Sizing up online dispute resolution

By Susan Goldberg September 2012

Access to justice remains a problem. Is ODR the solution?

Sizing up online dispute resolution Madam Justice Frances Kiteley
The Ontario Superior Court of Justice, Toronto

If you’ve got access to the internet, then you’ve got access to justice.

That’s the promise behind online dispute resolution (ODR), which uses technology to resolve disputes between parties. Proponents of this movement, which brings dispute resolution out of courtrooms and lawyers’ offices and into cyberspace, argue it expands access to justice because it is quicker, cheaper and more convenient. But for all of the potential benefits, questions remain about how it fits with the existing system — and what it means for the role of lawyers.
  
When the B.C. government announced plans earlier this year for an independent civil resolution tribunal offering ODR services to families and small business owners, critics worried it would divert resources from the provincial court system. “Properly funded, an effective process for the resolution of these disputes already exists in our courts,” said Sharon Matthews, president of the B.C. branch of the Canadian Bar Association, pointing out the plan is designed to fix backlogs that exist mainly because the system has been starved of funding. The B.C. branch would prefer to see tools like ODR used in the provincial court system itself to help the court deal with its caseload and provide claimants with different options.
 
Meanwhile, the ODR movement continues to gather steam. The gaps in the traditional system and the courts’ general slowness to address them with available technology have prompted a number of departments and agencies to try their own ODR experiments for everything from consumer disputes to family mediation. There are an increasing number of commercial alternatives as well.
 
British Columbia is trying to “push the alternative-dispute-resolution envelope” as far as it can in the existing justice system, says Darin Thompson, legal counsel at the Ministry of Justice. Meanwhile, a growing number of private companies — for example, Smartsettle, Cybersettle and Fair Out­comes — are using sophisticated blind-bidding technology, assisted negotiation, and mathematical models and algorithms based on group theory to solve disputes and compete with the justice system.
 

"Properly funded, an effective process for the resolution of these disputes already exists in our courts." Sharon Matthews Partner, Camp Fiorante Matthews Mogerman

In Ontario, proponents hope ODR can shorten delays and reduce costs. “We’ve known for many years that access to justice is severely undermined by cost and delay,” says Madam Justice Frances Kiteley of the Ontario Superior Court of Justice and co-chair of the Canadian Centre for Court Technology. 
 
“Online dispute resolution might help: It might shorten the delay and reduce the cost for those who use the system and provide for those who would not otherwise access the system,” she says. “I mean, how can that not be a win-win?” Courts have been “astonishingly slow” to respond to the internet age, she adds, noting that in Toronto, a motion or application might be heard in one of three buildings.
 
“Can [a lawyer] log on the night before to see which building and in which courtroom, with which judge? No. You have to go to the nearest of the three locations, check the array of ‘door sheets,’ and then drag your banker’s boxes or rolling briefcases to the destination, often with client in tow. Can you file your documents online? Of course not. Can you receive the judgment electronically? Normally not. Usually, you have to trudge up to court and receive a paper copy, then scan it and send it to your client.”
 

Sharon Matthews

Sharon Matthews

Online dispute resolution is light years ahead of that scenario. Of course for ODR to work, participants must be comfortable with technology — and have access to it. For that reason, it probably offers the most promise for non-marginalized groups, says Matthews, a partner at Camp Fiorante Matthews Mogerman in Vancouver and former president of CBA’s BC branch.

 
People living below the poverty line, many seniors, individuals with mental health issues or for whom English is a second language, tend not to be connected to the online world, she points out. “That means that an online dispute resolution service is not necessarily going to overcome the issues that make their situations unique and difficult to handle and in need of representation to facilitate a fair process.” 
 

"The technology is really not that impressive. It is not Star Trek kind of stuff." Darin Thompson Legal counsel, BC Ministry of Justice, Victoria

Proponents, on the other hand, argue that many aspects of the justice system remain out of reach to the marginalized, and ODR may offer ways to serve them better. The so-called “digital divide” between those with and without internet access is narrowing fast and is expected to continue to do so. In 2010, Statistics Canada reported that 79 per cent of Canadian households (93 per cent of households with three or more people) had access to the internet. Access was highest in British Columbia, with 84 per cent of households online.
 
Furthermore, the technology powering ODR isn’t difficult to navigate. For example, Mediate BC has demonstrated the power of the old-fashioned landline to generate successful settlements in family law. In fact, says Thompson, “the technology is really not that impressive. It is not Star Trek kind of stuff. It’s the fact that you can pull it all together and produce good benefits and resolve disputes using it that is really impressive.”
 
Do it yourself

On May 31, 2012, the Civil Resolution Tribunal Act (CRTA) received Royal Assent, paving the way for an independent tribunal that offers round-the-clock ODR tools and services to families and small business owners in British Columbia. The tribunal, expected to be active by 2013–14, will be a voluntary alternative for small civil claims ($0 – $25,000) and strata property disputes. It is expected to take about 60 days to resolve a dispute through the tribunal, compared to 12 to 18 months for small claims court. And, perhaps most radically, it is expected that parties will represent themselves.
 
This last piece of news generated plenty of debate within the province’s legal community and be­yond. Concerns were raised about lack of consultation with the bar and the creation of a parallel court system that some feared would siphon funding from the courts. There was also concern about access to justice issues stemming from lack of legal representation.
           
The government countered by saying that it consulted extensively in the strata community and on a previous small claims court pilot project. “We did not see extensive consultations with the bar and judiciary as a necessary step in this initiative because the tribunal is not being created for the bar and the judiciary.  It is being created for persons who are seeking alternative approaches to resolving disputes,” says a succinct bullet point in a ministerial Q&A sheet.
           
It stresses that the tribunal was created in part to address cost, complexity, and delay in the court system; over time, it is expected to reduce caseloads and pressure on the courts, becoming cost-neutral “thanks to the efficiencies it brings to the justice system.” The system is voluntary, it adds, and users can still consult lawyers, even if they represent themselves.
 
Do initiatives like the civil resolution tribunal represent, in the words of Richard Susskind, “The end of lawyers?” Doubtful.  It does suggest, however, that lawyers may want to think about how they can drive — rather than be driven by — technology.
 
“I think that the legal profession is just coming to terms with the fact that the practice of law will not be immune from the transformation that’s being driven by technology,” says Thompson. 
 
“These changes stand to open up incredible new opportunities, services and benefits that we probably haven’t even thought of yet. It doesn’t have to be about opposing the change. It can be about finding new ways to fit in with the change, and eventually to lead it.”

Susan Goldberg is a freelance writer based in Thunder Bay.
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