Legg, Michael --- "Online alternative dispute resolution" [2017] PrecedentAULA 46; (2017) 141 Precedent 32

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ONLINE ALTERNATIVE DISPUTE RESOLUTION

By Michael Legg

INTRODUCTION

A key driver of online dispute resolution (ODR) is the need for affordable access to justice. In many lower-value disputes, what is at stake is worth less than the cost of commencing formal legal proceedings, or even seeking legal advice. Even for disputes that involve a substantial amount of money for the individual, the legal costs to resolve the dispute can be significant and unaffordable. Consequently ODR, with its lower cost structure, provides an opportunity for extending access to justice to many citizens. ODR also has the potential to enhance access not just generally, but for disadvantaged groups specifically. Barriers due to distance, confinement, sight or hearing impairment can be removed or reduced through technology.^[1]

ODR can be considered to comprise online alternative dispute resolution (OADR) and online courts. OADR may be defined as dispute resolution outside the courts, based on information and communications technology. OADR originally emerged in the mid-1990s as a response to disputes arising from the expansion of ecommerce. As a result, it focused on using technology to resolve customer complaints and sought to support negotiation, mediation and arbitration. Today, it may go further and give rise to innovative ways to resolve disputes beyond the traditional categories of alternative dispute resolution (ADR). In contrast, online courts form part of the justice system and are therefore subject to institutional norms and legal requirements derived from the nature of the judicial function. The aim of this article is to provide an introduction to OADR.^[2]

PROVIDING INFORMATION – PREVENTING DISPUTES?

Before examining OADR, it should be remembered that the basic or first step in technology assisting dispute resolution is the provision of information or problem diagnosis. Access to information can assist in avoiding disputes as well as resolving them. This is often a straightforward guide to the law and may also provide guidance as to where to obtain further assistance. It can be designed to operate as a web page or as an app for a smart phone or tablet. It can be provided in a static format or in an interactive manner, but usually the aim is to employ technology to allow people to find the information most relevant to their particular problem. It can be stand-alone or, as will be seen below, incorporated into an OADR platform.

It must also be borne in mind that people may need information in the first instance to assist them to identify that the problem they confront is a legal problem, and that legal problems may arise in the context of other problems; so the first place that a person looks for information may not be a traditional source of advice about legal issues.^[3]

The use of technology to provide information or diagnose problems has been embraced by many universities through Law App courses. Georgetown University Law Center in Washington DC runs an elective course where teams of students are assigned to work with legal services organisations and, using software packages, build an application that will improve access to justice. The course culminates in the Iron Tech Lawyer contest, where the applications are judged by a panel of external experts.^[4]

This model has been adopted by some law schools in Australia. Melbourne Law School ran its Law Apps elective for the first time in semester 2, 2015. The course requires students to design, build and release a live legal expert system that can provide legal information to non-lawyers. Similar courses are available at UNSW Law school (Designing Technology Solutions for Access to Justice) and UTS Law school (Allens Neota UTS Law Tech Challenge for Social Justice).

ONLINE ALTERNATIVE DISPUTE RESOLUTION

OADR has seen several waves or generations of technology use. OADR may adapt existing technologies such as email, instant messaging, videoconferencing and Skype to allow disputants to communicate directly and to allow facilitators, mediators or arbitrators to be brought into a dispute resolution process as needed. An example is CDMC National’s ‘MODRON’ which facilitates online mediation.^[5] This form of OADR seeks to provide a place or mechanism to resolve the dispute rather than simply providing sources of information or suggested steps, but there is still a human conducting the mediation or decision-making.

OADR can also employ ‘expert systems’ or what is also called simple or rules-based artificial intelligence. To create the expert system, the system designers need to acquire expert knowledge from human experts and encode that knowledge into rules that will be applied based on the factual information obtained from the users. Expert systems collect facts from users through interview-style questions and produce answers based on a decision-tree analysis. This form of OADR goes beyond assisting what is otherwise traditional ADR by providing tools for communications and is used for ‘idea generation, strategy definition and decision-making’.^[6] This has led two of the pioneers of OADR to observe that ‘[o]nce a process moves online, its very nature begins to change’.^[7]

Additionally or alternatively, OADR can replace or significantly reduce the role of humans and instead use advanced artificial intelligence (including algorithms, machine learning and big data) to become the third party that performs the mediation or decision-making.^[8] An example is ‘blind-bidding’ systems, which use multivariate algorithms to help parties arrive at the optimal outcome. The technology obtains information from the disputants as to how they rank or value issues within the dispute and then combines those outcomes to suggest solutions.^[9]

OADR EXAMPLES

To illustrate the operation of OADR, two examples are explained below: the Dutch platform called Rechtwijzer (Roadmap to Justice) and the Canadian province of British Columbia’s Civil Resolution Tribunal.

