The line between the role of the courts and the preliminary identification of causes of action ready for Online Dispute Resolution has been highlighted both in a speech by senior judge, Master of the Rolls, Sir Terence Etherton, and also in a very practical way at an innovative hackathon held last weekend.
Sir Terence presented an upbeat assessment of the court modernisation programme. Courts:
will become more accessible; easier to use for lawyers, businesses, and members of the public. Increasing accessibility will take a number of forms. It will be one that helps individuals take steps to prevent their disputes escalating into litigation. It will incorporate mediation and conciliation into procedure, helping parties resolve their disputes consensually. Where consensual resolution is not possible, it will provide effective online adjudication, the default option for many cases. Procedurally, it will provide a far more tailored form of process than has historically been the case.
Sir Terence dealt with the failure of the Rechtwijzer.
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. The low user uptake of its consensual settlement mechanism will not apply to our court, as all cases within the Online Solutions Court will be subject to its three-stage process. Settlement and adjudication will not operate within rival systems, but as complementary mechanisms within an holistic system. We are seeking to enhance our civil court, not create an online alternative to it. As such the question of preference that undermined take-up in The Netherlands is unlikely to be replicated here.
Sir Terence, thus, skipped rather lightly over the issue highlighted by the winners of the multi-agency hackathon. The Master of the Rolls said:
The first stage of the process will … see the Online Solutions Court expand our ability to secure access to justice in two ways … it will help individuals identify the nature of their problem. The very essence of securing access is to secure an understanding of the legal framework. Such understanding will enable those individuals who have not yet reached the stage where a legal action has arisen to take steps to avoid that point being reached. It will secure access to preventive justice.
This is the space explored by the BC’s Civil Resolution Tribunal’s Solution Explorer and by the winning entry to the hackathon produced by a joint team from the Law Society and Wavelength.law, a firm that bears out Professor Susskind’s prediction of a flourishing for new kinds of legal expertise. Wavelength promotes itself as a firm of ‘legal engineers’ and explains:
our team is made up of data experts, technologists, knowledge engineers as well as lawyers. We are a regulated law firm, but describe our service as legal engineering for businesses. We offer commercial Legal Services & Legal Engineering solutions; we are focused on delivering refreshing legal services and dramatically improving the practice of commercial law for our clients.
The hackathon was organised jointly by the Society of Computers of Law, Legal Geek, the Judiciary of England and Wales and HM Courts and Tribunals Service and starred the participation of the Lord Chief Justice Lord Thomas himself, Richard Susskind and Legal Geek’s tireless Jimmy Vestbirk, fresh from his bus trip round European technology hubs. By all accounts, it generated a considerable buzz and, no doubt, the presence of these three heavyweights added to the success of the event. There were around 200 participants.
The Wavelength/Law Society team scored what must be a significant hit by winning the competition with CoLin (Courts Online, geddit?), a chatbot that uses Amazon’s Alexa to guide a user through a problem. The demonstration posited a user, Steve, concerned that damp in a rented flat was ruining the health of his daughter. It is well worth reading Wavelength’s blog on its product and viewing the video within it. Some impressive thinking has gone into this and the use of a chatbot as a front-end could easily be developed using a physical face like that of the impressive Nadia being developed in Australia. Like Nadia, CoLin follows a pathway to obtaining relevant information; it will then populate a draft letter of complaint; present this for correction; and can build up a bundle of documents for subsequent litigation.
The design of CoLin allowed the team to meet the minimum requirements on hackathon entrants. These were to address one or more of eight issues seen as important to courts: form-filling – making court documents more accessible to litigants in person; order drafting – creating orders that are more likely to be accepted by courts; continuous online hearing – challenging the question of whether a court is a place or a service; argument-building – to aid non-lawyers in creating well-structured arguments, distinguishing fact from law; outcome prediction – using technology to answer the natural question “what are my chances of winning?” rather than asking a lawyer; negotiating and settlement – tools to help resolve disputes before they escalate; dispute classification – to guide non-lawyers to resolution options; and bundles – how to solve the plastic-bag-full-of-paper problem.
However, while ticking the court boxes, the winning entry was much more focused on what would traditionally be seen as pre-court process. Wavelength’s Ben Gardner is clear about the benefit of the approach that his team took:
We will miss a trick, a real opportunity, to allow people to interact with technology if we don’t take the chance to improve the way that they interact with courts. If we achieve only the technology and efficiency benefits, we will have failed. We need to find a solution to the problems faced by people, not just a use for the technology.
In organisational terms, this has radical implications. Traditional demarcation would have the sort of solution-seeking which formed the basis of the Wavelength/Law Society bid as the role of advisors and information providers – the Citizens Advice and solicitors. Sir Terence gave some measure of support to Mr Gardner’s position in rather more abstract terms:
The transformation of court administration and processes from being paper-based to electronic ones could reasonably be seen as no different to the electrification of the railways. The trains continued to run tothe same destinations. All that changed was the way in which they were powered. The introduction of the Online Solutions Court however goes further than changing the means of delivery. It expands the court’s purpose. At the present time, it only does so in terms of its presently intended jurisdiction: claims up to a value of £10,000 in specified areas of civil work. This must properly be seen, however, as a template for securing now and over time in the future the critical object of greater access to justice.
So, in the brave new world, the trains will not only run on time; they will go to different destinations – or, perhaps better, arrive at the same terminus but by a very different route. To follow the story of how the Court Service responds to this challenge, it will be worth following its blog and watching the pronouncements of the senior judges like the Master of the Rolls and the Lord Chief Justice now driving the process. However, if the truly radical potential of reform now being revealed is to realised, it will also require Ministers to take their eyes off the all-absorbing drama of Brexit and leadership of their party to consider whether the Ministry of Justice should respond to the stimulus for a wider remit than it has previously had. That would be a good thing. It has always been illogical to have ministerial responsibility for advice and information split from that for lawyers and the courts. Technology makes that even clearer. Whether it makes it more likely is another matter.