053: ODR Yesterday, Today and Tomorrow (Part Two): Shaping Practice and Participants for More Than 30 Years

Steve Glisky:

Welcome to the paperless productivity podcast, where we have experts, give you the insights know-how and resources to help you transform your workplace from paper to digital while making your work life better at the same time.

Tim Zarzycki:

Thanks for joining me today. My name is Tim Zarzycki, your host for today’s podcast. Today’s episode is the second installment of a three-part series discussing online dispute resolution. One of the technologies helping to create access to justice in the U.S., Canada and around the world.
This podcast will be a little different recently ImageSoft, hosted an ODR webinar discussion with attorney Brad Hunter, the founder of the Collaborative Lawyers of Saskatchewan and we wanted to bring a slightly edited recording of the topic to you. Let’s listen in.

Vince Hanson:

I’m joined today by Attorney and QC Brad Hunter, who’s been practicing law for over three decades. He’s been very active in the legal community, serving as the founding president of the Collaborative Professionals of Saskatchewan. He’s a board member of the International Academy of Collaborative Professionals. He’s chair of the Canadian Bar Association, National Family Law Section, and has taught at the bar admission course for many years. Brad has a passion for the law. He’s trained many professionals in collaborative practice across Canada, the U.S. and Australia. And Brad has covered a variety of civil and criminal practice areas over his career over his career. But his preferred practice area is family law with a focus on dispute resolution. Thank you and welcome Brad. Truly great to have you.

Brad Hunter:

Thanks, Vince.

Vince Hanson:  

Great. So, so Brad as you know, we’re here today to talk a little bit about the ever-changing area of the courts. I think more so than ever in really because of the pandemic this year. The entire justice system courts, prisons attorneys are all dreaming up new ways to conduct business due to COVID many folks in the legal community have been looking to extend the reach of technology to help with these challenges. Some of that tech is relatively simple. Utilizing zoom and conference call technology, but you know, after practicing law for so many years, could you maybe tell us a little bit about some of the changes that you’ve experienced what your new vision of the future looks like and how technology might play a role in that future?

Brad Hunter:

