In a recent speech at the London International Disputes Week, Sir Geoffrey Vos, Master of the Rolls (“MR”) stated that online dispute resolution (ODR) was set to transform justice and lawyers must embrace the coming changes.
Stating the current system for resolving disputes was “cumbersome and expensive”, the head of civil justice in England and Wales said:
“The new generations will demand that justice, like everything else, is delivered at proportionate cost online.
‘Lawyers, judges and arbitrators will need quickly to acquire a comprehensive understanding of how these [new] technologies work. A paper-based process will simply not be satisfactory in the new era.”
At present, ODR is limited to small claims; however, the Coronavirus pandemic has illustrated how Zoom and other platforms can facilitate hearings and which can be used in most situations. The MR stated that currently, most cases of all sizes are resolved online long before coming to court or requiring a judicial decision. However, ODR goes further, utilising technology to make access to justice cheaper and more accessible.
Sir Geoffrey’s speech followed his declaration in January 2021 that he planned to ensure all claimants in England and Wales could start their claims online, arguing:
“[future generations] will not accept a slow, paper-based and courthouse-centric justice system. If that’s all that’s available, new generations will look for other means of dispute resolution. And it’s for that reason that the use of technology by the courts is not an option – it’s inevitable and essential.”
What is ODR?
A 2012 article entitled Online Dispute Resolution: Theory and practice. A Treatise on Technology and Dispute Resolution defined ODR as:
“Online dispute resolution (ODR) is a form of online settlement that uses alternative methods for dispute resolution (alternative dispute resolution).5 The term covers disputes that are partially or fully settled over the Internet, having been initiated in cyberspace but with a source outside it (offline).”
Basic ODR allows the parties to the dispute and a neutral negotiator, mediator, or arbitrator to talk remotely via video conferencing. However, in cases where liability is not disputed, technology can take over the negotiations, usually in the form of a ‘blind bidding’ process.
What jurisdictions are currently using ODR?
ODR uses technology to facilitate the resolving of disputes by negotiation, mediation, or arbitration. Throughout the world, ODR is being implemented into justice systems, most notably in the European Union and the United States.
European Union
The EU has created a platform to make online shopping safer and fairer and that allows traders and consumers across the bloc to resolve their disputes online. All online retailers and traders in the EU, Iceland, Liechtenstein, and Norway must provide an easily accessible link to the ODR platform and an e-mail address.
If a customer is unhappy with a product or service, they can notify the trader of their complaint and a neutral third party will help the trader and customer solve their dispute in a non-confrontational way.
United States
Several States have embraced ODR. Michigan was the earliest adopter and the State had 31 ODR sites in 2019. Multiple case types are dealt with via ODR, including traffic, small claims, crime, debt, and divorce. The hope is that ODR use by courts will increase access to justice by reducing the barriers to utilising court processes.
Final words
ODR presents several advantages such as efficiency, flexibility, and cost effectiveness. However, for those who do not have access to a smartphone or the internet, the option to access justice in this way is eliminated. Other groups that may find it difficult to resolve disputes online include those with learning disabilities as the ability to read emails and write in chat boxes is essential, and people need to understand and be proficient in the same language to communicate on the same topic.
Sir Geoffrey addressed the disadvantages when speaking at a virtual event held by the Law Society. Whilst recognising that some groups would be disadvantaged, he concluded:
“…we can’t devise a system purely for the digitally disadvantaged ignoring the digitally advantaged, who will probably be 90% or more of the population.”
The other major concern with ODR is that it is designed to remove solicitors from the process. In most disputes, there is a stronger and weaker party. Without the experience and expertise of a solicitor, the more forceful party in an online dispute could pressure the other person into an agreement that they may not feel comfortable with. One clear example of this type of power imbalance is a company and an individual.
Despite the concerns, it is clear that ODR is coming and coming soon. To ensure the best interests of their clients, solicitors need to be ready for it.
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