Exploring the Benefits and Impacts of Online Dispute Resolution

Episode Notes

Transcript

Law Technology Now

Exploring the Benefits and Impacts of Online Dispute Resolution

11/18/2019

 

Daniel Linna: Hello. This is Dan Linna. Welcome to Law Technology Now on the Legal Talk Network. My guest today is Shannon Salter. Shannon is the Chair of the Civil Resolution Tribunal in British Columbia, Canada’s first online dispute resolution system. Shannon is also an adjunct professor at The University of British Columbia, Allard School of Law.

 

Shannon, welcome to the show.

 

Shannon Salter: Thanks Dan. Thanks for having me.

 

Daniel Linna: Glad to have you, Shannon. Before we get started, we want to thank our sponsor, Headnote. Headnote helps lawyers get paid faster with their compliant e-payments and accounts receivables automation platform. To learn how to get paid quicker and more efficiently, visit them at headnote.com. That’s headnote.com.

 

Shannon, before we jump into talking about the CRT, can you just tell us a little bit about your background and then your journey to the Civil Resolution Tribunal?

 

Shannon Salter: Sure. Well, like many of your listeners, I’m sure, I am a lawyer by training and after I graduated from law school, I started practicing at a large Vancouver firm doing civil litigation, did that for a few years before my husband and I decided to move to Toronto and do master’s degrees and have a baby. No big deal. Piece of cake.

 

Daniel Linna: Yes.

 

Shannon Salter: Wouldn’t necessarily recommend it to your listeners, although it was a wonderful year. When I came back I having — sort of had a year to consider things, and of course, having a family changes your perspective as well, I transitioned into administrative law, so I became a decision-maker for a senior Tribunal here, kind of like your administrative courts that dealt with workers’ compensation claims.

 

And then after I did that for three or four years, holding a lot of hearings, issuing a lot of decisions, I applied for the posting as Chair of the Civil Resolution Tribunal, which at that point had been passed through legislation but didn’t actually exist as an entity and was really, really excited to get that role.

 

Daniel Linna: Cool. Well, can you just tell us for our listeners and just what is this Civil Resolution Tribunal?

 

Shannon Salter: Sure. The Civil Resolution Tribunal is the first example that we know of in the world where online dispute resolution, which I’ll call ODR throughout the podcast; Online Dispute Resolution was integrated into the public justice system. So, the CRT helps people resolve their condominium dispute, so apartment disputes, small claims disputes $5,000 and under, nonprofit and nonprofit housing disputes as well as, and this is the big-ticket item, motor vehicle personal injury disputes as well, and that’s a new area of jurisdiction for us.

 

So, we’re part of the public justice system in the sense that if you have one of those disputes, you have to come to the CRT, and we issue effectively court orders and if you don’t like the CRT’s decision, you can appeal that to the court. But the way it works is very collaborative. It’s meant to empower people with free legal information and tools as a first step and then increasingly help them to resolve the dispute on their own if we can through negotiation and mediation and really we save adjudication or the more judge like function as a last resort.

 

Daniel Linna: Well, great. So, first thing I want to do is kind of just level set here on just general terminology because I sometimes hear people talk about online dispute resolution, and of course that includes private parties providing services but then they talk about online courts as being a whole different category?

 

I mean, how do you kind of see the landscape in this area? How would you describe it?

 

Shannon Salter: You’re right that if you ask a hundred people what ODR is, you will get a hundred different answers, it’s the same thing with online courts. I think online dispute resolution to me connotes this idea of using technology to bring the justice system to where people are.

 

And while this isn’t something that’s always embedded into ODR, I think really the gift of ODR is that it invites us to think critically about why it is we do all the things we do in the justice system. Why have we designed it the way it’s designed and can we use empirical evidence, human-centered design to do it completely differently?

 

That’s a pretty radical thing. It requires complete business redevelopment, process redesign, it’s not just about using technology and in fact, this is a bit controversial but I think the online part is probably the least exciting part of ODR that gets me into trouble in online dispute resolution communities.

 

By contrast, I think we don’t really know what online courts mean and that’s because it’s such a nascent idea in the more traditional court system. What I see some jurisdictions doing is saying, well, we know technology has to have a role in the justice system so what we’ll do is take these processes that we’ve used for hundreds of years.

 

(00:04:59)

 

We won’t really change them that much, but we will make them fillable PDF forms or we will embark on an eFiling or eDiscovery process. But none of that really fundamentally changes the way you deliver justice services, nor does it necessarily include user testing or human-centered design.

 

So I think for our purposes, that’s a useful distinction because ODR and fundamentally redesigning the justice system is a much more challenging, but I think necessary task.

