Below is the full text of a Massachusetts Lawyers Weekly article from 11/12/2021.
Though the Trial Court should take pains to avoid mistakes made in other states, it shouldn’t hesitate to dip its toe in the pool of online dispute resolution, a subcommittee of the Access to Justice Commission has recommended.
Not to be confused with online mediation or a virtual court hearing, online dispute resolution is distinguished by the fact that it is “asynchronous,” meaning the parties can choose when they communicate. That means that a self-represented litigant would no longer need to find child care or take time off from work to participate in the process.
ODR is also “court-annexed,” meaning it is an integral part of the court system; and is “technology-based,” meaning an internet platform replaces in-person mediations or hearings, the Online Dispute Resolution Committee explains in its July report.
The report culminated a year of study of the process, which was already in use in 66 jurisdictions in 12 states as of 2019, and the number has only grown since, according to the subcommittee.
The late Supreme Judicial Court Chief Justice Ralph D. Gants had become familiar with the concept of ODR through his work with the National Center for State Courts and the Conference of Chief Justices and realized that it was not a question of “if” but “when” Massachusetts would join the trend, says Mary K. Ryan, who chaired the Online Dispute Resolution Committee.
When Gants and his Access to Justice Committee co-chair at the time, Susan M. Finegan, charged the subcommittee with conducting that research, there was one non-negotiable: If ODR was going to be worth doing, it would need to help level the playing field for self-represented litigants rather than exacerbate existing disparities in the system.
Happily, the subcommittee came to believe that ODR indeed has that potential, especially with high-volume cases that tend to have lower stakes and less complexity.
The two types of cases initially designated for a forthcoming pilot are appeals of civil motor vehicle infractions and small claims cases not involving debt collection.
Once the pilot launches, matters that used to require physical trips to courthouses will be able to proceed — and even conclude — over the computer.
While some systems use the assistance of a neutral third party, litigants primarily are in charge in ODR. If the parties can successfully resolve their dispute, the program will populate standard settlement agreement forms that the parties can file automatically with the court.
If the dispute lingers, the system can at least tee the matter up for the court to manage by automatically populating and filing necessary forms.
The subcommittee hopes ODR will be offered to parties at little or no cost, as the expectation is that ODR will largely pay for itself by freeing up court resources.
The subcommittee also hopes that ODR will have other benefits, like reducing the influence of implicit biases as it makes parties’ race, gender, age and appearance less immediately apparent.
Jurisdictions that have already implemented ODR quickly found that it led to “fewer default judgments, greater defendant engagement, and reduced clerk time,” according to the subcommittee’s report.
While some jurisdictions automatically funnel all cases of certain types to ODR, the subcommittee has recommended that Massachusetts make the process “opt-in,” at least initially.
Given that self-represented litigants are the intended beneficiaries of ODR, they and their advocates should be engaged in developing Massachusetts’ version from the outset, the subcommittee believes.
“One of the things the committee learned looking at the experience of other states is that it takes time and thought to do it right,” Ryan says.
In terms of meeting the needs of self-represented litigants, the finished product should be designed to minimize technology imbalances as much as possible, the subcommittee adds.
That means that users should not be required to download any software, and the system should be accessible both by smartphone and at “public access points,” like local libraries and the handful of “Zoom rooms” the Trial Court has opened for videoconferencing in courthouses around the state.
In the model system in British Columbia that the subcommittee reviewed, all information is written at a sixth-grade reading level. Massachusetts should similarly ensure that plain language is used — the subcommittee suggests a fifth-grade reading level — and make the service available in multiple languages, the subcommittee recommends.
No matter what ODR in Massachusetts looks like at the outset, another essential function that will be built into the system is an ability for users to give feedback so that the technology can continually be improved and made more user-friendly, Ryan says.
Ryan says the subcommittee expects to hear “shortly” from the Trial Court administration about “next steps.” In this instance, the specifics contained within the request for proposals are viewed as particularly crucial.
But while court leaders will take care in preparing that document, no one wants the process to languish too long, according to Ryan, a partner at Boston firm Nutter.
“The pandemic totally changed the equation on courts’ use of technology,” she says. “So, the trend towards ODR has to only be accelerated now.”