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| Martin Pritikin |
In fall 2018, the Utah court system launched a pilot enabling small claims litigants to participate in an online dispute resolution, or ODR, program. Before describing the pilot itself, it is worth taking a moment to note the small claims context.
Small claims cases are an important but often overlooked piece of the access to justice puzzle. In some jurisdictions, parties are usually not permitted to be represented by counsel in small claims cases. But even if they are, as in Utah, the dollar amounts at stake often preclude the economic viability of representation in any event, even assuming parties could afford one, which they often cannot. (In Utah, the limit for small claims filings is $11,000.)
By making small claims litigation cheaper, faster and more convenient, especially for those facing difficulty appearing in court due to work schedules or geographic distances, Utah's ODR enables resolution of cases that would otherwise go unfiled — or defaulted upon. A large proportion of small claims cases are debt collection cases, and defendants default in about 85% of these cases. So improving access to resolution of small claims cases is often of the greatest benefit to people who are struggling financially.
The Utah pilot utilizes an online platform that was built entirely in house by the courts. (It remains to be seen whether it will be open source.) A series of initial prompts seek to educate the parties and provide streamlined options for resolving them through payment plans or otherwise. If the case moves beyond that stage, the parties can communicate with each other via the platform asynchronously, when convenient for them. They can also upload and exchange forms, supporting evidence or other documents.
Assuming the parties can come to a mutually agreeable resolution via this process, a settlement agreement can be generated from a template on the platform, and they will never need to appear in court or anywhere else in person (prompting the Pew Charitable Trusts to dub it "pajama court"). Even if it does go to trial, the judicial officer has the option of trying the entire case online. Cases are typically resolved within six weeks of filing or less. Appeals, if any, would proceed in person as in any other case.
Aside from the obvious novelty of the remote interface for all aspects of the case, a unique and important aspect of the Utah pilot is the utilization of "facilitators." Unlike classic mediators who, as third-party neutrals, refrain from giving either party advice even about procedural basics, facilitators in Utah's ODR program are authorized not only to help the parties try to reach a settlement, but also to offer guidance on filling out forms or explaining them the procedural aspects of the case.
This is particularly helpful for unrepresented parties, who otherwise would either have to incur the cost of consulting an attorney just to get their questions answered or, as is far more likely, be forced to try to figure things out entirely on their own. And if the facilitator is unable to help the parties settle the case, he or she prepares a trial document which streamlines the issues and makes the court's resolution of the case more efficient.
Evaluative data will not be publicly released until the National Center for State Courts, or NCSC, has had an opportunity to review and analyze the data, which it will likely begin doing in May. But according to Utah Supreme Court Justice Deno Himonas, who has been instrumental in developing the pilot, between its launch last September and April 4, 2019, there were 1,021 case filings under the ODR program, and returns of service in 573, or 56% — a marked improvement over the baseline response rate of about 15%.
Opt-out rates were remarkably low: a total of just 10, or less than 1% of all case filings. Four of the ten were by plaintiffs, meaning defendants only opted out in 6 out of the 573 cases in which they engaged in the process at all — still barely 1%.
Himonas stated that he was "extremely encouraged" by the initial results. Assuming the full evaluative analysis of the data bears out the promising early indicators, Himonas hopes to be able to roll out additional pilots in the near future, and envisions having all small claims cases in the state of Utah handled remotely through technology by the end of next year.
What is particularly exciting about this pilot is the potential for scalability. There is no reason in theory why small claims cases across the country could not be handled in this fashion within the next several years, thereby shifting the threshold at which parties are effectively priced out of court. An nationwide NCSC survey from November 2018 found that 64% of registered voters would be very or somewhat likely to try resolving their legal disputes online.[1]
Granted, online dispute resolution may not be as appropriate or effective in certain fields, like family law. But it appears particularly well suited, at a minimum, to address financial disputes. Even if it never moved beyond consumer debt and landlord-tenant cases, ODR could have an impact on the lives of millions of lower-income individuals.
And given the ways in which technology has ingrained itself into many other sensitive aspects of our lives (think health care, banking and dating), it is not too much of a stretch to imagine a physical courtroom becoming an anachronism in many areas of law. While something subtle may be lost in the transition, there will likely be far more gained.
Correction: A previous version of this article misattributed the Pew Charitable Trusts' description of Utah's online small claims dispute resolution pilot program. This error has been corrected.
Martin Pritikin is the dean of Concord Law School at Purdue University Global.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
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[1] See https://www.ncsc.org/~/media/Files/PDF/Topics/Public%20Trust%20and%20Confidence/SoSC_2018_Survey_Analysis.ashx (visited April 8, 2019).