By Christopher H. Colee
On January 18, 2022, the Supreme Court of Alabama issued an order establishing the Online Dispute Resolution for Small Claims Cases pilot project and included the Rules Regarding the Online Dispute Resolution for Small Claims Cases. Morgan County will be the first pilot county. Other counties that want to be added to the pilot project may be at the discretion of the Administrative Director of Courts. As of May 2022, it is also live in Autauga, Baldwin, Bibb, Blount, Calhoun, Cherokee, Colbert, Etowah, Geneva, Greene, Lee, Madison, Montgomery, Perry, Pike, Shelby, Talladega, Tuscaloosa, and Washington counties.
What is Online Dispute Resolution (ODR)? A good working definition is that it is the use of technology and the Internet to settle a dispute. ODR began as far back as the early 1990s. The World Wide Web was still in its infancy, and people were thinking about how to use it – including resolving real-world conflicts.
Early on, eBay used ODR. The online shopping site, known for its consumer-to-consumer auctions, asked the National Center for Technology and Dispute Resolution to conduct a pilot project in 1990 to see if disputes between buyers and sellers could be mediated online. By 2010, eBay was handling over 60 million disputes each year using ODR, and it continues to do so today.
And now, over the last few years, a handful of court systems have implemented ODR systems.
Alabama’s pilot project includes all electronically-filed small claim cases seeking monetary damages in the pilot counties. To limit the initial amount of cases in the pilot project, the decision was made to allow the defendant in a small claims case that was electronically filed by the plaintiff to elect whether or not to participate in ODR.
When a plaintiff e-files a small claims case in Morgan County, a summons and a copy of the complaint must be served on the defendant as described in Rule 4 of the Alabama Rules of Civil Procedure, as referenced in Rule D of the Alabama Small Claims Rules.
The plaintiff will receive a notice informing him that the case has been assigned to ODR and explaining what options are available to the defendant, as well as what the plaintiff’s options are, depending on the defendant’s response.
The defendant also receives an information sheet about ODR. The information explains that ODR is simply a way to resolve the matter online without going to court. The material explains how the party can use ODR to try to settle the matter on their own schedule, without the hassles of taking time off work, dealing with traveling to and parking near the courthouse, and, perhaps most importantly, possibly avoiding having a judgment issued against the defendant. If the defendant decides to opt in, he can go to the ODR website, or simply scan the QR code using a smart device. Otherwise, the defendant may complete the included defendant’s answer form, return it to the circuit clerk, and the case will proceed as usual.
The decision to restrict ODR to electronically-filed cases in which the defendant elects to proceed in ODR was made to ensure that the Morgan County court system is not initially overwhelmed with too many ODR cases. It also allowed them to monitor and evaluate the process.
Eventually the ODR process will become mandatory, but there are ways to opt out. The rules provide that a defendant may file a motion requesting an exemption from ODR because of an undue hardship defined as “when a party cannot access the online system or participate in the online process without substantial difficulty or expense.” In addition, there are no rules in place mandating how much negotiating must take place. At any point, if either party desires to end negotiations, he may simply select an option to end negotiations and have the matter set for trial.
Once the defendant has followed the instructions on the ODR website to register, the defendant is directed to answer the complaint by selecting from options that are similar to those options found on the standard defendant’s answer.
The defendant can answer that he does not live in the jurisdiction in which the complaint was filed and that the complaint is not for work performed in that county. The judge is notified, and the matter is set for a hearing.
The defendant may also admit to everything in the claim and consent to a judgment, admit that he owes some money, but not the total amount, or answer that he is not responsible at all. In addition, the defendant can admit to everything in the claim and either pay then or propose to make payments to avoid a judgment.
If the defendant answers that he only owes some money, wants to propose payments, or some combination of the two, the defendant can enter a proposal of some kind into the system.
The defendant may choose to upload documents or pictures to support his arguments. The system then generates an email to the plaintiff with the defendant’s proposal and a link back to the system for the plaintiff to respond.
Likewise, the plaintiff may respond with another proposal and attachments, or the plaintiff may accept the defendant’s offer. The parties are not communicating with programmed responses. They are responding to each other in an open text format. This exchange continues until the parties agree on a settlement or until one party requests the matter be set for trial.
If the parties agree to a settlement, the system generates an agreement, which the parties can sign electronically and is then sent to the judge for review. The settlement becomes a part of the judge’s order in the case, but the communications between the parties do not, and the court does not have access to the communications at any point.
There are some important timelines in ODR that the parties must keep in mind. Both parties have 14 days to register with the ODR system once the case is assigned to ODR. If the plaintiff fails to register with the ODR website within 14 days after notice that the case has been assigned to ODR, the case may be dismissed at the discretion of the judge. If the defendant fails to register with the ODR system within 14 days after the receipt of the summons and a copy of the complaint, the case will be set for trial. Once the ODR process has started, a party has 72 hours to respond to the other party’s last submission. The system sends the parties email reminders as the deadline approaches.
The ODR project in Alabama was not created overnight. The project was planned by a group that included representatives from the Administrative Office of Courts; online information systems; Chris Priest, circuit clerk of Morgan County, and members of his staff; and District Judge Brent Craig of Morgan County, who also serves as chair of the Unified Judicial System’s (UJS) Technology Commission.
The ODR pilot project went live in Morgan County on March 21, 2022.
