Online Dispute Resolution: Stinky, Repugnant, or Drab

Abstract

Scholars, judges, and the organized Bar have begun to see Online Dispute Resolution (ODR) as a partial answer to the “access to justice” problem faced by people of limited means, and even the “wave of the future” for most if not all forms of civil dispute resolution. Attracted by the possibility of faster, cheaper, and more convenient dispute resolution, companies, states of the union, and countries around the world now have begun to create ODR programs on a scale that makes the process, along with outsourcing, AI-based practice management software, and non-traditional legal service providers, one of the principal forces redefining the traditional practice of law.

Often overlooked in this cost and convenience über alles perspective is whether the cheap and efficient processing of disputes is a capitulation to the conditions of modern society more than a superior system for administering justice. Most ODR programs require parties to describe their claims in fixed, predefined categories that may or may not capture all of the claims’ dimensions; limit the opportunity to argue the substantive merits underlying the claims worth; and resolve differences on the basis of private software algorithms that raise fairness issues not present in dispute resolution systems run principally by humans. It’s a little too soon to know if this “wave” of the future breaks on the beach or the rocks.

I discuss the foregoing issues in the following manner. In Part II, I provide a brief overview of ODR systems, describing the largest, most well known, and most sophisticated platforms now in place. In Part III, I describe certain legal, political, and moral concerns yet to be addressed in the ODR literature, and identify some of the unintended consequences the widespread adoption of ODR systems might produce. Finally, in Part IV, I describe the questions ODR proponents must answer, and the refinements they must make to existing models, if online systems are to satisfy the demands of state-sanctioned, public dispute resolution

Keywords: online dispute resolution, algorithms, arbitration, mediation, alternative dispute resolution, cyberspace, video-based dispute resolution,