Online alternative dispute resolution
3rd May 2018
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. And in disputes that involve a substantial amount of money for the individual, the legal costs to resolve the dispute can also be significant and unaffordable. Consequently ODR, with its lower cost structure, provides an opportunity for extending access to justice to many people. 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.
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.
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.
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.
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. 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’. This has led two of the pioneers of OADR to observe that ‘[o]nce a process moves online, its very nature begins to change’.
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. 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.
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-left-field solutions may be beyond artificial intelligence. However, as time goes on the ability of artificial intelligence to creatively problem-solve may grow.
This is an edited version of an article entitled 'Online Alternative Dispute Resolution' that was published in full in the Jul/Aug 2017 edition of Precedent focusing on ADR & Settlement.
Professor Michael Legg is the Director of the Law Society of NSW Future of Law and Innovation in the Profession (FLIP) research stream at UNSW Law. In 2017 he was awarded Academic of the Year at the Lawyers Weekly Australian Law Awards for his innovative teaching of technology and legal practice, especially in relation to litigation and alternative dispute resolution, and engagement with the legal profession.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 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).
 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.
 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.
 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>.
 Commercial Disputes Management Centre (CDMC) <https://www.cdmcnational.com.au/online-dispute-resolution>.
 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.
 Ethan Katsh and Colin Rule, ‘What We Know and Need to Know About Online Dispute Resolution’ (2016) 67 South Carolina Law Review 329, 330.
 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.
 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.
 Margaret Boden, ‘Creativity and artificial intelligence’ (1998) 103 Artificial Intelligence 347.