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Advisers to US Courts Recommend Adoption of ODR

Two very welcome Reports , one a study and one a set of case studies, have been published by the National Center for State Courts, the advisory body that US courts turn to for authoritative knowledge and information, that will help encourage increased awareness of the benefits ODR has to offer justice systems, and, as a result, increased adoption of ODR systems and tools within the courts. A little disappointing however that the main Report almost exclusively focuses on the access to justice issue for unrepresented parties in the context of low value claims as well as the savings for court administrators with very little consideration (I can see just one sentence) of the benefits to claims of higher value and complexity. Whilst of course this is the entry point for courts, it worries me that this sort of limitation in the Report will help those lawyers who feel a need to narrow the role of ODR as a tool only for low value cases and thus limit the progress of ODR .

The point to bear in mind beyond the 'access to justice' benefit, is that the higher the value and the greater the complexity the greater the value delivered by ODR. As to lawyers who may see ODR as a threat, whilst it may well lead to lower legal fees per case, that does not necessarily mean less work and income overall for lawyers. On the contrary, in making justice more accessible, ODR can grow the whole industry. The lesson for lawyers is to exploit the future ODR offers not fight to protect the present.

I was also surprised that despite the huge moves now taking place in England and Wales with the commencement in operation by HM Courts Service of the first pilots of the Online Solutions Court, that the only reference to the UK is to an extra-judicial service for PI cases established several years back (ClaimsPortal) that does not involve as yet any form of ODR. Whilst the civil rules require participation in the CP and whilst it has been an extremely successful service and is looking at growth, what it delivers currently is not resolution but increased and more speedy co-operation between the parties in exchanging information and evidence. Defining such as ODR may dilute, for many, the significance and meaning of the term.

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