Online Dispute Resolution may take two forms in relation to court processes relevant to those on low incomes. On the one hand, it can be integrated within the adjudicatory processes of a court or tribunal. That is the model of our own proposed Online Small Claims Court and British Columbia’s Civil Resolution Tribunal. Alternatively, ODR can be closely allied – but not integrally integrated – to the formal court process. That was the model followed by the Dutch Rechtwijzer. That format allowed options for mediation, arbitration or conciliation whose results could link to the formal process but were, effectively, operating in parallel. Thus, the end result of the Rechtwijzer process was an agreement between the parties taken to the stage of approval by a lawyer but still awaiting the final formal stage of court approval.
Court-oriented ODR
Last year, the Rechtwijzer failed, prompting a discussion of why. The immediate cause was its inability to obtain more than 1 per cent of the users going through family separation within a challenging time period set by the Dutch Legal Aid Board. Rechtwijzer’s successor – developed by a start up in which HiiL and the Dutch Legal Aid Board have an interest, Justice42 – has bought itself a less demanding time frame and a lower bar to success.
Justice42’s Laura Kirstemaker explains their current direction: ‘We are working on several developments. One is the platform itself. We recently released a new module to satisfy the need of parents that want to make a parenting plan (separate of a divorce plan; we previously only offered the parenting plan as integral part of the divorce plan). The other is broadening the type of help and support we can offer our users. In addition to the legal help, we are working on partnerships in the mental health and financial services (alimony calculation, mortgage financial check). The numbers are increasing but we can definitely handle more. Organising your divorce in a good manner through the help of technology is far from common practice here in the Netherlands. It needs a lot of effort to familiarise people with the concept. We found a PR partner and we’ll be starting a PR campaign soon.’
So, the Rechtwijzer may turn out not to be dead but only sleeping. Even so, the loss of HiiL’s international drive and the greater domestic focus heralded by retaining the name in Dutch represents a major loss to the momentum behind court-related ODR. There are similar projects in creation – among them one from National Legal Aid in Australia. This is part of an ambitious project in which ‘the technology behind eBay’s dispute resolution service could soon help revolutionise Australian divorce battles and other common legal disputes. Australia’s peak legal assistance body … joins with RMIT University to show how Artificial Intelligence & digital technology can eliminate lengthy, expensive, lawyered-up family court conflicts.’ Artificial Intelligence, in the form of IBM Watson, proved insufficiently powerful as a basis of the once well hyped Nadia chatbot for the Australian National Disability Insurance Agency. Hopefully, we are not in for more disappointment.
Court-integrated ODR
With court-oriented ODR projects on the back burner at least temporarily, it is court-integrated projects that are currently leading the way. At the head of global development in online small claims is British Columbia’s Civil Resolution Tribunal (CRT). This is certainly going from strength to strength as it expands its jurisdiction – which began with strata property (condominium) disputes, moved through small claims under $Can5000 ($US3893 or £2850) and has from April 2018 been given further jurisdiction. Its provides a Solution Explorer on which the CRT’s website provides a short video.The Solution Explorer invites you through guided pathways to summarise your dispute and then provides tools for its resolution – including such things as draft letters for particular disputes.
Court-integrated ODR has certain advantages – at least for administrators – over court-oriented models, notably that it can be imposed mandatorily. This was the distinction taken by Master of the Rolls, Sir Terence Etherton:
There is a fundamental difference between the Online Solutions Court and the Rechtwijzer. Our approach is to develop a court, which incorporates ODR into its processes, rather than to develop an ODR platform which sits outside of the court system. The Rechtwijzer’s failure should properly be seen as more a consequence of individuals preferring the courts to resolve their disputes than their rejection of online processes … We are seeking to enhance our civil court, not create an online alternative to it.
There are further differences. One is between the domestic proposals as they are actually being implemented and the original model of both the CRT and the Rechtwijzer. Both of these place a high value on an interactive first phase where a solution is explored. That was what was specifically argued for in both the very preliminary report published by future guru Professor Susskind and the formal report by Lord Briggs. He stated that ‘success will be critically dependent upon the painstakingly careful design, development and testing of the stage 1 triage process. Without it, it will offer no real benefits to court users without lawyers on a full retainer, beyond those inadequately provided by current practice and procedure. Pioneering work in British Columbia suggests that it will be a real challenge to achieve that objective by April 2020, but one which is well worth the effort, and the significant funding budgeted for the purpose.’ Lord Briggs identified his initial Stage 1 as ‘an automated online triage stage designed to help litigants without lawyer articulate their claim in a form which the court can resolve and to upload their key documents and evidence’. Stage 2 involved a conciliation stage with a Case Officer assisting resolution of the case.
As the online court proposals have developed, the idea of creating something like the CRT’s Solution Explorer or Lord Briggs Stage I have become increasingly more remote – despite Lord Briggs’ assertion as to its importance. It seems likely that Stage 1 will be reduced to a rather mechanistic and uninspiring signposting process – with Stage 2 deploying non-judicial conciliation officers to encourage agreement.
The Online Small Claims Court
Implementation of the online small claims court has yet really to get under way. However, there have been areas of controversy between Her Majesty’s Courts and Tribunal Service and critics of the practicalities (not the principles) of implementation. These arise from the public nature of the courts.
First, the programme is to be funded by the closure and sale of existing courts. This is becoming a matter of political debate and threatens to run into a lament at austerity and the narrowing of the public realm.
Second, there has been a major row about the amount of research that HMCTS has been prepared to encourage and support. Professor Hazel Genn, the doyenne of social justice research, has made the case for its importance. She wants research to ensure that does ‘not merely mean can people access the online system, but can they participate effectively and feel they have done so, and achieve substantively just outcomes.’ And, in the same speech, she sets out a nine point research agenda. These cover much the same ground as the 30 research questions posed by the Public Law Project in a recent report. The Legal Education Foundation has also been active in this debate.
Third, HMCTS is operating under a conventionally ‘agile’ methodology. This has been proved to release considerable creativity in commercial settings. But, it remains to be seen if it needs some greater structure when operating in relation to a public government function. There are constitutional restraints on how defendants and litigants may be treated that form boundaries to what may be done. A major problem arises in the difference between how, say, Amazon or IKEA and the government would treat the creation of an online determination system. A commercial provider would decide on a price point, an estimate of numbers at every point of the process and then build accordingly. Governments will set the price only after the project has been built.
The Way Forward
The court-integrated online court programme is important in itself but also likely to provide a major stimulus to online advice because providers, both commercial and not for profit, will need to focus on introducing users to the online environment. As the online small claims court takes shape, we can expect to see an explosion of online legal services develop that are inspired by it. In addition, back in the field of court-oriented ODR, the demise of the Rechtwijzer may prove to be but a temporary setback, the failure of an early adopter with too cumbersome a structure that involved a US software house, a Dutch legal aid funder and an internationally oriented research institution. Indeed, Relate may yet dust down plans, abandoned last year, to establish some Rechtwijzer-influenced scheme covering aspects of family separation. So, both forms of ODR development may prove highly influential in the near future.
This is an edited and abridged version of a section of an annual report in the course of preparation on developments in access to justice and technology. This should be published in a couple of months. Any comments gratefully received: rsmith@rogersmith.info.