How can technology help with dispute resolution? The answers lie in the fundamental question, is the court a place or a service? That was the question posed (and answered) by the report published in February by the online advisory group of the civil justice council, Online Dispute Resolution for Low Value Civil Claims.
The group was tasked with looking at the viability of the use of online dispute resolution (ODR) for resolving civil disputes with a value of less than £25,000. The report strongly advocates the introduction of HM online court and the use of ODR to reform the resolution of low-value claims. ODR is the use of the internet and technology to help resolve disputes. The traditional courtroom is replaced by an online service.
Currently, technology assists HM courts and tribunals services (HMCTS) by facilitating and speeding up existing systems. One way this is done is through Money Claim Online, which allows claimants to commence proceedings over the internet.
Technology also assists with case progression and trials. The first paperless trial was held in Birmingham in 2013 and in February 2015, iPads were provided to the jury in a fraud trial replacing the large paper bundles. But the group did not consider that using technology to update the current systems would be sufficient. According to the report, grafting technology on to the current court system is costly, difficult and delivers “mess for less”.
Instead, the group argues that services must be delivered in an entirely new way. In devising this new approach, the group reviewed several systems of ODR both in private companies and public bodies.
The most widely used is internet-based mediation. This is the system used at PayPal and eBay and the numbers attest to its effectiveness. At eBay, 60m disputes are resolved this way each year. The dispute is carried out online and the parties encouraged to resolve the dispute between themselves through online negotiation. If they cannot resolve their dispute, a member of eBay determines the dispute.
Other platforms, such as the one used by the Dutch legal aid service, makes use of technology to provide automated legal guidance and self-help tools to assist in the progress of a dispute.
Online negotiation platforms are another tool that allow the claimant and defendant to submit the highest and lowest figures acceptable to them, speeding up the process of reaching a settlement.
The authors of the report used elements of the various ODR methods they investigated in their vision of a new internet-based court.
Known as HM online court (HMOC), parties would be encouraged to resolve their dispute early with the assistance of facilitators making use of teleconferencing and automated negotiation. Judges would only decide those cases which the parties were unable to settle.
The report stresses the radical overhaul of the court service that is required if ODR is to assist with small disputes. The key element of the plan would be the integration of ADR into the system which, the report predicts, will significantly reduce the number of small claims that end up in full litigation. It would, according to the report, put a fence at the top of the cliff rather than an ambulance at the bottom.
A second and third generation of HMOC is envisaged with video conferencing facilities and artificial intelligence (AI) offering some legal diagnosis and assistance with drafting documents.
The authors of the report believe the new court would increase access to justice and lead to cost savings. They answer concerns that HMOC would prejudice people without access to the internet estimating that this would only affect about 5% of people and that they would be assisted by court officials. So there is little not to support.
The report does acknowledge the limitations of ODR and concedes that it may not be suitable for high-value disputes but it asks for a willingness to contemplate that disputes are handled differently in the future.
Whether lawyers and judges who may feel their role being usurped by technology and facilitators will be convinced remains to be seen. But given the wide use of ODR for consumers of online services and in various systems around the world, the case for implementing ODR for small claims in the UK will only get stronger.
Madeline Moncrieff is senior legal counsel at Guardian Media Group
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