 

Daniel Linna: Yeah, well, so, let’s back up just a little bit then to and talk about what was the original jurisdiction but more specifically how did this come about and I know it was through the Legislature, but can you tell us just a little bit about that and kind of the problem that they were aiming to solve initially?

 

Shannon Salter: Sure. So, this was the brainchild of a very creative, thoughtful, interdisciplinary group within the Ministry of Justice in British Columbia and they identified that the condominium community had a real problem. They had all these little neighbor disputes that happened in these apartment buildings, which are shared by hundreds of owners sometimes and those hundreds of owners sometimes don’t agree about what color the wall should be or what the noise level should be or how money should be spent.

 

And they didn’t have a really good way to resolve those disputes but they are pervasive because about half our population either lives in a condominium or owns a condominium or works out of a condominium. Those disputes had to go to our Superior Court which was a disproportionate way to resolve disputes which were often really annoying to people but not particularly high value or not necessarily terribly complex either.

 

And so as a result these disputes just tended not to go anywhere, they were just faster and it became a real problem for the community. And so this dispute resolution office in the Ministry of Justice thought, well, here’s an opportunity to pioneer online dispute resolution in the public justice system because we know that online dispute resolution can solve millions of millions of eCommerce trans-border dispute through eBay and PayPal.

 

It had proven its success there but can we capitalize on that success and take elements of it and bring it into the public system. And so that’s what they did. They proposed legislation to be able to resolve these disputes and the Legislature passed it in 2012.

 

Daniel Linna: And then you came on board and how did you go about building this out?

 

Shannon Salter: Well, I was lucky enough to work with this really fantastic group within the Ministry of Justice and at that point, when I was appointed in 2014, I was the only real member of the CRT, it was me here in my office in North Vancouver, working with this really dedicated group of people in Victoria.

 

And then slowly, we built out our team, so I was able to hire our Executive Director and Registrar Richard Rogers and the two of us really kept hiring people until now we have about 70 full-time staff members and Tribunal members.

 

But it was a challenging process, and the first thing that we sort of tried to think about was, well, we’ve been given this gift and this curse of a blank slate. There wasn’t a path to follow, there wasn’t any model in the world where this had been done yet and so we really tried to find empirical evidence to support doing things one way over the other.

 

And one of the really shocking things we found was how little empirical evidence we have about the way our justice system works, and that’s true in Canada. I know that’s true in the US, it’s true in the UK, and really everywhere I go in the world. We have a lot of assumptions about why things are or how they should work, but they’re largely untested and mostly the product of just always having done it that way.

 

So, because of this data paucity issue, we had to go out and find this information ourselves which we did through commissioning research, doing a lot of user testing, working with stakeholders primarily community advocates, and really going from there.

 

Daniel Linna: Well, so tell us now about how this works? And I think one of the –well, one of the many very interesting things about this, it’s not just adjudication but there’s this Solution Explorer; well, tell us just kind of about when people get engaged and all the things it does for them?

 

Shannon Salter: Sure, so bear with me because it’s a four-step process, arguably five-step process.

 

Daniel Linna: All right.

 

Shannon Salter: But you’re right so our traditional civil justice model is premised on the idea that you’ll go to court that if you go down to the court registry, file your documents, pay your fees at some point, maybe years later, you’ll end up in front of a judge.

 

The one statistic we’re really certain of in all of our countries is that that’s largely untrue. It’s usually true 98-99% of the time. Now, we don’t really know what happens to those other cases. So in other words, out of every hundred people who take the time to go and file their paperwork and pay their fee, only on average one will end up in front of a judge.

 

We assume that the other 99 settle but we don’t actually have good data about that. What we do know is that it’s likely that people who are unrepresented by counsel don’t tend to settle.

 

(00:10:01)

 

They give up, there would be attrition effect, but nevertheless we make everybody take the same steps more or less in the life of their civil justice claim predicated on this assumption that you’ll go before a Judge, and many of these steps are quite useless in a lot of ways if you don’t go in front of a judge.

 

So, what we’ve tried to do is flip the model and say, well, we assume you’re not going to end up in front of a Tribunal member just like the Judge in our system. We assume that with the right support we can help you resolve your dispute yourself. So we start with the Solution Explorer which is a very basic form of Artificial Intelligence, it’s a little cagey at this moment whether to even call it AI because of how far AI has come in the last few years.

 

Daniel Linna: Well, would you say it’s rules systems kind of expertise, is that something, yeah?

 

Shannon Salter: Exactly, it’s an expert system. It’s an expert system…

 

Daniel Linna: Okay.

 

Shannon Salter: …and your audience will be able to distinguish those things that are the most audiences I speak to, but at the time it was pretty exciting to be able to take, and I think still is in the public justice space, the idea of taking this expert knowledge that we’ve worked so hard to accumulate as lawyers and de-marketize access to it for people who either through distance, geography, education level or financial reasons can’t access it easily, and that’s exactly what we did.