Rechtwijzer

An example of a leading OADR system is provided by the Dutch platform called Rechtwijzer (Roadmap to Justice). Rechtwijzer came in two versions: 1.0 and 2.0. The first provided guided pathways. Instead of a static webpage, the user was given an interactive experience that led to information specifically tailored to their needs. This allowed for the dynamic provision of advice and tailored referral. Version 2.0 sought to build ODR into the process.^[10] The Dutch Legal Aid Board has explained the aim of Rechtwijzer as ‘to empower citizens to solve their problems by themselves or together with his or her partner. If necessary, it refers people to the assistance of experts.’^[11]

Rechtwijzer was designed for couples who are separating or divorcing. Couples pay €100 for access to Rechtwijzer, which starts by asking each partner for information such as their age, income, education, whether they want the children to live with only one parent or part time with each, then guides them through questions about their preferences. The platform uses algorithms to find points of agreement, and then proposes solutions. If the proposed solutions are not accepted, then couples can employ the system to request a mediator for an additional €360, or a binding decision by an adjudicator.^[12] Rechtwijzer is voluntary and non-binding up until the point where the parties seek adjudication.

Despite Rechtwijzer leading innovation in OADR, plans for it to grow and apply to additional areas of dispute have recently been curtailed. Rechtwijzer had aimed to be self-financing through user contributions as outlined above to offset declining public subsidies. This has not occurred.^[13] Nonetheless, the approach of providing tailored, interactive advice which then linked to dispute resolution methods, if needed, has been influential in several other jurisdictions, including Australia.^[14]

Civil Resolution Tribunal

Another example is British Columbia’s Civil Resolution Tribunal, which deals with small claims and condominium disputes.^[15] The Civil Resolution Tribunal involves four stages:^[16]

Stage 1 – an expert system called Solution Explorer uses interactive questions and answers to give people tailored legal information as well as tools and resources, like template letters, to help them resolve their dispute consensually. The system helps to diagnose a user’s problem by narrowing the issue and providing focused information relevant to that particular problem. For example:

> Karin has a Small Claims problem

>> Karin’s Small Claims problem relates to the purchase of a good or service

>>> Karin’s purchase is a consumer (personal, family or household use) type

>>>> Karin is the consumer (purchaser)

>>>>> Karin’s purchase is a service contract

>>>>>> Karin’s service contract is a continuing service contract (for example, a fitness club membership)

>>>>>>> Karin wants to cancel and is having a disagreement over the terms of cancellation^[17]

Solution Explorer can then suggest a letter to the other party to the contract.

If no consensual resolution is achieved, then Solution Explorer provides an online intake process that commences a claim. The process seeks factual information and supporting evidence. The focus of the intake process is to avoid an adversarial approach and instead focus on collaboration.

Stage 2 – party-to-party negotiation is provided to try and resolve the dispute without the Civil Resolution Tribunal becoming involved. The expectation is that ‘the negotiation phase is unlikely to resolve a high percentage of disputes, but is consistent with the principle of empowering people with as many up-front opportunities to resolve a dispute as possible before imposing a resolution through adjudication’.^[18]

Stage 3 – there is a further attempt to reach a resolution through a range of online and in-person ADR techniques employed by facilitators, who are tribunal employees. The resolution of most disputes takes place online and asynchronously, within specified timelines set by the tribunal’s rules or directions from facilitators. It has been described as a ‘mediation carried out remotely’.^[19] However, facilitators may also provide a non-binding neutral evaluation of the parties’ claims. Agreements can become orders of the Civil Resolution Tribunal. If the parties consent, and if the facilitator is also a tribunal member, the facilitator can act as the Tribunal and issue a binding decision.

Stage 4 – if an agreement is not reached, the dispute proceeds to adjudication where a tribunal member, who is a lawyer with relevant expertise, hears the parties’ evidence and submissions and makes a binding decision. Hearings will generally take place through electronically submitted written documents, or through telephone or videoconferencing.

The expectation is that most parties will progress through the stages in the above sequence, but the processes can be reordered, depending on the parties’ requirements. Participants can seek legal assistance throughout the process, but if a hearing becomes necessary, a party will require permission to have a lawyer represent them.

CONCLUSION

To date, technology has been used mainly to provide information, sometimes very effectively, and at other times in a manner that necessitates great patience on behalf of the person seeking to navigate reams of information while they look for what is relevant to their particular dispute.

