By: Amanuel Mekonnen

With the difficulties posed by the COVID-19 pandemic and the ongoing need to fashion systems to increase access to justice, there has been renewed engagement with the concept of Online Dispute Resolution (ODR). ODR is the use of information technology and online communication services to facilitate non-litigative means of settling disputes.[1] It is an outgrowth of Alternative Dispute Resolution (ADR), and includes traditional ADR elements such as negotiation, mediation, and arbitration.[2] When taken in context of its limitations and implemented and tested effectively, ODR might prove to increase access to justice, slash the length of proceedings, and save money, among other benefits.

ODR has existed almost since the use of the internet by consumers, when e-commerce sites like Ebay implemented their own versions in order to settle buyer-to-seller disputes.[3] For high-volume, low dollar case types especially, ODR proved to be a cost-effective and quick method for issues to come to resolution.[4] It also spawned a private ODR market that is expected to exceed $200 million globally by 2028.[5] While adoption of ODR was slow by courts in the US, since the first pilot program in 2013, there has been more rapid growth.[6] More importantly, the faster growth was recorded in more recent years, implying a greater rate of adoption over time.[7]

The benefits of ODR can be seen in the case studies of those early programs adopted by Courts. For example, the Franklin County Municipal Court (FCMC), which services nearly 900,000 people with an annual civil caseload of 40,000, piloted its own ODR platform for small claims in 2016.[8] The goals of the program were to: 1) reduce default judgments and increase participation; 2) eliminate or lower barriers to access to justice; and 3) provide dispute resolution for cases that typically could not be handled through negotiation or mediation.[9] When comparing data from previous years to its pilot program in the Columbus Tax Court (chosen because of its high default rate), the program satisfactorily achieved the three goals.[10] Default judgments were reduced by 10%, More than a third of parties accessed court services outside normal business hours, and dismissals outpaced defaults.[11] This pointed to greater access and participation in the process for those who used the platform.[12] In addition, across all civil case types, FCMC was able to show that the process helped more low-income residents achieve favorable outcomes versus higher income parties from inside and outside the county.[13] The success shown by FCMC has been shown in other jurisdictions as well, including New Mexico, Connecticut and Utah.[14] Overall, ODR stands to lower costs of engagement, increase participation and access to justice, and decrease time to get to resolution.[15]

Along with the benefits, it is also important to consider the limitations and difficulties posed by moving cases online. The ABA noted that significant portions of the population have less access to computers and internet access, and have less education, language skills and ability associated with greater utilization of ODR.[16] It is also important to keep in mind the new kinds of technical challenges that must be met to continue to provide due process, and the difficulties of some courts in meeting them. For example, the Florida Supreme Court in 2018 announced that two if its committees would conduct a review of ODR and implement a pilot program in courts across the state.[17] Of the six judicial circuits in Florida, three withdrew from the program, citing issues with vendor delays and dissatisfaction with the functionality of the end product.[18] They also encountered low engagement of their services by the public.[19] It’s important to note, however, that the pilot program in this case coincided with the onset of the Covid-19 pandemic, and that might have impacted services.[20] Despite this setback, the report made by the committees was optimistic about the benefits of ODR. The report made several recommendations to help courts better understand and implement ODR. Those recommendations included, to name but a few: First implementing ODR in low cost, high volume cases with low complexity; amending existing statutes to define ODR and ensure that it fits with existing ADR services; and ensuring adequate metrics to track progress of the programs as they develop.[21]

Even though the debate around ODR has existed for a long time, with the COVID-19 pandemic, its importance to ensuring that at least some cases are speedily resolved has become more apparent. The ABA reported that on average, U.S. state and local courts experienced a 33% increase in their backlogs since the pandemic began, with at least 32% not expecting a change in the near future.[22] ODR, properly implemented and tested, could help reduce this backlog and free up resources to deal with more complex and costly cases, and ensure greater access in the process.

[1] Nat’l Cent. for State Courts, What is ODR, https://www.ncsc.org/odr/guidance-and-tools (last visited Mar. 17, 2022).

[2] See Erika Rickard & Qudsiya Naqui, How Well Does Online Dispute Resolution Help Resolve Lawsuits Outside the Courtroom?, The Pew Charitable Tr. (Jan 19, 2021), https://www.pewtrusts.org/en/research-and-analysis/articles/2021/01/19/how-well-does-online-dispute-resolution-help-resolve-lawsuits-outside-the-courtroom.

[3] See id.

[4] See Rickard & Naqui, supra note 2.

[5] The Nat’l Cent for Tech and Disp. Resol., Legal ODR Market Projected to Top $210m by 2028 (Jan. 4, 2022), https://odr.info/legal-odr-market-projected-to-top-210m-by-2028/.

[6] See Rickard & Naqui, supra note 2.

[7] See Id.

[8] Franklin Cnty. Mun. Ct., ODR and Mediation Data Project, https://sites.google.com/view/fcmcdataproject/about, (last updated Feb. 9, 2021).

[9] Id.

[10] Id.

[11] Id.

[12] See Id.

[13] Id.

[14] See generally Joint Tech. Comm., Case Studies in ODR for Courts (Jan. 28, 2020), https://www.ncsc.org/__data/assets/pdf_file/0033/39579/JTC-Resource-Bulletin-Case-Studies.pdf.

[15] Concord L. Sch., Online Dispute Resolution Moves Cases Forward Despite Court Backlog (Aug. 16, 2021), https://www.concordlawschool.edu/blog/news/online-dispute-resolution-moves-cases-forward/.

[16] ABA Cent. for Innovation, Online Dispute Resolution in the United States, 11-16 (Aug. 2020), https://www.americanbar.org/content/dam/aba/administrative/center-for-innovation/odrvisualizationreport.pdf.

[17] Online Disp. Resol. Workgroup of the Comm. on Trial Ct. Performance and Accountability & the Comm. on Alt. Disp. Resol. Rules and Pol’y, Online Dispute Resolution Pilot Program Report, 4, (Jan. 2021), https://www.flcourts.org/content/download/725954/file/Online%20Dispute%20Resolution%20Pilot%20Program%20Report%20-%20Final%20with%20Appendices.pdf.

[18] See id at 18.

[19] See id at 20.

[20] Id.

[21] Id at 30-40.

[22] Lyle Moran, Court Backlogs Have Increased by an Average of one-third During the Pandemic, New Report Finds, ABA J., (Aug. 31, 2021), https://www.abajournal.com/news/article/many-state-and-local-courts-have-seen-case-backlogs-rise-during-the-pandemic-new-report-finds.