Our recent webinar Digitising Dispute Resolution Services considered the emerging role of Online Dispute Resolution (ODR) in the legal industry. The discussion, led by our esteemed panel of ODR experts: Laura Keily (Founder and Managing Director of Immediation), Nick Northcott (Executive Director – Commercial, Immediation) and Michael Heron QC (Chairman, Immediation New Zealand) provided some key insights into ODR with the panel sharing their experiences, successes and learnings in the shift to going digital with dispute resolution.
The online dispute resolution space transformed drastically with the arrival of the COVID-19 pandemic. Prior to COVID-19, it was estimated that in 10 years, 75% of legal disputes would be resolved online. When the world went into lockdown, almost overnight, 100% of disputes came to be resolved online. Over the course of the COVID-19 pandemic, the Immediation panel observed a rapid adaptation towards the digital movement.
Insights on the benefits of going digital
For barristers and judicial officers, digital hearings and mediations means less time wasted in Court. Reflecting on her work as a barrister, Laura Keily noted “It used to be that you had to go and sit in court all morning and wait for your matter to be called”. Digital offerings save time, affording people the capacity to work from home. In the lead up to the hearing, barristers and solicitors can tend to other work in their chambers or office. Ultimately, this will benefit clients the most, reducing costs of litigation.
Digital solutions are an effective means of resolving cross-jurisdictional and international legal issues. Reflecting on his work with the International Cricket Council, Michael Heron QC noted “In a few weeks I’ve got an international cricket hearing chaired out of London, [with a] panel member in Bangladesh, the defendants are in Pakistan and it’s run from Dubai”; this hearing is set to run on the Immediation platform. Allowing people to connect from all over the world, affords people access to dispute resolution without the constraints inherent to face-to-face meetings.
ODR also provides increased access to justice for remote communities or people with mobility challenges. Notably, Immediation has provided ODR services for the community of Geraldton, Western Australia. Prior to ODR, Geraldton residents had to travel to Perth to access dispute resolution services. The remote nature of the community in Geraldton meant that local mediators often had conflicts of interest and could not facilitate a resolution. Technology is useful in such a context, as mediators can facilitate ODR from any location.
ODR also opens up opportunities for lawyers to broaden their client base with Laura Keily noting, “a silk that I was recently on a matter with was in both the Supreme Courts of Victoria and NSW during the same morning”. This benefits legal professionals who can seamlessly engage in dispute resolution from anywhere in the world. It also benefits clients, who can participate in matters without the impediment of travel. If someone is involved in a matter in Melbourne, they can connect from Perth without having to travel interstate, ultimately saving time and money.
Online dispute resolution is also ideally placed for resolving sensitive matters. With ODR, users have full control of their audio and video settings. On Immedation, for example, mediators can mute or turn off the chat function of participants. Such features are useful in particular situations, for instance, in disputes involving family related matters. In such circumstances, participants can experience a greater sense of security and safety, providing for more just outcomes.
The efficiencies that can be gained from ODR are well known. Immediation has been designed with the dispute resolution and legal context in mind. Unlike other video conferencing platforms, users have the ability to co-draft and execute settlement agreements (or indeed any type of agreement) inside the platform in real-time. As Laura Keily noted, “gaining a signature on a settlement agreement can sometimes take a couple of weeks”. Immediation allows parties to completely move on from a dispute immediately after settlement. The ability to sign documents is one of many features within Immediation’s platform specifically designed for digital dispute resolution.
The challenges of digital transformation
Despite the many benefits, online dispute resolution can come with a number of challenges.
A significant challenge is the simple fact that many members of the legal profession are reluctant to adopt ODR practices. Particularly, some senior members of the profession have felt less confident in using the technology and perhaps disempowered by the new online environment. As Michael Heron QC noted, “there is a cultural reluctance, from many lawyers and judges… to where appropriate, move to digital”. Widespread adoption of ODR going forward requires a cultural shift within the profession.
Although the digital environment is perceived as less formal, it has also proved difficult to have informal conversations with opposing counsel or parties. Often, such informal discussions are valuable, allowing the respective sides of the dispute to build rapport with each other, encouraging settlement. Laura Keily and Nick Northcott noted that they previously believed the adoption of ODR technology would not hinder informal interactions. Experience has proved otherwise, with parties online generally moving straight into a formal meeting, proceeding or dialogue.
There are also barriers to accessing the technology. Participants from remote areas with weak internet connectivity have particular difficulty accessing video conferencing platforms. For persons without a computer, it is difficult for them to fully engage in the ODR experience. The same applies for persons who are not technologically literate. Although there are a variety of ways of mitigating these issues, ODR is not yet ideal for all members of our community.
Best practice dispute resolution
In some circumstances, ODR may pose a challenge to best practice. Best practice mandates that procedural fairness is maintained in the digital world, despite connectivity and other technology related issues. Mediators, Arbitrators and Judges must have an acute awareness of the technology and use common sense to promote fair and just outcomes. Best practice also requires counsel and other participants to exercise common sense and courtesy.
There are a number of ways best practice can be promoted online. For example, if a matter is recorded, it can be reviewed, removing some of the concerns related to connectivity, or a party missing submissions. Tribunal members who conduct hearings on the Immediation platform have observed that meeting this standard of best practice in the digital world is challenging, but can easily be achieved. As ODR practices become further engrained in the legal system, best practice processes will further develop. On Immedation, for example, recording of mediations is not possible although recordings of hearings is the default position.
Final thoughts on the future
There are numerous reasons why digital dispute resolution provides for greater access to justice than traditional in and out of court processes. Technology can be used to bring access to justice into people’s homes, allowing them to resolve disputes in a more cost effective, timely and equitable manner. In turn, this relieves pressure on the court system, resulting in better outcomes for the entirety of the legal system.
As the world adopts more digital practices, Immediation believes there will be an inevitable cultural shift towards ODR and continues to lead the way by adapting and innovating to support this growing needs of the community.
View the full recording of the panel discussion here.
To learn more about how Immediation can help you digitise you dispute resolution services please reach out to Laura Keily or Nick Northcott. In the meantime, we would love you to stay up to date with us by reading our blog and following us on LinkedIn.