Well, Vince, I’ve been around for a long time. Thanks for pointing that out. And actually, actually there’s been surprisingly little change in day-to-day law practice and it’s time for there to be a lot of change in day-to-day law practice. When I started as a lawyer, I had that traditional education and I thought that, you know, you go in, you find the documents, you present your legal argument, and everyone would settle. As time went on, I realized that I needed to have different skills. And so, the whole development of the dispute resolution field over the past 30 years has been quite traumatic. Mediation has become far more sophisticated, collaborative law came into existence within the past 30 years and there’s a numerous other processes to try to, try to resolve disputes. So, we’ve seen over my career, I think we’ve moved from lawyers, and by the way, when I started family law was barely a field of law. It had just, there was a bunch of legislative changes here and elsewhere where all of a sudden it started to occupy a huge amount of court time. And in, I think most jurisdictions it’s the biggest thing next to criminal law. Most judges are a significant portion of judges and court resources are spent on family law. So because of what I’ve done over my career involved, a lot of I’m trying to understand how disputes get resolved, teaching people how to try to resolve them better than we did and understanding, and interest based negotiation and how to work those things through.
So what has happened is, I’m also a bit of a tech geek early in my law practice, we set up some document assembly programs, which even to this day, aren’t really used as way they should be by, by lawyers and tried to mechanize our practices as best we could. So, when you start to tie together both the law plus dispute resolution and the various soft skills that, that involves and looking at the tech sharing the collaborative tools.  The whole thing about going online and today is, is the fact that we can share with one another far more effectively. And when you’re talking about divorces, surprise, surprise, most people are not looking for a fight in their divorce. They’re looking for a solution and our litigation and our court systems tend to drive people into more conflict than is necessary. And it’s my honest belief that using collaborative tools and online tools can help us a lot. Even this presentation today shows one of the tools that just doesn’t exist in face-to-face practice is we can all look at the same screen. We can all look at my handsome picture and Terry’s handsome picture. As we’re talking about things. And even little tools like that can be profoundly of assistance. And in some ways, it’s easier to relate to people for some of us anyway, online than it is in person, especially divorcing couples, even the separation physical separation in some ways is more comfortable. There is a history there they’ve usually been two or three years anyway of conflict before they show up in the lawyer’s office.
So the types of things that I think that, that these tools can use, and I’m, I’m in the process of setting up my, and I’m hoping by, let’s say January 1st to launch my website, focusing in a host, which is called settle now.online using the online designation is first of all, it’s an online meeting space. The second thing is a big part of law, especially divorces is educating people. You don’t learn much from your first divorce and almost all of my clients. It’s their first and only divorce. So, they don’t know how to get divorced. They don’t know what how to do it, how to solve conflicts, how to solve problems. If they were good at solving problems, they might not be getting divorced in the first place. So online education will be part of what we’re setting up and online resources. The collecting of information, which the platform I think will be excellent at is probably in divorces. That’s where people spend most of their money is simply finding out what’s going on, finding out what things are worth, finding out what the proposals are or what the with the information they need.
We’re a, in my system, we’re setting up a verification system where we will, you know, collect information, but we’ll go through it, process it, try to make sure that it’s complete. I’m going to be working with a CDFA, a certified divorce financial analyst to make sure that the information is as accurate as we can get. You, you you’ve brought up. One of the points that I think is absolutely essential courts and traditional mediation, we all get around a table and we talk well that isn’t very familiar are common for people. And yes, we need to do that sometimes, but a lot of it is asynchronous. A lot of it is I want to look at, I wake up at two o’clock in the morning I can’t get to sleep. Maybe I’ll go and look at the thing that was sent to me by the mediator, that information that’s there and that ability to communicate when you’re able to communicate. And when you’ve had the chance to think will be very valuable. I think there’s also provision for guidance and to assist people to do scenarios. That certainly going to be part of our process is to, is to once we have the information. And once we’ve talked to the people to have to give them more than one solution or help them or assist them in developing multiple options, it’s, it’s actually designed most people. Aren’t in a disagreement on a divorce. They’re simply looking for the road out. They were prepared to accept what the solutions are. There may be disagreements over minor things, but in most people’s cases they’re not looking for a fight. They’re looking for a road out. And I think online tools help if they have a genuine disagreement or a dispute, I suspect that can be narrowed quite significantly.
And again, timeliness. Instead of months and years to resolve dispute two, it’ll be weeks, maybe two or three months in most situations. I was looking at variety of data, both in my jurisdiction in California, and roughly 1% of started cases end up at end up at a trial. So, 99% of the population would likely benefit from such a process.
Hope I haven’t gone on too long on that one.

Vince Hanson:

No, not at all. Not at all. Great, great input, Brad. Thank you.
So,  you know, taking a step back from the pandemic and all of the protocols that have been put in place you know, by the courts to help protect judges, staff, and litigants. What are some of the key benefits of, of ODR and the impacts to the participants in the justice system? Right. I, I think, you know, looking at this from, you know, courts litigants and just the, the legal community here.

Brad Hunter:  

