Click Here to Divorce: Online Dispute Resolution for Family Disputes?

Despite this rapidly changing age of technology, the legal system still remains inefficient, expensive, and bureaucratic, presenting troublesome difficulties when one must quickly resolve a family dispute. As demonstrated by a family dispute case from the Hague Institute for Innovation of Law (HiiL), “Dora tried to hire a lawyer, but she was turned down … because she could only spend 500 dollars on assistance. On a court website with 131 forms ... a social worker helped her to identify the five she needed. The key form had 33 boxes she could tick…”[1] Overwhelming bureaucracy, slow functioning of overloaded courts, and increasing costs of legal representation contribute to the already extremely high levels of stress experienced by divorcing couples and create a “justice gap.”[2] A technology called online dispute resolution (ODR) presents a potential innovative solution to these problems, making the divorce procedure less complex and more accessible.

Online dispute resolution (ODR) is a technology that employs the Internet and artificial intelligence to help people and businesses settle disputes with minimal use of in-person litigation. This form of alternative dispute resolution was effectively used for resolving domain name disputes. Many domain names were registered with copyright violations for the sole purpose of selling them to the copyright owner (so-called cybersquatting).[3] For example, in the case Apple Inc. v. Protection Domain (May 18, 2014),[4]  a malefactor registered a domain name “www.applestore.com” and tried to sell it to Apple; in response, the company took the case in the World Intellectual Property Organization (WIPO) and used their online dispute resolution platform. In just four months, the rights were restored in the WIPO Arbitration and Mediation Center. Despite being located on the different sides of the globe, the plaintiff and defendant were able to quickly, cheaply, and efficiently resolve their dispute.

After ODR’s success in the field of domain disputes, it was integrated into e-commerce services like eBay, Amazon, and PayPal. While the average cost of an e-commerce case is around $150,[5] the average cost of a lawsuit exceeds $100,000.[6] In addition, e-commerce cases pose the complicated question of determining personal jurisdiction, as parties are frequently located in different states.[7] In the case Winfield Collection, Ltd. v. McCauley, [8] a resident from Texas purchased craft patterns from the plaintiff in Michigan and sold the plaintiff‘s patterns to buyers in Michigan through eBay. However, the resident from Texas did not “purposefully avail” herself of Michigan, the forum state, and thus did not meet the “minimum contacts” test for personal jurisdiction [id]. Using ODR to automate the simplest cases, eBay has been able to provide a free way to resolve consumer disputes online, independently of personal jurisdiction issues and without the need to file an expensive lawsuit. The implementation of this service in eBay was successful enough to resolve more than 60 million disputes yearly.[9]

Following the successful use of ODR for e-commerce disputes, an attempt was made to implement this technology in family law. A notable example is a Dutch website developed by The Hague Institute for Innovation of Law.[10] The program asked the couple a number of questions to understand their needs followed by a mandatory dialogue phase in which the couple worked on model solutions. If parties struggled with this process, they could request a mediator or an adjudicator – one of the lawyers working for Rechtwijzer – to help them settle their dispute. The final stage was submitting the agreement for a compulsory review by a lawyer, after which it could be submitted to a court for enforcement.

This process was faster, simpler, and cheaper. While uncontested cases usually take about 3-6 months to solve in a court system,[11] average time to reach an agreement on Rechtwijzer was 24.3 hours.[12] The drafted agreements produced and reviewed through the Rechtwijzer program have had 100% approval ratings by courts in the Netherlands.[13] The HiiL survey of Rechtwijzer users shows 84% of participants felt that they have more control over their separation, and 53% experienced a low or very low amount of stress.[14]

Despite these surprisingly good statistics, in March of 2017, the Hague Institute for Innovation of Law, Dutch Legal Aid Board, and Dutch Ministry of Justice announced that their cooperation around the platform had ended. Lack of public subsidy and insufficient self-financing have lead to the failure of Rechtwijzer. Its UK analog, Relate, was also suspended.[15]

Dianne Kroezen, a member of the Association of Family Law Attorneys and Divorce Mediators, opposed the creators of Rechtwitjer. She argues for the necessity of face-to-face mediation in family disputes: “You have to meet the partners at least once to feel the balance of power.”[16] Susan Brooks, a professor of law in Drexel University, argues that face-to-face communication is necessary for effective mediation: “An essential ingredient in creating a potentially transformative process is having the parties together in the same room, where they can witness and experience each other’s nonverbal as well as verbal communication.”[17]  

In response to this criticism, experts supporting ODR have pointed out the advantages of online communication. The separation with ODR can be carried out over long distances which makes it more “business-like” and may be useful for couples that no longer live with each other.[18] Moreover, the “anonymity” provided by the Internet creates a situation called “netocracy” that can reduce power gaps between the parties [id, p. 500]. Written communication, a huge part of the online dispute resolution process, can reduce cognitive skewing and the mediator’s bias [id, p. 500-501]. Keeping in mind that the gap between face to face interaction and online chat is closing, online mediation can be presented as a potentially suitable solution for divorce disputes.

