ODR: songs of innocence and experience

Mark Madden,  Deputy Director, Centre for Innovative Justice, RMIT University, Melbourne, Australia
My experiences with the implementation of new technologies have provided some salutary lessons.  The first was that the claimed benefits were not always delivered; the second was the importance of involving the users in the design, and the third was to be wary of courts (and governmental agencies) insisting on the bespoke development of large-scale IT projects.  All are relevant to the discussion about the implementation of on-line dispute resolution.

The implementation of new technology began soon after becoming a cadet journalist for a daily morning tabloid (pre-Murdoch), with the newspaper moving from typewriters to VDT’s (Video Display Terminals). The introduction led to a long industrial dispute where we eventually settled on an offer that had been made much earlier in the dispute, much to the chagrin of those of us on strike. (Needless to say, the outcome prompted a major reform of the union). One of the promises about that new technology was that it would allow newspaper copy deadlines to move to later in the evening. Instead they began a steady move towards early evening/late afternoon.

Later I moved to a part-time role in communications for a government authority, while I was putting myself through university. It was the era of mainframe computing and the emergence of the Apple Macintosh.  The IT people in the authority thought they would implement a new word-processing system. Except they didn’t bother to talk to anyone expected to use it.  In the end it worked fabulously for the IT people but was progressively abandoned by everyone else. We were lucky.  Because we were in ‘communications’ we had been allowed to invest in the computers built for ‘communications professionals’, the Apple Mac. When the new word-processing system was introduced we just moved it aside and went on using the Mac. Others who were on the same floor kept looking at our desks rather jealously.  By the time I left, the Mac had begun its march across the desks of everybody else on the floor and the expensive mainframe system was progressively abandoned.

Then while working in a government minister’s office I was involved in the oversight of the development and implementation of a new information technology system for various parts of the justice system.  This particular project was inherited from the previous government after an unexpected election result. It was based on US software and was to be adapted to Victorian conditions and include the ability to link the police with the courts. It supposedly had the support and involvement of senior members of the police and the courts.  The plan was essentially to translate the existing paper-based processes into software-based processes. At that time, no-one-one, including me, thought to question the processes themselves. The outcome was a system that was expensive and complex.  It simply digitised old processes. It ultimately failed. Our courts are still using the system it was meant to replace.

The implementation of on-line dispute resolution brings these issues to the fore. They certainly surfaced recently in Australia prompted by the demonstration and discussion of the revolutionary Dutch system Rechtwijzer 2.0.  A forum on design thinking, artificial intelligence and access to justice featuring the demonstration was hosted by National Legal Aid, Victoria Legal Aid and RMIT University’s Centre for Innovative Justice. A number of roundtables including judicial officers, courts and tribunal members and administrators, legal assistance sectors lawyers and design thinkers followed.  A number of those at the roundtables had also been exposed to the thinking that is driving the implementation of British Columbia’s online Civil Resolution Tribunal by its Chair, Shannon Salter.

This leads me to suggest that while a promise of 100 per cent access to justice (at least civil justice) is alluring and exciting and definitely worth aiming for it should not blind us to the range of other barriers that exist to improving access to justice. In this and in most things it is often better to under-promise and over-deliver than the other way round.

Perhaps the most important issue though is whether the governments and courts will take the opportunity provided by the advent of ODR coupled with design thinking or human centred design to rethink and redesign the justice system from the users’ perspective. To do so will empower those users to become actively engaged in resolving their disputes and significantly improve the access to and quality of justice. Think language, locations, opening times and forms and the removal of often self-inflicted burdensome court procedures and processes. Perhaps the most challenging question for the courts’ leaders to ask is the one put by Richard Susskind, ‘are courts a place or a service?’  The empowerment model sits at the heart of the Rechtwijzer and the Civil Resolution Tribunal, but as we know our court systems and government departments have been successful for some time in keeping innovation at the periphery.

The other advantage of the approach taken by the Dutch and the British Columbians is ‘scalability’. At a time when governments are rightly wary of large scale IT projects, the ability of these systems to progressively scale up and remain agile has to be a major bonus.

This brings me back to an interesting contradiction that also emerged during the discussions. It is so-called ‘robot-lawyers’ informed by design thinking that are ‘humanising’ dispute resolution by empowering people to resolve their own disputes, something the existing ‘human-powered’ adversarial system has struggled to do. As one participant reflected ‘what could be more robotic than the way lawyers currently work in a system that for most people does not compute.’


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