 

So using this expert system we give people pretty granular information about their legal problem, you’re asking them questions and then tools like template letters that are pre-populated that they can use to try and solve the problem themselves.

 

If that doesn’t work they can apply for dispute resolution seamlessly from that system and we take care of serving the respondent, when the parties come in they’re invited to negotiate which they do through a virtual chat room, kind of looks like Facebook Messenger and that’s by design because one of the things we found out is that the more we can design technology to look like what people already do online, the easier time they have using it.

 

Totally common sense, but not principles that are readily adopted by large institutions, sometimes particularly public institutions.

 

So that doesn’t resolve tons of disputes, but if people are able to negotiate successfully, we can turn their agreement into effectively a court order and we refund their fees.

 

Most people don’t need help and that’s whenever our trained mediators steps in, they work with the parties through whatever communication method they prefer, help them reach an agreement if they can and that too can be turned into a Tribunal order. And then finally it’s only when all else fails that we assign the case to a Tribunal member and the parties upload their evidence and their submissions electronically, those are exchanged and then the case is packaged up and assigned to a member who writes their decision also from their home.

 

About 80% to 90% of all of our staff in Tribunal members work remotely. We have almost no commercial footprint at all. So this is all done remotely, the member writes their decision or holds an oral hearing using Skype, and then the decision is emailed to the parties and also published on our website and also on CanLII, which is our version of your Cornell Lii, and I always mangle both.

 

Daniel Linna: Yeah, yes — yeah the Cornell Information Institute where they have, yes —

 

Shannon Salter: That’s right, yeah. So it’s sort of — simultaneously all of those things happen. So it’s pretty transparent that way and really somebody who has any of these problems with our area of jurisdiction can do the entire process from their smartphone on their couch after the kids are in bed, after their work is done, whenever they want to, including receiving the decision and the court order on their home.

 

Daniel Linna: Great, yeah, so one of the things I want to just backtrack to just a little bit was I know that your jurisdiction has been expanded, and just for our listeners, so originally what was a jurisdiction you have and though and then what are the things that have been added?

 

Shannon Salter: Yeah, it’s been an exciting three years, I was in The Netherlands a couple of weeks ago speaking at their Council of State which is about to celebrate its 500th year anniversary and I was explaining to them that we are only about three years old, which kind of made me feel like we were the toddler of the justice system.

 

But it’s been an exciting three years, so in July 2016 we started accepting condominium disputes, get about 600 of those every year. Then a year later the government gave us jurisdiction over small claims, 5000 and under, we get about 5000 of those every year, and then this past April we assumed jurisdiction over most motor vehicle, personal injury disputes in the province, which is a pretty big scale up.

 

Daniel Linna: Yeah, all right, so I have some questions about those, but I wanted to go back just briefly on the technology and about how this is built, what underlying tools are you using?

 

Shannon Salter: Our whole system is built on Salesforce and that maybe a bit surprising in the Justice space to be building your system on an e-commerce customer management platform, but if you think about it, customer management platforms have a lot in common with case management systems. You have to create flags for staff, you record particular information or transactions and you can create documents and send them out as well.

 

(00:15:02)

 

And so at the time Salesforce was able to do all of these things in a very robust, secure, cloud-based environment. So we bought that off the shelf or licensed it as anyone can do and then the Ministry of Justice contracted with Pricewaterhousecoopers to build essentially two applications to integrate with Salesforce. And so that lightweight component is what we built that was customized for the justice system, using an agile development process.

 

Daniel Linna: Well, another one of the many things that I love about this is, is before you even started it was meant to be an empirical endeavor, you’re very data-driven and everything that you’re doing and so what are the kind of metrics that you’re tracking and are the people are going through this process? Are they satisfied with the process?

 

Shannon Salter: It’s always an interesting question how do you measure access to justice, how do you measure your net contribution to this space, but some of our key KPIs include time to resolution, cost per case, things like settlement rates, how successful are we at helping people to reach a resolution before it goes to a Tribunal member? We certainly look at appeal rates as well, but a big part of our measurement or big part of our metrics are actually the subjective opinions of people who have gone through the process.

 

We survey people who have gone through the process as participants. We don’t ask them if they agree with the outcome because that’s a question potentially for the court, but we do ask some questions like, did the CRT treat you fairly throughout the process? Would you recommend it to others? Did we resolve your dispute in a timely manner? Those kinds of things. And we get consistently pretty high scores, consistently between 80 and 85 percent people agreed that we treated them fairly and also would recommend it to others having been through the process. And we published these statistics every month on our website.

