Can Technology Help Modernize the Nation’s Civil Courts?
Experts discuss potential of online dispute resolution
by: Erika Rickard & Amber Ivey
This article was originally published by The Pew Charitable Trusts’ Civil Legal System Modernization
State and local courts across the United States are beginning to adopt an adjudication approach known as online dispute resolution (ODR) that allows parties to resolve civil cases online without ever setting foot in a courthouse.
In 2012, no jurisdiction had launched ODR, but today dozens of pilots are underway to adapt the technology—first used in the private sector to handle disagreements over commercial transactions—to civil court systems. Many stakeholders are hopeful about the possibilities to streamline court business processes and remove obstacles to quick resolutions, but some voice concerns about power imbalances and differences in access to courts, issues that necessitate additional discussion and evaluation.
Experts with a range of perspectives came together Nov. 30 in Arlington, Virginia, to discuss online dispute resolution in a session organized by The Pew Charitable Trusts and the National Center for State Courts. The nearly 20 participants represented the American Bar Association (ABA), National Legal Aid & Defender Association (NLADA), consumer advocates, state court systems and governments, universities, and nonprofits. They discussed their hopes for and concerns about the use of ODR in civil courts. And they suggested opportunities for stakeholders to provide guidance to those launching this technology.
If courts implement ODR appropriately, litigants and the court system could benefit because this approach has the potential to improve customer service, boost efficiency, and reduce costs. In addition, the technology can make legal outcomes more fair if courts use these tools to spur online and in-person process simplification and modify court rules to increase access to information or legal help.
“One of the best uses of technology by the courts is to improve their procedures in ways that favor equity for people in search of justice,” said Jo-Ann Wallace, president and CEO of NLADA. “Engaging a broad array of stakeholders for input, and especially people who cannot afford legal counsel, is critical to ensuring these systems are fair.”
Online dispute resolution features tools that help users navigate court processes, make decisions, and gather relevant information—even without the help of a lawyer. With such benefits, speakers said, ODR could reduce power imbalances between opposing parties in a civil case, in large part by making access to information more symmetrical.
“In addition to making court access easier through ODR, courts should consider whether procedural rules can be enhanced to ensure a level playing field,’’ said Hon. Carolyn Kuhl, a Los Angeles Superior Court judge and member of the governing council of the ABA’s Center for Innovation. “For example, in the early stages of an ODR process it is important to be sure that both parties have relevant core information about the dispute or claim.”
Online systems also could make it easier for those who have not participated in the past—because of physical barriers, distance, language issues, costs, or distrust of the system—to gain access to the courts.
Still, some speakers raised concerns about a potential downside to the increased focus on technology. If not implemented properly or evaluated regularly, ODR could replicate or exacerbate problems with existing court structures and processes, including:
- Power imbalances between opposing parties, particularly in cases that pit institutions against individuals, such as disputes over consumer debt.
- Cases with criminal law implications, such as those involving traffic or child support in which unpaid fines or fees can result in incarceration.
- Continued difficulties for people who have limited access to legal help because of systemic disadvantages often linked to financial circumstances.
To allay these concerns, a national body could create standards for successful use of ODR in civil courts. Participants said state courts would benefit from principles for the fair and effective implementation of this technology; guidelines for developing ODR governance models; basic principles for piloting specific case types; and practical considerations for outreach, access, and ways to opt out of ODR. Other nations also can offer guidance. For example, the court system in Australia has established principles for access to justice that help guide ODR implementation. A similar model could be effective for its adoption here.
Link to the Pew article.