ODR: the onward march as seen from The Hague

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Well done the Hague Institute for the Internationalisation of Law (HiiL). It has published a stimulating report on the future of online dispute resolution (ODR) in the courts. This skilfully weaves a narrative argument with external contributions, many made at the ODR conference that HiiL held earlier this year. The report’s concern that external contractors get a fair whack at the courts’ resources manifests a somewhat evident self-interest. But that is fair enough: HilL and its collaborator Modria have good products to sell. You might argue that the impact of some of the other difficult issues – such as the digital divide – could do with at least as much treatment as those around external tendering. But, overall, this is the kind of informative report of which we need more. It integrates the work of a respected academic institution; global experience; an overwhelming argument; and operates as the best conference report I have ever read. At over 100 pages, it is a substantial contribution to the field.

The report’s authors, who are a team of six from HiiL led by Maurits Barendrecht and Jin Ho Verdonschot, have done a particularly good editorial job. They have skilfully integrated reportage – for example of Lord Justice Briggs’ interim report recommending an online small claims court – with direct quotations from official reports emanating from Scotland to Australia as well as summaries of contributions made by key contributors to the ODR conference. This allows, for example, Sherry MacLennan to talk in her own words about the MyLawBC programme for which she is responsible and Shannon Salter about the Civil Resolution Tribunal which she chairs – two of the projects at the cutting edge of ODR development. These summaries are placed where they are needed in the narrative of the argument, avoiding the often tedious form of a more conventional conference report.

In conventional form, the report begins with an executive summary. Personally, I actually found the last chapter – headed Discussion: contours of an access to justice deal – a bit more readable because more precise. The essential argument is that the courts are in danger of reaching a ‘low access equilibrium’ whereby Ministries are happy with declining numbers of litigants that reduce cost. Instead, we need to marshall technology to provide low cost solutions to rising numbers of litigants whose low user fees can sustain growth without burdening government finances. It suggests that the best approach to implementing ODR is by focusing on particular problems of particular importance to potential litigants and picking them off with individualised solutions.

The paper advocates what it calls the ‘contours of an access to justice deal’. Of the eight points in the ‘deal’, most are pretty uncontroversial. There should be ‘100 per cent access to justice for family justice then employment justice etc’).  Complainants should ‘get fairness quickly, high quality justice experience, pay lower costs’. Good luck, however with the demand for the courts to take over commissioning from ministries with ‘freedom to design, buy, implement procedures and to set and use court fees’ and also with the wish that ‘suppliers of innovative procedures [to] challenge courts and get access to market’. It is not that these points are wrong: they are entirely reasonable. But, loosening the grasp of Ministry control is a big issue – at least in my jurisdiction. And, the use of external contractors in public provision raises more complex issues than would be appropriate to be dealt in detail with here – though to be fair, they are well outliined. Ministries have justified concerns about being left to the mercy of external contractors. On the other hand, anyone who has ever implemented an IT project of any complexity will tell you: ‘buy off the shelf and do not fall for seductive charms of bespoke provision’.

One of the unavoidable frustrations of a globally oriented report is that it could not possibly deal with the detail that might be relevant to individual countries. Thus, for example, the report argues for user fees to fund ODR. Tactfully, it does not suggest that there might be large capital gains from flogging of physical provision such as inner city court houses. But, for example in England and Wales, both arguments need to be considered in a bit of detail. It is vital that courts are not sold while physical provision is still required for those who cannot access digital. And, as Lord Justice Briggs hints in his interim report, there is more than a little sharphandedness about exactly which court fees are going at the moment to fund exactly which court services. The full argument needs more detail when translated to a local context. But that is no criticism of the global reach of this report.

My own advice (would that anyone would listen) to any Ministry or Court wishing to dip its toe into the waters of ODR is: wait; see what works and what does not. The chances are HiiL and Modria will come through well but some systems – probably those built in house – will fail. Watch; wait; prepare; move decisively into the market in 2018. But, who in these days of instant movement and rapid technological change wants to hear boringly sensible advice like that? And, whether your jurisdiction wants to watch or jump now, this report is worth digesting.

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