At a time when many attorneys are seeking to expand their client base, potential clients and businesses have been turning their backs on lawyers in droves. In 2014 the American Bar Foundation’s Rebecca Sandefur released a major research report, Accessing Justice in the Contemporary USA (tinyurl.com/oofxhes), that describes how middle-class and low-income clients, despite having increasing legal needs and a high level of trust in lawyers and courts, are nevertheless sidestepping lawyers and finding other ways to resolve disputes. Why are citizens looking elsewhere to protect their basic legal rights? According to The World Justice Project Rule of Law Index 2014 (tinyurl.com/c9vxwmj), the U.S. court system, although seen as independent and free of undue influence, is burdened by expensive or unavailable civil legal assistance and perceived as more available to those of means.
When the legal profession prices itself out of the market, those needing legal help look elsewhere, and they are finding what they need. Websites such as LegalZoom, Nolo, and Rocket Lawyer have sprouted up, resulting in a loss of potential business for lawyers. Consumers have found that disputes can readily be resolved without resorting to the courts or the legal system. For example, eBay includes a dispute resolution platform tool that resolves more than 60 million disputes annually, 90 percent of which are handled with no human intervention, and online services such as Smartsettle use algorithmic tools to bring parties to agreement, lessening the need for a human being to serve as mediator.
The legal profession’s initial reaction to these types of services has been to attempt to prevent lay businesses from encroaching on legal space by filing unauthorized practice of law complaints. But lawyers are not going to win the battle of trying to stop these companies. Recent experience in North Carolina shows that legislatures will protect lay companies by defining what is the practice of law (see tinyurl.com/k5kf3yq).
Recently the legal profession has begun to accept the notion that the traditional model of expensive legal fees and courts is not the only way to resolve disputes, that online tools can play a significant role, and moreover, that the legal profession can embrace these tools. The lawyer who is familiar with online tools and techniques that can be deployed for the benefit of his or her clients will be able to offer more services to more clients, which in turn will engender more referrals and more business. As an additional benefit, that lawyer will be able to leverage time and accomplish more because the technology tools will perform some parts of the job previously done manually by the lawyer.
In this article we will present a brief overview of the principles, the vocabulary, the advantages, and the possible pitfalls of online dispute resolution tools, as well as some knowledge of the wide and varied situations in which they can be used, to help you find a place for them in your own practice setting.
History and Terminology
Mixing mediation with information and communication technology (ICT), an endeavor generally known as online dispute resolution (ODR), has the capacity to challenge traditional processes and to accelerate the reformation of our concepts of access to justice.
When ODR first began to move beyond the world of e-commerce, some practitioners were surprised at the marriage of alternative dispute resolution and ICT, but the marriage is, in fact, one that was probably inevitable. Three of the primary functions of mediators have direct parallels with functions at the core of ICT.
- facilitate communication between and among parties;
- facilitate the exchange of and understanding of information and data between and among parties; and
- manage group dynamics during the mediation process.
- makes it possible to create new channels of communication for the parties;
- offers unique ways to handle and assess data and information for the parties; and
- makes it possible to manage group dynamics in new ways and even to create new definitions of the concept of “group.”
Where Does ODR Fit In?
Two main avenues exist for lawyers to use ODR in their practices.
First, lawyers can use ODR techniques to improve their existing practice. A family law or real estate lawyer, for example, can use technology to conduct a meeting between two parties and expedite legal processes. Every area of practice can benefit from the use of technology. As lawyers routinely negotiate and mediate on behalf of their clients, technology can reduce the costs to get to resolution.
One example is homeowner or condominium disputes. Condominium owners and associations face many types of disputes, including financial disputes for the nonpayment of dues and neighbor/resident/association disputes related to noise, common areas, pets, or interpretation of bylaws. Currently these disputes are left to resolution in face-to-face meetings that generally occur monthly, when, in fact, the early resolution of these disputes could avoid significant additional costs and agony for all involved. The lawyer representing the condominium could introduce a web-based notice and meeting platform to reduce the costs to get to resolution.
Second, lawyers can learn about the application of ODR technology in specific fields and bring that knowledge to their clients to advise them in a manner that meets the reality of a global marketplace. Suppose a client is currently selling only to local customers; by learning about online micro-commerce and finding the right technology, the client could start selling to the world. But as this client expands into the online space, he or she will need to understand how to build trust with customers; this is where ODR processes come into play. Ideally, lawyers will have an understanding of these dynamics, and even better, be able to access the systems their clients need to do better business. And, as has been demonstrated, if lawyers hesitate to understand, embrace, and bring innovative technologies to their clients, the lay private sector will fill the gap.
