By Frank Johnson
Deputy City Attorney, City of Gaithersburg
Conflict management principles can provide solutions for ongoing disputes, and even lead to the creation of dispute system designs to handle categories of disputes. The use of computers has led to the creation of online dispute resolution (“ODR”) processes as well.
The growth of ODR has in many ways tracked other broad changes in the practice of law. While litigators are comfortable with court systems involving in-person hearings and filing documents at the clerk’s office, during the pandemic, those involved in court hearings grew accustomed to online Zoom hearings, and most county and district courts now accept online court filings and allow online review of court documents.
While such online hearings and filings offer a different experience to practitioners and clients, they also offer convenience and cost savings by eliminating the need to travel to court. ODR systems similarly have a number of core advantages over other dispute-resolution practices.
ODR is often more convenient – allowing access from a person’s home or office, rather than requiring a court hearing. It can also, by eliminating the need for travel and related costs, be less expensive and less time consuming. Largely for these reasons, ODR systems are already in use in Maryland to handle disputes in substantive ways, including for online commercial disputes and in the court system.
ODR is seen as an essential element for disputes resulting from online commercial transactions, such as through Amazon or eBay. There, buyers and sellers may not just be in different states but different countries. ODR systems allow a complaint to be filed remotely, and often utilize negotiation or even online mediation steps – such a “blind bids” – to seek resolution short of an online arbitration decision.
Such ODR processes are essential given both the often small costs involved as well as the large distances. ODR is also often considered a way to increase a community’s access to justice.
As such, court systems, which are often overburdened, can use ODR to handle certain classes of cases. Many courts worldwide – such as British Columbia and local courts in California, Connecticut, Georgia, Ohio, New Mexico, New York, Texas, and Utah – are using ODR systems to handle small claims civil disputes, and some also use ODR for minor traffic offenses.
Generally surveys show participants find ODR is more convenient and are satisfied with the result. Court systems have found that the savings in time and expense has been dramatic, allowing more focus on cases requiring more extensive analysis and a series of hearings. Clearly, ODR’ s expansion will save resources within our court system to allow better use of existing resources.
Though the introduction of ODR in court systems has led to concerns that legal professionals will not be needed, the result is often that work for attorneys increases, largely based on the increased access ODR allows but also the additional focus needed on larger cases that have more complications. And while a judge’s discretion is an important element of justice, especially for small-claim and minor traffic violations, studies have also shown that ODR decisions are more likely to be based on certain identified elements, which can reduce claims of bias based on a person’s age, race, or gender.