Online Dispute Resolution A Digital Door to Justice or Pandora’s Box? Part 1, 0220 COBJ, Vol. 49, No. 2 Pg. 30

Author:BY DOUG MCQUISTON AND SHARON STURGES
Position:Vol. 49, 2 [Page 30]
 
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49 Colo.Law. 30

Online Dispute Resolution A Digital Door to Justice or Pandora’s Box? Part 1

No. Vol. 49, No. 2 [Page 30]

Colorado Lawyer

February, 2020

ALTERNATIVE DISPUTE RESOLUTION

BY DOUG MCQUISTON AND SHARON STURGES

This three-part series takes a deep dive into the future of online dispute resolution in Colorado, Part 1 discusses how video conference mediation can bridge geographic distances, address obstacles to gathering in the same physical location, and deliver a satisfying "face-to-face" experience.

Litigators and their clients know the power of mediation as an efficient and effective tool to resolve disputes. Colorado courts have likewise embraced the idea that almost every dispute can and should be referred to mediation.1 Traditionally, mediation is held in person or telephonically. But current technology allows mediation participants to choreograph the mediation dialogue using a wide array of electronic media and online tools.

This series explores online dispute resolution (ODR) tools currently used in U.S. courts and other countries. Part 1 discusses using videoconferencing, with a focus on web-based videoconferencing, to deliver traditional-style mediation, with mediators, clients, and attorneys participating "live" in virtual video conference rooms.2 Part 2 will discuss artificial intelligence assisted ODR, online settlement tools derived from e-commerce and now offered by the private sector to facilitate quick resolution of conflicts. Part 3 will discuss ethical considerations for practitioners who use these technologies, given the introduction of ODR tools, a "fourth party," into dispute resolution.3

Why Use Videoconferencing?

Attorneys and self-represented litigants in the Front Range have access to a large number of professional and well-qualified mediators offering a robust menu of hourly rates and payment options. However, attorneys and self-represented litigants in smaller communities, such as Eastern Colorado, the Western Slope, Southwest Colorado, and the mountains, face logistical and geographic challenges in scheduling and attending conventional mediations. First, the availability of trained mediators in rural communities is limited. Second, factors such as weather, long distances between parties, high mountain passes, and farm and ranching duties make dedicating one full day to mediation difficult. While some mediators are willing to travel throughout Colorado, the costs associated with such mediator travel can be significant. And third, compounding these issues, if expert information is needed for a full and fair evaluation of settlement options, parties are often pressed to resolve cases in one session. This latter factor can sometimes lead to "buyer's remorse" and the potential unraveling of a negotiated settlement agreement.

At the same time, Colorado has taken initiatives to allow remote participation in court proceedings statewide with e-filing, telephone appearances for hearing and status conferences, and reduced requirements for in-person calendar calls or other appearances. These flexible practices facilitate the court's handling of cases. Similar practices can assist parties with mediation as well; ODR can be used to expand the reach of mediation to more litigants, at lower cost, and with greater efficiency.

ODR Overview

ODR is a general term describing a variety of online platforms, programs, and systems. ODR can be loosely defined as "a digital space where parties can convene to work out a resolution to their dispute or case."[4] ODR thus describes any mediation or dispute resolution process delivered remotely.

The need for ODR, from simple videoconferencing to "smart" ODR, is apparent to any practitioner who has engaged in a statewide or regional practice. Courts have also seen the need for powerful ODR tools to help them manage overwhelming dockets of smaller civil, family law, and traffic cases. These tools are particularly effective where the parties or their decision makers are located in multiple states, or where the parties have difficulty taking time away from work or face transportation challenges.

ODR offers new ways to...

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