Well, the potential is enormous. We’ve been talking about ODR for 40 years and the, yeah, there’s always a silver lining to these clouds. Maybe one of the benefits of, of the pandemic and the lockdown is we’re now forced to see that in fact things work and in fact, there may be better for everyone. And in a lot of different way. I know I’ve done a couple of court hearings in front of our court of appeal and I, in a way thought. The online experience was better than the in-person experience. And it was much easier to communicate with the judges. Certainly, for the courts system, I think there’s opportunities to engage and increase efficiencies. The province of British Columbia has an online, or has a civil resolution tribunal, which is online and is, which is trying to take certain smaller types of disputes out of the court system fairly successfully. There’s certainly opportunities for the courts to make some or all of their processes online from online filings and online completion of forms to online service, to online disclosure, certainly online dispute resolution processes, such as mediation or even mediation arbitration, arbitration can be facilitated easily online. And even, even online hearings, I know in, the United Kingdom I think the equivalent to a small claim, what we’d all call it. They’re actually at the point where they’ll be at resolutions without hearings, you’ll file your material. And someone will make a decision in a small dispute. And certainly, it will enhance the life of court staff and judges. We often focus in on judges, quite frankly, it’s court staff who are responsible for the system and, and help the judges to, to do their jobs. So, I think there’s all kinds of potential benefits. However, it depends,  think a lot on designing the system, just putting in what we’re doing now, online may not be so help may not be as efficient as trying to find better ways to do what we do and recognize what people want is solutions. They don’t wanna, they don’t want a fair trial. They do want a fair trial, but their goal in life is not to have a fair trial. Their goal in life is to get whatever the issue is resolved between them and the other party.
For litigants, it should mean easier access to justice. If you do nothing, all, nothing more than have online filings and access to documents online. That helps an awful lot of people. Just that one step is an efficiency gain. I know our court of appeal has gone to an online system and they’re actually thinking of, I know the chief justice would like to essentially make the default online, but all documents are available. You know, when things are filed, it’s just, I have, my files are much smaller instead of having volumes of books. There’s a significant for the litigants, there’s a significant opportunity to educate them. I’m mostly interested in the consumer market. So, divorce being part of it, but average people seeking lawyers and a lot of what they need is education. So certainly, there’s opportunities in the online space to do that in a far more effective way than we do right now.
And essentially even making any part of the system accessible enhances the access to justice community for the legal community. And I’m going to talk about lawyers in a self-interested way. The first thing is that in a lot of people don’t use lawyers. We know there’s a huge number of pro se people.  I saw stats a while back, that in California, half the pro se family litigants could afford lawyers, but didn’t see value in hiring a lawyer. So they, whatever the fee was, they went I’ll, I’ll take my chances and not pay a lawyer. So, this gives us an opportunity as a profession to show that we can actually be a value. The second one is related to that, which is, is that the pool of clients will be enhanced. There’s, there’s some statistics out there that 85% of the population have unmet legal needs. That is they’ve got a legal problem, but won’t go see a lawyer because of a, going to see a lawyer, be paying for lawyers understanding the law, et cetera. So, this certainly opens up online processes for lawyers. And I realized state bars and provincial law societies will have a say on this, but it certainly opens up the opportunity to expand who we can represent cost-effectively. And then from doing better practice, it, it can help you in two ways. I think if you are really committed to online systems, you’ll probably do a more quality job. And the other part of it is your overheads are likely to be significantly reduced. So, there’s certainly opportunities for those who want to take it a month fully community to use online processes, to enhance their practices.

Vince Hanson:

So, so Brad in the family law area will ODR be used to help the parties going through divorce? Or do you also see it being used post-divorce for issues that could come up between the parties after they’ve officially been separated by the court?

Brad Hunter:  

It’s it to answer the first question, if all of the areas of law where I think the tools can make things more effective, it’s in the family field divorce is a complex problem. Everything is on the line and most of my clients, even sophisticated business people or lawyers themselves, or even judges come in somewhat scared that their kids are at question right. Often all their properties at question their future income. Your job is at question because you may be paying support for a whole lot of reasons.  So, sorting through that process, I think we can get far better supports. I know when I speak to a client and tell them the law and give them, you know, kind of the way I would normally do it, I suspect they retain about 10% of what I’ve told them in that first meeting. And it takes a while. So, there’s certainly ways to help move through the processes more effectively and more and more simply, and certainly with respect to negotiation, it’s the same thing. So, the whole thing we talked about, the asynchronous communication, I think the timing prospects are great. Not just that they don’t have to be in meetings together necessarily, or don’t do many of those, but also you should be able to compress the timeframes. I mean, divorce is if you’re going through lawyers, even if they’re a fairly non-adversarial, they’re going to take a year or longer and a lot of cases.
And if they are adversarial, it’s years through mediation processes or collaborative law processes, they’ll move more quickly. You still have the problems of delays and getting people together. We may be away from law, online court processes, but on the start of the divorce. Sure.
On the follow-up stuff in a way ODR is, is quite good. If you can take the data you took at the beginning and plug it into the upcoming need, those are usually either changes to parenting or changes to support levels. And this way you can have all the data from before and you just need to update information and you can get far more continuity than you would ever get. By going back to court or starting over with the mediator who can’t remember anything or the lawyer who forgot most of your file. So, there’s those abilities to pick things up. There’s something called parenting coordination. I’m not sure if you’re familiar with it or, or the participants are, but essentially it’s a, an individual, a lawyer or a social worker, someone like that who’s appointed as a mediator or arbitrator and helps couples in, in what I’ll call smaller disputes, but the kind of day-to-day dispute you can’t keep running to court for. And those people, I think ODR processes, ODR system where you share information, this is ideally suited for it’s quite frankly, it’s hard to imagine doing it any other way, although it’s not done this way right now. So, there’s lots of opportunities for post, post-divorce reviews and even some automatic stuff where the clients don’t even need the lawyers or the mediators. Certainly, some things like updating support levels in many jurisdictions, more a question of plugging it in the numbers than it is than it is getting advice or making decisions.

