The Climate for Innovation in the Justice Sector, ODR & Access to Justice Frank Fowlie, DCR Ombudsman International Organization for Migration David J. Bilinsky BSc LLB MBA Practice Management Advisor & Lawyer Law Society of British Columbia Twitter Hash: #CFCT

Central Issue: Why is it that it is so difficult to bring fundamental change and innovation to the justice sector? 2ndy: Will increased access to justice include – or exclude - the courts?

Three Levels of Change ProceduralStructuralCultural

Procedural

Structural In Person Online

Cultural

What is the Structure of the Justice System? Synchronous: All parties must attend the court house at the same time. Serial: Each case follows the one before it in order to be heard by the presiding judge or court official. Expensive: Each bricks and mortar courthouse has to be built and staffed.

What is the Structure of the Justice System? Geographically Tied: All parties must attend the court that is hearing the case. Jurisdictionally Tied: For the most part, each case is heard according to the laws of the jurisdiction where it is filed. Adversarial: Win/Lose not Win/Win.

What is the Structure of the Justice System? Involves Transactional Costs: TC= Hard costs + loss of opportunity costs. The longer the resolution time, the greater the transactional costs. Involves Delays: We are seeing headlines today on the increasing delays in the justice system. We all know that justice delayed is justice denied.

What is the Structure of the Justice System? Limited Availability: It used to be that courts and bankers kept the same hours. Courtesy of the internet, banks are open 24/7. Courts, however, are not. Involves a Judge: For the most part, a case must be heard and determined by a judge. This means that the judge represents a bottleneck in the system.

The Challenge How can you structure a dispute resolution system that tries to break down one or more of these constraints? What would that system look like? Moreover, what would be the advantages to those involved in the dispute that dont currently exist in the present justice system? What about disadvantages?

The Challenge For innovators: Funding, integrating innovations into the justice system, scaling up and many others. Roadblock? Does the Justice System incorporate these changes - or - do the changes make an end run around the justice system?

What is A Possible Solution? Online Dispute Resolution (ODR)

One BIG Advantage of ODR Where the parties have to maintain a relationship after the dispute is resolved. Family law, employer- employee, neighbours, e- commerce (avoid class-action suits) etc where it benefits all parties to resolve the dispute without negative feelings.

Another BIG Advantage Increasingly accessed via mobile technology. Brings justice to the people rather than the people coming to justice.

What is ODR? Dispute resolution processes: – facilitative processes such as conciliation, mediation, and facilitated negotiation – advisory processes such as case appraisal, mock trial, and neutral evaluation – determinative process such as arbitration and adjudication Assisted by technology, especially the internet Can be used for online or offline disputes

Facilitative ODR Conciliation – Meet with a conciliator on-line to lower tension, improve communications & explore solutions Mediation – Assists in negotiating a settlement Facilitated negotiation – By people or by software

Advisory ODR Case appraisal – Appraiser investigates & provides advice on outcomes Mock trial – Non-binding evaluation by online juries Neutral evaluation – Prediction of trial outcome

Determinative ODR Arbitration – Presentation of arguments and evidence to an online arbitrator Adjudication – Presentation of arguments and evidence to an online adjudicator

Two Basic forms of ODR Technology Based Blind Bidding systems Over some form of tangible Quantum $ Benefits Apology Technology assisted Uses technology to assist a person based activity Most reasonable for Small Claims Ombudsman work Case management system E-communication Trend reporting

What are the Advantages of ODR? Asynchronous: Negotiations can take place any time. Parallel: Each case can be determined independently. Inexpensive: Websites are cheaper than courthouses to build, staff and maintain.

What are the Advantages of ODR? Spans Distance: Parties do not have to attend a physical location. Jurisdictionally Tied: But UNICTRAL and others are trying to design ODR systems that are independent of any territorial laws. Non-Adversarial: Seek to preserve the relationship between the parties.

What are the Advantages of ODR? Lowers Transactional Costs: Shorter resolution times + lower transactional + economic costs. Seeks Speedy Resolutions: ODR is more concerned with good fast solutions.

What are the Advantages of ODR? 24/7 Availability: Courtesy of the internet, ODR is open 24/7. Doesnt involve a Judge: eJury and other sites are experimentations in online juries. EBay and PayPal are trying online community courts.

CODR – Crowdsourced Online Dispute Resolution 1.Online opinion polls: 1.iCourthouse ( ) 2.SideTaker ( ) 3.AllRise ( 4.PeoplesCourtRaw ( ) 5.Truveli ( ). 2.Online mock trials: 1.eJury ( ) 2.VirtualJury ( 3.CODR procedures rendering decisions that are enforced by private authorities 1.eBays Community Review Forum (ECRF) 2.Uniform Domain Name Dispute Resolution Policy (UDRP) The futuristic idea that a dispute can be effectively solved at no cost by a large group of people located in many different countries in 30 minutes after submitting the claim has become reality. (Jaap van den Herik and Daniel Dimov)

CODE AS LAW Lawrence Lessig Decisions enforced through the code will have a binding effect equal to the enforcement power of the state

How do you bring about Fundamental Change?

