Online Dispute Resolution - Good for Clients and Their Lawyers

            In today's digital age of online commerce and 21st century business, there is a market for a new kind of dispute resolution. Online methods and tools are expanding[1] and being used by more and more people long before reaching a courtroom. The terms of service of almost all online services now include a form of Online Dispute Resolution ("ODR") which means that virtually no disputes in this context will ever reach the traditional court system.

            Businesses and consumers are quickly becoming accustomed to ODR because it’s a better, faster and cheaper way to resolve a dispute and move forward. Clients are coming to expect it.

            Through e-filing, online scheduling and the electronic submission of evidence, courts are likewise making an effort to work with parties and counsel on a technological platform.

            Technology has become and will continue to be an integral part of the contemporary practice of law. In order to meet client expectations, attorneys will need to be adaptive to change and learn how to leverage technology to create efficiencies, decrease costs, minimize risk and improve overall client services.

            Technology has not just "disrupted" the traditional legal service model, it has provided attorneys with tools that enhance the client experience and improve attorneys' wellness with greater flexibility and improved time management.

            A recent article in the Tennessee Bar Journal analyzed the use of ODR by Tennessee attorneys as compared to national averages.[2] Usage rate in Tennessee is less than 5% whereas nationally the usage rate is more than 40% and increasing. Globalization will keep pushing these figures as constituents (clients, lawyers, judges, law students, legal professionals and elected law makers) develop new norms for using technology in the practice of law.[3]

            Although it somewhat developed in the online commerce environment, ODR is not just confined to online disputes. Certain civil cases as well as public sector disputes are finding prompt and efficient resolutions using ODR. Great advancements in supporting software applications are being made.

            For instance, First Court's software combines human nature with innovative technology to diagnose, evaluate, and resolve disputes faster and more economically than traditional mediation. Their methods have been developed in collaboration with the nation's leading law firms and insurance carriers, and have been used to settle hundreds of disputes across the country with exceptional results - saving clients an average of 23 hours compared to traditional mediation, and resolving 3 out of 4 cases mediated. Using the First Court process, many cases are resolved in an hour or less.

            Benefits of ODR include reducing the need for face to face meetings, fast tracking certain parts of the standard process and reducing the overall costs of dispute resolution. This time efficiency not only benefits the clients but also improves the wellness of counsel by freeing up time intensive tasks. Happy clients = happy lawyers!

            As counsel is able to help clients achieve faster, cheaper and better resolutions to their disputes, inevitability the trust bond between the client and counsel is increased. ODR is a powerful tool for counsel to have at their disposal. Just as paper file systems in file cabinets have evolved into cloud based digital storage, so too will ODR become more widely embraced in Tennessee and elsewhere. Technological developments will continue to shape the way our clients do business, how attorneys practice law and how mediators help resolve cases. What was once peripheral will soon become an important asset and skillset. Change is occurring at a rapid pace.

            Technology and ODR is not a replacement for traditional mediation but, rather, a way in which mediators can enhance their practice. Mediators are perfectly suited to demonstrate their adaptability and creativity in using new tools in contemporary practice.[4] Indeed, technology not only assists mediators in their communications with the parties (both pre-session and during sessions) and substantive analysis of the dispute at hand, technology also helps mediators organize, promote and support their practice.

            For instance, today's technology allows mediators to have the parties' pre-mediations submissions, the rules of court, checklist of issues, a calculator, calendar, jurisdictional reports such as jury verdicts and /or settlement percentages, typical language for settlement agreements, all in one convenient location. What once consumed boxes and bulky notebooks of materials can now be accessed on a flash drive smaller than your cell phone. Need the mediator to see certain how witnesses testified under oath? Send him/her a video clip. Need the mediator to see certain persuasive evidence such as surveillance footage? Send him/her a video clip. Having easy access to such materials during the mediation process helps promote a better understanding of the merits which, hopefully, in turn helps the mediator facilitate a resolution.

            Currently, software applications are available that give the parties decision making analysis. Parties are asked a series of simple questions pairing one option against another. After comparing all options against each other in pairs, the software can help identify the option rising to the top as most preferred. Likewise, other software can facilitate "blind bidding" where each party inputs an offer into a system which determines whether there is agreement, overlap or a significant gap between the offers. If there is an overlap, the software can help decide its division or, if there is no agreement, can encourage the parties to make another offer.

            Effective mediators might develop a comprehensive suite of technological applications and tools that support their practice. What might be perfect for one type of case may need to be tailored differently in another. The key is being able to add value to the services clients and parties receive.

            Ted C. Raynor, October 2019

Notes:
[1] First Court, Modina, Cybersettle, Juripas and FairOutcomes.com are some of the more prevalent examples.

[2] "Stay Relevant - Data Can Help Lawyers Thrive in the Changing Marketplace", Volume 55, Issue 14 (May, 2019).

[3] See "Virtual Venues: Improving Online Dispute Resolution as an Alternative to Cost Intensive Litigation, 27 J. Marshall Journal of Computer and Information Industry, Volume 27, Issue 81 (2009); "Three Is Not a Crowd: Online Mediation-Arbitration in Business to Consumer Internet Disputes", Univ. Pennsylvania Journal of Internet Law, Volume 37, Issue 871 (2016); "A Blueprint for Online Dispute Resolution System Design", Journal of Internet Law, January Volume, Issue 3 (2018); and "The Success and Failure of Online Dispute Resolution", Hong Kong Law Journal, Volume 47, Issue 445 (2017).

[4] For a more detailed discussion of the inter-play of mediation and technology, please see "Mind the Gap: Bringing Technology to the Mediation Table", Journal of Dispute Resolution, Volume 2019, Issue 2 (2019).