Analyzing the suitability of online dispute resolution (ODR) for civil justice dispute resolution involves a certain amount of imagination. It requires us to envision something that has never been done before, at least not for justice. In the abstract, this exercise can be quite positive and encouraging. When we turn our minds back to the tangible world, imagination gives way to very daunting challenges around ODR implementation.
The Civil Justice Council’s ODR Advisory Group will invariably encounter these challenges as it considers the suitability of ODR for civil disputes. As a starting point, it will be necessary to consider how to bring offline disputes into online dispute resolution processes. In doing so, it will also be necessary to consider the so-called ‘digital divide’ – the phrase used to acknowledge that some people may have limited access to technology or face other impediments to its use. Other technology-specific challenges include matters relating to confidentiality, privacy and security in the context of an ODR system.
In this third article, I offer some strategies meant to guide responses to these challenges. In the first part of the article, I will introduce the notion of service channels, and the benefits of engaging multiple forms of transactions within the same ODR system. Next, I will present some system design options for addressing the digital divide. The last part of this article offers a high level consideration of issues relating to identity, confidentiality, privacy and security.
I. Bringing the Offline World Online into an Online Public Justice System
Private ODR systems are a natural fit for online communities, marketplaces or other internet-based interactions situated in the virtual realm. Users are necessarily online, their disputes relate to online transactions and the subject matter is often well-suited for online resolution processes.
A civil justice ODR system lacks these natural advantages. Civil disputes that come to a public justice system often arise from offline transactions or interactions, like over-the-counter consumer purchases, contractual business disputes, debts and personal injuries. In these cases, disputants are not situated in an online system; they must be directed or drawn into it.
ODR Service Channel Design
An ODR platform must be linked to users by appropriately designed ‘service channels.’ These service channels must cater to the needs and interests of users, while also pulling cases through the ODR system according to efficient and well-defined processes. Striking an effective balance can be challenging, especially if we consider that not every user carries the same level of technical sophistication.
A rich mixture of channels will increase the likelihood that users will be able to access the system in a way that provides the best service experience. It can also decrease the frequency of technical and process support requests to be handled by the ODR system’s administrators. For example, ODR service channels should accommodate a web interface, mobile devices, telephones and paper documents.
But system designers must also ensure this mix of channels is easy to manage. At the risk of oversimplifying a complex design issue, the channels must lead or connect to a central location within the ODR system. Regardless of the channel selected by each user, system administrators or case managers should be able to interact with users and their file in a centrally administered ‘virtual’ location.
Multiple Service Channels Connecting Users to ODR Platform
The ability to link different service channels selected by users will further improve the system. A sophisticated platform should allow a user who connects through a web interface to also interact with a user who connects through SMS or e-mail.
If necessary, case managers can help to bridge service channels that cannot be connected automatically. For example, a case manager who connects with a respondent through telephone, can make the content or outcome of that discussion available immediately afterwards in electronic format for retrieval by a user connecting through a web interface.
Bridging service channels that do not connect naturally will require extra work for system administrators. But it will also represent significant enhancements for users.
Multi-Channel Optimization
The service design process must be designed to encourage the right balance between user preferences and system efficiencies. Options must be available for less efficient channels like paper documents, but users should be encouraged to use the more efficient, online equivalents.
Use of more efficient online channels should be promoted by making users aware of added benefits including speed, convenience and higher quality of service. Fee discounts could also be offered for digital channel users to discourage use of less efficient and more resource-intensive paper or telephone options.
Multiple Channels for Civil Justice
Multi-channel service design will not represent a perfect solution to the challenge of making civil justice available through an online platform. However, it will increase the successful implementation of a civil justice ODR system. It could also represent a significant improvement over current processes by offering a range of modern ways for users to access the civil justice system.
II. Addressing the Digital Divide in Formal Justice System ODR
If a public justice system uses technology as a service platform, it holds the potential to greatly improve access to justice for many people. But it may be seen to have the opposite result for others. Some people are either unwilling or unable to interact through technology. It might be because they cannot afford computers, or it might be because they are simply unwilling to use technology.
