Online Dispute Resolution in the Justice System: ten points on not ‘paving the cow path’

Shannon Salter is the chair of British Columbia’s Cvil Resolution Tribunal (CRT). As interest in the tribunal grows, she clearly spends more and more of  her time on the road satisfying growing international interest. And, if you are interested in online tribunals then you should go online and watch her Sir Brian Neill lecture given last week. She gets started about 9 minutes into the 45 minute video. She is diplomatic enough to make no comparisons with the work of Her Majesty’s Courts and Tribunals Service’s online court programme. However, there are at least ten points of comparison.

First, she is very clear that the CRT is ‘an access to justice project’: it is not about cost savings – ‘the goal is to take the justice system and build it around people and their lives’. By contrast, this is the House of Commons’ Public Accounts Committee’s (PAC) judgement on domestic plans: ’HMCTS has not adequately considered how the reforms will impact access to, and the fairness of, the justice system for the people using it, many of whom are vulnerable. We are concerned that the reforms are being pursued at the possible expense of people’s access to fair justice.’ What is more, savings are precisely the point: ‘Once the reforms are complete, HMCTS expects that 2.4 million cases per year will be dealt with outside physical courtrooms, it will employ 5,000 fewer staff, and reduce its annual spending by £265 million.’

Second, the CRT started small and is building itself up ‘starting at the bottom was a smart approach’. By contrast, the PAC noted ‘HM Courts & Tribunals Service’s £1.2 billion programme to modernise courts is hugely ambitious and on a scale which has never been attempted anywhere before. Transforming the courts and tribunals system in this way will change how people access justice by digitising paper-based services, moving some types of cases online, introducing virtual hearings, closing courts and centralising customer services. Such sweeping changes will be extremely challenging to deliver. The performance of HMCTS to date shows that it has much to learn if it intends to do everything it plans. Despite extending its timetable from four to six years, HMCTS has already fallen behind, delivering only two-thirds of what it expected to at this stage, and it still has not shared a sufficiently well developed plan of what it is trying to achieve. The pressure to deliver quickly and make savings is limiting HMCTS’s ability to consult meaningfully with stakeholders and risks it driving forward changes before it fully understands the impact on users and the justice system more widely …’ The CRT, by contrast, started with small condominium disputes which were mainly between neighbours; has progressed to taking small claims under $5000, just under £3000; it is about to be extended to $50,000 (just under £30,000) in certain motor vehicle accident claims.

Third, the CRT began with consultation with potential users. It researched what people wanted and how they wanted it. It used ‘focus groups, town hall meetings and … operated by a principle now called ‘human centred design’. HMCTS began with a government mandate.

Fourth, the CRT espouses five principles behind its operation – it aims to be timely with a 60-90 day process; flexible with a range of ADR options and a commitment to continuous improvement, accessible with free legal information and support and free telephone interpretation; affordable with simple fee waivers; and efficient with active case management. We have only three such principles: ‘Just – the independent judiciary are supported by processes that are modern, transparent and consistent; Proportionate–the cost, speed and complexity are appropriate to the nature of the case; Accessible–affordable, intelligible, and available for use by all. Observe that for us timely becomes proportionate. Flexibility is unmentioned. Accessibility contains no mention of assistance. Affordable is not a main goal and there is no mention of fee waivers. Oddly enough, we are also shy on explicitly mentioning efficiency.

Fifth, the CRT provides free telephone assistance, information and tools. The requirement to shed staff means that HMCTS has offloaded advice to a third party; committed itself only to a pilot; and sought to limit help to digital capability. For the CRT, ’Staff spend a lot of time on the phone helping users through the process. We adopt very much a customer service approach’.

Sixth, the CRT have put considerable resources into its solution explorer (see below) which is free and designed to help users before they litigate. Furthermore, ‘we assumed people would not abuse fee waiver’. The CRT lets users self-self-certify their resources: ‘We don’t needlessly torment people’. The HMCTS has yet to discuss fees for its online tribunals and courts but you can bet there will be copious certification involved in getting any fees waived.

Seven, a radical element of the CRT is its solution explorer. 50,000 people have used this in the first two years. This provides assistance like drafting letters and formulating cases: ‘People need answers to specific questions. Solution explorer is meant to replicate an expert. We got help from volunteer lawyers. We use answers to give plain language information. We can tools like letter templates. We get feedback. The entire system refreshed every three months. You can rate the resource and hit the red ‘not helpful’ button.’ The court modernisation programmes faces major financial problems in the future which are bound to hinder any proposals for continuing improvement ‘There is an estimated funding gap of £61 million from 2020–21 which the Ministry explained was the result of its agreed funding only lasting till the end of the current spending period which runs from 2015–16 to 2019–20. The Ministry said that it would enter into negotiations with the Treasury and hoped to secure funding for the remaining parts of the programme but that it remains an uncertainty.’

Eight, the whole process has been subject to consultation with ‘community advocates’, users (with such initiatives as gift cards for volunteers)’ and lawyers. Recent payoffs of this approach has been questions asking how users would like to be addressed, an issue originally raised by the LBGT community. HMCTS consultation has been less thorough.

Nine, the CRT has put all decisions online as a contribution to transparency and accountability even though, previously, these were not published. 

Ten, the CRT invites feedback from users. It publishes the results: the last six month survey from April to September 2018 found that ‘The participant satisfaction survey results remain strong, with 77% indicating they are likely to recommend the CRT to others and 82% agreeing or strongly agreeing that they were treated fairly throughout the process.’

And the final take-away? ‘We are not paving the cowpath’. We should be redesigning the process and not simply using technology as an end itself. ‘The real gift of online dispute resolution is not the online part. It is the gift of a new slate’. Well, the great and the good in the court technology world were there to hear her lesson. But, were they listening?

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