ODR not only helps parties in small claims cases by providing a potential way to settle the case without going to court, but it may also help the parties in finding legal help. Most of the litigants in small claims cases are pro se, and attorneys may be reluctant to represent these litigants because the amount in controversy may be too low to justify the expense and time spent on such a matter.
With ODR and the ability to limit the scope of the representation, attorneys may be in a better position to guide litigants through the ODR process without leaving their offices. Other court systems that have implemented ODR in civil cases have seen decreases in default judgments, likely due the accessibility of ODR to the defendants who may not want to miss work or are otherwise unable to appear in person at a set time.
AOC looks to expanding ODR to more counties and evaluating feedback from everyone involved in the pilot project while planning for possible changes and expansion. “Our programmers are already at work on a next phase of ODR to have a payment module so the defendant can pay the agreed upon amount into the system from her smartphone, computer, or tablet, and the plaintiff can be paid promptly. We also plan to bring in facilitators or mediators to help in the settlement process as the system grows,” said Judge Craig.
Depending on how well ODR performs, AOC is studying the potential of expanding ODR into other divisions, such as family court and minor misdemeanor cases. “Minor misdemeanor cases, which 98% to 99% settle at the courthouse before trial, is another potential expansion area for ODR. An assistant district attorney can use an online dispute resolution system from her desk or even her smartphone to communicate with the defendant to settle a case,” said Judge Craig. “It saves the DA’s office valuable court time, keeps law enforcement officers on the road instead of at the courthouse, and saves the defendant from having to take off work to come to the courthouse.”
When businesses started closing in response to the COVID-19 pandemic, the courts began suspending operations as well. However, the circuit clerks’ offices stayed open. The circuit clerks were looking for ways to reduce the spread of COVID-19 among the people conducting necessary and timely business in their offices, but also to prevent their staff from getting it. Although the UJS had ways defendants could handle some types of traffic tickets, many defendants were still having to appear in person at the circuit clerks’ offices if they wanted to enter a guilty plea or they had rectified the issue that was the cause of the citation. The UJS team that had already begun planning the ODR system saw that there was an opportunity to make a few modifications to the model for ODR and form a system to help defendants for certain traffic infractions to dispose of their cases through an online system. This ODR system for traffic tickets is called Online Traffic Resolution (OTR).
Under Rule 19(E) of the Alabama Rules of Judicial Administration, judges, clerks, and magistrates are authorized to utilize an electronic filing system approved by the ADC to accept guilty pleas and to enter orders in a traffic case. Further, Rule 20(A) of the Alabama Rules of Judicial Administration allows a defendant in a district court case to plead guilty before a magistrate to certain traffic offenses. Although there are traffic tickets that require the defendant to appear in court, OTR allows for some to resolve their cases without appearing in court or before a magistrate at the circuit clerk’s office.
If a ticket is issued in a participating county, the deputy or ALEA officer issuing the ticket gives the defendant an informational sheet, in English and Spanish, along with the ticket. This information directs the defendant to a website that explains the diverse ways he may be able to resolve his ticket without traveling to the courthouse. The defendant is directed to enter his traffic ticket number, as well as the month and year of his birth, for verification. The system will let the user know if his ticket is eligible.
There are a number of options that may be available online to the defendant. The defendant may choose to plead guilty and pay the ticket in full, or he may plead guilty and ask for additional time to pay the balance due or ask for a payment plan. If the ticket was issued for an equipment violation, the system will provide instructions on how the defendant can have the vehicle inspected after the problem has been remedied and then upload the proof to the system to have the fine reduced or the charge dismissed, depending on the judge’s review. Drivers with tickets for failure to show proof of insurance can upload proof of insurance for the judge or magistrate to review. In some jurisdictions, you may be eligible to request to attend driving school. The options vary depending on the jurisdiction, but the goal is to save time, not just for the defendants, but also for the judges, circuit clerks, and their staff.
Chris Priest, circuit clerk of Morgan County, stated, “There are two main benefits that the Clerk’s Office has noticed regarding OTR: (1) the public is able to use this system to dispose of their traffic citation on their time schedule, and (2) the clerk’s office can handle the OTR requests that come in throughout the day at scheduled times in an effort to maximize work time. Therefore, OTR has been a ‘win-win’ for the public and the court system regarding use of time. In Morgan County, where we are underfunded in court specialists, it is vital for the clerk’s office to remain as efficient as possible.”
“OTR, if anything, has exceeded our expectations,” said Judge Brent Craig. “It is working well. With only about a third of the counties currently onboard statewide, we are already in the five figures in terms of cases that have been disposed without the person getting the ticket ever having to go to the courthouse. OTR should soon be available statewide to all district courts that want it. We are even looking into making it available to municipal courts as well that want to be part of our unified court system technology.”
 Order In re: Online Dispute Resolution for Small Claims Cases Pilot Project, 21-22/012, Jan. 18, 2022.
 Id. at APPENDIX, Para. 1(b).
 Ethan Katsh, “ODR: A Look at History, A Few Thoughts About the Present and Some Speculation About the Future,” https://www.mediate.com/pdf/katsh.pdf.
 Id. at APPENDIX, Para. 1(a).
 Ala. Small Cl. R.
 Order 21-22/012, para. 4(b).
 Id. at para. 6(a)-(c).
 Id. at para. 2(b) and 4(a).
 Id. at para. 2(b).
 Id. at para. 4(a).
 Id. at para. 5(a).