June 23 , 2017

The Commission on Professionalism recently hosted its second future law event focused on innovations in the delivery of legal services. Co-sponsored by various bar associations, the event brought together nine speakers and approximately 400 law students, legal educators, attorneys, and members of the judiciary at the Art Institute in Chicago. Lawyers received five hours of professional responsibility CLE credit.

The speakers presented a range of future law topics from closing the access to justice gap, understanding the role of data in the profession, redefining the lawyer’s business model and her relationship with the client, and enabling diversity in the workplace. In between the short Ted-like talks, I moderated questions and feedback from the participants.

This article will focus on one aspect of the conference most germane to the judiciary: the rise of online dispute resolution and how it can increase access to justice.

Illinois Supreme Court Justice Robert Thomas set the access to justice theme as he welcomed participants and thanked them for being forward-looking about how our profession needs to change. Justice Thomas urged attendees to not lose sight of the human emotions involved in our work.

At the heart of every case is a human being. A person for whom this particular case means everything. . . . For the people involved, being in court is an extraordinary and often traumatic experience. What brings people to court? Injury, death, unemployment, divorce, child custody battles, the commission of a crime. For the people involved, the court’s decision can mean the world.

Justice Thomas noted that the charge of the Commission on Professionalism includes addressing how to better serve citizens who need our justice system. He told participants that “[it] should be your charge as well.”

First: what is the state of dispute resolution in state courthouses?

To understand the context for online dispute resolution, it helps to look at the state of traditional “offline” dispute resolution. According to the National Center for State Court’s 2015 report “The Landscape of Civil Litigation in State Courts,” 75% of the cases filed in the state courts involved judgments of less than $5,200. Sixty-four percent of the cases filed in state courts are contract cases, comprised largely of debt collection and landlord-tenant cases. The report notes that, “For most represented litigants, the costs of litigating a case through trial would greatly exceed the monetary value of the case. In some instances, the costs of even initiating the lawsuit or making an appearance as a defendant would exceed the value of the case.” And contrary to the traditional paradigm of civil litigation being wholly handled by attorneys representing both parties, 76% of the cases studied in the report had at least one party self-representing.

Trials have been dropping in number. The National Center for State Courts reported that between 1976 and 2002, civil jury trials decreased by 28%. Case filings across Illinois have been dropping too. According the 2015 report of the Illinois Supreme Court, filings in every judicial circuit dropped over the years 2011-2015. The percentage of decrease varied from 9% to 26%. Although traditional court filings and trials may be down, disputes are not.

Second: Can Online Dispute Resolution Serve and Scale?

Prof. Ethan Katsh, who currently serves as the Director of the National Center for Technology and Dispute Resolution asked the Future is Now participants, “Where is the world’s largest courthouse?” He answered his own question that it is not located in a geographic location or traditional brick-and-mortar building. It is over the internet and on the phone in our pockets.

As with all things related to the internet, new products and services are coming at a faster rate—as are conflicts. Disputes are arising from the increased complexity in relationships and systems being created and the larger volumes of data being collected, processed and communicated.

Prof. Katsh predicts that an electronic device will replace the courtroom door as the entry point to formal and informal online dispute resolution processes. His premise is that access to justice can be enabled by software and mouse clicks just as in the old days, it was affected by the hours a court was open or how distant it was located from one’s home.

Technology, in the form of online Dispute Resolution (ODR) can make conflict resolution and prevention a “growth industry.” ODR tools for resolving disputes include substituting software-based decision-making for the exchange of information that typically characterizes the mediation process.

Prof. Katsh, who co-authored the book Digital Justice: Technology and the Internet of Disputes, noted that disputes arise in 3-5% of online transactions, totaling over $700 million in e-commerce disputes in 2015 alone. Millions are over-charged, find credit report mistakes, suffer hacking, are subjected to identity theft or are harassed while playing online games.

Last year, eBay alone resolved over 60 million disputes and Alibaba more than 100 million. There are ambitious plans for an online small claims court in the United Kingdom and ODR projects are operating in the Netherlands, Canada, China, and elsewhere. The United States, unfortunately, is behind other countries in developing online courts and easy online access to justice systems.

Prof. Katsh explained that in addition to using technology to resolve disputes, we can also use it to prevent disputes. He highlighted that, unfortunately, the dispute resolution process historically has ignored prevention. To prevent disputes, we need to know why they occur. To know why disputes occur, we need data. Once we have this data, we can begin to work on prevention. As consumers increasingly demand one click redress, technology will enable the industry to move from resolution to prevention, low value to high value disputes, and simple to complex issues.

It remains to be seen whether online dispute resolution will be utilized and scaled to significantly impact the public. With the rate of change we are experiencing, it is well worth watching.