 

Daniel Linna: Yeah, I love the transparency, I love publishing those statistics every month, that’s really helpful. I mean, let me push you just a little bit more on the greater access to justice question. So it’s great to know that people are satisfied, and I mean, how are you trying to measure that and how can we really get a sense for whether we’re — I mean because it seems like for so long in most jurisdictions we’ve been stuck on these numbers that are just abysmal and do you think this is making a dent?

 

Shannon Salter: I do and that’s what people are telling us as well, which is really exciting. Importantly to me that’s also been the feedback from community legal advocates who represent people who have the most difficulty traditionally accessing our justice system. We’ve built our testing methodology around them and their clients and so it’s really heartening when we get good feedback that we’re meeting their clients’ needs.

 

And I guess that segues into an interesting point. I think what you’re trying to measure is very much driven by how you design and who you’re trying to serve, and for us, we’re really clear that it’s not about designing for lawyers or other justice actors and then trying to scale up or down to make sure it works for everybody else, that’s going to lead to kind of a Frankenstein. You’re probably not going to serve those more heavily barrier clients very well and so our methodology is quite the opposite. We start with the people who are traditionally harder to serve because they have specific circumstances and challenges. They may be people with a low income, they may have a mental health issue, they may have a physical or mental impairment, they may not speak English as a first language, those are the people we want to design for first and foremost.

 

And we do that by testing everything we designed with community legal advocates who are working with those folks every day. Ideally you test with the clients themselves but oftentimes they have more pressing things to do than test or software or our rules forum, for example. And so we start with them and then real time they beat up whatever we’ve designed and we make changes and then we test with ordinary members of the public and we make more changes, and then last but not least, we test with lawyers.

 

So that testing methodology also drives what we’re worried about measuring, we want to make sure that we’re not leaving people behind it, people are not falling through the crack and that’s what we’re really focused on. I think there’s some projects that are really focused on cost-cutting and so your KPIs might be different if you’re doing that. That said, I think those things don’t have to be mutually exclusive, I think you can provide much better quality services to people particularly, traditionally marginalized people and also be pretty lean on the ground and financially viable because the existing justice system isn’t particularly cost-effective in certain ways.

 

I gave you the example before of how 80% to 90% of our staff work remotely from their homes, well the only equipment they have is a computer, may be a monitor, and a cell phone, and because of that our operational budget is almost entirely staff salaries. We are paperless, we have almost no other overhead.

 

(00:19:54)

 

Daniel Linna: Yeah, well, and I think this is where it’s so important about thinking about whether we’re measuring all the right things in connection with all this. I mean, I do think I’m interested in hearing what you think as far as the cost the cost, the cost of a government running those, because it of course it sounds high-touch, but that when you think about the rules driven system part of it and the fact that you can bring parties together and they can may be able to resolve things without ever having a human, have to work with them. But then, you know the other thing is just thinking about the other benefits for society and there’s a lot of statistics like that — that by providing access like this we expect other economic benefits as well. What do you think about those ideas?

 

Shannon Salter: I think it’s really — that is really interesting. I think it does seem — I hope that it seems like a very human-driven process despite being predominantly online, because that is the culture, the culture is about inclusivity and I think there’s huge dividends to be had in having the automation do the heavy repetitive lifting and having the humans do the high-value emotionally intelligent work of providing support to people who traditionally have struggled or might be even struggling in the CRT process, the high value work of mediating, the high value work of analyzing evidence and making a decision.

 

But you’re right when you have — when our frontline staff are called Resolution Support Clerks and they traditionally — they do the role traditionally done by court registry staff, but the skill set that we’re hiring those folks for is really different. We’re predominantly hiring them for their customer service skills. We get a lot of people from call center backgrounds or from retail backgrounds. We’re not so much hiring them for their clerical skills; why? because they’re not doing data entry all day long. They’re not shuffling paper working with paper, the parties fill out the forms themselves. But what that means is that they can spend a lot of time on the phone with people who might need a little bit of extra help and a little bit of support.

 

So, I think it — there are huge dividends to using and leveraging technology to be able to provide actually a lot more human support because you’re freeing up time and energy and skills that would otherwise be used with very high volume repeatable stuff that you can automate through business rules.

 

Daniel Linna: Another really important question in this space that I hear come up frequently and you indirectly addressed this earlier, but a lot of people worry about the existence of a digital divide still, and I think most places that’s less and less of a problem, that majority of people — vast, vast majority of people have access, but I mean, how much of a concern is that and how have you addressed that concern?

 

Shannon Salter: That was a big concern before we opened. Based on our research we thought maybe 10% or 15% of people would choose not to engage online, that hasn’t really materialized, and I should pause by saying that we’re predominantly online, but we also offer mail, telephone, video conference services as well as in-person help at about 60 service BC counters, so government service points around the province.