Thought Leaders: NCTDR National Centre for Technology and Dispute Resolution Think Tank for developing ODR initiatives.

NCTDR National Center for Technology and Dispute Resolution (NCTDR): a research center affiliated with the Legal Studies program at UMass Amherst Supports and sustains the development of information technology applications, institutional resources, and theoretical and applied knowledge for better understanding and managing conflict. polsci.umass.edu/news_and_events/newslist/view /131/

NCTDR Fellows – Advocates for Change Jeffrey M. Aresty (United States) Jeffrey M. Aresty Pablo Cortés (Great Britain) Pablo Cortés Benjamin G. Davis (United States) Benjamin G. Davis Alberto Elisavetsky (Argentina) Alberto Elisavetsky Frank Fowlie (Canada) Frank Fowlie Sanjana Hattotuwa (Sri Lanka) Sanjana Hattotuwa Ayo Kusamotu (Nigeria) Ayo Kusamotu Zbynek Loebl (Czech Republic)) Zbynek Loebl Ian Macduff (Singapore) Ian Macduff Chittu Nagarajan (India) Chittu Nagarajan Orna Rabinovich-Einy (Israel)) Orna Rabinovich-Einy Daniel Rainey (United States) Daniel Rainey Graham Ross (Great Britain) Graham Ross Colin Rule (United States) Colin Rule Irene Sigismondi (Italy) Irene Sigismondi Aura Esther Vilalta (Spain) Aura Esther Vilalta Mohamed S. Abdel Wahab (Egypt) Mohamed S. Abdel Wahab David J. Bilinsky (Canada) 18 Fellows 12 Countries 4 women Backgrounds in: – law, – academia, – bar associations, – governmental organizations, and – private industry.

NCTDR Initiatives Text book, November 2011 – Online Dispute Resolution: Theory and Practice Worldwide ODR Forums: The International Forum on Online Dispute Resolution has met 11 times since 1998 – 11 th Prague, June 2012 – 8 th, Victoria BC, : Advisory Committee of NCTDR developed a document entitled Online Dispute Resolution Standards of Practice

CyberWeek: Week long virtual conference Oct 29 - Nov 2, 2012 Web based (of course!) Static and Asynchronous content Blog Podcasts, Plenary discussions ODR demonstrations Hosted by Werner Institute at Creighton University( &( National Center for Technology and Dispute Resolution & Internet Bar Association & ODR Latinoamerica

Educational: Singapore Management University DevelopingMasters in Technology and Dispute Resolution ODR now a recognized area of academic study

Seek Strategic Supporters July 2007: The Organization for Economic Cooperation and Development (OECD) published a Recommendation on Consumer Dispute Resolution and Redress Calls for expanded access to ODR pdf pdf That led to further developments

Internationally Since 2010: United Nations Commission on International Trade Law (UNCITRAL) has created a permanent ODR Working Group Developing rules for a global small-claims system, backed up by national consumer protection authorities around the globe

UN UNCITRAL – Working Group III on ODR – Looking into ODR and trans-border commerce – king_groups/3Online_Dispute_Resolution.html king_groups/3Online_Dispute_Resolution.html

Early Adopters: European Union 29 Nov 2011: The European Union announced its intention to create an EU wide regulation on ODR and consumer issues. The Regulation on Online Dispute Resolution (ODR Regulation) will create a single EU-wide online platform for online shoppers buying from another EU country and traders to resolve their contractual disputes online. All member states in the EU will be required to participate in this region- wide ODR system by This use of mandated ODR by such a large market will have impacts on other jurisdictions as they look at ways reduce court time and costs dealing with small value consumer claims.

EU ODR Regulation EU wide system Cross-border online consumer & trader disputes No cost to users Single point of entry/multiple ODR providers

EU and ODR If parties agree – must conclude process in 30 days EU Parliament – adopt by end of 2012 Member States implement by 2014 (approx.) Fully operational by United Kingdom, Spain, and Ireland, have recently instituted ODR processes as part of their court administration in an attempt to get ahead of the EU regulation

EU and ODR EU ODR Regulation – biggest development in recent times Fertile testing ground for ODR Foster development of Tech-based dispute resolution processes

Early Adopters: Small Claims and ODR 3 national courts have instituted ODR for small claims Singapore, UK, Ireland Likely the greatest place for change in a formal structure to ODR

Small Claims elsewhere California Canada – British Columbia Singapore, for online purchases – E-filing

So, whats happening in Canada? Small Claims research project BC Govt RFI on small claims Modria – BC Consumer Protection test Smartsettle Vancouver Parking disputes

British Columbia As of May 3, 2011: Two ODR pilot projects have been taking place

BC: Project 1 A distance mediation project sponsored by MediateBC Aimed at family law cases Between two spouses or partners in the following areas:

BC: Project 1 Where children will live Sharing the cost of raising children Dividing family assets What to do with the family home

