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Court-annexed alternative dispute resolution (“ADR”) is a process by which courts assist parties in resolving their legal disputes. Any method of dispute resolution that is hosted or supported by a court and does not involve litigation is considered court-annexed ADR. Examples of ADR include: negotiation, arbitration and mediation. Since the 1990s, ADR has been available online. Virtually conducted ADR is known as online dispute resolution (“ODR”). During ODR, parties meet by video conference. Some of the first courts to adopt ODR were located in Singapore, the Netherlands and Canada. Before the COVID-19 pandemic, courts in Connecticut, Ohio, Michigan, Georgia, Arkansas, Texas, New Mexico, Kentucky, Arizona, Utah, Nevada and California utilized ODR. By 2019, 66 courts offered ODR in the United States. 

During the COVID-19 pandemic, courts across the country increased their reliance on ODR. Most federal courts allowed a greater number of ADR conferences to occur online. Many state and local courts also utilized ODR. The New York State Unified Court System held all of their ADR conferences through Microsoft Teams. In California, the Superior Court of Placer County conducted their civil settlement conferences through Zoom. Over the course of the pandemic, millions of civil court proceedings – including ADR settlement conferences – have been conducted online.

As the pandemic enters its next phase and courts begin to return to in-person proceedings, courts should continue to offer ODR options for civil disputes. Moreover, courts should readily inform litigants of their ODR options in-person and on their websites.

There are numerous reasons for continuing to offer ODR options. Although the current COVID-19 wave is receding, the virus can still be transmitted during in-person proceedings. Moreover, future waves of COVID-19 and other pandemics could clog the judicial system as the initial waves did in 2020. ODR addresses both of these issues. ODR grants parties a transmission free avenue through which they can resolve their disputes. In addition, ODR can continue to operate and resolve cases, while in-person proceedings are restricted by pandemic regulations. 

By allowing parties to participate from anywhere, ODR makes scheduling even easier. ODR enables parties to conference from their own homes, and it allows parties to more readily meet outside of traditional business hours. This is especially helpful for those with inflexible work schedules. In addition, ODR allows parties with severe disabilities or health issues, who are unable to attend in-person proceedings, to participate in the ADR process. ODR also reduces travel expenses for parties. By utilizing ODR, parties will not have to waste time and resources traveling to conference sites. Attorneys can move from one conference room to the next with the push of a button. 

ODR does have its disadvantages. Critics of ODR highlight the impersonal nature of ODR as well as its risks to confidentiality. For example, critics are concerned that online conferences will impede the mediators’ efforts to establish a rapport with the parties. According to the critics, this will undermine their ability to facilitate resolutions. Additionally, critics believe that online conferences will further impede the resolution of disputes by making interactions less fluid and more susceptible to misinterpretation. In regards to confidentiality, critics are concerned that online platforms will be susceptible to hacking and intrusion by the platform providers. The critics’ concerns have been substantiated by recent developments. During the pandemic, third parties hacked into private Zoom video conferences, interrupting their meetings. Microsoft Teams was also shown to be susceptible to hacking.

Despite concerns about the impersonal nature of ODR, parties have successfully used the process to resolve their disputes. For example, British Columbia’s court-annexed ODR settled approximately 595 cases during its first seven months of operation. Similarly, the LA Superior Court has resolved nearly 300 civil cases through ODR. While confidentiality concerns persist, courts could mitigate these risks by utilizing only the most secure programs. Regardless, courts should inform parties of the privacy risks when offering ODR as an option.

Overall, ODR provides parties with a cheaper, and more convenient alternative to in-person ADR. Moreover, ODR allows parties to resolve their disputes without the risk of transmitting COVID. Thus, courts should continue to offer ODR as an option to litigants.

 

Suggested Citation: Sam Zarkower, Courts Should Continue to Offer ODR In Civil Disputes, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Mar. 3, 2022), http://jlpp.org/blogzine/courts-should-continue-to-offer-odr-in-civil-disputes/.