Online Dispute Resolution is not a Choice—It is a Necessity
By Laura Keily, Founder, CEO Immediation
The legal system has always been overburdened, but never like what we are experiencing today. Backlog in courts worldwide has grown to hundreds of thousands of cases and, The Guardian reported, added as much as six years to wait in some jurisdictions. The consequences are serious and costly. People are imprisoned longer, waiting in limbo longer, going without their awards longer, and struggling to get the justice they deserve.
The justice system urgently requires digital transformation to offer some solution to this crisis. Even before COVID-19 drove the adoption of technology throughout the world’s legal systems, Online Dispute Resolution (ODR) held the promise of addressing the backlogs and providing greater access. The two go hand-in-hand, as greater access and easier navigation of the system will allow potentially life-altering legal disputes, such as debt-collection, eviction, and child support to be resolved out of the courts, offering all parties speed, efficacy and lower cost.
A chorus of leading voices in the industry agree ODR is the way forward.
Researchers from The Pew Charitable Trusts who studied the nature and impact of courts’ deployment of technological tools during the pandemic in the report, How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations, found that digital tools can facilitate a more open and accessible legal system that is more equitable and lets more people assert their rights and resolve disputes more efficiently, guaranteeing due process and offering easy, timely interactions.
Alice Armitage, professor at the University of California Hastings College of the Law, supported the research and took it a step further. According to her experience, she said, “Lack of access to justice in areas such as debt collection and landlord tenant disputes can compound and increase the court backlog problems unnecessarily.”
It is clear that digital transformation in the legal industry is no longer a choice—it is a necessity. Based on our recent participation with the National Center for State Courts’ National Association for Court Management conference in Milwaukee, the court system expects to move from pure virtual to a hybrid model using both online and in-person proceedings—with resolvable disputes being managed efficiently through online mediation and arbitration, reserving courts for more complex cases that require the full force of the legal system.
ODR–including arbitration and mediation– preserves the most important aspects of the justice process, while improving access, security, efficiency, and sustainability.
- Providing Greater Access
ODR can help reverse the imbalances in equity and provide greater access to justice for the underserved. According to research from the World Justice Project, Pathfinders for Peace, and Inclusive Societies, “In 2019, before the onset of the COVID-19 pandemic, the world’s leading justice organizations and experts estimated that 5.1 billion people—two-thirds of the world’s population—lack meaningful access to justice.”
This is not just a third-world issue. In the developed world, millions do not have equal access to justice due to financial hardship and other issues. While ODR is no panacea for this large-scale challenge, it can help thousands who live far from courtrooms or cannot afford to take time from work to access justice and enable attorneys to better represent their clients without logistical challenges interfering with providing counsel.
- Avoiding Errors and Security
The rule of law is centered around privilege and security, and traditional video conferencing platforms do not provide the security required by the justice system. Purpose-built technology comes with higher level of controls and security that significantly reduce process mistakes.
For example, one arbitrator accidentally recorded deliberations meant to be entirely private because outdated video conferencing lacks proper controls. Other mistakes, like the one in February 2021, when a lawyer famously showed up as a cat to an online hearing on Zoom, can easily demonstrate a violation that that may constitute contempt of court and result in a fine and/or a jail term.
Human error has significant potential to invalidate a judgement or resolution process. It will not be surprising to hear about the undoing of arbitral awards because of issues around privilege violations. The risk is too high to continue use of general consumer technology solutions.
ODR reduces delays because all parties can more easily be present and at significantly lower cost. There is no reason for general counsel of large corporations–who need to control costs—to pay for lawyers to sit in a courtroom and wait for their matter to be called when that adds four hours to their bill. In fact, many GCs report that except for major cases, they will not travel for hearings that can easily be attended virtually.
And, as discussed above, with courts freed up to focus on matters that must be dealt with in that venue, the right cases can be addressed, the backlog shrinks and, for some, the court can deliver on the promise of the right to a speedy trial.
Environmental responsibility is everyone’s job, and the digital transformation enables the legal system to operate in a way that is better for the environment. Air travel produces about a quarter ton of carbon dioxide per hour of flying and cars produce about four pounds of carbon dioxide every five miles. The reduction in travel enabled by transitioning even some proceedings to the digital realm can have a huge collective impact in meeting the world’s environmental goals as the legal industry strives to become “greener.” We call it Regenerative ResolutionTM.
A tectonic shift is taking place in the legal industry. A hybrid approach to dispute resolution pairing purpose-built technology and in-person proceedings is the best new industry practice, and the trend will only grow because of the advantages it offers to all.