BC: Project 1 Advantages: Process is private Involves a family law mediator No special technology is necessary Slide scale rate based on their income reflects the cost of their mediation sessions now replaced by a fixed discounted fee after comments from mediators

Important aspect of this project: to bring people together with technologies that bridge a distance in order to help solve real human problems

BC: Project 2 British Columbia Ministry of the Attorney- General + MediateBC Both parties must: Live in British Columbia Currently be involved in a low-value civil dispute B2B B2C Willing to voluntarily participate in ODR Willing to provide feedback about their experience Short survey

BC: Project 2 Consumer cases Residential tenancy cases Consumer Protection BC jumped on this project Looking to expand to telecom companies and cable providers Captive audience...always one party on the other side BC Government is continuing to look at ODR to incorporate into the justice system Trying to create alternatives to putting people thru the courts YouTube Video:

Australia Family Law Mediation Successfully using same technologies as stated in British Columbia Australia faces may of the same challenges presented by having people spread out over a vast geographical area

Netherlands CODR – CODR is a term that encompasses some forms of ADR and court proceedings using internet and crowdsourcing as parts of the dispute resolution process. – A (generally large) group of people participate in the dispute resolution process through an open call.

India India, with its status as a technology hub and an IT destination, is poised to play a significant role in revolutionizing the technology for ODR (online dispute resolution) Chittu Nagarajan, Head - Community Courts, eBay & PayPal (

India Leveraging technology for grievance redressal, customer complaints, or dispute resolution is inevitable. Tamil Nadu Electricity Board (TNEB) will have a unique 10-digit number for every consumer for redressal of grievances. per Chittu Nagarajan (Business Line).

United States Internet companies have invested heavily in ODR systems over the last decade and continue to do so because they know that solving customer problems is a positive and key aspect to their company

Others… OAS (Organization of American States): – Draft Model Law for ODR and trans-national commerce US State Department

International These systems are taking the first step toward mapping out a new justice system for the 21st century Begins by focusing on low value consumer claims Can scale to provide redress in higher value B2B claims, and Eventually even issues of war and peace

e-Providers…

Examples

The Big Picture …enable consumers to …conduct the procedure without the need for legal representation or assistance as far as possible Encouraging the greater use of technology to facilitate the management of consumer disputes, in particular cross- border disputes. OECD July 2007

Partnership: eCommerce + Payments 62

eBay and PayPal are Big 63 More than 250 million users More than 5 billion feedbacks left >1 billion items listed on the site each year If eBay users were counted as citizens, eBay would be the 5 th largest country in the world

Like a Virtual Country 64 More than 60 million disputes per year 90% resolved entirely by software Majority of cases resolved amicably Like building a civil justice system for a virtual country

eBayCourt.com 65

PayPal-Court.com 66

ODR & eCommerce 67 eCommerce requires redress to grow ODR is the best way to provide redress Every commerce company should have an ODR strategy Disputes are the loyalty moment All ADR practitioners should be aware of ODR tools and techniques

Technology has not had much impact on the Court System We pull out our iPads to litigate in more or less the same way we did in the 17 th -18 th century… Obstacles to technology in the justice system are MUCH greater than in the ADR/e-commerce space…

Bringing about Innovation: ODR and the Law ODR holds great promise to address some of the agonizingly difficult problems confronting the courts: – Handling increasing volumes of disputes – Reducing the cost of resolving disputes – Reducing the costs of building, staffing and administering the courts / court processes; – Handling the increasing numbers of self-represented litigants; – Meeting the demand for increased access to justice.

Technology: The Fourth Party The key technologies which will play the fourth party here are: – Software – Algorithms – Databases – mobile SMS functionality This manifests the power of the O in ODR siness/article ece siness/article ece

Management of Change

Change Needs to Happen Status Quo is not moving forward. Consumers and finance people are both calling for change in the justice sector.

Change involves confronting Fear

Its Not about the Technology It is about solving real human problems quickly, cheaply and efficiently

Focus on Low Hanging Fruit Picture by Starfish235 on Flickr

Never get a 2 nd chance for a 1 st Impression Change is being demanded by public who need low cost access to justice – it just needs to be managed carefully

Identify the Roadblocks

Focus on Who Matters Most: Enthusiasts Leaders need to line up people who can act as catalysts of change. Look for those who can act in pilot projects. Take home lessons of success from other jurisdictions.

Focus on Who Matters Most: Backbones

Focus on Who Matters Most: Resisters

Celebrate the Success

Summary Tech applied to Litigation: – Support role to make existing processes faster ODR (tech applied to ADR): – Seeks to craft a new way of resolving disputes – Offers benefits beyond economic ones – Technology become pivotal to the dispute resolution process – The time has come

Questions? + Thank you Dr. Frank Fowlie – Ombudsman – International Organization for Migration – Geneva, Switzerland – Telephone Number: – David Bilinsky Practice Management Advisor The Law Society of British Columbia Vancouver, BC Blog: © 2012 Bilinsky, Rule and Fowlie