 

That said, over 99.9% of people have chosen to participate online. We get almost nobody opting out of email, and I think that what that tells us is that if you can design really easy to use technology, if you make it easy for somebody to get a trusted friend or family member to help on the couch in the evenings, people would rather do that than even deal with finding a stamp and mailing a letter for the most part.

 

But you still have to offer those other channels because there is a divide. There will always be some folks who aren’t able to access online services. So those other channels are not going anywhere, but I used to hear all the time, well, you can’t do ODR because not everybody is online, which is kind of absurd on its face, the way to deal with that is through design and through offering multiple channels, which overtime may go extinct if we ever get to the point of 100% people online, but until then we’re in access to justice project and we’ll always offer other ways for people to engage.

 

And that’s what I mean by not just checking the box of while we’re doing efiling or eDiscovery, it’s really about how do we look at that particular human who has a problem and figure out what they need to be able to resolve it; and if what they need is a paper form, then that’s part of the equation, but it’s a human-centered equation, it’s not just about using technology to do that which you used to do manually.

 

Daniel Linna: Yeah. Well, it’s so great to hear this about how you’ve addressed that concern and the success that you’ve been having, and I want to talk about how lawyers have responded, particularly as your jurisdiction has been expanding a bit, but before we continue our interview with Shannon Salter, the Chair of the Civil Resolution Tribunal in British Columbia, we’re going to take a quick break to hear a message from our sponsor.

 

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(00:25:17)

 

Daniel Linna: And we are back. Thank you for joining us. We are with Shannon Salter, Chair of the Civil Resolution Tribunal in British Columbia.

 

And Shannon, before we went to the break, I mentioned, I would like to talk a little bit about one of the reasons why you have had such great success is you have been able to build something from the ground up that has really focused on people who have the disputes; the individuals, the participants in the system and not having to design a system for lawyers.

 

What’s been the reaction from lawyers now as jurisdiction has expanded with that? Well, maybe even right from the beginning, and I know jurisdiction expanding would probably capture the attention of lawyers as well. But can you talk to that just a little bit maybe.

 

Shannon Salter: Sure. So I think when this was first proposed there was a lot of uncertainty about what it would look like, and I think it’s fair to say there was probably a fair bit of concern too that this might be just a cost cutting measure and might actually take away people’s access to justice.

 

I think as we implemented though people could see that really we are very committed to ensuring accessibility and inclusivity and I think that won over a lot of folks, both lawyers, but also other stakeholders as well. And largely we have had a lot of support from the legal community in a lot of ways. They are the experts behind the Solution Explorer. They are volunteers who give up their time to be able to give us this content and have supported the Tribunal in other ways as well. All of our Tribunal members are lawyers, for example, a number of our mediators are too.

 

That said, I think the CRT is growing at the same time that there is a lot of change in the legal profession and I see that anxiety in my students, but also in practicing lawyers and we are all having to ask ourselves tough questions about what the legal profession will look like in 5, 10, 15 years, what role will technology play, is our industry really immune from disruption, unlike every other modern industry. And these are tough questions in a sector that’s traditionally been very, very reluctant to change. It’s quite change adverse, quite risk adverse in a lot of ways. So I think that’s all really challenging.

 

Certainly more acutely I think it’s fair to say that personal injury lawyers are largely not supportive of this change, but of course our job is to take the mandate that we have been given by the legislature and implement this new area of jurisdiction as transparently and excessively as we have everything else and that’s what we are focused on.

 

Daniel Linna: Well, if I understand also what happened like around the personal injury, for example, it’s not just the jurisdiction, but there has been some substantive changes to the law also around that. Is that maybe part of what’s wrapped all up into this as well?

 

Shannon Salter: The changes to the CRT’s jurisdiction were part of quite a large package of changes to our Public Auto Insurance Program in British Columbia. We have a mandatory public insurer for car accidents and so this was part of a much larger package of changes.

 

Daniel Linna: Yeah. Well, going back to — kind of tapping into, you mentioned you teach in a law school and thinking about, if we want to expand access to justice, it seems pretty clear we need to engage in endeavors like this and we really need to encourage attorneys to think about areas where they can add greater value, like where they are really contributing to great value for their clients. I mean just where do you think are some of the opportunities that you see that are kind of connected to the changes that you are helping put into place in the marketplace?

 

Shannon Salter: Right, not specific to the CRT, but in general, I think there is tremendous opportunity here. Of course it’s worrying and scary, especially if you have practiced a certain way for many, many years, but I think particularly for newer graduates who might be a little less tied to that methodology, there is an opportunity to provide services in a completely different manner, to provide services from your home, to provide services via Skype, to unbundle your services, to really target areas where there is a high public need and low overhead for you, and so the opportunity to build a business around that.