Granted, most people find it difficult or even impossible to read and understand the rules of procedure in most modern courts. But if we are creating something new and using technology, expectations around access will be much higher than anything in the current justice system. Rather than engage in arguments about whether this higher standard is fair, ODR proponents should interpret it as motivation to push for the best, most accessible processes possible. This aspirational approach will produce better outcomes for users and new solutions for overcoming the digital divide.
Statistical Assessments of the Divide
The vast majority of people already use technology and the internet, with more coming online all the time. According to the UK Office of National Statistics, 83% of households in Great Britain had internet access in 2013.[1] During this period, 73%, of adults were accessing the internet every day.
These statistics are not offered to suggest we ignore the digital divide. Rather, it is offered for context. The majority of civil justice ODR users will not be impeded by technology. Yet we must consider the challenges for the minority who do face these challenges.
Narrowing the Divide through Service Design
A multi-channel design approach will help to address the challenge of the digital divide. The minority of users who are unable to interact through technology can resort to more traditional telephone or paper processes.
It will also be helpful to provide a mix of self-directed and human supported ODR processes. Whether for customer support teams, case managers, mediators or other facilitators, human support will likely be required for many steps. A well designed ODR system will simply seek to minimize the reliance on these human resources.
Encouraging Helpers
ODR also creates new opportunities for users to benefit from informal human assistance. Insofar as the dispute resolution processes are asynchronous and remote, users should be able to receive help accessing the technology or understanding the processes from relatives, friends, neighbours or any trusted person, so long as it is permitted by the system’s rules. Human helpers might even be allowed to support users in real time voice or video interactions.
Imagine the elderly user who is uncomfortable with technology asking an adult son or daughter for help. Perhaps a person who does not own a computer can secure the assistance of a neighbour or friend to facilitate access to the online justice system from that person’s living room. This support model should be much easier in remote, asynchronous communications than it has proved to be in real-time conferences or trials in courthouses.
Technology, and more specifically the internet, is a very effective tool for democratizing knowledge and information. A well designed ODR system will include features meant to empower not only the people engaged in disputes, but also the people who help them. In an analog world, lawyers were well positioned to serve as the intermediaries. The disintermediating power of the internet will disrupt this historical situation to the benefit of broader access and support within the justice system.
Literacy
Concerns around the digital divide often include references to illiteracy among potential ODR users. The concern is based on an assertion that text-based interactions will be challenging for people with impaired capacity or no capacity to read.
Technology platforms can help to address these challenges through mixed media. Images, simple animations, audio and video can all be used to convey information to users as supplements or alternatives to written text. If the ODR system allows for voice interactions between parties, this challenge will be diminished further.
Given the complexities of some disputes and the amount of information that may be exchanged during the resolution process, it may be impossible to avoid reliance on written text. But before this fact is used to condemn proposals for an ODR system, we should recognize that it would still offer many improvements over traditional litigation processes that rely exclusively on voluminous written rules and complex documents. Deciding to use text for ODR does not mean we must use text and documents the same way justice processes have used them in the past.
Despite arguments from traditional stakeholders over the benefits of oral argument or the potential for a litigant to ‘tell his or her story’ to a judge, the romanticized view that people simply walk into a court registry or a courtroom and make oral arguments is almost completely baseless, particularly in this age where civil disputes are so rarely resolved by a trial. Written text will be a part of an ODR system, but it need not be the only form of information and communication.
Aiming High and Managing Expectations
Even the most well designed ODR system cannot eliminate the digital divide. There will be justice system users with very high needs and limited capacity for interactions, whatever form they take. But ODR does present many opportunities to increase access to justice. In relative terms, it should outperform the traditional system and set the stage to use technology for building even better services in the future.
III. Identity, Confidentiality, Privacy and Security in Justice System ODR
Issues around identity, confidentiality, privacy and security are important not only for the proper functioning of an ODR system and the protection of users, but also because of the need for confidence among the public and justice stakeholders to embrace the online world.
There are a range of precautionary and protective measures that would allow implementation of ODR without creating unreasonable risks for the public or the administration of justice. Again, there is no perfect solution, but these challenges are not insurmountable.
Identity
How do we establish identity of users participating in an ODR process? Ideally, the ODR platform could link to a government-sanctioned identity verification system designed for the electronic context. Users would rely on the ‘official’ online ID process to prove their identities.
