Leonard Cohen’s protest song about terrorism was, he said in a 1988 interview, about the power of ideas to shake the world. Cohen had in mind the ideas of people like Jesus, Freud, Einstein and Marx. People whose ideas have emancipated and enlightened.
In February 2021 I wrote a blog for Mediate.com about two pilots on either side of the Atlantic: one in London and the other in Manhattan, NYC. These projects shook the tree of dispute resolution and aimed to make the lives of self-represented litigants (SRLs) easier. The curious can find my Mediate.com blog here. This article reflects on how the Manhattan Pilot has progressed, draws insight from comparisons with similar projects and looks for the lessons that can be drawn for the Manhattan Pilot’s future.
The New York Unified Court System launched Online Dispute Resolution (ODR) for small claims in Manhattan from 29 January 2021 (the Manhattan Pilot). ODR is shaking up lawyers and legal services and has come into its own since the Pandemic struck. ODR is the use of technology to resolve disputes and has been around since at least 2010 when PayPal and eBay began using ODR to resolve disputes. eBay say the algorithm used in their system resolves ca 60m disputes every year.
What is ODR?
The world outside eBay is a little more complex in terms of the diversity of disputes and accompanying issues. Unsurprisingly an algorithm has not yet been developed for those disputes but ODR is used to manage the commencement of proceedings, the exchange of documents and communications between parties including offers to settle. These are typically systems built on Cloud-based platforms which can include the final hearings being dealt with by phone or video conferencing though face-to-face meetings are also returning as the effects of the Pandemic recede. The Manhattan Pilot is unusual because it uses four different processes in a tiered arrangement to resolve a dispute, about which more later.
Where is ODR?
Since 2014 States such as Utah, Michigan, Ohio and 9 other States began using ODR for issues ranging from traffic fines and child maintenance to lower value debt recovery claims. By May 2021 there were 89 such initiatives across 12 States.
Pros and cons
Against these positives it is argued ODR can:
In Florida ODR projects failed to progress because of multiple failures, it is said, with the technology deployed, a resistance to change per se and the overcrowded schedules of Court staff struggling to cope with the effects of the Pandemic.
Manhattan saw their ODR project experience a similarly troubled journey. A detailed study proposed using ODR to resolve consumer debt collection cases; typically brought by credit card companies and which almost always resulted in a default judgment leading to Bailiff action blighting lives and homes. It was considered that ODR using dispute resolution mechanisms such as mediation might help to avoid these outcomes. Unfortunately there was a determined push-back from lawyers who successfully opposed the introduction of ODR for these cases citing some of the issues mentioned above. The story is related in detail by David Larson here.
Despite that setback Manhattan re-appraised the project and changed tack in order to focus on small claims; that is to say claims where the sum of money sought was less than $10,000. Building digital processes around presumptive mediation.
The process is not end-to-end. Commencing a claim still requires a paper form and a physical attendance as explained here. Not only is digital commencement not available but neither is electronic filing of documents, as the linked page also explains.
This changes when a party chooses to resolve their dispute via ODR. The platform is available here and can be used whether a claim has begun in Court or not. As my 2021 blog for Mediate.com explained this system provides for tiered dispute resolution starting with asynchronous blind-bidding. If that does not solve the dispute there follows direct negotiation through the platform and, after that, mediation. The resolution of last resort is the binary option of a trial: win/lose.
Of course with many more cases using mediation there has been a need for more mediators. This appears to have been overcome by …training more mediators!
The experience so far has been moulded by two features: Covid-19 and compulsion (or the lack of it). Despite some technology issues with the platform (since addressed by the Vendor) there was slow take up attributed to the chilling effect of the Pandemic but also because the platform only handles one claim type: low value claims up to $10,000.
This may not necessarily be the whole story and lessons can be learned from other jurisdictions where data is available.
Lessons from elsewhere
The Civil Resolution Tribunal (CRT) is an entirely online process that began resolving condominium disputes but has grown to encompass low value debt claims (<CAN$5,000) and road traffic injury cases. Their most recent Annual Report says they provide: “a collaborative, problem-solving approach to dispute resolution.”
The success of the CRT is due in no small part to the fact that this is the only way to pursue the claim types for which it caters. Users know this is the place they must go. In contrast to other jurisdictions where the ODR platform is optional, such as Manhattan.
Support is provided to SRLs via a range of online tools and by reference to lawyers working pro bono to begin with.
England and Wales (E&W)
A range of platforms have been developed to enable citizens to make claims for low value road traffic injury claims, resolve traffic penalty fines and manage money claims up to £10,000 which includes mediation delivered by Court staff only by telephone. The Online Civil Money Claims platform (OCMC) for example has been a real success and about which Her Majesty’s Courts and Tribunals Service (HMCTS) say this:
“In 2021 there were 6,526 claims per month on average. The average time to get a settlement agreement using the online process is just under 1 month, compared to over 3 months using our non-reformed [i.e. paper] services.”
HMCTS say that in 2021 there were 7,984 mediation appointments at which 53% of the cases settled.
Hitherto most claimants in the Small Claims Track (as the Small Claims Court is called in E&W) shunned mediation because they believed that – having paid their Court fee – they wanted their “day in court” not realising that that day was getting further and further away as the Pandemic led to an enormous Backlog in civil courts.
A third party provider has been contracted to provide telephone support for those seeking help to use the platforms
In E&W the Senior Judiciary plan to use accredited private sector providers to deliver a Digital Funnel of resources which are presented to users in response to the answers to a series of intuitive questions guiding the user along his or her claim journey. The lack of an intuitive platform was one of the reasons Utah are now introducing intuitive processes and other improvements to their ODR system.
Where next for Manhattan?
It would be good to learn of Manhattan’s plans in the light of the first year or so of this innovative, tiered dispute resolution service. Empirical data is in short supply in the world of dispute resolution and Manhattan recognises the importance of that data to light the way forward.
For the moment the future direction of travel appears to be – keep going; the Manhattan way is a world-leader and my home jurisdiction (E&W) can learn much from this project.
If Manhattan platformed the entire process from commencement onwards this would be a positive improvement – provided there was appropriate online and telephone support services.
Without question this is the way forward and further success can only come.
A year after the launch of the Manhattan Pilot the message is, be bolder! In the words of John D Rockefeller:
“If you want to succeed you should strike out on new paths rather than tread the worn paths of accepted success.”
Much wisdom in those words for State courts the world over.
Published by the American Bar Association in April, 2010, Lawyers as Peacemakers was named an ABA Flagship Book and is a best-seller. It is excerpted here with permission of the...By J. Kim Wright