A new Online Dispute Resolution (ODR) system should be developed in England and Wales to increase access to justice and to streamline the court process, a report recommends today. The report, by a working group of the independent Civil Justice Council (CJC), calls for a dedicated state-run ‘Online Court’ to operate alongside the traditional court system, and invites the support of all political parties.
The report’s principal author, Professor Richard Susskind, said “This report is not suggesting improvements to the existing system. It is calling for a radical and fundamental change in the way that our court system deals with low value civil claims. Online Dispute Resolution is not science-fiction. There are examples from around the world that clearly demonstrate its current value and future potential, not least to litigants in person. On our model, an internet-based court would see judges deciding cases online, interacting electronically with parties. However, our suggested online court has a three tier structure, and we expect most disputes to be resolved at the first two stages without a judge becoming involved.”
The report recommends that Her Majesty’s Courts and Tribunals Service (HMCTS) set up a pilot as soon as is practicable with a view to rolling out an online court based on the findings.
Lord Dyson, the Master of the Rolls (and Chairman of the Civil Justice Council) said: “This an important and timely report. There is no doubt that ODR has enormous potential for meeting the needs (and preferences) of the system and its users in the 21st Century. Its aim is to broaden access to justice and resolve disputes more easily, quickly and cheaply. The challenge lies in delivering a system that fulfils that objective.”
The Working Group’s report explores the case for ODR and the sorts of issues that need to be resolved if it is to fulfil its potential. It provides a series of case studies of public authorities and businesses that are already employing ODR, both in the UK and internationally.
The report offers a fresh approach to access to justice. Rather than streamline the existing court system and focus exclusively on dispute resolution, the report recommends a three tier online court that turns the existing format on its head by focusing on dispute avoidance and dispute containment as well as on dispute resolution.
In the Working Group’s model the route taken by those seeking redress for a problem or grievance is via three stages, although the dispute may be resolved at any of them:
Tier 1 – Dispute avoidance – online evaluation of the problem with the support of interactive aids and information services. This will help people diagnose their issues and identify the best way of resolving them.
Tier 2 – Dispute containment – online facilitation. Trained, experienced facilitators bring an objective eye to the problem and try to help the parties reach agreement on resolving the issue.
Tier 3 – Dispute resolution – Online judges. Professional judges will decide suitable cases online, largely on the basis of papers received electronically, but with an option of telephone hearings. The decisions would be as binding and enforceable as court rulings.
The report advocates that pilots should be undertaken to test online courts in practice, focusing on small claims of low monetary value. This would complement the existing small claims mediation process and ensure that straightforward disputes could be resolved quickly and cheaply. The pilots would take place in consultation with consumer groups and the legal profession. Some changes to the Civil Procedure Rules are likely to be needed to allow the pilot to go ahead but detailed project planning will consider whether legislation is required.
The working group also looked at policy and legal issues arising from an online court – such as whether it offers a fair hearing process, and whether it excludes people with no easy access to technology. However, the report also reflects on the realities of the situation – that people are voting with their mice and conducting online transactions and questions whether the court systems are responding sufficiently to this.
The report envisages that in the first instance HMCTS will want to make a full feasibility assessment of the proposals, and the CJC has authorised the Working Group to continue its work so that it can offer expert advice and support to assist the developmental work.
The report acknowledges that technology is changing and improving all the time, and that the Internet generation is accustomed to socialising, conducting business and accessing public services on an online basis. The report suggests the first phase for this would be progressed in 2015-16 with an online court system pilot, ahead of an anticipated full roll-out in 2017.
The report and supplementary material (supporting papers, case studies and audio-visual interviews with experts in the ODR field) is available online at http://www.judiciary.gov.uk/reviews/online-dispute-resolution + also check out http://collateral.vuelio.uk.com/RemoteStorage/judiciary/Releases/1480/Online%20Dispute%20Resolution%20Final.pdf
COMMENT: Rather than the usual suggestions for reforming the Civil Justice system, which typically involve more judges, more courts and courts opening longer hours, the Susskind proposal is to take a whole slice of legal work out if the conventional courts infrastructure and replace it with an ODR process. In other words follow the lead of eBay, which has an ODR system handling around 60 million (yes, million) disputes every year. Also heartening to see Graham Ross was on the working party as he probably knows more about ODR than anyone else in the country
That’s the good news. The bad news is the report’s timescale for pilots and implementation seems to overlook there is a General Election in the UK this year and no government – no matter how big their majority – is going to spend money on Civil Justice when there are so many more presuming issues to deal with. We’d also be very concerned about letting the Ministry of Justice (MoJ) anywhere near another a major legal IT project as it will inevitably overrun on budget and timescales and ultimately have to be dropped. Last time we checked, there was still no sign of the Woolf Report (IT adviser: Richard Susskind again) proposals for effective court case management systems ever seeing the light of day. Seriously, monkeys with razor blades are less of a menace than the MoJ with an IT budget. The smart move would be to hand the project over to a company like Modria, the eBay & PayPal ODR spin-off, who are already building ODR systems for other organisations, including European justice agencies.