing fee revenue.
- Reducing the human resources and physical infrastructure required to administer justice.
- Freeing up judicial and registry resources to focus on areas of high demand or significant delay or backlog such as crime or complex civil litigation, and
- Reducing the time needed to assist self-represented litigants in navigating a complex justice system and comply with procedural requirements.
The cost-efficient administration of justice is an appropriate goal of civil justice system reform.
Yet in designing and implementing system innovations, it is necessary to look beyond the ostensibly ‘objective’ improvements in efficiency, timeliness, and effectiveness in order to assess more qualitative elements of the justice system that have no tangible economic value or easily defined metric.
These elements include considerations such as access to justice, transparency, procedural due process, fairness, and the level of satisfaction of participants in the process.
A more comprehensive list of ODR apps and platforms can be viewed in ODR Europe.