Online dispute resolution has improved domain name and e-commerce disputes and provided a clear legal solution in situations where it may not have been possible before. However, ODR-based family law platforms cannot operate without a significant amount of government funding. For simple cases, there are numerous advantages: reduced stress levels, as well as a cheaper and faster process. Yet in more complex scenarios involving at least one party not willing to separate, tangled property issues, and custody of children, ODR may not be the best solution. Hopefully, further research will demonstrate how much the government should allocate to the development of ODR platforms and how much this technology can improve access to legal resolution compared to already existing policies.

Sources:

[1] ODR and The Courts: The Promise of 100% Access to Justice?, HiiL, pp. 10–11 (2016). Available at: http://www.onlineresolution.com/hiil.pdf.

[2] Danielle Linneman, “Online Dispute Resolution for Divorce Cases in Missouri: A Remedy for the Justice Gap”, J. Disp. Resol.(2018) Available at: https://scholarship.law.missouri.edu/jdr/vol2018/iss1/17.

[3] K. Benyekhlef & F. Gélinas, “Online dispute resolution”,Lex Electronica, Vol. 10, No. 2, p.1, (2005) Available at: www.lex- electronica.org/articles/v10-2/Benyekhlef_Gelinas.pdf.

[4] Apple Inc. v. Protection Domain Case No. D2014-0187, WIPO.int(2014) Available at: http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2014-0187.

[5] Fred Galves, “VIRTUAL JUSTICE AS REALITY: MAKING THE RESOLUTION OF E-COMMERCE DISPUTES MORE CONVENIENT, LEGITIMATE, EFFICIENT, AND SECURE” p. 4 Available at: https://professorfredgalves.com/wp-content/uploads/law_articles/Online%20Dispute%20Resolution%20.Article.Galves2.pdf.

[6] Amy Dison, “Banking and Finance: Election Aftermath”, SMART BUSINESS PITTSBURGH, Jan. 2007, available at http://www.sbnonline.com/Local/Article/10711/79/88/Election_aftermath.aspx.

[7] See supra note [5] at p.5.

[8] Winfield Collection, Ltd. v. McCauley, 2000 105 F. Supp. 2d 746, 751 (E.D. Mich. 2000). Case summary used in the article is provided in the article by professor Fred Galves (see supra note [5]).

[9] “ODR for Low Value Civil Claims”. Civil Justice Council, ODR Advisory Group, 2015, p. 11.

[10] Netherlands Project Rechtwijzer. HiiL, Netherlands Project Rechtwijzer, Available at: www.hiil.org/project/?itemID=2641 (visited August 06, 2018).

[11] “How Long Does It Take To Get A Divorce?” Divorce Statistics Latest Infidelity Statistics of USA Comments, Available at: www.divorcestatistics.info/how-long-does-it-take-to-get-a-divorce.html. (visited August 06, 2018).

[12] "Rechtwijzer Uit Elkaar; What Do Users Say after 6 Months?" HiiL. Online at http://www.hiil.org/insight/rechtwijzer-what-do-users-say-after-6-months (visited August 06, 2018).

[13] Lenon, Joshua. "Kafka's Chatbot." ABA Law Practice Today. December 14, 2016. Available at: http://www.lawpracticetoday.org/article/kafkas-chatbot/ (visited August 06, 2018).

[14] supra note [12].

[15] Smith, Roger. “The Fate of Rechtwijzer's English Daughter: Relate Suspends Online Family Dispute Resolution Project.” Law, Technology and Access to Justice, 28 Sept. 2017, Available at: law-tech-a2j.org/odr/rechtwijzers-english-daughter-relate-suspends-online-family-dispute-resolution-project/ (visited August 06, 2018).

[16] Vermeulen, Margreet. “Doe-Het-Zelfscheiden Op Internet - Magazine - Voor Nieuws, Achtergronden En Columns.” De Volkskrant, 26 Feb. 2016, Available at: www.volkskrant.nl/magazine/doe-het-zelfscheiden-op-internet~a4252281/?hash. (visited August 06, 2018).

[17] Susan L. Brooks. “Online Dispute Resolution and Divorce: A Commentary” American Bar Association. Available at: https://www.americanbar.org/groups/dispute_resolution/publications/dispute_resolution_magazine/2015/winter/online-dispute-resolution-and-divorce-a-commentary.html.

[18] Dafna Lavi, “No More Click - Click in Here: E-Mediation in Divorce Disputes - The Reality and the Desirable”, 16 Cardozo J. Conflict Resol, 2015a, pp. 495-500.