At least three jurisdictions around the world have recently begun the process of implementing small claims court pilots or programmes. In doing so, they are raising implicit questions for Her Majesty Courts and Tribunals Service (HMCTS) in England and Wales. Their entry means that, with the addition of British Columbia’s Civil Resolution Tribunal, we now have at least five courts occupying the same space and opening themselves up to comparison.
We might note that no one other jurisdiction other than our Ministry of Justice in London stresses digitalisation of small claims as an opportunity to sell off physical courts. Nor is anyone else seeking to fund their move with the proceeds, thereby prejudging effectiveness. The most challenging comparison for HMCTS probably comes from VCAT, the Victorian Civil and Administrative Tribunal. The best way to familiarise yourself with its ODR pilot is probably through watching VCAT’s video on the topic. The origin of the pilot arose from an Access to Justice Review in 2016. In the context of a wholesale examination of access to justice, this recommended that:
The Victorian Government should:
- establish an Online Dispute Resolution Advisory Panel with terms of reference to oversee the introduction and evaluation of an online dispute resolution system for small civil claims in Victoria and make recommendations about the possible future expansion of online dispute resolution to other jurisdictions in Victoria;
- provide pilot funding, and, subject to evaluation, ongoing funding, for the development and the implementation of a new online system for the resolution of small civil claims in Victoria; and
- introduce legislation to facilitate the use of the new online system for the resolution of small civil claims.
VCAT has now announced how it will implement the required pilot: ‘VCAT is piloting an online dispute resolution platform as an alternative to attending a hearing in person. The pilot will apply to eligible small civil claims. The online platform enables Victorians to have their matter heard and resolved by a VCAT member in real time using video and file sharing technology. The pilot commences in September 2018 and will continue for one month. Potential participants are selected from hearings listed to take place during the pilot period and participation is voluntary. Participants must give their consent to participate and can opt out of the pilot at any time. The online hearing is intended to be the same as attending the hearing in person. Participating in the pilot will have no impact on an individual case or the outcome of the hearing. Following the pilot, VCAT will determine whether to pursue and implement online dispute resolution based on the success of the pilot.’
The YouTube video gives more background. In it, Donald Speagle of the Department of Justice accepts the value of a pilot. This is devised to test a hypothesis: ‘If VCAT introduces Online Dispute Resolution then the Victorian Community will experience improved access to justice’. It would be helpful to have more information on the indicators that will be used to determine the answer. A hopeful sign of the potential is the emphasis in the presentation is that ‘this is not an IT project’. The pilot is using a package devised by Australian start up Modron. The process uses the possibilities of text and video chat.
The Utah pilot (in the West Valley City Justice Court) began in early September (West Valley, pictured above, is a suburb of Salt Lake City). It is well described in a recent post by US legal technology guru Bob Ambrogi. At present, the pilot seems fairly basic. Litigants are asked a series of questions to identify suitability for online mediation and a mediator tries to work something out online with the passing of correspondence to and fro. It is based on a programme known as Matterhorn built by Court Innovations (CI) whose website lists its involvement in services in seven US states. This includes only one that seems to relate to small claims – Franklin County Municipal Court in Ohio. A somewhat fulsome CI video shows Franklin officials ecstatic at their implementation of the Matterhorn ODR platform. Interestingly, this is clearly a ‘curated’ programme with court staff servicing individuals’ queries rather than some dedicated digital only assistance provided by outsiders: the appropriate staff member talks to camera.
Throw in BC and we have, therefore, five ODR programmes in three continents and four countries which we can compare against each other. For those genuinely concerned with identifying specific access to justice improvements, the results could be immensely valuable.