Author by: Erin Jeon, University of Manitoba Law Student
Technology is embedded in the legal profession. From doing research to filing documents to conducting dispute resolution, technology is being used in all areas of practice. Online dispute resolution (ODR) developed in the mid-1990s to assist in resolving e-commerce disputes; since then, ODR has become the fastest growing sector of dispute resolution.[1] ODR uses technology to facilitate dispute resolution.[2] It uses a variety of media, including message boards, email, and video chats, depending on the ODR process being employed.[3] In their 2017 article, Simmonds and Thompson outline three ODR processes:
- Automated negotiation focuses primarily on numerical disputes. Also called a blind-bid negotiation, the parties place their bids without knowing what the opposing party’s offer is. This process does not require a neutral third party. It is beneficial for simple, monetary disputes, but is impractical for more complex, interpersonal disputes.[4]
- Asynchronous text-based negotiation involves the parties sending messages to each other to negotiate a settlement. These messages are asynchronous in that the other party does not have to respond immediately–instead, the party is alerted that a message has been sent and they must respond in a specific period of time.[5]
- Online facilitation and mediation may be text or video-based, and involves neutral third parties acting as facilitators or mediators during the resolution process.[6]
There are numerous benefits to ODR that address physical, temporal, and economic barriers in the justice system. Using the internet to facilitate dispute resolution eliminates the need for the parties to be in the same physical space, allowing the process to take place in different communities or even for the parties to be able to meet in their workplaces.[7] This advantage may also be used to reduce conflict between the parties–if the dispute is high-conflict, tension could be minimized if discussions do not happen in the same physical space. Asynchronous ODR allows parties to participate in dispute resolution at their convenience, simplifying scheduling between parties; an asynchronous process also grants the parties the opportunity to consider and redraft their communications.[8] Additionally, ODR processes that do not involve a third party increase efficiency because the parties do not have to wait for a mediator to become available.[9] Finally, utilization of the internet decreases the cost of dispute resolution by eliminating the cost for travel and possibly the cost of a third party.[10] Each of these factors have great potential to increase access to justice in Manitoba.
For all the benefits of ODR, there exist notable drawbacks. Though the vast majority of people in Manitoba have access to the internet, there are those who are unable to use it. A lack of internet is a particular problem in rural, northern, and First Nation reserve areas.[11] Although 84% of Manitobans have access to high-speed broadband as of 2022, only 46% of rural Manitobans and 24% of Manitobans living on First Nation reserves have access to high-speed broadband.[12] These areas are exactly where ODR would have the most significant impact on access to justice. Also, certain benefits of face-to-face communication may be absent or muted when using ODR. For example, face-to-face communication involves non-verbal cues and is a personal, intimate experience. Even if video chat is used to communicate, there is a depersonalization that occurs, diminishing the impact of unspoken cues and decreasing the trust between parties.[13] Finally, depending on the platform, ODR may be more difficult to access for people with physical disabilities.[14]
So where do we go from here? Technology will continue to develop and integrate itself into the legal profession and society at large. As such, the use of ODR will keep expanding. It is therefore practical to educate current and future lawyers on ODR–what it is, how it functions, and in what situations it is most beneficial. Currently, law students are rarely exposed to ODR; however, experience with the process early on in an individual’s legal career would allow them to form their own opinions on ODR and discover the benefits and drawbacks of it.[15] Though there are some inherent drawbacks, such as depersonalization, in ODR, we can work to mitigate others–for instance, we can work to increase internet access across the province and we can look to design programs that are accessible for all people, including those with disabilities. ODR has great potential to increase access to justice across Manitoba, but its potential will only be realized with patience, practice, and an open mind.
[1] Ethan Katsh & Colin Rule, “What We Know and Need to Know About Online Dispute Resolution” (2016) 67:2 SCL Rev 329 at 329.
[2] Martha E Simmons & Darin Thompson, “The Internet as a Site of Legal Education and Collaboration Across Continents and Time Zones: Using Online Dispute Resolution as a Tool for Student Learning” (2017) 34 Windsor YB Access Just 222 at 224.
[3] Ibid at 224.
[4] Ibid at 228-229.
[5] Ibid at 229-230.
[6] Ibid at 230.
[7] Ibid at 230-231.
[8] Ibid at 231.
[9] Ibid at 231.
[10] Ibid at 231.
[11] Daisy Woelk, “Advocates Call for Better Connectivity in Rural, Remote Communities in Manitoba” (8 March 2024), online: <globalnews.ca/news/10346391/rural-and-remote-connectivity/>.
[12] High-speed broadband is defined by Canadian Radio-television and Telecommunications Commission as 50Mbps download, 10Mbps upload, and unlimited data transfer. Government of Canada, “Current Trends – High-Speed Broadband” (last modified 24 May 2024), online: <crtc.gc.ca/eng/publications/reports/PolicyMonitoring/ban.htm>.
[13] Supra note 2 at 232.
[14] Wendy Carlson, “Increasing Access to Justice Through Online Dispute Resolution” (2020) 7:1 Intl J Online Dispute Resolution 17 at 22-23.
[15] Supra note 2 at 224.
The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.