Back in 2020, I wrote a NH Bar News article about courts implementing online dispute resolution (ODR) programs. ODR is when parties use technology to resolve disputes without a trial. With the advancements of artificial intelligence (AI) in various facets of our lives and our profession, could AI revolutionize how litigants resolve disputes?
My earlier article arose from a panel I had moderated for the American Bar Association in Vancouver, Canada, about Court-Annexed Online Dispute Resolution for British Columbia’s Civil Resolution Tribunal (CRT). As that nation’s first online court tribunal, the CRT applies technology-based negotiation and mediation to small claims matters up to $5,000 and condominium disputes. The program also offers to parties the use of a CRT case manager who can help with resolution if the parties are unsuccessful negotiating virtually with each other. The voluntary judicial program soon gained momentum as parties found they could work to resolve their disputes using their personal electronic devices 24/7 from any location. The early promising results led the province to consider expanding the CRT’s jurisdiction to include certain motor vehicle disputes up to $50,000.
The British Columbia system also offers a pre-claim option to the public. Referred to as “The Solution Explorer,” the program uses what it calls “a basic form of artificial intelligence” to help people better understand their claims and offers avenues on resolving their disputes before a claim is filed. The program is accessible to everyone and can be accessed from personal electronic devices at any time. Through AI, it provides customized legal information based on the answers to questions posed about the potential claim. (https://civilresolutionbc.ca/)
Courts in the United States have increasingly considered on-line programs, particularly since the start of the pandemic. The goal is to provide litigants in various case-types with a low-cost and efficient means of reaching a resolution. These ODR programs are often used by parties outside of normal courthouse hours and may include gathering information about the claims and exploring various options for reaching settlement. The National Center for State Courts (NCSC) provides information and resources to state courts considering such programs. (https://www.ncsc.org/odr).
The New Hampshire Judicial Branch has also reviewed the potential for an ODR service. According to Heather Scheiwe Kulp, Senior Circuit Court Administration, “At this time, the court’s in-person and synchronous remote ADR options promote more legally compliant and durable outcomes than available ODR solutions.” She further explains that the “court is currently engaged in many technology projects, including developing tools that could be used in an ODR platform. One such tool is a payment calculator, which will assist litigants in determining a viable payment plan for civil debts.”
Could the expansion of AI impact how disputes get resolved through these technology-based resolution programs? While AI is exciting, it will likely be used more as a tool to augment dispute resolution rather than a complete replacement of the human touch.
Mediators assist parties in reaching a resolution without the need for a trial. In this process, parties present facts and legal arguments and identify key evidence gained through discovery that supports their respective positions. With the ability to process large amounts of data quickly and ascertain patterns from the case law, AI may be used to identify potential solutions.
But AI has its limitations. For example, the output is only as good as the data collected, the technology algorithm used, and the accuracy of the results. AI also lacks in the emotional intelligence and human element mediators bring to the process. Even British Columbia offers a human CRT as the last step at attempted resolution before the parties present their case for final resolution. Mediators can assess body language, provide the empathy and understanding that many people participating in the judicial system seek, and discern key needs and wants of the parties. Mediators can also adapt and consider outside-the-box solutions beyond the usual monetary terms of a settlement.
Certainly, any consideration of AI in ODR programs should include a careful review and understanding of the limitations and risks of this technology. Because AI builds on and learns from the data it uses, there may also be privacy and confidentiality concerns that arise from the disclosure of data by parties.
Online tools and AI techniques in the right type of cases may provide parties facing legal disputes with another way to reach resolution that is less costly and more convenient and efficient. But the human element may need to be a part of any ODR program given the limitations of AI. It will be interesting to see how this technology may work as a tool to augment how disputes are resolved. However AI is used, we can expect that over the coming years AI will open up new possibilities in this area of alternative dispute resolution.