Online dispute resolution is being proposed in a radical new report by the Civil Justice Council. They are not talking about tinkering with the existing money claims online. They suggest a largely automated process with very little involvement of court resources or Judge time.
The report is a long one and contains an analysis a wide range of existing online resolution processes, including amongst others 1) the online system about to be introduced in the Canadian legal system 2) eBay (the online shopping / auction site) 3) Nominet which resolves website domain disputes.
For example, on eBay, if there is a dispute about a purchase, there is a dispute resolution process which determines the resolution, whether it be a refund or no action at all. The process also encourages the parties to try to resolve the system between themselves by prompting responses. The report says the eBay resolution system resolves 60 million disagreements each year, which is impressive.
The CJC is proposing that an online process is adopted for low value disputes. This means that small claims might be resolved using this new process. The report suggest that the system could be used for claims up to a value of £25,000. We think that is pushing things somewhat.
But how would the online dispute resolution system work?
The report is sketchy on detail but it does set out a tiered system that the parties must go through to progress. The aim is to avoid Judges becoming involved in disputes until absolutely necessary. The first process will be to get the parties to set out the case and response. Up to this point, the entire process will be online and automated. There will be forms to complete by the parties and simple procedures to follow.
The second process will involve getting the parties to engage and negotiate with each other. This may involve case workers (not Judges) to help the parties engage and potentially mediate. There may also be automated negotiation if the technology is able to facilitate it.
The third process will involve Judges deciding cases from the documents and information lodged online on the first two processes. There would be no court hearing and the decision will be made from the information before them.
Will it really work in practice?
The report tries to address concerns with the system including:
Doesn’t this put people who aren’t computer literate or as able to set out their case on paper, at a huge disadvantage? Those who are better at putting things down in writing are likely to have an advantage over those who struggle.
Doesn’t it mean those who don’t have access or experience of using computers will be unable to pursue a claim? The report points to the growing percentage of the population being able to have access to the internet. However, it is inevitable that some people aren’t good with computers and / or don’t have access to the internet.
If everything is on paper, can there really be a fair trial? This is a key point. In today’s system, a trial takes place in court, before the Judge. The parties will have the opportunity to cross examine the opposing witnesses and be able to explain their case to the Judge. The Judge will be able to ask questions to obtain clarification of points which are not dealt with in the papers. All of this will be absent from the proposed system.
If everything is online and put in paper, will people be more likely to litigate? The worry of giving evidence in court and being grilled by a Judge or barrister in cross examination, is a worry for most litigants. This is a genuine concern and the response is that the fees charged at each stage of the process will be enough to put people off litigating speculatively.
How likely is it to happen?
Our view is that it is unlikely to happen any time soon. The recent trend has been for the government to cut back on expense in the legal system. Legal aid has been slashed. The small claims court limit was increased from £5,000 to £10,000. Court fees to commence a claim have been increased massively. We consider it unlikely the government will want to incur the cost of introducing such a system, even if there may be cost savings in the future.
The CJC presses for a pilot scheme to be introduced to test how successful it is. However, it would require a great deal of investment in the IT structure and systems to get them into place. The report suggests the costs would be recovered in savings by not having as many cases go through the traditional court system.
The report enthusiastically states “IT can be used in support of the court system in two quite different ways. The first involves the application of technology to improve what is already in place today … The second use of IT in the courts is to enable the delivery of services in entirely new ways. When this is the aim, it encourages new and imaginative thinking and urges reformers to start afresh, with a blank sheet of paper.”
HMCTS referred to the report as being “important and thought provoking”. A positive but pretty non committal response. Watch this space.