ODR in the courts: surveying the field

An impressive range of jurisdictions were assembled by the Society for Computers and Law (SCL) and Her Majesty’s Courts and Tribunals Service (HMCTS) for its ‘First International Forum on Online Courts’. There were 10 formal speakers (and that included one on the whole of the United States) in the first of its two days. They were supplemented by what I counted as a further seven more informal contributions and a formal lecture in the evening by Shannon Salter on the British Columbia experience. So, a wide spectrum of experience was on offer.

The guests were on their best behaviour. Teased by longtime legal commentator Joshua Rozenberg to criticise the gung ho approach to court reform of their co-hosts, none wished to be other than polite. However, it was notable that not a single other jurisdiction had proceeded on the English basis of a big bang to be completed within a tight timetable and largely funded by court sales. Even the enormous jurisdictions, like China and India, that had carried through massive reforms of complex systems over vast geographical areas did not seem to have been driven by the same sort of targets for savings of staff and costs. The Scots are increasingly good for comparison with the jurisdiction south of their border in many matters of policy, perhaps particularly law:  they have notably avoided the Draconian cuts imposed in England and Wales. On court reform, they have adopted a gradualist approach. They are about to get responsibility for Tribunals from next month so it will be interesting to see if tribunal administration diverges from England and Wales where social security and child benefit appeals are next up for online treatment.

There were a number of themes that emerged during the day. An interesting one was the benefit – observed by the most open of jurisdictions led by New South Wales – of learning from mistakes. The thinking in NSW was  now that they should have entered the period of reform with more of an idea of where they wanted to end up. You needed to have an overall roadmap to provide a structure for individual reforms; and to make sure that you have continuing support in place for when the immediate period of reform is over. It has to be said that, in many jurisdictions among which England and Wales would figure large, the admission of mistakes would need some pretty deft political footwork to avoid recrimination. Others, however, seem to have done it successfully.

The implicit issue raised by all the contributions from different jurisdictions is what common matrixes might be used to judge them.  There was a measurable spectrum between systems which were, in the words of SCL President and conference co-organiser Richard Susskind, concerned to automate existing procedures and those which which sought to transform them. A particular key to expressing this difference was the extent to which systems reflected a commitment to help litigants in person identify, present and solve their cases. Here, the Solution Explorer of the Civil Resolution Tribunal in British Columbia represents one end of the scale. Another key to a jurisdiction’s willing to re-engineer its procedures was provided by those who talked the language of Richard Susskind and Lord Briggs domestic reports in terms of a ‘tier one’ involvement where courts followed the model of the CRT in aiding the solution of disputes. Singapore, for example, did this, positing three tiers in court intervention precisely on the Susskind/Briggs model: evaluation, containment, determination. As a further example of the potentially profound consequences of digitalisation, the courts in Utah found that digitalisation gave them the opportunity to rework procedures so that 48 steps were reduced to just 17. It is difficult to see England and Wales as much more than an automator.

A different matrix on which systems was provided by their approach to the collection of data. Everyone hailed its collection as a management tool.  As an example, the Danes were clear that the objective of online courts and their case management system were shorter review times, uptodate communication, more consistency and, hence, more attractive jobs for staff ie better internal management. A wider approach was argued for by the Indians and, interestingly, asserted also by the Chinese. This paid more attention to the needs of public accountability. The Indian National Judicial Data Grid produces impressively uptodate public information on the operation of the High Courts including cases filed, disposed of and pending. The linked e-court site produces an even wider range of information. There are, for example, as at 3 December, 28.93m pending district court cases with 841,130 listed for hearing today. That is way more information than you can find out about courts in most other jurisdictions. 

So, we head into tomorrow with an excellent briefing on the state of ODR for which the SCL/HMCTS collaboration must take credit. This is a star event that got the contribution of the Lord Chancellor and the Lord Chief Justice on its first day. Let us see what tomorrow brings.


Picture from Pixabay.

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