ODR is likely to be an increasingly important part of legal and dispute resolution processes in the future, with potential benefits and risks. It particularly has great potential to help self-represented litigants (SRLs, aka “pro se” parties).
So I was interested to read a draft paper by my colleague, Amy Schmitz, and John Zeleznikow, Intelligent Legal Tech to Empower Self-Represented Litigants, which will be published in the Columbia Science and Technology Law Review.
From my limited exposure to ODR, I have had a sense that current ODR systems often haven’t fulfilled parties’ needs, especially SRLs. Amy and John’s paper helps explain the problem by developing a typology of six functions that various ODR systems perform: case management, triaging, advisory, communication, decision support, and drafting. Their paper includes a great appendix listing ODR systems and which of the these functions they perform, noting that some systems perform multiple functions. The paper shows that the identified systems include the following functions (with the number of systems identified in parentheses): communication (55), case management (46), advice (21), decision support (8), drafting (8), and triaging (6).
As people design ODR systems, they should consider which functions to include. Systems designed primarily for SRLs presumably should include more of these functions than other systems. As ODR develops, the set of functions may expand and/or evolve.
Here’s the abstract:
Legal technologies, or “legal tech,” are disrupting the practice of law and providing efficiencies for businesses around the globe. Indeed, legal tech often conjures up notions around billion-dollar businesses and highly sophisticated parties. However, one branch of legal tech that holds particular promise for less sophisticated parties is expanding access to justice (A2J) through the use of online dispute resolution (ODR). This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that legal tech such as online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and those who cannot otherwise afford traditional litigation. Meanwhile, the Covid-19 pandemic has accelerated the growth of online processes, including court and administrative processes that traditionally occurred in person. Nonetheless, these online processes seem focused on mainly case management and communication, neglecting the need for more imaginative and innovative uses of technology. Accordingly, this Article proposes a six-module process framework for ODR programs and identify gaps in development – where new technologies are needed to advance A2J. Indeed, there is great room for development of Artificial Intelligence (AI) and data analytics to assist SRLs and others in pursuit of remedies, and justice.
Here’s the conclusion:
This Article sets forth a background on key legal technologies used in dispute prevention and resolution, often referred to as ODR. Further, it considered particular ODR technologies that go beyond facilitation of communication to use AI, data analytics and/or algorithms to empower SRLs, and explained why such use of technology can expand A2J. Building on this background, the Article proposed that six processes should be available to truly capitalize on innovation to advance user-centric system design – namely, case management, triaging, advisory, communication, decision support, and drafting tools.
At the same time, an analysis of 64 current ODR systems revealed gaps in what current providers offer. Indeed, there is room for further development of triaging, advisory, decision support and drafting tools. Nonetheless, such development must abide by ethical guidelines, including vigilance regarding the use of AI and algorithms to ensure that SRLs are not left with “second class” justice. Moreover, optionality and choice remain core to intelligent ODR systems. Indeed, it is time to reimagine A2J through the innovative use of technology not simply to advance efficiency and corporate savings – but to empower SRLs who deserve a fighting chance in their quest for remedies in an often one-sided legal market.
Take a look.