Online dispute resolution is rapidly gaining traction. Modria, a leading online dispute resolution (ODR) platform, boasts that its service is used to settle more than 60 million cases annually. Yet even though ABA task forces have studied, and appear to endorse ODR, I’ve not found much mention of the potential uses of ODR to resolve disputes between lawyers and clients.
Currently,in most state ethics codes, lawyers may include binding arbitration clauses in representation agreements resolution of legal malpractice disputes. But should lawyers consider including ODR clauses instead – not necessarily as binding requirements but perhaps as prerequisites to litigation. Consumers are already familiar with the ODR process as its used widely in e-commerce, so they would understand the need to adequately documenting their claims. And while granted, the relative ease of ODR could invite groundless fee disputes from clients, that’s probably preferable to posting negative reviews or filing a grievance.
Attorneys could benefit from ODR also, using it to attempt to collect debts owed from clients. I realize that going after fees always raises the prospect of malpractice or a grievance, but because ODR is less intimidating than a court process, perhaps clients would be less likely to retaliate. Or not – this may be purely wishful thinking. And even if attorneys don’t make the option of ODR available through participation in a third party service, bar associations could offer online fee dispute resolution. Many bars offer this service already but ODR would make it faster and more efficient as well.
Back in the old days, trust account requirements assured clients that their lawyers wouldn’t take advantage of them. After all, if lawyers slacked off on the job, clients could terminate them and demand a refund of unearned payments sitting safely in trust. Today, trust accounts aren’t necessary for trust. Online businesses like PayPal and ebay have shown, a robust, online dispute resolution mechanism, combined with the “chargeback” features of credit cards, provide consumers with all the assurance they need to engage in transactions online. Soon, many of the non-lawyer matching platforms will likely offer online dispute resolution (if they don’t do so already; I haven’t checked recently) which are more familiar to consumers than the clunky and outdated “trust account” mechanism that lawyers have no choice but to implement.
Have you ever participated in ODR, or used it in your practice? What do you think?