However, technology holds the prospect of moving beyond information-provision and resolving disputes to providing access to justice at a much more affordable cost. The two will often be inextricably linked, as information is needed to understand a dispute and empower the disputants. Technology will then alter dispute resolution. It may alter it in subtle ways, such as by using SMS, instant messaging and videoconferencing to allow for real-time communication but without parties being present, or instead asynchronous communication such as through email or an online site. However, negotiation is still between the parties or an ADR-trained human acts as a facilitator, mediator or arbitrator.

As OADR develops, the change to dispute resolution may be more fundamental. The human who facilitates or arbitrates may be replaced by artificial intelligence. Initially, this would only be in highly structured disputes where the possibilities for resolution were more finite. Creative, out-of-leftfield solutions may be beyond artificial intelligence. However, as time goes on the ability of artificial intelligence to creatively problem-solve may grow.^[20]

Michael Legg is an Associate Professor at UNSW Law School. EMAIL [e-mail].

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^[1] NADRAC, Dispute Resolution and Information Technology Principles for Good Practice (Draft) (March 2002). See also Christine Coumarelos et al, Legal Australia-Wide Survey: Legal Need in Australia (Law and Justice Foundation of NSW, 2012) 37-8 (discussing barriers to accessing legal advice).

^[2] For a discussion of online courts, see Michael Legg, ‘The Future of Dispute Resolution: Online ADR and Online Courts’ (2016) 27 Australasian Dispute Resolution Journal 277.

^[3] Christine Coumarelos et al, above note 1, 39; American Bar Association – Commission on the Future of Legal Services, Report on the Future of Legal Services in the United States (2016) 14.

^[4] Law Society of New South Wales, The Future of Law and Innovation in the Profession (2017) 80. An explanation of the Georgetown University Law Center course is provided at <https://www.youtube.com/watch?v=ipVpjtOEyA8>.

^[5] Commercial Disputes Management Centre (CDMC) <https://www.cdmcnational.com.au/online-dispute-resolution>.

^[6] David Carneiro, Paulo Novais, Francisco Andrade, John Zeleznikow and Jose Neves, ‘Online Dispute Resolution: an Artificial Intelligence Perspective’ (2014) 41 Artificial Intelligence Review 211, 215.

^[7] Ethan Katsh and Colin Rule, ‘What We Know and Need to Know About Online Dispute Resolution’ (2016) 67 South Carolina Law Review 329, 330.

^[8] Scott Shackelford and Anjanette Raymond, ‘Building the Virtual Courthouse: Ethical Considerations for Design, Implementation, and Regulation in the World of ODR’ (2014) Wisconsin Law Review 615, 628; Suzanne Van Arsdale, ‘User Protections in Online Dispute Resolution’ (2015) 21 Harvard Negotiation Law Review 107, 118-19.

^[9] Anjanette Raymond and Scott Shackelford, ‘Technology, Ethics, and Access to Justice: Should an Algorithm Be Deciding Your Case? (2014) 35 Michigan Journal of International Law 485, 514-15.

^[10] Roger Smith, ‘Goodbye, Rechtwijzer: hello, Justice42’, Law, Technology and Access to Justice Blog, 31 March 2017 available at <http://law-tech-a2j.org/advice/goodbye-rechtwijzer-hello-justice42/> .

^[11] Legal Aid Board, Legal Aid in the Netherlands: a broad outline (2015), 8 <http://www.rvr.org/binaries/content/assets/rvrorg/informatie-over-de-raad/legalaid-brochure_online--2015.pdf> .

^[12] Jin Ho Verdonschot, ‘In The Netherlands, Online Application Helps Divorcing Couples in Their Own Words, on Their Own Time’ (2015) 21 (2) Dispute Resolution Magazine 19; Esmée Bickel, Marian van Dijk, and Ellen Giebels, ‘Online legal advice and conflict support: a Dutch experience’ University of Twente, March 2015 <https://www.utwente.nl/igs/icrisp/news/content/online-legal-advice-and-conflict-support-utwente.pdf>.

^[13] See above note 10.

^[14] Rachael Brown, ‘Robot lawyers could make time-consuming, expensive court conflict thing of the past’ ABC News, 6 July 2016 available at <http://www.abc.net.au/news/2016-07-06/robot-lawyers-dutch-conflict-resolution-technology-on-its-way/7572488> .

^[15] Civil Resolution Tribunal, About the CRT (2017) <https://www.civilresolutionbc.ca/what-is-the-crt>.

^[16] Shannon Salter and Darin Thompson, ‘Public-Centred Civil Justice Redesign: a case study of the British Columbia Civil Resolution Tribunal’ (2016-2017) 3 McGill Journal of Dispute Resolution 113, 127-34.

^[17] Ibid, 129.

^[18] Ibid, 132.

^[19] Ibid.

^[20] Margaret Boden, ‘Creativity and artificial intelligence’ (1998) 103 Artificial Intelligence 347.