When You Can’t Meet in Court: Pros and Cons of Online Dispute Resolution

Alternative Dispute Resolution During the Coronavirus Crisis

LexisNexis

During the coronavirus crisis, Australian courts have quickly become reliant upon electronic media to resolve court matters. Online dispute resolution (ODR) offers a way to deliver safer, faster and more affordable access to justice during the coronavirus crisis and can remove barriers like geographical isolation and lack of transport options or mobility.

In response to the COVID-19 crisis, and to reduce the risk of infection, most Australian Courts have placed greater reliance upon electronic means of communication to undertake Court work, writes Nathan Moshinsky in a recent LexisNexis article1COVID-19 and the impact on our Courts: will there be a ‘new normal’ in 2020?

Australian Courts have moved quickly to increase their use of technology in response to the COVID-19 crisis. For example, the Federal Court’s response to COVID-19 requires, to the extent possible, that proceedings are heard as Virtual Hearings, using the remote access technology Microsoft Teams.2

Since it appears that Australian legal community will be dealing with the many issues arising from the COVID-19 crisis for most of this year, the increasing use of technology in the Courts offers some hope for the continued progress of justice.

Increasing client demand will continue to require our justice systems to incorporate and interface with online platforms to resolve disputes, writes Katrina Kluss in Mediation mediums: the benefits and burdens of online alternative dispute resolution in Australia.3 (Australian Alternative Dispute Resolution Law Bulletin, LexisNexis).

Online dispute resolution: an overview

Online dispute resolution (ODR) offers a way to deliver affordable access to justice, (and in these times safer access), and can remove barriers like geographical isolation and lack of transport options or mobility.

Adoption of new technology by Courts offers new opportunities for resolving disputes – from simple email to video conferencing, instant messaging and in recent times the advent of purpose-built online systems that incorporate artificial intelligence to create a computerised “mediator” who uses big data to make better decisions.

Some of these AI systems offer fully automated cyber negotiation which primarily focuses upon negotiating monetary settlements and providing a neutral platform to exchange settlement offers without the involvement of, or need for, a mediator.

What are the main types of Online Dispute Resolution? 

Online Dispute Resolution (ODR) generally describes dispute resolution that is facilitated or assisted by information and communication technology.

It may be facilitated by mechanisms such as online mediation, advisory mechanisms such as online case appraisal, and determinative mechanisms such as online arbitration or adjudication, or virtual hearings.

It can be synchronous (happening in real-time) or asynchronous (at each parties’ convenience, such as via email).

Currently, there are three primary mediums for dispute resolution enabled by technology:

  1. AI dispute resolution.
  2. Online courts.
  3. Online or electronic mediations and arbitrations.

What are the pros and cons of Online Dispute Resolution?

Digital technology has boosted efficiencies and reduced costs in many industries during past few decades.

However, there may be some residual reticence about ODR in the legal field, not least because of concerns regarding the dehumanisation of human-centric processes.

While there are clear safety and time-saving advantages offered by ODR, there are several risks and disadvantages to be considered:

  • risks to confidentiality when using third party applications
  • an inability for technology to handle the varying complexity of legal cases.
  • difficulty for the advocate, arbiter and mediator in building rapport with parties
  • drawbacks of not appearing in person, including less fluid discussions, less engagement or strategic discussion of issues, more difficulty in reading body language
  • absences of human insight and empathy
  • disadvantages for those who are not tech-savvy
  • lack of accountability, regulation and guidelines
  • the potential for algorithmic bias (more on this below)

What about the dehumanising effects of algorithmic bias?

Algorithmic technology offers potential to increase efficiencies in the courts, with courtrooms in the United States successfully trialling it to decrease the jail population without jeopardising public safety, and lawyers in Argentina using an algorithmic software app to generate draft rulings.4

However, algorithmic technology is dependent on the data itself, and within this data is human bias, compounded even further.

The 2016 ProPublica saga highlighted the dangers: a software program to determine the rate of recidivism incorrectly labelled black defendants as a risk almost twice as many times as it did for white defendants. It made the opposite mistake for white defendants, with those labelled lower risk going on to reoffend at twice the rate of black defendants.

Despite the drawbacks, it’s likely that ODR platforms will continue to evolve, driven by time and cost efficiencies along with user empowerment. In the United States, one expert predicted that 75% of all lawsuits will be litigated online within a decade.5

A shift towards ODR seems inevitable, however it offers the most potential to enhance—rather than replace—traditional ADR.

Perhaps the greatest advantage of ODR is that it also allows for the re-imagining of court processes to more closely align with the ideal operation of mediation.

Since it appears that Australian legal community will be dealing with an increasing use of technology in the Courts for most of this year, ODR offers some ideas for legal professionals seeking new solutions to the unprecedented problems we are currently facing.

A shift towards online dispute resolution ODR seems inevitable and is an opportunity to enhance—rather than replace—traditional ADR

Footnotes

1.https://www.lexisnexis.com.au/en/COVID19/blogs-and-articles/federal-supreme-high-court-rules-impact-of-coronavirus-covid-19-in-2020
2.https://www.fedcourt.gov.au/online-services/virtual-hearings
3. Kluss, Katrina J, Mediation mediums: the benefits and burdens of online alternative dispute resolution in Australia, Australian Alternative Dispute Resolution Law Bulletin, LexisNexis
4. LexisNexis, Algorithmic bias in the courtroom: how to fight it?, © 2019 LexisNexis
5. Dori R, 75% of Lawsuits Will be Handled Online Within a Decade, Says Law Professor, Ctech ©2019