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Professor Richard Susskind OBE is well known within the legal profession for his numerous books predicting a dramatic transformation in legal practice, and calling for an overhaul of 21st century lawyering.<\/p>\n
In February 2015 he made national headlines for his proposed eBay-style scheme for online dispute resolution (ODR) and the recommendation that HMCTS introduce a new, internet-based court service, known as HM Online Court (HMOC), to be launched in 2017. As Chair of the Civil Justice Council\u2019s ODR Advisory Group and IT Adviser to the Lord Chief Justice, he had been tasked with finding a way to resolve low-level civil claims more cheaply.<\/p>\n
For information on the ODR Advisory Group and the full report \u201cODR for Law Value Civil Claims\u201d, see www.judiciary.gov.uk\/reviews\/online-dispute-resolution<\/a>.<\/p>\n The proposals caught national media interest, with the Telegraph reporting<\/a>, for example, that \u201ccourtroom formality could be swept aside by a new generation of online judges dispensing justice on the Internet in a system inspired by eBay.\u201d But as the Telegraph explained further down its piece, this system was only proposed for civil claims worth less than \u00a325,000, with the possibility of extension to suitable family disputes. Additionally, as the report itself notes, the system could also be used for appropriate Tribunal cases, although the Advisory Group\u2019s terms of reference restricted it to looking at low level civil claims.<\/p>\n Despite the report\u2019s warning that its contents and recommendations \u201cmay appear rather alien and even disruptive\u201d for many lawyers and judges, it was reported rather positively by media outlets, with most quoting Lord Dyson, Master of the Rolls, who endorsed the scheme in his foreword to the report. Caution was expressed by The Law Society<\/a>, which said that ODR would require \u201cproper consultation and proper investment\u201d and the Bar Council which warned<\/a> against creating a system which is \u201cover-simplified and does not do justice to the circumstances of particular cases\u201d.<\/p>\n The group was primarily concerned that the current system for resolving low value civil claims was too costly, slow and complex. The civil justice system is \u201ccreaking\u201d: \u201cas public legal funding declines, there is widespread concern today that dispute resolution in our courts is disproportionately expensive and insufficiently user-friendly for litigants in person.\u201d<\/p>\n The report sets out 13 criteria for a new system: it must be affordable, accessible, intelligible, appropriate, speedy, consistent, trustworthy, focused, avoidable, proportionate, fair, robust and final. The current system for resolving low value claims, the group reports, \u201cfails to satisfy the majority of our thirteen criteria\u201d even though there is a high quality of work by \u201cfirst-rate\u201d judges.<\/p>\n The report makes a distinction between technological reform which simply improves existing systems with IT-based systems, and IT which facilitates the \u201cdelivery of services in entirely new ways\u201d. It is the second approach that the group advocates, with the introduction of Her Majesty\u2019s Online Court (HMOC).<\/p>\n HMOC would improve access to justice by being more affordable and user-friendly and make substantial savings for the court service. As well as providing a better way to resolve disputes, it would create \u201ceffective ways of avoiding and containing disputes\u201d.<\/p>\n One of the key innovations is that the model contains an Alternative Dispute Resolution (ADR) type system when traditionally ADR has been kept separate from courtroom litigation.<\/p>\n HMOC would have three-tiers. First, Online Evaluation, which will help a user classify their problem and identify the options available. Second, Online Facilitation, which would involve an individual facilitator (not a judge) to review statements and papers and \u201chelp parties through mediation and negotiation\u201d. Part of this process could be automated with systems that help parties without human experts. The final Tier would involve Online Judges who could be full- or part-time members of the judiciary who could wholly or partially decide suitable cases by assessing online pleadings. Both the second and third tiers could involve telephone conferencing.<\/p>\n The report suggests three \u201csupporting recommendations\u201d to begin implementation of the scheme: the introduction of an ODR stream as part of HMCTS\u2019s programme of civil, family and tribunal reform (using a \u201cmodest fraction\u201d of its \u00a375 million annual reform budget over five years); political party support; and that the Civil Justice Council invites the Advisory Group to collaborate with HMCTS and the Judiciary in a formal pilot of ODR.