 

But you are right, the key question that we have to ask ourselves is what is my value proposition. And if as a lawyer your value proposition is built on the fact that the legal system hasn’t changed in hundreds of years and is excessively confusing, expensive, complex and alienating and you are an intermediary between that system and the party, then I think that’s a bit of a precarious business proposition or value proposition, because what that means is that if we finally change that system to make it more accessible, then your business model changes or collapses.

 

So I think it really is about figuring out where we add value as lawyers and I think there are a lot of ways that we do, but we have to zoom in on those and probably let go of some of the ways that are more precarious or ripe for disruption.

 

(00:30:08)

 

Daniel Linna: Another concern that I hear about online dispute resolution and this is a little bit I think disconnected from the current reality is this idea that if we make it too easy to file a claim and bring a dispute before a Tribunal that we are going to — there is going to be this flood of claims coming in. So we have made it too easy now, we have reduced some of the friction that could be a good thing maybe in the system. Again, I think it’s a little disconnected from reality, but how do you address that kind of concern in the system?

 

Shannon Salter: I have heard that concern a lot and it’s one I am not very sympathetic to. First of all, it hasn’t materialized in any of the areas of jurisdiction we have had so far.

 

The second is that if we give people legal rights and we say that they have certain remedies to enforce those rights, it’s a bit of a bait and switch to say, but we don’t really want you to try because we are going to make it really difficult for you. So we say on paper you have these rights and remedies, but really they are immaterial because you have to be so elite to be able to afford to pursue them.

 

I don’t have a lot of sympathy for the idea that that friction, as you call it, which is really complexity, cost and time should be the thing that makes our caseloads manageable.

 

It’s true that if you increase access to justice, you are tearing down those barriers and you are tearing down the fences and yeah, lots of people are going to be able to come over and that may mean that along with those folks you get a few claims that are unmeritorious. But we have other ways to deal with that as well. We have a statutory provision that lets us dismiss claims that are an abuse of process.

 

It’s also why you have application fees to try and deter people from bringing meritless claims, but I don’t think it can be an answer to the access to justice crisis to say well, we are going to rely on mass kind of confusion and alienation from our justice system in order to control case volume numbers.

 

Daniel Linna: Yeah, yeah. Well, I mean now the other piece of this is, I hear people sometimes say that if we — in the US, for example, when I have heard people talk about putting small claims and doing that online, that oh, well, small claims is already an instrumentality of these creditors and if we make it even easier, than that problem will just get worse. But again, I think there are things like if we want debtors to have substantive rights, then let’s make sure they have substantive rights, let’s make sure the procedure actually works so we don’t have debts that aren’t actually owned or enforceable.

 

I mean how are you dealing with issues like that?

 

Shannon Salter: That is a big issue. Any small claims court around the world and by extension us deals with a really high volume of small debts and a very high default rate for those debts. Our hope was that by giving people free legal information upfront about what their rights are and things like the limitation period, which may offer a defense in some situations, as well as information about statutory limits on things like interest that we would be able to empower them with information, but also give them tools to propose a repayment plan for example.

 

We still have a pretty high default rate in the CRT for debts. I believe it’s lower than most courts, but it’s still too high for our liking. And so we are trying to take other steps too to bring it down.

 

One of the things that we did was started an initiative where we serve the respondent now. So we are serving in many cases the person who is alleged to owe the debt, and what we have seen is the default rate has come down a fair bit because of that. People seem more receptive to receiving information from us maybe then the creditor.

 

But it is a challenge, and it’s a human challenge. It’s the person who is in that situation from my pro bono experience often has a number of other problems they are dealing with as well. They may have housing problems, they may have mental health issues, they may have employment issues, and it’s overwhelming. I don’t think it helps to add to the anxiety by sort of pushing people in a process which is inherently kind of confusing, which most court processes are.

 

So I hope that the CRT continues to find ways that we can make people aware of their rights in those situations, help them to maybe propose repayment plans or restructure their financial situation in a way that’s better for them. But you are right, default rates for small claim debt matters is a persistent problem everywhere.

 

Daniel Linna: Well, let’s talk a little bit about what’s going on around the world and I would love to see more courts in the US, for example, looking at what you have been able to do and I know in fact that you are consulting with some court, can you tell us, do you have a general sense of what’s going on in the US in this area?

 

Shannon Salter: I do. It’s interesting that five years ago when I was appointed, there really wasn’t anything, as I mentioned there was no path to follow and in that short time it’s like we have reached a bit of a tipping point and now there is massive projects in the UK, in Australia, in Singapore, in China, and yes, in the US as well.

 

So I know that there are projects for small claims ODR in Utah, Michigan has a Traffic Court ODR Project, New Mexico and Nevada both have projects I believe for family, and there is other ones that are popping up all the time, it’s really exciting.

