The concept of online dispute resolution started years ago as a way to manage disagreements between users on eBay, but now it's making civil court in the United States easier to navigate and more accessible for all.
AUSTIN, TEXAS — Within the next decade, it's possible that the majority of small claims court cases could be settled by users online, the same way one might pay a parking ticket or renew a business license.
Accomplishing this, experts say, would benefit both the civil court system and the real people who find themselves navigating it, be it because of child support, debt collection or any number of other reasons. As a result, the court system would get much-needed free time for its clerks and judges to handle larger cases or interact with individuals in person, while residents could settle civil disputes without taking time off work to physically go to court.
In fact, one state is already rapidly headed for this new status quo. That state is Utah, and officials involved with the work there described the how, why and future of the project Monday morning at South by Southwest during a panel dubbed “Adopting Online Courts in Utah’s Legal System.” The panel was a highly engaged one, with lawyers and others in the audience asking questions throughout.
A mission statement for the work came from Utah Supreme Court Justice Constandinos Himonas, a driving force behind the project there.
“Justice is a thing,” Himonas said, “justice is not a place.”
Essentially, what Himonas was saying was that if a small claims case between two people can be settled through the use of a website or apps, it should be. There is no need for both parties to physically go into the court.
The "how" of all of this stems from e-commerce processes that have been used by the private sector for years, dating back more than a decade to systems that the online auction site eBay used and continues to use to settle disagreements between a buyer and seller. The process is called online dispute resolution (ODR), and with it, participants make their cases and see if there is room for a mutual agreement. If need be, a third-party arbitrator helps facilitate. In Utah, this process is now mandatory in many jurisdictions for small claims cases where less than $11,000 is involved.
When a small claims case is filed, participants get a link to the ODR platform in their email, and things proceed from there. The state is still looking into matters of digital equity, but officials are pleased with the early stages of the project, which launched in September 2018. There are three essential components for ODR in this context, said Paul Embley, the CIO and technology division director at the National Center for State Courts — that it operates exclusively online, that it is explicitly designed to assist litigants in resolving disputes or cases and that it is supported by the legal system.
The "why" here has to do with access to justice, said Amber Ivey, a manager at Pew Charitable Trusts, which is a nonprofit organization working to help digitize these processes in jurisdictions across the country.
The world has undergone sweeping changes in rates of access to justice in the past 30 years, she said. As recently as the 1990s, only 4 percent of individuals in courts were not represented by lawyers. Ivey said the number has now risen, so much so that now in 75 percent of civil cases, one side does not have a lawyer.
While civil and small claims courts do not legally require both sides to have a lawyer, they are without question complicated processes that require an understanding of the law. And whereas one can easily search online for help with things like baking or car repair, the online ecosystem for legal advice is flooded by ads for lawyers and other confusing resources.
There has, in turn, also been a major spike in the number of cases that are defaulting. Defaulting means a person has a claim against them and doesn’t do anything official to respond, which often leads to the court putting a judgment on them that could affect their credit report, which can make it hard to get housing or even employment.
“People are getting called into court and they’re just not showing up for a variety of reasons,” Ivey said. “This is a tool that can help reduce the default rate, and we’re seeing that in other states as well.”
Justice Himonas agreed.
“We have a huge access to justice problem in our country, and it’s something we need to deal with,” he said. “We see ODR as one of the tools to narrow the access to justice gap.”
Small claims cases that use ODR, or as some call it colloquially, “pajama court,” will likely be present soon in states other than Utah. In fact, the spreading has already started.
Ivey said that while Utah is the first state in the country to launch online dispute resolution as a tool, there is now a total of 50 jurisdictions doing it throughout 15 states.
Kim Allard, director of court services for the Utah Administrative Office of the Courts who works with Justice Himonas on Utah’s project, is working to help build it out in a way that will enable collaboration with other states too, creating a more robust platform.
As a result, Utah has seen a fast and sizable drop in defaults among eligible small claims cases. Prior to launching ODR, 71 percent resulted in a default. Now, that number is down to 53 percent, with officials noting that the majority of these cases are related to debt collection.
Justice Himonas sees a bright future for it all, one that extends beyond disputes over relatively small amounts of money.
“The platform these folks have built is robust enough that we can take it to any level,” he said. “It’s not just small claims cases. It’s traffic, it’s misdemeanors, it’s family law, it’s district court cases.”