Winner of any prize for the best named institute for the study of technology and the law must be the Cyberjustice Laboratory at the University of Montreal. It also jostles with the other global contenders for leadership in examining the impact of technology on the legal process. That puts it within a class including the Hague Institute for the Internationalisation of Law, the Centre for Legal and Court Technology at William and Mary University, the Open Law Lab at Stanford University. Anglophones may find the impact of the centre masked by its primary use of French but the Laboratory has the kind of profile in Belgium and France that it deserves more widely.
The Laboratory was the brainchild of Professors Karim Benyekhlef of the University of Montreal and Fabien Gélinas of the neighbouring McGill University. Its focus is in the integration of technological advances into court processes and the overcoming of the barriers of complexity, history and conservatism. At its physical heart is an all-singing, all-dancing simulated courtroom festooned with technology that includes multiple cameras, software and large screens where new applications can be tested to destruction in simulated hearings and students can get a feel of how courts are likely to develop.
The intellectual origin of the Laboratory lies in the early days of the Online Dispute Resolution movement when Professor Benyekhief established the CyberTribunal, one of the first experiments in ODR. That led to the formation of the Laboratory in 2010. The next year, the Laboratory embarked on a seven year federally funded programme, ‘Towards Cyberjustice’ which has provided the framework of its work ever since and will do until it ends in 2018. This has three streams, where research is directed by three multi-disciplinary working parties. These cover:
- issues around digitalisation of the courts (eg electronic case and evidence management);
- the limits of digitalisation (though the working group’s description suggests this is more about addressing obstacles: ‘By focussing on the interactions taking place in the hearing room, the Group will be able to identify factors contributing to stakeholders’ resistance to change and whether those issues are economic, social, cultural or psychological, and then suggest concrete, well-adapted solutions.’
- new procedural models.
The Laboratory, thus, focuses on both a socio-legal analysis of the challenge of technology for the courts as well as on the technology itself. Its court allows it to develop and test court-oriented programmes developed by itself or others. Its own work uses open source software and rivals the sort of programmes developed by the collaboration between US commercial developer Modria and HiiL (such as the Rechtwijzer and MyLawBC.com). It has developed a core programme for court and case management to which can be added additional modules. For example, it was able to be adapted for use by iPads even though they were not originally invented when the programme was begun. The Laboratory has developed PARLe (parley, gettit?), an ODR programme which ‘explores the potential of new technologies for improving the resolution of low-intensity disputes by reducing their costs and processing time. This web platform is based on a tried and tested 3-steps process (negotiation, mediation and transfer of the case).’ This is the sort of existing programme of pre-litigation resolution which Lord Justice Briggs might beneficially have considered in his recommendations for an online small claims court in England and Wales.
The work of the Laboratory allows comparison with other programmes. As explained by its co-director Nicolas Vermeys, Laboratory programmes use of a more formal – literally form-based – approach than the Rechtwijzer. This, he argues, gives a more manageable structure to the evolving resolution of a dispute than the Rechtwijzer’s looser use of text. This might be right or it might be wrong but it clearly merits exploration. Professor Vermeys has another assertion that needs testing. He believes that ‘statistics show that ODR works better before starting the legal process or at the very end of the process, but that the “worse” time to use ADR seems to be right after filing your documents and paying your fees (which is when a Quebec pilot project unfortunately timed it’.) This has major consequences for the design of online court programmes – something which is again relevant to implementation of the proposals of Lord Justice Briggs in England and Wales.
The Laboratory’s work raises the issue, also implicitly brought up by Lord Justice Briggs, of the integration (or lack of it) between pre-litigation information/advice and post-issue process. In Quebec, as in much of Canada and the US, online legal advice hits the rock of legislation preventing the unauthorised practice of law. Only lawyers and notaries can give advice. This has deterred US and Canadian legal services from providing online advice of the kind available through the Rechtwijzer and MyLawBC skirts around this with care. Such a rule, of course, is not an obstacle in the jurisdictions of the UK – though the failure to join up thinking about how online advice and the opening process of an online small claims court may well be.
There are three conclusions that I would take from a visit to the Laboratory. First, more people should get on a plane and see it – particularly those working in Ministries of Justice and the courts. This is a really exciting project doing really interesting work which Anglophones are in danger of missing. Second, the UK needs something similar. And, third, the more you look at the work of other jurisdictions in the field of ODR, the less you want to go hell for leather to implement proposals like those of Lord Justice Briggs without considering the practical lessons that others can offer. The Laboratory challenges the insularity deeply embedded in our jurisdiction – and we are probably not alone in that. So, even if you can’t go to Canada, have a look at its website. Don’t worry it has an English language option.