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ODR and the Courts

Academics such as Orna Rabinovich have suggested that the legitimacy of procedures should be derived from a good design, focusing on user needs, and guaranteed by ongoing monitoring over the process and its results. Following on this, the responsibility for the design of procedures can better be shifted to courts, operating under general rules reflecting principles of fair trial and working from terms of reference for resolution of specific problems. The market for effective procedures needs attention A second challenge is related to the “market� between courts as buyers of ODR procedures and legal (tech) entrepreneurs or NGOs as sellers. Most court systems are local and serve a number of million citizens. Courts tend to develop their IT systems in house, with the help of IT consultants, or have tendering procedures that prevent the necessary co-creation. This limits the incentives for private parties to develop sophisticated ODR systems and partly explains why there are not yet many ODR platforms that succeeded in scaling up. However, the price of access to a sophisticated ODRprocedure for a particular problem category is now dropping to a few 100.000s of Euros/Dollars. Still, ODR technology may have to be seen as a public good, developed with government money, as was the case with many other technologies such as the internet. Another option is forming an international consortium and public/private cooperation model with shared ownership.

Engaging and challenging the legal profession Implementation risks include privacy, security and operational IT failure. These are known risks for which government agencies tend to have good practices in place. An issue that is often mentioned is that the legal profession may resist implementing innovative procedures. The reality, however, is that existing ODR platforms have no difficulty to engage lawyers who want to develop and expand their skills and services. Most of the added value of ODR platforms is still provided by humans. The platforms, providing higher quality services and giving clients more control, are thus more likely to increase employment for lawyers than to decrease it. Professional rules, however, can be a barrier to implementation. Whereas law firms would be perfectly placed to take the lead in ODR innovation, these rules prevent law firms to attract the necessary outside investment and diversity of skills. At the same time, professional rules may make it difficult for non-lawyers to provide legal advice online or to use lawyers in new roles as neutrals, mediators or advisors to both parties about the fairness of outcomes. In the near future, ODR providers and lawyers seeking to provide innovative services are increasingly likely to challenge these rules. Governments, acting in the interest of citizens, are likely to follow up on this.

HiiL Trend Report IV ODR and the Courts: The Promise of 100% Access to Justice?  

As innovators within the ODR world, through our Rechtwijzer platform, we were delighted to host this years annual Online Dispute Resolution...

HiiL Trend Report IV ODR and the Courts: The Promise of 100% Access to Justice?  

As innovators within the ODR world, through our Rechtwijzer platform, we were delighted to host this years annual Online Dispute Resolution...

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