Ellie Brown

The Cambridge Pro Bono Project was delighted to take up the suggestion from Roger to look internationally at proposals to develop Online Dispute Resolution (“ODR”) in the courts. The pro bono project was established within the Faculty of Law in 2010 to provide a vehicle for graduate law students at the University of Cambridge to assist in the preparation of legal work in a pro bono capacity. The prompt for this was, of course, the work of Her Majesty’s Courts and Tribunals Service (“HMCTS”) towards an online dispute resolution system in England and Wales. 

Ellie Brown (a qualified solicitor undertaking a PhD in Criminology) and Alex Allan (also a qualified solicitor, undertaking her PhD in Law), both at the University of Cambridge, were tasked with realising the project. They recruited a team of four students to assist with the research: Jennifer Anderson (LLM); Laura Hannan (PhD in Law); James Humphrey (LLM); and Long Pham (LLM). 

After some preliminary examination, we decided that we should focus our attention on developments in: 

(a) England and Wales;  

(b) Victoria, Australia; 

(c) New South Wales, Australia; 

(d) Michigan, USA; 

(e) Utah, USA; and 

(f) British Columbia, Canada. 

The report provides an exploration of the situation in each jurisdiction and will hopefully be a valuable resource for anyone wishing to put developments in this jurisdiction within a wider, global context. The report is available here on the site of the International Legal Aid Group.

The team found itself embarking on a rather mammoth research project. We developed a standard form research questionnaire which posed questions such as: 

• Why was ODR implemented in your jurisdiction?
• How was it implemented? 
• Has the system seen any benefits? If so, please provide details.
• Has the system seen any problems? If so, please provide details. 
• To what extent does the ODR system in your jurisdiction impact the openness and transparency of justice?

The project revealed that there is substantial variation in the extent to which ODR has been implemented in each jurisdiction. ODR is currently being piloted in England and Wales, Victoria and Utah, but is much more established in New South Wales, Michigan and British Columbia. Thus, there is substantial variation in the availability of information and accompanying commentary. 

There are broad consistencies in the reasons behind the implementation (or proposed implementation) of ODR. The potential for ODR to result in substantial cost-savings and improved efficiency are common reasons for its implementation and feature in every jurisdiction. Justifications in terms of ease of access, reducing reliance on legal representatives and reducing the time to complete a case are also made in every jurisdiction. ODR is also said to provide access benefits, particularly for users in rural locations, who may not be able or willing to access a court. ODR may also reduce court time and reliance on costly legal representation, and it may lead to quicker resolution of disputes.

Reviews of the ODR systems studied in the project are generally mixed and it is difficult objectively to determine their value without primary research. ODR appears to be well-received by users in at least some jurisdictions –  as, for example, reflected by user satisfaction surveys in British Columbia. However, we noted that much of the commentary on ODR is provided by creators of the system itself (e.g. Matterhorn in the USA)  or the policy-makers driving its implementation. It is therefore difficult to obtain neutral insights into the adequacy or inadequacy of the systems. Independent research was one of our major recommendations.

The project revealed certain concerns with ODR systems. A particular issue is the extent to which users are able to engage with the systems. ODR will be problematic for users who do not, or cannot, access a computer. It is also unclear the extent to which ODR is a quicker and cheaper mechanism for resolving disputes. If insufficient care is taken in designing ODR systems, delays could, in fact, be caused as users take time to navigate a complex IT system. ODR may also preclude the informal face-to-face discussions which are often considered important for pre-settlement negotiations. The role of legal advisers is also unclear in some cases, and there are important questions about access to justice and whether ODR discourages litigants from obtaining legal advice and encourages greater numbers of litigants in person. This may, in itself, be a false economy as unrepresented individuals, who lack experience and insights into legal processes, could take more time to progress their case through the system.  

We need independent research and analysis to determine precisely whether the aims of the system in England and Wales are being met and, if not, how the system can be improved. We need research that brings out the common lessons of these very similar initiatives around the world. We have much to learn from the use of ODR systems in other jurisdictions – not least that we are not alone.