Practical Law

Can you just imagine for a moment living in a world without the telephone, car or light bulb? I ask as these indispensable items were considered by eminent experts at their launch to have no future. Is this not how some people still view ODR? Let’s review where we are with ODR and consider what lies ahead.

Since as long ago as the last century, ODR has been talked about as the proverbial successor to sliced bread by some and characterized as a threat to justice by others. So far, with the exception of internal contracted-in systems such as that run by eBay, not much actual use of technology has taken place.

ODR developments in 2015

However, 2015 was a significant year as follows:

• The publication of a report by a Civil Justice Council working group recommending “HM Online Court”, which changes the “court” from a building into a readily accessible service.
• A report by Justice with similar recommendations for increased use of ODR within the justice system.
• A report by the Committee on Legal Affairs and Human Rights of the Council of Europe recommending that all 47 Member States take steps to promote awareness of, and further develop, mechanisms for ODR.
• Public statements in support of the use of ODR within the justice system by the Master of the Rolls, the President of the Supreme Court, the Secretary of State for Justice and the Law Society.
• The implementation of the EU Directive on Alternative Dispute Resolution (as well as the connected EU Regulation on Online Dispute Resolution), which effectively require most businesses to be the unpaid marketeers for ODR.

Under the provisions of the Directive (implemented in the UK by the Alternative Dispute Resolution For Consumer Disputes (Competent Authorities and Information) Regulations 2015, as amended), all consumers with whom the trader had not resolved a dispute directly, must now be informed of the web address of a provider of ADR that has been approved in each country as satisfying certain standards. Since this includes using a system that enables claims to be raised and information to be exchanged online, the ADR provider must also be an ODR provider.

Additionally, all traders who sell online must ensure that, as from the stated date (originally 9 January 2016, but now 15 February 2016) their website must contain a hyperlink to an EC operated platform which will help refer the consumer to approved ADR providers.

What constitutes ODR?

So while much is happening, one problem that remains is the variation in understanding of what comes within the definition of ODR. Many will frequently use online technology in some form or another to help communications within contentious work. Lets call such use ODR v1.0. The real future lies in what I will refer to as ODR v2.0, available and being used now, and, on the horizon, v3.0.

ODR v2.0

To understand ODR v2.0, consider the following: much of what we do as lawyers can be done by machines. For example, taking clients through standard logic trees of questions to describe what their case is about, with less reliance on free text, informing the parties about clear and unambiguous law and applying it to the data, and extracting data from previous resolutions in similar cases to suggest appropriate solutions. If a neutral person needs to be brought in to facilitate resolution, the information available gives him an immediate “heads up” as well as ensuring the parties are more informed on their rights and on the objectives of the mediation.

Much of the above is a form of automation of paralegal level work. There are, however, other forms of ODR v2.0 that have yet to gain traction with users. Blind bidding is the online version of sealed bids, with the machine declaring a settlement at the midpoint of the bids when they come within a pre-agreed margin. In Australia, there has been the development of a system applying game theory to help parties better prioritise their demands when negotiating a division of matrimonial property.

ODR v3.0

So what is ODR v3.0? Enter the robot lawyers taking us deeper into the world of self-learning computers that offer a form of intelligence learnt from the data fed in and, beyond, into cognitive computing. For those who can happily accept versions 1.0 and 2.0, ODR v.3.0 will be, for a while, the area of concern and which will inevitably encourage the neo-Luddites of the profession to step up and comment.

IBM Watson technology is the leader in the self-learning cognitive space. It’s first application to the law lies in the Ross Intelligence project. Great name but no connection! Ross Intelligence uses IBM technology to research the law and “advise” on submitted questions by ploughing through “a billion pieces of legal text per second”. The jury may be out as to the creativity of technology in the law, but reading and understanding such massive data at such speed is beyond us all. Lets not be negative but let’s rejoice in how much more competent a lawyer it would make us all to have that power on our desks.

Beyond legal research, it can inform on personality. In  November 2015, I presented at the Bucerius Centre for the Legal Profession in Hamburg at a conference on Artificial Intelligence and the law, where I saw an example of how IBM Watson can help assess personality traits from text. Prospective employers already use personality tests for the same objective. Many years back I created, with the Department of Computing at Liverpool University, a design for a project to develop a discourse analysis tool that analysed conversation in negotiations in order to guide mediators into the likely forward direction of the party. For example, is there a variation of “this is my final offer” that is more likely to be followed by a higher offer than another similar phrase? The project was mothballed as being far too early to exploit without the then ready availability of technology such as IBM Watson.

Such facilities as personality analysis, prioritisation of demands through game theory and discourse analysis are but examples of the sort of direction for ODR v3.0 to help create not a robot mediator but a robot assistant to a mediator. The addition of ODR v2.0 functions to shorten the time in gathering and providing information, analysing the dispute and brainstorming solutions will help lawyers and mediators improve their services at more accessible cost. I should say, as a response to the usual criticisms of completely online mediation, that unlike the pure online communication element of ODR v1.0, later versions, when viewed as assistants, do not negate the “face to face” element where appropriate.

The big question

The big question for lawyers and mediators is whether the development of ODR systems that, through intelligent profiling of disputes and intelligent offering of relevant solutions to better inform parties, will lead to a reduction in the work available to the professions. I firmly believe the answer is a resounding “no”.

The reason is quite simple. With the gradual, and now almost total, destruction of the legal aid system, together with the sharp increases in court costs, the numbers of people with access to representation in the courts has reduced. New forms of representation through risk sharing by lawyers and financial organisations have helped stem the outflow, but the outflow remains and, overall, access to justice has, as a result, reduced.

Technology and offering entry through the keyboard, on the other hand, makes the justice system far more accessible. Justice systems themselves are beginning to adopt ODR (such as with the work of Modria in the Netherlands and British Columbia, as well as tax appeal and RTA work in the US) and this, in turn, will provide a constantly increasing market to which lawyers and mediators can target promotion of value added professional services over and above what pure technology can provide. Lawyers will have the facilities to set up business processes that will no longer require clients to pay a full professional rate for those aspects of the work (obtaining fundamental information, informing on fixed unequivocal legal rules, offering a range of options for resolution which a significant proportion of parties have found acceptable in the past) that the machine can handle, and, with no risk of human error, will do so in a far more efficient way. You may provide less chargeable hours and enjoy less fees in each individual case, but you would be able to market a more innovative and collaborative approach, resulting in not only more cases but also a significant and consistent growth in your client base and overall revenue.

I hope these thoughts spark interest and that ODR will follow the path of the telephone, car or light bulb, so that resorting to your nearest internet accessible device is the first step for the public not just to find a lawyer but to resolve the dispute itself.