In the absence of such options, the ODR system can rely on offline verification methods. For example, disputants could be required to attend a court registry or government office to show photo identification before being given their unique ODR credentials to proceed with their dispute.
Once users have engaged with the ODR system and have confirmed the appropriate contact details, they can use common verification methods such as a unique ID and password for the balance of the resolution process.
Fraud and mistakes are always possible. Despite its perceived shortcomings, the ODR platform may offer identity and verification safeguards comparable to those found in traditional litigation processes.
Confidentiality
Depending on the type of dispute resolution process used in an ODR system, many interactions between disputants may take the form of settlement discussions. In this case, discussions would likely be afforded the same confidentiality protections we would expect to find in any negotiation or mediation process.
The inability to control what users do with information outside the process is not a new problem. But in the face of strong concerns that ODR might make it easier to share confidential information in inappropriate ways, given access to things like digital evidence and the Web, it may be helpful to create deterrents through rule-making powers or punitive measures.
Privacy
From a broader privacy perspective, the ODR platform’s case management and public interfaces could be designed to either display or conceal different forms of information depending on the context.
For example, it could display only a minimum of information to the public in the early dispute resolution phases, gradually revealing more in later stages of the process. This design approach could help to balance the desire for openness in justice processes with growing concerns over information privacy.
The platform’s information architecture can be configured to anonymize or obscure names and other information in decisions resulting from the ODR process. Decisions could still contain facts and reasons, but in an anonymized form.
While we have learned that internet technologies do create new privacy concerns, we also continue to develop new protections and create newer technologies to address some of these challenges.
Security
Not being an expert in internet security, I will avoid offering a technical description of what a justice system ODR platform should offer in this regard. This non-ODR-specific subject is best left to information technology security experts.
It is worth acknowledging that secure systems are widely used in online banking, which is an activity that will be familiar to at least half of the adult population in the UK.[2] On a broader scale, payment intermediaries like PayPal, which transacts $6,688 (USD) ever second, with a loss rate of 0.27%, prove that online systems can transfer enormous sums of money without unnecessary risk. Other professions like the health sector have also accumulated considerable expertise for record creation, sharing and security, having entered the internet age some time ago. There are few arguments left to suggest the justice system should not use technology in similar ways and with similar protections.
IV. Looking Beyond Unique ODR Implementation Challenges
The issues described above will be seen by some stakeholders (particularly those with a strong bias toward the status quo) as insurmountable ‘show-stoppers’ for civil justice ODR. Others will at least characterize them as ominous threats. In spite of the fact that technology has penetrated deeply into many aspects of society, the walls built by those resisting change have yet to fall around justice systems.
With a multi-channel ODR system, it will be possible to address these challenges with concrete solutions. It will not create a perfect system with universal access, but it will dramatically increase access for the majority of the population and open alternative avenues for other people with higher levels of need. Similarly, ODR cannot offer absolute protection in matters relating to identity, confidentiality, privacy and security. But it can adopt a range of measures from other sectors who have used technology with considerable success. In doing so, the justice sector can catch up with the technological evolution underway in the rest of modern society.
My next, and final, article will highlight the specific technological benefits of ODR by looking at monitoring and measurement, as well as the service delivery potential of artificial intelligence. In the spirit of ending with the beginning, this article will also outline ways to begin the civil justice ODR implementation work.
Darin Thompson is a lawyer with the Ministry of Justice in British Columbia, Canada. He currently serves as the Acting Legal Officer for the BC Civil Resolution Tribunal, a new, fully online tribunal that will begin operations in 2015, handling small claims and condominium disputes. He has helped to initiate multiple projects using ODR and is a member of the Canadian delegation to the United Nations Working Group on ODR.
In 2014/15, Darin will serve as an adjunct professor, co-instructing new Legal Information Technology courses at the University of Victoria Faculty of Law and Osgoode Hall Law School.
[1] UK Office for National Statistics, “Statistical bulletin: Internet Access – Households and Individuals, 2013” http://www.ons.gov.uk/ons/rel/rdit2/internet-access—households-and-individuals/2013/stb-ia-2013.html.
[2] UK Office of National Statistics, “Internet Access – Households and Individuals,” (Statistical Bulletin 2013) < http://www.ons.gov.uk/ons/dcp171778_322713.pdf> at Tables 2 and 3.
