ODR and Access to Justice

Accessibility is a key value in the development of Online Dispute Resolution (ODR).

Lord Justice Briggs, reviewing the structure of the English and Welsh courts in an interim report, lists it as second among the eight Ministry of Justice’s reform principles. The others are a system which is user-focused; proportionate and segmented; built on a ‘strong justice brand’; transparent and accountable; financially viable; future-proofed and with an appropriate human resources strategy. This litany is preceded by a restatement of ‘the need to focus on efficiency and economy in a time of austerity’. Strikingly absent – let us hope because so obvious – is any expression that the major principle behind the justice system should be that it delivers justice as, for the avoidance of doubt, a constitutional requirement rather than any kind of marketing opportunity. For this article, by contrast, the idea of accessibility is expressly derived from the concept of access to justice and incorporates the notion of providing a result which is just in the sense of fair.

ODR can be put in context as emerging from the intersection of three agendas that overlap but remain distinct. The first is the drive of the new technology. This has both a cultural and a commercial aspect. Our lives are being transformed by the emergence of the digital world: it would be surprising if some in the legal and justice systems were not just as inspired as Tim Cook or Elon Musk are elsewhere by its possibilities. People want to see what can be done. And this is not just the human drive for exploration: the ‘because it’s there’ complex. Commercial forces from Apple or Google as examples of the general and Modria or the Hague Institute for the Internationalisation of Law of the particular are throwing their not inconsiderable weight into that change. A second agenda, in all its complexity, is represented by the plethora of interests of government, manifest differently by different governments (and, indeed, different departments within government) but reflecting a mix of concerns to reduce or minimise expenditure; to realise capital funds by selling physical assets such as courts as they are replaced by digital assets; to protect and advance what they see as the constitutional rights of their citizens. And the third agenda is that of access to justice – accepted as a value by governments (at least until the cost becomes apparent); advocated by liberal altruists and advisers hoping for legal aid income; required by people otherwise deprived of fair resolution of enervating disputes from those involving domestic violence to home eviction; and, interestingly, with a certain commercial force loosed by the potential of digital delivery to unlock what Richard Susskind called ‘the latent legal market’ for legal services of those who may, if costs reduce sufficiently, be able to pay for legal assistance.

The attraction of ODR from an access to justice perspective is evident. Sensitively implemented, it might allow people to resolve disputes more cheaply and more easily than at present. This is particularly so in a jurisdiction like that of England and Wales where some court fees have risen to levels – even with remission – where evidence suggests that they are deterring applicants to the courts and where, in addition, reductions in legal aid have withdrawn assistance both with those costs and those of legal representation. Digitalisation provides a glimpse of a sun kissed Alp where government might both reduce its costs and expand access to justice.

The path is likely, however, to be hard as to any respectable mountain; the obstacles as steep and the crevasses just as deep. To succeed, a number of requirements have to be fulfilled.

First, we will not get very far unless governments accept that, at the level of principle, the provision of effective access to effective courts and tribunals is a constitutional right of their citizens which they must ensure is met. That is the minimum element of a wider and rather fuzzier constitutional requirement of access to justice. In relation to England and Wales, ODR has to bring down costs to levels that are affordable and proportionate. Reform cannot proceed on the basis that current levels of court costs are acceptable – and in his interim report Lord Justice Briggs makes it pretty much as clear as he can without explicitly saying so that he agrees.

Second, ODR has enormous potential but, for the foreseeable future, current arrangements should remain as legacy systems. This is because we cannot guarantee that sufficient numbers of those in the poorest groups in society can effectively access digital provision at the present time. My own estimate is that about half of all those formerly entitled to civil legal aid could use ODR provision, certainly without assistance. And the problem is not physical access to a computer – almost everyone has access to a public library or a potential assistant. The real difficulties arise from lack of language, cultural adaption, confidence, technological skills or cognitive ability. These are likely to diminish as time goes on but, at the moment, they represent powerful barriers. What is more, some types of case are, in varying degrees, unsuitable for ODR. We need to debate about these but my starter list would include:

  1. Those with a high degree of factual dispute;
  2. Those involving a complicated matter of law;
  3. Those where one or more litigant is unable or unwilling to handle satisfactory online resolution.
  4. Those where there is the threat of violence between the parties.
  5. Those where public policy suggests it is unsuitable or the issue at stake is a matter of public law.

