Online Dispute Resolution's Role in a Post-Pandemic World

June 10, 2020

The COVID-19 pandemic has propelled us into a much more virtual world. As companies and schools have clamored to move online and continue operations, so too has the American justice system. State and federal courts have worked overtime to implement video- and tele-conferencing, remote filing, and even remote jury trials in order to ensure due process. Other pioneering efforts are underway.

While all of this has guarded against a total shutdown of our justice system amidst an unprecedented global crisis, the backlog of cases—both related and unrelated to COVID-19—is steadily rising. And with social distancing likely to become the new norm for a while, courts are faced with the task of balancing the public’s need for an efficient justice system with everyone’s health and safety. Online dispute resolution (ODR), along with a host of other approaches, will likely play a role in tackling the post-pandemic demand for legal services.

Several states had already implemented—or were in the process of implementing—ODR before the pandemic. Last year, Arizona’s Administrative Office of the Courts announced the launch of an ODR pilot program in Pinal County’s family courts. The platform allows parties seeking to initiate or modify a family court matter to negotiate their case online with the assistance of a court facilitator—all for free and without stepping foot into a courthouse. Additionally, the Second Circuit Court of Appeals was conducting mediations via video- and teleconferencing for cases involving parties or counsel who were located more than 40 miles from Manhattan.  

These ODR methods were enacted with the intent to save costs and increase accessibility for litigants, and those aspects will be even more imperative in a post-pandemic world. Yet as Stacy Butler, director of the Innovation for Justice Program at the University of Arizona James E. Rogers College of Law, has outlined, it is crucial to solicit and incorporate user feedback when designing any ODR platform—something made much more difficult by the pandemic. Courts and legal reformers alike are hard-pressed in a social distancing world to garner “real-time human feedback,” which “provides powerful and meaningful insight into how under-represented populations feel about their civil legal system, what type of access they need, and what features encourage their engagement.”

As Butler mentions, it is best to receive user feedback on an ODR system prior to its launch because changes are harder once the system is live. Yet, while receiving user feedback is much harder due to the pandemic and social distancing, it’s not impossible.

IAALS’ Listen > Learn > Lead guide on how to improve court services through user-centered design is intended for in-person workshops; however, the first three issues it addresses still apply:

  1. Determining the problem/process to be improved
  2. Identifying the necessary stakeholders
  3. Reaching and recruiting participants

From there, courts can use a variety of resources on how to successfully receive remote user feedback. Butler highlights The Nielsen Norman Group as one of those resources, who are world leaders in research-based user experience. They provide detailed guidelines and resources on how to remotely conduct user research, facilitate and present workshops, and collaborate and brainstorm. Together, these resources can help courts and legal reformers obtain the much needed, yet underutilized, user feedback prior to implementing a new ODR system during or even after the pandemic.

While the current uptick in resolving disputes virtually may be due to necessity rather than desire, the swift action courts have taken to find ways to move cases online where possible is remarkable. This trend of innovation will need to continue as the American legal system faces a post-pandemic caseload—and undoubtedly, ODR will be part of that.

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