Published in NH Bar News (10/21/2020)
Technology has fundamentally changed how people communicate, do business, and perform everyday tasks. With the expansion of e-filing in our courts, technology has become a significant part of our legal practices and the judicial system. Offering virtual tools and techniques to parties for use in the resolution of matters has become necessary during the pandemic and is likely to be more common in the future.
While it may seem new, online dispute resolution (ODR) has been around since the mid to late 1990’s. E-commerce companies saw the use of technology as a way to provide their customers with a low-cost option to resolve disputes efficiently. The trend toward ODR was consistent with the development and common use of the internet and allowed a means to settle disputes arising from e-commerce transactions. This online tool worked as cyber-customers were often far apart geographically and the amounts in controversy tended to be smaller.
ODR broadly means a dispute system using technology to assist parties in resolution of legal claims. Those who have used eBay or PayPal may have personally used this type of resolution-tool already. What was initiated over two decades ago in e-commerce has now made its way into the courts.
Two years ago at the American Bar Association Midyear Meeting in Vancouver, Canada, I had the honor of moderating a panel of speakers on “Developing and Implementing Court-Annexed Online Dispute Resolution.” The program focused on the ODR efforts in British Columbia and its Civil Resolution Tribunal (CRT), that nation’s first online tribunal established to handle small claims and condominium disputes through technology-based negotiation and mediation.
British Columbia commenced an online platform in the judicial system when the Ministry of Justice started the CRT as a government sanctioned ODR platform in 2016. The CRT is “an administrative tribunal, not a court,” but “is part of the public justice system,” which is “required to apply the law and make enforceable decisions.” See https://civilresolutionbc.ca/faq/#is-the-crt-the-same-as-a-court.
The panel included Shannon Salter, Chair of the British Columbia Civil Resolution Tribunal, and Darin Thompson, Legal Counsel for BC Ministry of Attorney General. Salter and Thompson explained that CRT began as an efficient and speedy way to resolve condominium disputes, and a year later was expanded to include small claims cases alleging damages of up to $5,000. The voluntary process provides for both an online and human component (by phone or email) to assist in resolution at all times during the day. Salter and Thompson further reported that early results showed promise, and confirmed that the province was considering legislation to expand the jurisdiction of the CRT, which now includes certain motor vehicle disputes up to $50,000.
Colin Rule, a pioneer in online dispute resolution, and the then Vice President of Online Dispute Resolution at Tyler Technologies, rounded out the panel, speaking about the online platform used by British Columbia and the increasing growth of ODR in U.S. courts. To support use of a technology based tool in a public system, Rule emphasized that whether making online purchases or rebalancing a 401k account, the use of technology has become commonplace. Rule, who began his career at eBay and PayPal as the first director of ODR, co-founded Modria.com, an early provider of ODR technology, which Tyler Technologies purchased in 2017. (In June 2020, Rule became President and CEO of Mediate.com.)
Two years after the 2018 panel discussion, statistics show the CRT has grown in use. From April 1, 2019 to March 31, 2020, 5,880 applications were filed, a 7.5% increase from the prior year. https://civilresolutionbc.ca/wp-content/uploads/2020/07/CRT-Annual-Report-2019-2020.pdf at 5. Also during this period, 6,079 overall disputes in the system were closed. Id. at 7.
In the United States, the National Center for State Courts (NCSC) has been tracking court-implemented ODR programs and has provided information and resources to state courts for years.See https://www.ncsc.org/odr.As defined, court-annexed ODR is a public-facing online platform hosted or supported by the judicial branch available for use by parties to resolve disputes.Earlier this year, a Joint Technology Committee (JTC) issued “Case Studies in ODR for Courts,” Version 2.0 (Adopted 28 January 2020).https://www.ncsc.org/__data/assets/pdf_file/0033/39579/JTC-Resource-Bulletin-Case-Studies.pdf.While only one U.S. court had adopted ODR when the JTC issued its first publication in 2016, according to the case study as of 2020, “large and small jurisdictions all over the US have online dispute resolution implemented for some case types.”Id. at 1.
The New Hampshire Judicial Branch has also explored ODR as a possible addition to services provided to parties. According to Heather Scheiwe Kulp, Circuit Court Administrator, “the New Hampshire Judicial Branch explored the use of ODR for a number of case types.” In 2019, an RFI was issued to expand “current Alternative Dispute Resolution (ADR) services with the development of an integrated ODR system to pilot for Small Claims cases.” https://www.courts.state.nh.us/aoc/rfps/NHJB-ODR-RFI_190508.pdf at 3. Kulp further explained, “After receiving many replies to a Request for Information and determining some parameters of a New Hampshire court-specific ODR system, the Administrative Council determined there was not enough information on the potential cost to conduct a sufficient cost/benefit analysis before posting a Request for Proposal.”
In New Hampshire, small claims cases include disputes for $10,000 or less.A significant number of parties are self-represented in these cases and since 2014, less than one percent of the filed cases opted-out of e-filing. Id. ODR would be an extension or enhancement of the current mediation offerings.In light of the need for better cost/benefit analysis, Kulp concluded that, “While the NHJB sees potential benefits in an ODR system, the NHJB ODR program is on hold for the time being.”
Over the years, ODR has grown in use as reliance on technology has expanded.This virtual platform may open up new possibilities in the current environment.Online tools and 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 efficient.
Jennifer Parent is a director at McLane Middleton and chair of the firm’s Litigation Department.She can be reached at (603) 628-1360 or [email protected].