ODR in Action
Most of the technology available for use by mediators and other third parties who want to streamline intake, communication, document sharing, single text editing, and other ODR functions is not specifically designed for legal or ODR use; most are communication applications and group work applications created for general use.
Online companies such as Modria.com, ResolvNow (rezoud.com), and Youstice (youstice.com) have packaged several of these technologies into ODR platforms and are marketing their services not only to business and governments but to law firms themselves. And in August 2014 the ABA announced a partnership with Rocket Lawyer (rocketlawyer.com) to help finds ways to bring affordable legal services to potential clients (for more, see tinyurl.com/pa9q5gv).
Here are some examples of how such services have been put to use:
- The American Arbitration Association (AAA) now uses specialized ODR software to handle 100,000 cases per year. The software was designed to facilitate the traditional case flow without the need for face-to-face meetings. Parties and arbitrators with access to the platform can file online, conduct “hearings” online, and receive the arbitrator’s award online.
- A major U.S. airline and one of its largest labor unions used a commercial group work application to handle negotiations over a period of approximately one year to address hundreds of open issues. The negotiators, the lawyers, and the mediator used the platform to share information before negotiation sessions, keep common notes and records of negotiation sessions, edit final agreement language on one document accessible to the lawyers crafting the final language (with version control and a user log), and compile the elements of the final agreement for printing and archiving.
- Three parties in three time zones spanning a 12-hour divide (Egypt, Boston, and Texas) used an online document sharing and single text editing platform to develop, negotiate, and finalize contract language with a contracting party in yet another time zone (western Europe).
- Community mediation centers and private lawyers who handle divorce and family mediation cases have long recognized that there is a perceived—and frequently real—danger in bringing all parties together in the same room. Traditionally this has been handled by “shuttle diplomacy,” with parties in separate rooms. Now some practitioners are beginning to experiment with web video as a “venue” in which the mediator can keep the parties separate while still dealing with them in real time, allowing them to reach agreement more quickly and in a much less threatening atmosphere.
Advantages and Disadvantages
As with any legal tool or strategy, ODR has its advantages and disadvantages, as well as areas where there are a little of both.
- Logistics. ODR allows parties in different locations to discuss and resolve a dispute, thereby eliminating the need for travel and the difficulty of scheduling multiple parties to meet at one time (with asynchronous tools).
- Cost. ODR can eliminate or reduce travel expenses, time lost from work, and the court costs and legal fees associated with litigation.
- Efficiency. Because ODR opens the lines of communication sooner and keeps them open longer, parties can arrive at a solution more efficiently and, in some cases, arrive at a better outcome. Moreover, brainstorming online allows some options not available in face-to-face mediations.
- Confidentiality and information safety. Any online activity gives rise to concerns about privacy and data security. Moreover, not all ODR tools are created equal when it comes to security and privacy. Parties must be counseled on and understand the potential risks of their ODR activities.
- Lack of availability for certain types of disputes. ODR is used in a wide variety of areas, from custody disputes to micro-transactions, but our legal structure is not conducive to simplification or to the accessibility of online tools for legal purposes. Nonetheless, our overburdened court systems will evolve to place some of that burden online. Currently we may be able to resolve micro-transaction disputes online, but challenging a moving violation still requires participating in the traditional court system.
A little of both:
- Emotional content. Some ODR tools such as asynchronous, text-only communication create a space where the emotion associated with traditional face-to-face communication is lost. This can be both a help and a hindrance. The loss of emotional content can place the focus squarely on the issues but may also encourage parties to say things they might say not in person. These results could be advantageous to the mediation—or not, depending on the dispute, the parties, and the particular ICT being used.
- Cultural and similar issues. ODR tools can subtly favor a party belonging to a particular culture or having certain skills the other party does not possess. For example, someone who types very fast will have an advantage over a person who must hunt and peck if the ODR platform relies on typed, real-time communication.
A New Tool for Your Practice
Technology is a powerful tool that the legal profession is slowly embracing, but it encompasses much more than calendar management, time-and-billing software, cloud storage, videoconferencing, and smartphones. Online dispute resolution technology is particularly well suited to our ever-expanding online connectivity across geographic boundaries and time zones. ODR can save you and your clients time and money. Forward-thinking practitioners will find a place for it in their arsenal.