Court-connected ODR has already shown itself capable of dramatically improving access to justice by eliminating barriers rooted in the fact that courts traditionally resolve disputes only during certain hours, in particular physical places, and only through face-to-face proceedings. Given the centrality of courthouses to our system of justice, too many Americans have discovered their rights are too difficult or costly to exercise. As court-connected ODR systems spread, offering more inclusive types of dispute resolution services, people will soon find themselves with the law and the courts at their fingertips. But robust access to justice requires more than just raw, low-cost opportunities to resolve disputes. Existing ODR platforms seek to replicate in-person procedures, simplifying and clarifying steps where possible, but litigants without representation still proceed without experience, expertise, guardrails, or the ability to gauge risk or likely outcomes. Injecting ODR with a dose of data science has the potential to address many of these shortfalls. Enhanced ODR is unlikely to render representation obsolete, but it can dramatically reduce the gap between the “haves” and the “have nots” and, on some dimensions—where machines can outperform humans—next generation platforms may be a significant improvement.

Although proponents of online dispute resolution systems proclaim that their innovations will expand access to justice for so-called “simple cases,” evidence of how the technology actually operates and who is benefitting from it demonstrates just the opposite. Resolution of some disputes may be more expeditious and user interface more intuitive. But in order to achieve this, parties generally do not receive meaningful information about their rights and defenses. The opacity of the technology (ODR code is not public and unlike court appearance its proceedings are private) means that due process defects and systemic biases are difficult to identify and address. Worse still, the “simple cases” argument for ODR assumes that the dollar value of a dispute is a reasonable proxy for its complexity and significance to the parties. This assumption is contradicted by well established research on procedural justice. Moreover, recent empirical studies show that low money value cases, which dominate state court dockets, are for the most part debt collection proceedings brought by well-represented private creditors or public creditors (including courts themselves, which increasingly depend on fines and fees for their operating budget). Defendants in these proceedings are overwhelmingly unrepresented individuals. What ODR offers in these settings is not access to justice for ordinary people, but rather a powerful accelerated collection and compliance technology for private creditors and the state. This chapter examines the design features of ODR and connects them to the ideology of tech evangelism that drives deregulation and market capture, the aspirations of the alternative dispute resolution movement, and hostility to the adversary system that has made strange bedfellows of traditional proponents of access to justice and tech profiteers. The chapter closes with an analysis of front-end standards for courts and bar regulators to consider to ensure that technology marketed in the name of access to justice actually serves the legal needs of ordinary people.

Lex Mercatoria, Latin for ‘merchant law,’ is a very old concept that predates the rise of nation-states. During the medieval period, a body of legal conventions evolved through custom and commercial practice and was enforced by private courts along the merchant trade routes.1 Modern nation-states came to replace this traditional method of resolving disputes with domestic courts. But the gradual increase in international commerce has encouraged nations to defer to international arbitration as a solution to complex cross-border business disputes, and various other alternatives to lawsuits brought in civil courts.

In this chapter, we explore the ability of courts to enhance the role of substantive law in case outcomes by reducing party litigation costs. When it becomes less costly for parties to engage actively in dispute resolution, the shadow of substantive law should, in theory, become more pronounced and case outcomes should change (and hopefully become more accurate/efficient on average). To empirically investigate this hypothesis, we examine the consequences of a large state court’s implementation of court-assisted online dispute resolution (ODR) tools for its small claims docket. A central goal of this technology is to reduce litigation costs of all sorts so that parties are able to communicate easily and negotiate settlements quickly in the shadow of what is —or could be—efficient substantive law, thereby avoiding inefficient status quo outcomes, like default judgments. ODR tools enhance court efficiency and litigant satisfaction by giving parties on‐demand, inexpensive access to a private and secure platform to negotiate an agreement that fully resolves their dispute. We find that, by reducing costs, eliminating procedural inefficiencies, and placing decision-making power in the hands of the parties, platform technology reduces the likelihood of default and likely improves the substantive outcome of disputes.