Exploring a Better Way for Small Claims Resolution in Florida
Most of us during our career have received a request to help someone with a really small civil claim, say a claim under $1,000. To the claimant, that’s a lot of money, but most of us know it’s nearly impossible for a lawyer to handle a claim that size economically. If you decide to accept the representation, you do so knowing it will probably become pro bono. If you send the claimant to the small claims process in our court system, you do so knowing that will likely be a frustrating experience. This is profoundly problematic for our society because the less our citizens see our justice system as a functioning institution that is readily available to serve their needs, the less value they will place on it and on the rule of law itself. The corrosive effect of that over time is obvious.
This is not a criticism of our judges, our court personnel, or our clerks of court; they are hardworking public servants who do their best within the current framework. But soon there may be a better alternative for Florida citizens with small civil claims.
Exploring that possibility is one of the projects now underway by the Board of Governors’ COVID-19 Recovery Task Force. The task force was established in the summer of 2020, and its primary mission then was to help our members address the immediate practice challenges created by the pandemic. Beginning in the summer of 2021, the task force has been looking at more long-term issues and possible solutions.
With regard to small civil claims, the task force is exploring the feasibility of a “fully automated online platform [administered by our state courts system] for the complete management and resolution of small value civil claims.” There is an informative article in the November edition of The Florida Bar News describing in detail the task force’s current work on this project, and I recommend that article to you.
What would make such a platform truly groundbreaking in Florida is that it would depart from centuries of dispute resolution practice in one fundamental way: In the past, claims have been resolved through what we call synchronous proceedings, that is, proceedings where the parties and a presiding officer are present together in the same place at the same time to present and resolve their dispute. Even during and after the 2020-21 pandemic, that centuries-old practice has not really changed; parties and the court still come together synchronously, although now often in a digital space rather than in a bricks-and-mortar courthouse.
A different approach — which the task force is studying — is the asynchronous proceeding where the parties and a presiding officer do not convene in either a physical or digital space at the same time, but instead communicate through written communications posted at different times on an online platform.
Asynchronous dispute resolution has been used successfully since the late 1990s by the eBay Resolution Center to resolve millions of low-value disputes each year. Asynchronous platforms are also now in use in the court systems in several jurisdictions around the world, including some here in the United States, to resolve small-value civil claims. Those platforms allow pro-se litigants to expeditiously resolve their claims with minimal expense, and avoid the frustration of multiple trips to an often distant and confusing courthouse. Another key benefit of a fully online system is that dispute resolution can continue unimpeded when courthouses are inaccessible, such as during major weather events or future pandemics.
The task force is scheduled to make its recommendations to the Board of Governors on this project at or before our final meeting in May 2022. The next step would be a referral to the Florida Courts Technology Commission for further study there. Ultimately, whether Florida adopts some type of asynchronous online dispute resolution for small claims is a decision for the Florida Supreme Court.
I’m excited about the potential for this next-generation approach to case resolution, particularly in light of the very positive response from the Board of Governors’ Citizens Advisory Committee, our hardworking group of nonlawyers who give the board valuable input from the public’s perspective. The committee members see an online platform as a very achievable way for our courts system to make meaningful small claims resolution widely available to our citizens.
In the future, when you receive that call for help with a small civil claim, you hopefully will have this new option available to you. Watch for reporting in The Florida Bar News on further developments.
