The internet has made it possible for people to shop, socialize, and pay bills from any location at any time of day or night. But filing or responding to a civil legal complaint still must be done at the courthouse during regular business hours, often in person. Millions of Americans face barriers, such as limited mobility or inflexible work schedules, that restrict their ability to access the civil legal system to resolve disputes—including landlord and tenant issues, divorce, and consumer debt.
The legal system was not designed to accommodate and support individuals who cannot appear in court, and the burden is widely felt. Civil court dockets are composed mainly of “high-volume” cases—routine legal matters that typically never reach a judge and instead become rote transactions that court staff manage and litigants usually handle themselves. For instance, more than three-quarters of civil cases in state and local courts involve claims of $5,200 or less, primarily contract disputes such as debt collection or landlord-tenant issues.1 These kinds of cases, though relatively small in dollars, present significant financial and time challenges for millions of Americans every year. This experience was reflected in the findings of a national survey conducted by the nonprofit National Center for State Courts (NCSC), in which more than 80 percent of respondents said they want more online access to local courts, including the ability to ask for guidance from court staff rather than come to the courthouse.2
Existing digital technologies could provide part of the solution and increase people’s remote access to the courts. In particular, online dispute resolution (ODR) is an electronic tool already in use in the private sector that helps resolve disagreements between consumers and online retailers. Major online retailers and auction sites use ODR to settle more than 60 million disputes a year, with 90 percent of financial cases resolved without the engagement of a judge or mediator.3 Early research suggests that when applied in a court context, these innovations could make legal processes more efficient and provide hundreds of thousands of Americans with an alternative way to resolve legal issues—especially high-volume cases that clog the courts. However, more study is needed to address concerns raised by some stakeholders about whether and how well the private-sector success of ODR will translate into policy and ultimately the practice of law.
ODR was developed in the private sector to facilitate the quick resolution of conflicts to the satisfaction of both parties.
Because of its utility in quickly resolving lower-value, high-volume cases, ODR has begun to spread from the private sector to public courts. Although courts around the country have adopted a range of online tools, the NCSC, which focuses on improving judicial administration around the world, considers a platform to be “court ODR” only if it is:
ODR has been adopted on a pilot basis in court systems on four continents.5 In the past few years, courts in the U.S. including pilot sites in Michigan and Utah have deployed ODR tools.6
Although ODR is not appropriate for every legal issue, it has promise for high-volume cases involving transactional disputes, such as traffic offenses, small claims, and low-conflict family court cases. The platform enables litigants to communicate about disputes online and reach a resolution that can be authorized and enforced by the courts. Some functions that can be built into court ODR systems include:
Effective court ODR systems should deliver:
Speedier resolution. People who currently wait months to get their cases on crowded court dockets would encounter fewer such unnecessary delays. The American Bar Association’s Commission on the Future of Legal Services suggests that successful court ODR would increase judicial efficiency.7
Greater engagement in the legal process. When court can be accessed via a computer or smartphone at any time, rather than only in person during business hours, both sides should be more able to actively participate in their case, with fewer no-shows and defaults.
Increased exercising of legal rights. ODR platforms that provide users with accessible and relevant information could help ordinary people better understand their legal rights and options and help them leverage the laws and precedents that support and protect those rights.
More fair outcomes. In the U.S. legal system, a just judgment is one that is rendered based on the law in full light of all relevant facts. ODR has the potential to improve the fairness of the civil legal system and increase the likelihood of just resolutions by reducing default rates, procedural mistakes, and other inefficiencies, providing legal information and access to key court processes, and helping to ensure that all parties to a case have an opportunity to participate.
More efficient court processes. Several parts of the court process must be modified to fit an ODR platform, such as certain notary and reporting requirements, docket scheduling, and document delivery rules. Implementation could enable judicial leaders to streamline and improve court processes for litigants, whether online or in court.
Court ODR is gaining popularity around the country, but some questions have surfaced about its potential effects as courts deploy systems without recognized best practices or evidence of impact, which users benefit most, or the types of cases for which these tools yield the best return on investment. Practitioners, researchers, and court leadership can work together to identify and develop needed user protections and collect and share data to inform rigorous program evaluations. Key measures include:
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