 

(00:35:07)

 

I think of those, Utah is the farthest ahead and I did do a small bit of, sort of free consultation with them a couple of years ago, really driven by a judiciary that was quite focused on this or at least one member of a judiciary that was quite focused on it and brought it into fruition. So it’s really exciting for you folks to have a domestic example of how this could work for small claims at least.

 

Daniel Linna: Yeah. And how do we get more courts — like I am a lawyer in a particular area in the country and I really think this is important, I mean based on what you have seen how do you think people can start getting this process going, whether it’s getting legislature or the Supreme Court or others involved?

 

Shannon Salter: Well, I think there is a few different answers to that question, but on a very basic level I think it starts by asking yourself as a court administrator or a judge, what is the experience like of somebody who has to navigate this and really kind of tracing that journey from their eyes. Literally going into the court registry line up with a clipboard and start talking to people, what brought you here today, how long is it taking you, how much does it cost, do you have to take time off work, did you have to arrange childcare, did you have any help, how many wrong places did you go before you came here, what is it you are trying to do, those basic questions, and then even having people fill out your forms and seeing where they go wrong, designing with them.

 

I guess my point is that there is a lot you can do culturally without any technology at all, and unless you change the culture, it’s really difficult to just glue technology on top of it and call it done, which is kind of a theme of what we have been talking about. So that’s one thing that people can do now.

 

In terms of being able to initiate a pilot project, I think it does require a degree of leadership from all levels of decision maker and a willingness to withstand the kind of pressures that might occur in favor of the status quo. And that does require a fair degree of resolve.

 

It also requires having a capacity for change management to go out and really sell the vision to stakeholders as well and to bring them on board as really co-designers of it.

 

So that’s a bit of a granular answer and a more macro answer and I think in between there is the question of how do you change a culture of an existing institution, which I recognized was not a problem I had to deal with. We certainly had to liaise with a lot of longstanding institutions, but because I was able to basically hand-pick everybody I work with, who were excited about the sort of startup culture, we didn’t have some of those kinds of change management problems, which I know can be a real issue if you are walking into a court that has done things a certain way for hundreds of years and telling people who have done their jobs a certain way for 30 years, well, guess what, tomorrow we are going to do it differently.

 

I think there are a lot of ways around that. I love ideas about how you get around that. Richard Susskind likes to talk about how you can’t change the tires on a moving car, but you can build another car alongside it, and I think you can do that within a court as well. You can identify an issue type, you can identify people who are thought leaders and change leaders and build a coalition, if they are willing, and let the rest of the system operate as it does, while you build out one area, get some early successes, get some good metrics and then slowly over time expand.

 

I think just as one last note on that, it was a really smart decision for the Ministry of Justice in BC to pick condominium disputes as the first area. Condominium disputes and small claims are important to the people who have them, but they are not life or death issues, nobody is going to jail, nobody is losing their children. So as an area to experiment in, I think it makes sense to pick an area that’s a high pain point for the public, but where the stakes are relatively low.

 

Daniel Linna: Yeah. And I loved what you initially said, which to me is, we should be aiming high, we should be thinking about, we need online dispute resolution, we need online courts, we need all of this, but there are so many opportunities just to learn from your experience and think about how do we embrace human-centered design, how do we talk to the people going through the system.

 

I was fortunate to be part of some projects at Michigan State where we went and worked with local judges and they got us integrated working with the court clerks, just learning more about what’s going on and how do we improve things on the ground now, and that gathering that information could help us then in this whole change management process and help us figure out the sort of ODR systems we could build that would be successful.

 

Shannon Salter: Exactly and it’s in some ways antithetical to our education, because we are taught to be the experts. We are taught to be the people who have the answers, but really the people who have the answers to this problem are in that line up in your court registry.

 

(00:39:50)

 

And I will give you another example of how you can do this kind of change in a real way for no money. Everything that we write in the system is at a sixth grade reading level, because that’s the average reading level in Canada, and we use free online readability tools to audit ourselves. That’s something that you can do with no technology and no money, but it does require a great deal of I think discipline and kind of egoless writing to be able to do that, and that’s everything from our website content, to the Solution Explorer, to our decisions as well.

 

Things like having culturally competent staff, staff who have training in mental health issues, training in trauma and foreign practice, testing with the public, asking people if they need special accommodation throughout the process. These are human things that are not technology things, but again, I think the invitation that ODR has for us is the opportunity to question everything.

 

Daniel Linna: You mentioned Richard Susskind and I know he is heavily involved in the UK Online Courts Project and as a matter of fact, he has a book coming out on that. Can you just kind of tell us what’s happening in the UK?

 

Shannon Salter: The UK is embarking or it has embarked on a 1 billion pound justice system reform project that has many moving parts, but one part of it is an online court, having online money claims, online divorce, and it really is quite a wholesale transformation of the entire justice system in the UK. It’s a very ambitious project.

