This post has adopted from a presentation given at the Civil Justice Forum 2018 hosted by RMIT by Nussen Ainsworth, Professor John Zeleznikow and Colin Rule.
(Photo: Colin Rule skyping from California USA into the ADR lecture in Melbourne Australia.)
In 2017 the Alternative Dispute Resolution unit at the Victoria University Law School partnered with Tyler technologies (formally Modria) to integrate Online Dispute Resolution into the unit as a key form of assessment. The Tyler/Modria platform used in the pilot is the one being used in the USA and other countries for court/government/commercial purposes (https://www.tylertech.com/solutions-products/modria). It has not been designed for student assessment
All students were required to participate in an ODR simulation in groups of 3 and primarily provide legal advice re the content of the simulation together with a written report. This blog post will discuss the process of developing an ODR simulation and integrating it into the law degree curriculum. We will also consider assessing student performance. This post will also outline some of the opportunities and challenges for teaching ODR that were identified in conducting the pilot and also provides ODR insights from law students taking the course.
Online Dispute Resolution (ODR) is a concept developed circa 1996. At that time the focus was upon the resolution of disputes that originated online. The prevailing belief was that those whose disputes that originated on the internet would find little difficulty in attempting to resolve these disputes via the World Wide Web. For most of the past twenty years, ODR research has focused upon electronic commerce disputes. Only recently, has ODR focused upon non-financial disputes and disputes that do not originate online.
Access to Justice Review (VIC, 2016) Recommendation 5.2
The Access to Justice report was commissioned by the Victorian Government in October 2015. The aim of the review was to improve access to justice for Victorians. The review was released in October 2016 with 60 recommendations.
Recommendation 5.2 was for the development of an online system for the resolution for small civil claims at VCAT. The Government agreed to implement this recommendation in May 2017. The review recommends the following three-step process for introducing ODR into the Victorian Civil Justice System.
Step 1. establish an Online Dispute Resolution Advisory Panel with terms of reference to oversee the introduction and evaluation of an online dispute resolution system for small civil claims in Victoria and make recommendations about the possible future expansion of online dispute resolution to other jurisdictions in Victoria;
Step 2. provide pilot funding, and, subject to evaluation, ongoing funding, for the development and the implementation of a new online system for the resolution of small civil claims in Victoria; and
Step 3. introduce legislation to facilitate the use of the new online system for the resolution of small civil claims.
The British Columbia Civil Resolution Tribunal (https://civilresolutionbc.ca/) acts in a similar manner.
ODR, Artificial Intelligence And Self Represented Litigants
Zeleznikow has examined the issue as to whether potential litigants can receive useful support from intelligent online dispute resolutions. He claimed that such systems can be particularly useful for self-represented litigants. The SRLs benefit not only from obtaining useful advice, but also becoming better educated about the procedures and potential outcomes for issues in dispute. He noted that most ODR systems provide exactly one of either BATNA advice, support for trade-offs and facilitated communication. A truly useful Online Dispute Resolution system should be a hybrid of all three approaches. Further, Online Dispute Resolution should not be fully automated. As well as providing opportunities for communication, such systems should advise users of the relevant law, potential solutions and relevant trade-offs. These tools might be videos, relevant papers and books, past cases and links to useful websites. They can also be very useful in triaging disputes (e.g. immediately sending a case of domestic violence to court rather than allowing the parties to prolong physically acrimonious disputes) and act as a source of information collection (there is no need to expend a court official’s time recording demographic data).
The ADR Unit At VU
The ADR unit at VU College of Law and Justice was first delivered in 2015. The unit is a popular elective with approximately 120-140 students enrolled each year. Through a Technology Enhanced Learning Grant, a series of videos were developed which followed a case through mediation and arbitration. The videos are posted on YouTube (https://youtu.be/J2KLXAKfIL8). The unit received a blended learning grant in 2017. This grant was used to develop the ODR simulation component for the unit.
The unit has four assessments. Assessments 2-4 are group based.
- Online multiple choice questions
- ODR simulation and report
- Letter of advice post the ADR process with the production of either a mediation deed of settlement or an arbitration award
- Group presentation
ODR Added Benefits for Students
ODR has primarily been seen as the provision of ADR via technology. ODR integration into the ADR curriculum has the potential to offer many benefits for students. The ODR component requires students to develop their technological literacy. It also offers greater time and access flexibility for students.
Student Insights from the Integration of ODR in the ADR Unit
The following insights were adapted from observations, class discussion and student submissions in the ADR unit.
The Benefits of ODR
There are a number of benefits offered by the use of ODR where the parties use a text-based platform as compared to traditional mediation.
The benefits include:
- Everything is typed so there is no need to repeat what was said or take notes
- It can be more cost-effective; there is no requirement for travel, room hire or paper.
- Parties participate remotely which can address safety concerns and allow for a more comfortable environment.
- Less confrontational or emotional
- Keeps parties more focused on the issues
Limitation of ODR
The text-based ODR process comes with a number of limitations as compared to the traditional mediation process:
- The process is impersonal
- It can be hard for the parties to express empathy
- There is a greater likelihood of the parties becoming keyboard warriors
- Lack of non-verbal communication
- The parties require competency in digital literacy e.g. typing speed
- Asynchronous text communication can have delays between messages
- There can technical difficulties with both the hardware and software
- Parties can easily type messages in the wrong room
- The mediator has less control
- There needs to be confidentiality compliance with the typed record
- The process creates added complexity for non-English speakers
How can ODR be improved
A number of the limitation and issues with ODR can be addressed through:
- Intake session with the mediator to build rapport
- Introduction to the ODR video
- An ODR guide for parties that covers:
- Online communication
- Use of video chat in mediation
- Able to view joint and private rooms simultaneously
- Alerts for new messages
- ‘typing…’ icon when the other party is typing
- Indicator for when a message is sent, delivered and read
- Mobile device compatibility
- Mediator termination option
Opportunities and challenges for ODR in law school curriculum
Following the introduction of the ODR simulation integration pilot in a law school ADR unit, it is clear that this is an exciting area which has a number of opportunities and challenges to consider as it is further developed and delivered.
- Group work based assessment has a number of challenges and this is no different in an ODR context.
- ODR is an innovative and new area to which students are being exposed. This requires expectations to be managed.
- For the pilot, we used one fact scenario for all the groups. There is an opportunity for students to develop their own fact scenario for their group to use in the ODR simulation.
- The ODR simulation will be limited by the platform being used. The platform used in the pilot was not designed for student assessment. There was no ability to export the content of the simulation for assessment submission. For the pilot, students were required to copy the text from the platform and paste it into a word document which was then submitted. This a clunky and inefficient process.
With the exponential increasing use of technology in education, government, commerce and courts there is an urgent need for students to be aware of new technological trends. Whilst the use of ODR in legal practice is still very limited, there is wide acceptance that this will no longer be the case in the coming decade. Hence, as legal education leaders, we need to train our students in the potential and use of ODR.
But as well as training legal students for future practice, the course has benefits for teaching students about ADR. It allows students to watch and most importantly engage in ADR simulations. This opportunity is lost in the traditional teaching of ADR.
 Zeleznikow, J., 2017. Can Artificial Intelligence and Online Dispute Resolution enhance efficiency and effectiveness in Courts. International Journal for Court Administration, 8(2).