Dr Genevieve Grant and Esther Lestrell
Online Dispute Resolution (ODR) involves the ‘application of information and communications technology to the prevention, management, and resolution of disputes’ (Katsh and Rule 2016).
Interest, innovation and policy reform in connection with ODR is developing rapidly. From eBay’s resolution of more than 60 million disputes annually, to the online court for small claims coming to the UK, the online Civil Resolution Tribunal in British Columbia and locally, the pilot planned for VCAT, ODR is near the top of the legal innovation agenda.
Viewed by many as a promising way to improve access to justice by reducing costs and, increasing the speed, accessibility and flexibility of resolutions achieved, ODR is also seen as an important means of making justice systems more user-centred.
Experimenting with ODR in legal education
There has been only limited attention to the implications of ODR’s rise for legal education, like much of the innovation currently sweeping the legal profession and practice. We know that a growing proportion of legal work will take place online. The calls to produce technologically-capable future lawyers are getting louder.
In Australia, dispute resolution is part of the compulsory curriculum for aspiring legal practitioners. The growth of ODR gives rise to clear questions for educators. How can we best introduce our students to online platforms and mechanisms for resolving disputes? And can we help them to develop a critical perspective on emerging justice technologies?
Since 2015, Monash University’s Australian Centre for Justice Innovation (ACJI) has been collaborating with Guided Resolution Pty Ltd, an Australian developer of ODR software solutions, to modernise our litigation and dispute resolution teaching. Working together, we developed, piloted and implemented an experiential ODR activity in our core litigation and dispute resolution units.
The Guided Resolution ODR Portal supports the online exchange between student parties as they negotiate to resolve a hypothetical dispute. It facilitates non-adversarial engagement and promotes the identification and exchange of relevant information. The guides and prompts within the portal are supplemented by embedded videos explaining such key negotiation concepts as interests and options.
In our Monash approach, students undertake the first stage of the dispute resolution activity online using the portal, with the second stage involving a face-to-face mediation session. Students then write a reflective journal about their experience.
Evaluating our ODR trial at Monash
In Semester 2 2016, we evaluated our ODR intervention by investigating Monash LLB students’ experiences of the activity. Our aim was to assess the merits of this approach to incorporating ODR into our dispute resolution teaching. We also wanted to explore whether it could enable students to develop a critical perspective on the role of new technologies in dispute resolution.
There were 207 students enrolled in the Litigation and Dispute Resolution unit, and 65 participated in a survey about the exercise (response rate 32%). Additionally, we invited students to provide their reflective journals for analysis. We will present the full results from the evaluation in a forthcoming journal article; below we highlight some key findings.
Students were overwhelmingly positive about the portal
Students found the portal easy to use (95%) and felt that it helped them to prepare for the face-to-face component of the mediation (91%). Importantly, students also reported that the use of the portal gave them insight into how parties might experience using ODR (89%).
They described the portal as ‘an effective tool’, with ‘very instructive’ explanatory videos and an impressively intuitive design. Students were enthusiastic about the way the portal helped them to prepare for the face-to-face mediation. They regarded their online exchange of information as useful for enabling them to clarify issues and prioritise interests, which ensured that ‘each party was on the same page’.
Online communication – another tool in the box or a spanner in the works?
In their reflective journals, students demonstrated insight in to the benefits and challenges of online communication. Some identified the relatively ‘emotion free’ nature of their online engagement, whilst others maintained that there are tangible qualities of communicating in person that are lost in the online forum.
A number of students took the view that ODR processes should be compulsory prior to in-person mediation, appreciating the clarity that came with working as a group to set out their party’s issues and interests in the portal in a structured way. Students were complimentary about the way the portal enabled parties’ desired outcomes to be explained without confrontation. They also noted that the online preparation meant they made more efficient use of their face-to-face time with the opposing side. Some students perceived a lack of flexibility in the online process, suggesting that ‘it attempted to pigeonhole every issue’.
Conclusion: ODR has an important place in mainstream legal education
We determined that introducing students to negotiation and mediation by combining the Guided Resolution online portal with a face-to-face role play is an effective way of bringing ODR experiences into the legal classroom.
Our intervention has been positively received by the cohorts of undergraduate and postgraduate law students who have participated in the activity. Further, our collaboration with Guided Resolution provided us with access to a high-quality platform that was ready to implement and designed to be used by lay people to resolve real disputes without extensive training. This meant both educators and students could quickly come to grips with the technology.
With the rapid growth of ODR and its use in court and tribunal settings, legal educators have an obligation to bring students’ attention to ODR practice and technologies.
Since January 2016, every Monash student undertaking the compulsory Litigation and Dispute Resolution units in our undergraduate (LLB) and postgraduate (JD) programs has had a direct experience of ODR through the intervention. We have also recently completed the first offering of our new Masters-level unit in Online Dispute Resolution, which provides students with an opportunity to investigate ODR developments in greater depth.
We look forward to working with our students to continue exploring the ongoing impacts of ODR on legal practice, systems and education.
Our sincere thanks to the Guided Resolution team for their generous support of our ODR intervention.