The ABA has recognized that the use of ODR provides a means to alleviate the logjam to access for civil litigants without resources to hire counsel. From my perspective, this position raises a few questions and assumptions that need further examination.
First, we need to examine what we mean by ODR. One of the originating types of ODR that came on the scene in the late 1990’s was Cybersettle. That ODR process was fashioned for lawyers and insurance adjusters, and was the brainchild of seasoned insurance defense counsel, who reasoned that where the only matter in dispute between a defendant and plaintiff was the amount of money to compensate the plaintiff for injuries, there should be a more cost effective way to bring those parties to the bargaining table and get the deal done. The inherent assumptions in the model are extensive :
- Counsel or an adjuster representing each side agreed that the case could be resolved solely by a payment of money;
- Finality would be achieved because a condition of participating in the process was an upfront agreement to execute a mutual and comprehensive release, if the parties reached agreement on the money;
- Certain injuries that recurred repeatedly, while unique to the participants, had a general range of value, subject to mitigating or enhancing circumstances, and that participants with experience would both understand and utilize this knowledge to get to an agreed settlement figure;
- Participants agreed prior to engaging that if their valuation of the case was within a specified percentage of each other, that they would split the difference and settle the case for the modified amount;
- No compulsion existed to engage in the process. One side (usually the insured side) invited the other side to submit three values for the case. The inviting party would do the same. The three values were confidential, unless highest figure from one side came within the proscribed range of the lowest figure from the opposing side. The benefit to participation from the insurer side was a lower cost of defense, and thus, possibly the potential for a more generous settlement offer. On the injured party side, the reduction in time and effort to get a settlement figure incentivized plaintiff counsel’s participation.
ODR systems, such as Cybersettle, continue to be used effectively in certain limited contexts. For a set fee, the parties to a dispute can make an unlimited number of “bids” to which the opposition can respond over a set time period (such as thirty days). See e.g., www.conflictteam.com. I would suggest that these models work best as substitutes for face-to-face negotiations, and as a ”cool tool” that gets the parties into discussions about their dispute.
The obvious drawbacks to these systems are that an unsophisticated participant may pay a substantial sum and not achieve finality or obtain an effective release, and become an unwilling participant in a future civil litigation, despite the intent to avoid that via use of the ODR process.
Another obvious drawback occurs where the dispute cannot be readily “monetized”. If the dispute involves something other than the payment of damages for an injury, it is hard to imagine how the program can achieve an agreement on that, without a level of computer expertise that may not be cost effective for widescale utilization today. For example, in a claim of race-based employment termination, the request for reinstatement might be amenable to a sum certain, or it may not. In a matter involving eviction, the tenant’s claim of uninhabitability because of a failed air conditioning system might be reduced to monetary terms, but uninhabitability based on mold and mildew after a major hurricane may not. How does an algorithm in a program deal with the tenant’s claim that the myriad late fees and penalties applied by the landlord are invalid because the tenant never agreed to them? Even with access to a centralized Watson-like super computer, we need to ensure the system is applying the law of Florida to Florida disputes, and not a generalized version of some multi-state law.
Another drawback to these models is that there is no recourse when the parties cannot reach an agreement on the value of the dispute. Instead, the parties just disengage from the ODR process. While a human ADR professional cannot guarantee that impasse will never occur, much of what these professionals do to avoid impasse might be impossible to replicate in a program (if only because it is done intuitively and may not be subject to a differential or flow chart kind of analysis).
Woven into the discussion on the utility of ODR is the concept that it provides a panacea for the “unavailable counsel” problem that so many civil litigants face today. The ABA article points to the long-standing call for a civil Gideon rule, and that using these kinds of programs might take up some or all of the slack. These may be the kinds of matters that show up in a small claims court, such as creditor/consumer financial disputes; contract disputes between a consumer and a service provider such as a remodeler; terminated employees claiming loss of benefits or wages they believe are owed. Litigants who are compelled to come to court without counsel may also be involved in family court proceedings or domestic violence proceedings. Likewise, civil litigants who can’t afford counsel find themselves acting pro se in matters involving workers’ compensation, and unemployment compensations, as well as social security disability hearings. Or, a litigant may be acting pro se in a federal court on a Constitutional rights claim.
It occurs to me that we are already doing in Florida what the ABA is proposing – namely, claims in Florida’s courts are required to participate in mediation before being tried before a judge or jury. And the mediation process does result in huge efficiencies to the courts and the participants in the process. See [insert DRC or judicial circuit statistics here]. We do it with actual, in person mediators , however. Perhaps what should be considered is making dispute resolution participation mandatory at an even earlier stage of the proceedings, not just once the case is filed and issue joined. I also want to point out that the FL courts DIY process, where a pro se litigant can utilize a computer-aided interview process to create pleadings for certain categories of actions, is designed to address the limited access problem. At the Small Claims Rules Committee meeting I attended at the June FL Bar meeting, that process was described and demonstrated by the Department of State Courts Administrators, with the representation that the process is going live for Landlord/Tenant claims statewide as of September 11, 2015.
Where ODR is understood to be the same as in-person mediation via a technological portal that permits the parties to be separate from each other and the mediator, ODR may well be a good solution to the access to justice problem identified by the ABA’s article. However, this can’t be achieved by using the neutral as a “quasi advocate.” The ABA article posits that ODR somehow levels the playing field where a litigant on one side is unrepresented. Among the fundamental principles of ADR is the concept of facilitator neutrality, hence the term “third party neutral”. We have to be careful to remind the public that a neutral is not an advocate, and that using the dispute resolution process to achieve efficiency for the courts and party-litigants will not permit the neutral to become some kind of “counsel lite”.
If we do accept the concept of using ODR to mean “mediation via technology”, still to be considered and addressed is the issue of accountability, credibility and integrity of the process and the mediators, and concerns about the dispute resolution equivalent of UPL from jurisdiction to jurisdiction. Going nationwide or “centralized” with a Watson-type super computer that will conduct mediations across the country raises all of these issues as well.