 

And as you point out, yes, Richard Susskind has been a thought leader in this area for many years and was instrumental in kind of conceiving of what that might look like, along with Lord Justice Briggs, who is now on the Supreme Court in the UK.

 

And you are right, Richard does have a new book coming out and I got the chance to read an advance copy. I would highly recommend it to your listeners. I think it’s probably coming out around the same time as this podcast.

 

Daniel Linna: Great. Great. Well, anything else we should know about kind of internationally, like notable online court movements?

 

Shannon Salter: I have a Google Alert set up for online dispute resolution and what I find heartening is every week, two weeks at the maximum, there is a new pilot project somewhere in the world using online dispute resolution or some component of it. Consistently in surveys of your state courts, it’s a top three item in terms of interest from the court. So I think we are reaching this tipping point and it is an exciting opportunity.

 

There are way more off-the-shelf solutions now than there were five years ago, and so in terms of information or advice, I think it is really helpful that there are so many models now around the world that you can turn to. It’s much more reassuring for policymakers, legislators and courts themselves to be able to say well, we have got a model already in the public justice system that we can look to for advice, statistics, information, budgets, all of those things.

 

Daniel Linna: Shannon, we are coming pretty close to the end of our time here, but I did want to ask you, what do you see as the future of online dispute resolution? I mean where should we be pushing to go and I think at the same time are there areas where we think this — that we need to keep it in person and online dispute resolution isn’t maybe going to affect it much?

 

Shannon Salter: I think online dispute resolution is really the effect of human-centered design in these areas, and so the bigger question I think is, is there an area of the justice system where we shouldn’t be using human-centered design, whatever outcomes or processes that leads us to? And I think the answer is no.

 

I don’t know anything about criminal law, but it seems to me that even in criminal law viewing the process from the perspective of the humanity, of the accused or other actors in the system would likely lead to process reform that could include the use of technology, but may also include the use of other tools that are all about designing around the human need.

 

So I think we don’t know the limits, A, of ODR, but I think we can certainly say with some degree of confidence that human-centered design absolutely has a role to play in every aspect of our justice system.

 

But that is a hard thing to do, it’s much easier to do the technology piece than it is to do the human-centered design piece, because if we truly did that, I think many, many areas of our justice system would have to be fundamentally reconfigured.

 

Daniel Linna: That’s a great way to look at it. And I think the other consideration too is things around us are changing so rapidly, like you even alluded to earlier, I think that our idea of what it means to be in person may change. I mean we are — we can see each other via Zoom right now as we are recording this and it’s not quite the same as being in person, but all these technologies are rapidly evolving as well too to be able to have an experience that will be just like we are all in the same room, even though we can be on different corners of the planet.

 

Shannon Salter: That’s true. We tend to also undervalue some of the benefits of not being in person. In mediation, there are some benefits.

 

Daniel Linna: Yeah, that’s a good point.

 

Shannon Salter: Sometimes it is enraging for people to see the person they are in a dispute with.

 

(00:44:46)

 

There is also some interesting research about how seeing your own face on a Skype call and seeing your own affect affects your own self-regulation. So if you are not trying to appear angry but you see that you are, you can self-correct. That’s really just the tip of the iceberg.

 

There are certainly some things that can be lost in some circumstances, but we have to zoom out and see that for a lot of folks getting to a courthouse involves so much cost and difficulty and frankly a lot of anxiety too in many cases and that there are harms in that as well.

 

So it is a really interesting point and I agree with you that the technology is always changing, which is another reason to focus on the human-centered design part more than the specific technological outcomes.

 

Daniel Linna: Right, right. Well, this has been fascinating Shannon, but before we let you go, I want to make sure that our listeners know how to find information about the Civil Resolution Tribunal and then also how they can contact you and then you mentioned the blog as well which is an important resource.

 

Shannon Salter: Thank you. Yes, so our website is civilresolutionbc.ca and we are really active on Twitter. So you can follow the Tribunal @CivResTribunal or me, @shannonnsalter. And we also have a Facebook account, so please do follow along. Come on the journey with us.

 

Daniel Linna: Well, good. Thank you so much for joining us Shannon and thanks for all the great work you and your colleagues are doing. It’s really a great example and the way you are doing it, so we can all learn and with the transparency and information releasing, it’s really great.

 

Shannon Salter: Thanks a lot Dan. I really appreciate it.

 

Daniel Linna: This has been another edition of Law Technology Now on the Legal Talk Network. Please take a minute to subscribe and rate us in Apple Podcasts and Google Podcasts. You can find me on Twitter @DanLinna. Please follow me, re-tweet links to this episode and join the legal innovation and technology discussion online.

 

And join us next time for another edition of Law Technology Now. I am Dan Linna, signing off.

 

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