Two conferences last week on Online Dispute Resolution provide an opportunity to take stock of the current state of ODR. One – organised by the Westminster Legal Policy Forum – was held within spitting distance of Buckingham Palace in London and was distinctly domestically focused. The other took place in the Peace Palace in The Hague – and was organised by the Hague Institute for the Internationalisation of Law (HiiL). Its perspective is that of a longtime British advocate for legal aid – the public funding to provide lawyers for people on low incomes. How does the promise of ODR shape up in an age which is distinctly one of austerity and where, in England and Wales, the heart has been torn out of a once impressive civil legal aid scheme?
You do not have to delve very deeply into domestic English legal culture to encounter considerable suspicion of the recent recommendations of a judicial report for an Online Small Claims Court. The Bar Council warned against the creation of ‘a two tier justice system’. The other main legal professional body, the Law Society, was a little more welcoming but expressed considerable caution and reservation about seeking to extent the Online Court too far and too fast. The two conferences, by and large, rather missed out on practitioners input along these lines. Most delegates at both conferences were true believers in the ODR project – many at the HiiL conference were the pioneers. As a result, the conferences helped to disentangle questions which need to be separated. What do we think of the specific proposals and likely implementation facing the jurisdiction of England and Wales? And, a different issue, what do we think more generally of ODR?
There is a real danger that the government of England and Wales is in just of too much of a rush. Lord Justice Briggs, the author of the interim report arguing for an online court, told his audience at the Westminster Legal Policy Forum that his work towards a final report was already running in parallel with implementation by the Ministry of Justice. Serious funding of around £750m has been made available for a decisive move online – with the Ministry planning to recoup a good part of that from the sale of courts which will be freed up in consequence. UK governments, alas, do not have a good track record in the implementation of major IT projects. Historically, politicians are driven too much to the sound of ‘big bangs’: they are so much more exciting than incremental reform; and, as we have seen all too often, they are also so much more likely to go wrong. There were worrying mutterings in The Hague that our Ministry of Justice was spending millions on major external consultancies in order to build systems which would not be as good as those which could be bought off the shelf. Many of these, it is true, emanated from those who aspired to have products on that shelf but there was a worrying coherence to their criticism.
You can see exactly what the worse case scenario will be. An online court will be produced with minimal difference to existing procedures. Forms are the same: they are just digitalised. Procedure is ‘quick and dirty’. Untrained staff are employed to shove ill-informed parties into agreement. Decision-making is routinised. Costs are kept to current high levels. Pro bono legal assistance is hyped beyond what can be adequately provided. Litigants, already declining in numbers because of major costs hikes, are further discouraged. No capital is retained to adjust the system after implementation: income from fees is less than budgeted. Service spirals downwards. Any litigant with choice – which will be the large corporate users – avoids an online court that rapidly becomes a dumping ground the cases of little interest to governments, lawyers or judges. Put at its most contentious, poor consumers and litigants in matters like housing disrepair will be swept out of courts to make room for a Mr Berezovsky to sue a Mr Abramovich in litigation bearing the promise of serious fees for both courts and lawyers. Let us remember the feeding frenzy from that particular case alone: the cost award in the Supreme Court amounted to £35m. Meanwhile, no serious effort will be made to integrate online litigation with online or offline advice. Nor will attention be paid to adapting court processes to the widespread loss of legal aid that has occurred since 2012. Unheeded also will be the effect of an increasing general digital divide within society to which the online court will contribute.
You can hear such scenarios explored and lamented pretty well wherever two or more legal aid lawyers are gathered together. And, let’s face it, there is a chance that they will be right. But, echoing Professor Menkel Meadow at least in number in the post below, there are three reasons for supporting the growth of ODR in courts domestic and abroad. The first is that digitalisation gives us a chance of bringing down court costs to a level which is affordable for litigants even in jurisdictions like my own which deny in principle any public role in the funding of the court system. And, in any event, digitalisation is rapidly changing the rest of our lives: why not the courts? The second is a tribute to the team behind the Rechtwijzer in The Netherlands. This has raised the bar of what is to be expected. Its guided pathway approach; the attention to language, information, practicality and user-need; the way in which different interactive modules – including, for example, mediation – can be added to the system all provide an insight into how an online court process could improve the user’s experience of court litigation and reduce its cost to an affordable amount. The final, third, reason is more pragmatic. It is pretty clear that only a limited percentage of potential users can actually use an online court at the moment. We know that the provision of individual assistance can help many to do more than they otherwise would be able to do so. It is likely to more effective politically to argue that these indicate conditions for ultimate success (ie the bolstering of offline advice) rather than reasons for necessary failure – particularly as the intention of Government to proceed is pretty evident.
Let’s end by engaging with the argument of Professor Menkel Meadow in relation to ODR’s disasppointment. The project on which we are embarking is not really an extension of Alternative Dispute Resolution. It is about as official as you can get: decision-making by state-backed courts – perhaps we should call it Online Dispute Determination. It may, as does the Rechtwijzer, incorporate online mediation but, procedurally, we are dealing with the main line – not an infinite variety of branch lines. The creative challenge set by the Rechtwijzer is how you build into a court-orientated programme the heavy lifting formerly done by lawyers, advisers, court procedures and judges. Can you steer unaided clients to a solution which is as good as they would get in any existing courtroom? Enough promise has been shown to persuade me, at least, that ODR – given, time, cost, commitment of government and learning across jurisdictions – can deliver to this standard. Will my Government have the will to match expectations set by the Dutch over the Channel? Well, I wouldn’t be that confident either. But, there is still a chance. Will the Dutch continue to fund extension of their world-beating system? Let us all hope so.