Vince Hanson:

That’s great. Brad, we know your, a preferred practice area is family law, but do you see this being used with other types of legal cases? Maybe any cases from the past that resonate as being a good fit for this type of technology?

Brad Hunter:

I really do. I’m not going to talk about criminal, I think criminal has its own set of issues. But on the civil side, certainly a lot of what legal disputes are, are disputes. They’re not really disputes over the law its disputes over information. So certainly, online processes such as sharing of documents can facilitate that quite, quite traumatically. And there’s no reason you can’t use a hybrid system, even if you’re going to end up in a bricks and mortar courthouse for a settlement hearing or a trial that a lot of the discovery processes can’t be dealt with early. Certainly on smaller case, I would say that it makes more sense to try to do things online than it does to try to do things in a bricks and mortar courthouse.
And certainly, those types of situations are coming forward. And certainly there’s no reason why a lawyer can’t propose, or a mediator can’t propose to clients, but a lawyer can’t propose to clients. Right, any other litigants, let’s just do this online. Let’s not go to the courthouse. Let’s find an online mediator, arbitrator and deal with it that way.
In terms of a personal experience the one that comes to mind and by the way, certain types of litigants like insurance companies would certainly should look at the profitability of ODR as more of a customer service option, rather than a dispute resolution or legal option. Put this on your in your portfolio as a way of helping keep the clients. My one case is in fact, an insurance case my client’s house burned down, the insurance company didn’t want to pay. My client was a sophisticated real estate agent. He understood stuff really well. It took two trips to mediation. Two meetings that took months and months and maybe a year from the commencement till we found, I only got the two people at the table who needed to talk. I sat there and didn’t say much in my client talked directly to the person at the insurance company. It was a fairly high-level manager and they settled the speed between the two of them. Well, if we had an online process at that first mediation, we could have called that person who actually had the power to make decisions. So, it just would have, short-circuited a lot of waste of time, quite frankly.

Vince Hanson:

That’s awesome. So, so Brad, last question, before we, we move into the demo for today’s webinar, for folks in the justice community or potential parties to a case and what advice would you give? Best practice things to avoid helpful tips would love to hear your, your thoughts.

Brad Hunter:

I’ll just give you a few. The first is that look at doing more than just replicating what you’re doing now. So just setting up a face, setting up online meetings versus face-to-face meeting. See if you can do more than that. Many people are far more comfortable doing things face-to-face than not. Or, or that’s what I’ve always done. So, if you put, make me do something new, like do it online, I won’t like it and I will default to it. So, try to add some extra value. Take advantage of the ability to share information, gather documents, consult with people ahead of time. Certainly, in mediation, there’s far more ability to do things like set up some kind of bot or some kind of a chat function with people. And that way you can prepare them in, in ways that people do now, I’m a baby boomer. I’m not much of a baby anymore, but I think the baby boomer generation to really control the court system right now because judges and the like my age we may not be used to it, but the rest of the society is using, using other ways of communicating. And that way you can build towards a settlement meeting to try to create a culture within your community of using alternate processes to keep matters out of quarter, to resolve them out of court. It may take a while, but if you have the online tools, some people will start to use them. And if they are successful, they will help the rest.

Vince Hanson:

Brad. Thanks so much for your insights and, and experience in this area. We, we greatly appreciate it.

Brad Hunter:

Thanks, Vince.

Tim: Zarzycki:

It’s been an enlightening session with bred Hunter to better understand the day of a life of a family law attorney, the key benefits of ODR and the impacts of the participants in the justice system. If you haven’t already done so, download part one of the ODR series, and if you’d like to learn more about opportunities online dispute resolution can bring to your court system or practice.
We encourage you to visit our ODR specific website, www.resolvedisputes.com, included in there as an expanded walkthrough or you can request a demo. This concludes our podcast today. Thanks, and have a great day.

Steve Glisky:

Thanks again for joining us on this podcast. To learn more about image soft, please visit image soft, Inc com that’s image soft I N C.com. If you haven’t already done. So be sure to subscribe to paperless productivity, where we tackled some of the biggest paper-based pain points facing organizations today.
We’ll see you next time.