Any ODR system must have ways of ‘red flagging’ such cases out of digital systems and into conventional dispute resolution. As a result, government should resist any attempt at yet to make ODR compulsory and hasten too quickly to remove current systems. That, in turn, means that the decision by the BC government to make use of its forthcoming Civil Resolution Tribunal mandatory will be particularly worth watching.

Third, to operate to maximum effect, ODR systems must be built to interact with procedures for giving individualised assistance to users. HiiL’s Rechtwijzer is supported in The Netherlands by a national network of ‘law counters’ where users can get a degree of personal face to face assistance. The Courts of California have led the world in terms of dealing with large numbers of self represented litigants through collective but individualised provision. The experience of the chief executive officer of Orange County Courts seems to me important. He told me in January, ‘We found that not many people feel very comfortable with e-filing on their own. But, they will do when they are in a class together with others’. ODR is likely to magnify, not reduce, the need for provision such as the Royal Courts of Justice CAB in London or the various projects in California assisting self represented litigants in person.

Fourth, ODR systems need to incorporate – or at least interact with – funnels for their cases which take a potential user through from initial inquiry to final determination. The great glory of the Rechtwijzer is that it does this within one programme. Lord Justice Briggs, following an earlier report by a committee chaired by Richard Susskind, provides for a ‘Stage 1’ which would ‘be a mainly automated process in which litigants are assisted in identifying their case (or defence)’. He seems to envisage an automated document assembly programme like the widely used A2J programme developed in the US but to be really effective the system would really need to replicate some of the depth of analysis provided by the Rechtwijzer  and programmes that have followed it, such as www.MyLaw.BC. In a domestic context, that would mean the court process reaching back into general advice provision such as that provided by the  CAB or advicenow.org.uk. At the very least, there would have to be some form of integrated overlap. Stage 1 may, therefore, have to be split into a basic Stage 1.1 and a more advanced Stage 1.2. For each, the question of assistance is material. There are imaginative ways of doing this online – one of the most impressive being the use of the video avatar assistant JES available on BC’s Justice Education Society site http://www.smallclaimsbc.ca. We need to experiment to find out how well they can work.

Fifth, the excursion of formal courts into ODR is a new and potentially dramatic development with major future implications. The temptation to ‘punt and run’ must be resisted. Luckily, the international and transnational movement of digital technology within the court structure will facilitate benchmarking between jurisdictions exploring the same ideas e.g. the treatment of matrimonial disputes or small claims. Mechanisms for mutual comparison and learning need to be established. Furthermore, goals must be a SMART as in any business and the minimum aim should be unashamedly to get litigants into the court system (as defined as the beginning of Stage 1.1 above at least)  – albeit out of physical determination within a court. For example, in England and Wales, the minimum aim should be to raise the number of those entering the small claims system at the beginning of the putative first stage to that of, say, ten years ago. Furthermore, we will need both assessment by users of the quality of provision (as was done in the University of Twente report on the Rechtwijzer), but we also need objective assessment of resulting settlements (which was not). ODR must not become another way in which the numbers using public services are run down.

Sixth, the development of ODR systems has to negotiate the different worlds of technology and justice. These are culturally pretty far apart. Developers have no problem in ‘building to fail’ and then working to a solution. Judges tend to think in finalities. You build a system of new rules and then it works with minor amendment only for a few years. The great danger is that governments will see ODR as a forge, fire and forget system in which, once modelled, no change is required. It will not – or should not – be like that. Any digital system will need continual tinkering and it might be best to conceive of the move to ODR as a phased, gradual, piloted movement through the whole of the court system rather than a dramatic move forward – still less a dramatic move forward which is primarily limited to small claims while larger claims maintain their stately, leisured and personalised process elsewhere.

Seventh, we have to be cautious – but not necessarily negative – about any intervention in the process of determination which happens in an online system. The integration of mediation within the Rechtwijzer is interesting and we need to see how it works. There are suggestions in Lord Justice Briggs report that unqualified court staff might play some form of role in relation to bringing parties together. That would have to be very sensitively handled and, at no time, should their role transgress into, or be confusable with, that of a neutral and properly qualified judge.

And finally

There is a respectable argument against the development of ODR which effectively comes down to ‘hold the hand of nurse for fear of something worse’. Most practitioners in the field will express a view something like that. And in most countries. And they will be point to the undoubted problems of a growing digital divide. On the other hand, as the rest of our world refocuses on digital doorways like your iPad and my iPhone, it is hard not to be excited by the possibilities of more democratised access to justice just as digitalisation has given us greater access to information.

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