Access to (digital) justice: Is there a place for vulnerable people in online dispute resolution?
A proud grandmother is happy to share with relatives abroad the birth of her first grandchild. She posts on social media a photo of the new-born breastfeeding, with the caption “I still haven’t seen his full face… He is always hungry! :D”. Within hours, the photo is removed for violating the social media platform’s terms and conditions for nudity and pornographic material. The grandmother feels frustrated as she cannot find even a phone number to call and explain that the platform’s decision was wrong.
A visually impaired man is trying to contact the seller of a smart coffee machine because the product he has bought is defective, but the retail platform’s online dispute resolution (ODR) mechanism provides no alternative accessible formats to a printed form which would allow the man to read the instructions.
These are examples that may easily occur in real life, and they show the obstacles that vulnerable people can encounter when accessing a dispute resolution mechanism. Vulnerability is a wide concept that encompasses the experiences of the elderly, migrants, and disabled people. In all these cases, a transitory or a permanent condition may reduce the person’s ability to interact, with a consequent higher risk of suffering harm or detriment. Unfortunately, the architecture of ODRs today does not sufficiently meet the needs of vulnerable people, neither in design nor in function.
The evolution of online dispute mechanisms
ODRs are an evolution of the alternative dispute resolution (ADR) mechanism, as they are procedures that allow two or more parties to solve their disputes in the online environment without litigating the matter before a national (or supranational) court. ADRs, and ODRs as a consequence, encompass various procedures that may exploit the assistance of a third party or may be based on fully or partially automated tools.
In fact, the use of information and communication technologies in the dispute resolution requires additional experience and knowledge not only from the disputing parties but from the third party involved (as confirmed by the guidelines of the Council of Europe on videoconferencing in judicial proceedings). The first commentators on this evolution, Ethan Katsh and Janet Rifkin, clarified that the technology used in the ODR framework is to be characterised as a ‘fourth party’: playing not merely an ancillary role but a proactive one in helping the parties reach a fair solution.
ODR mechanisms have gained attention as a faster, cheaper, and easier way to solve disputes. Moreover, if the dispute originated online, the parties may be more likely to accept online techniques to resolve it and will appreciate the flexibility provided by the online tools, allowing them to participate at a convenient time place and time.
However, such perceived advantages use as a benchmark the average online user, someone not only able to exploit the benefits of the digital marketplace, for instance buying goods or services online, but who can invest time and effort in resolving conflicts when they emerge. How well, though, do ODR mechanisms accommodate the needs of vulnerable people?
Existing legislation addressing ADR and ODR provides little guidance. If we look at European legislation, we find several acts that promote out-of-court dispute settlement mechanisms such as ODR. These include the B2B regulation (Article 13), the Copyright Directive (Article 17), and the revised Audiovisual Media Services Directive (Article 28b). None, however, provide specific guidelines on how such mechanisms could be set up or could accommodate the needs of vulnerable people.
Digital services only for some?
Although the recent Digital Services Act (DSA) obliges online platforms to provide users an avenue for lodging claims against the decision to remove or disable posted content (either an internal complaint-handling mechanism or an out-of-court dispute settlement), the set of guarantees defined in the Act’s Article 21(3) do not include any specific consideration to vulnerable people. While any out-of-court dispute resolution provider is required to be impartial and independent, respect fair trial guarantees, have expertise, avoid conflict of interest, and be cost-effective, Article 21(3) contains only a vague reference to accessibility in consideration of different needs or conditions.
The only useful guideline can be found in the EU’s Consumer ODR Regulation which, together with the Consumer ADR Directive, addressed almost 10 years ago the guarantees that out-of-court dispute settlement mechanisms should have in the consumer sector. Along with a promise to provide good translation, maintenance, data security and user friendliness, Article 5(1) provides:
The development, operation and maintenance of the ODR platform shall ensure that the privacy of its users is respected from the design stage (‘privacy by design’) and that the ODR platform is accessible and usable by all, including vulnerable users (‘design for all’), as far as possible.
Although it refers to ‘vulnerable users’, the regulation fails to define the term, leaving to the interpreter the task of determining if and how it overlaps with the concept of vulnerable consumer.
It is true that accessibility of web applications was among the objectives of the EU’s European Disability Strategy, in both its 2010-2020 and 2021-2030 iterations. These documents address the issue of access to justice, but they focus on the needs and accommodations required for a specific class of vulnerable people, namely those with disabilities. Moreover, in the case of the 2021 Strategy, the point of reference is the participation in criminal and civil proceedings (point 12), without any mention of ADR or ODR.
Filling the justice gap
Given that legislation does not provide useful guidance on the tools and means that could improve access to justice in ODR mechanisms, the academic community has stepped in to fill this gap, through case studies and experiments. Although many research projects address the opportunities of ODR in different fields, few have considered the needs of vulnerable people.
The e-Justice ODR Scheme based at the EUI’s Centre for Judicial cooperation does precisely this. Directly tackling the issue of access to justice for vulnerable people, this project suggests a set of elements that can improve both the communication tools and the case management.
Research at the e-Justice ODR Scheme, of which I am Scientific Coordinator, has so far focused on adoption of a user-friendly approach. This includes tutorials presenting the overall process and case studies for a better understanding of the process and potential results. A crucial element is the ability of the parties to select preferences from beginning of the process, including not only the type of procedure preferred (if options exist), but accommodations for disability as well as customisation of the procedure upon request.
Other improvements we recommend considering are in the authentication accepted by the platform – that is, allowing for several methods and document types – and making documents available in various formats. The latter should accommodate the needs of the visually impaired, for instance, providing large-print or Braille versions, along with all the accessible electronic formats.
Another of our recommendations is that ODR provide various ways to contact the provider, including off-line options. These should be available not only for routine communications (clarification requests) but also with regard to the dispute settlement itself. Finally, assistive technology could be supported – for example, interactive voice response, visual reading assistants, and alternative navigation tools.
Although it would be excessively burdensome, if not impossible, to require all ODR platforms to address the needs of each category of vulnerable people, it is crucial that ODR platforms consider the type of users of their services (on the basis of the conflicts they deal with) and establish a basic set of adaptations that can enhance the possibility for vulnerable groups to use online dispute resolution processes.
Federica Casarosa is a faculty member of the Robert Schuman Centre and an experienced trainer of legal professionals. She has served as Scientific Coordinator of several projects at the Centre for Judicial Cooperation. Her research publications are here.