Most civil legal disputes today are resolved in a courthouse or in meetings involving lawyers and clients, just as they have been for centuries. But that is changing with increased use of the internet to resolve disputes online.
In his work, J.J. Prescott, a professor at the University of Michigan Law School, explores the impact of changes to the judicial system. His recent efforts focus on how online dispute resolution (ODR) affects processes and outcomes. Prescott is the lead researcher for the university’s Online Court Project, which uses technology to help people facing warrants, fines, and minor charges resolve disputes with the government online—and without an attorney. That work led Prescott to launch Matterhorn by Court Innovations in 2014. Based in Ann Arbor, Michigan, Matterhorn is one of the private companies working with court systems to implement ODR.
Prescott recently answered questions from Pew about ODR and the courts. His comments reflect his own views, and his interview has been edited for clarity and length.
A: I am a lawyer but also an economist, and my research focuses on rigorously measuring the various real-world effects of policy or institutional innovations. Years ago, I became very interested in access to justice, especially among those too poor to afford lawyers, with respect to what many would call minor disputes—infractions, fines and fees, small claims, etc.—that have big systemic consequences. It struck me right away that technology like ODR was likely to be an important piece of any effective reform.
In the last few years, I have used data, including information collected by the courts and the Matterhorn ODR platform, to study a range of important outcomes, including the association of ODR with perceptions of fair treatment and using ODR to determine parties’ ability to pay a settlement or penalty. On both dimensions, ODR appears to perform well. I also have documented court personnel, including judges, engaging constructively with litigants when using ODR tools—and doing so consistently across cases. Even those who do not use ODR may benefit by encountering less congestion in the courthouse.
A: In general, more data is always better. Courts that want to make evidence-based decisions should collect, organize, and maintain comprehensive litigant and case data, and be thoughtful about how the data relates to their mission. Courts should record their process and personnel changes. If courts collect it, they should retain it.
Drawing inferences about ODR requires data comparable to some baseline (i.e., what would have been), presumably cases that are not ODR-eligible. Courts should therefore collect the same information from all cases and litigants.
For cases that do not involve ODR, courts should collect information comparable to that available through ODR systems. For instance, it is easy to capture the size, scope, and timing of communications between parties online. If possible, courts should collect information that might serve as a proxy for the quantity and quality of party communication in non-ODR cases.
Basic data fields include time from case filing to case closure; time to payment; whether the case defaults; the case’s disposition (including damages, remedies, and any other substantive outcome); time and other resources expended on the case by court staff, mediators, and the parties; attorney involvement; estimates of travel and parking costs; and opportunity costs, such as day care and lost wages to resolve the case.
To understand effects across different categories of litigants, courts should collect key demographic information (age, gender, race, income, etc.) from parties, but they need to balance having more data against privacy issues and the potential that litigants might forgo using the courts if ODR or court use generally is considered too invasive or poses other risks, such as deportation.
A: ODR makes communication and access much easier, lowering barriers to going to court by reducing the need for face-to-face hearings.
It helps reduce litigant confusion and fear, allows asynchronous scheduling to accommodate work and child care schedules, and offers a more reliable and easier-to-use means for litigants to make their voices heard. ODR can also make litigation outcomes more accurate by ensuring that litigants and judges have more, better, and easier-to-use information. And by downplaying aspects of a litigant’s identity (race, gender, weight, etc.), ODR can render outcomes less subject to implicit biases.
The Franklin County Municipal Court in Columbus, Ohio, serves as a great example of how these systems can improve outcomes by increasing litigant participation and, consequently, reducing the number of cases ending in default judgments. The court’s ODR small claims cases are much more likely to be resolved through settlement via the active participation of the parties—76 percent come to agreement, compared with 42 percent of similar cases handled offline. More generally, small claims cases in which defendants can negotiate with plaintiffs online—on their own time—have significantly lower default rates, when compared with similar cases ineligible for ODR.
A: Although it is shrinking, the digital divide remains, and taking advantage of ODR requires internet access. For those who cannot access the internet, or who do not feel comfortable doing so, ODR is not much help, and its availability may distract courts from focusing on solutions to more traditional access concerns. If ODR were to become mandatory in some settings, there would certainly be some who would feel they were worse off, as with any transition of this sort.
A: Many important questions remain about litigant willingness to use ODR, what matters and what does not, and how litigants perceive their experiences, relative to in-person resolution approaches. Litigants must find ODR systems to be reliable, fair, and legitimate; and much work remains to be done on how to better design ODR interfaces, tools, resources, and written content to improve litigant satisfaction and perceptions of fairness.
A second set of questions revolves around the effect of ODR on decision-making and behavior. When ODR involves a decision-maker or a mediator, the right design could improve decision-making by delivering the information needed in the most digestible format—and excluding irrelevant information that could mislead. But our understanding of how to take full advantage of this potential remains limited.