<\/p>\n The report describes 11 existing ODR-style systems which demonstrate that ODR is \u201cnot science fiction\u201d. One of the main examples given is eBay, which uses ODR to resolve 60 million disputes a year among traders. It also mentions the UK\u2019s Financial Ombudsman Service, Nominet, Resolver (an online complaints platform), and the online portal for the Traffic Penalty Tribunal of England and Wales. International examples include the soon-to-be launched Canadian Civil Resolution Tribunal and Rechtwijzer 2.0 developed for the Dutch Legal Aid Board. Other services include Modria (a spin-off from eBay\u2019s and PayPal\u2019s ODR departments), Cybersettle, Youjustice and Online Schlichter.<\/p>\n The report considers some of the concerns that have, or might be raised, about ODR.<\/p>\n Can it really provide a fair trial? The group\u2019s view is that natural justice and a fair hearing under Article 6 of the European Convention on Human Rights can be achieved within a \u201ctransparent\u201d system of ODR with clear rules.<\/p>\n The report rejects the argument that this will be an \u201ceconomy class service\u201d and suggests that it would in fact be superior to a physical court process and that in due course, for many types of disputes, the parties would not be given a choice of service: \u201call cases that meet given criteria will be allocated to HMOC.\u201d<\/p>\n The group then addresses the problem of accessibility for those who do not use the internet. It suggests that although 22 per cent of the British population are deemed non-users of the internet (according to the Oxford Internet Institute<\/a>), \u201conly a small fraction of these non-users “‘definitely\u2019 have no-one who could assist them.\u201d Those who have difficulty would be given special support by HMOC officials.<\/p>\n Finally, they deal with the concern that \u201ceasily accessible\u201d ODR will encourage litigiousness. The group suggests that to deter the \u201cspeculative and vexatious\u201d, fees for using Tiers Two and Three of HMOC \u201care set at a level sufficient not to deter people of limited means from enforcing their rights but high enough to make prospective users think twice before commencing online claims.\u201d<\/p>\n The report emphasises the simplicity and low cost of its proposals throughout, but given the current climate of cuts to the Ministry of Justice, one might anticipate that cost would be a prohibitive factor in its piloting and design. Furthermore, there are likely to be concerns about its scope and use (especially from practitioners), along the lines of Christopher Hodges\u2019 critique in the Law Society Gazette<\/a>.<\/p>\n The initial expenditure may well receive the necessary political support, however; it features in Lord Chancellor and Justice Secretary Michael Gove\u2019s vision<\/a> for a more efficient and digitised justice system.<\/p>\n The charity JUSTICE has also endorsed the proposals in its \u201cDelivering Justice in an Age of Austerity\u201d report<\/a>, published in April 2015 (Richard Susskind was a member of the working party) and proposes its own similar model \u2013 for a broader range of cases.<\/p>\n According to Tim Wallis, a solicitor and member of the Civil Justice Council\u2019s ODR Advisory Group, there is evidence that ODR is likely to develop: the technology is available, ODR is already in use within and outside UK jurisdictions, and there may well be available funding (see JPIL 2015, 3, 210-219).<\/p>\n Critics might focus on the access to justice issues posed by an eBay-style system, but in Wallis\u2019 view this is missing the point: \u201cwhich is simply that the eBay technology platform demonstrates that a system dealing with millions of claims per annum has been running for some time. The barriers to the development of ODR are financial, political and cultural, not technological.\u201d<\/p>\n He\u2019s probably right, and the cultural challenge might be the most difficult of all; it provides an explanation for the painfully cumbersome paper-based processes still used in the UK courts system despite massive advances in technology and transformations of other types of institutions.<\/p>\n As Dyson says in his foreword to the report, \u201cthe courts have some catching up to do with other areas of business and Government.\u201d They certainly do, and they are far, far behind online systems in other jurisdictions. And complexities and unnecessary expense need to be reduced across the board, not only for low-level civil claims. The challenge will be not only catching up with other departments and court services, but making sure that new systems are agile and flexible enough to adapt quickly to further social and technological change.<\/p>\n Judith Townend is Director of the Information Law and Policy Centre at the Institute of Advanced Legal Studies, University of London. Email judith.townend@sas.ac.uk<\/a>. Twitter @infolawcentre<\/a>.<\/em><\/p>\nInitial reaction<\/h3>\n
What are the issues?<\/h3>\n
What does the report propose?<\/h3>\n
Is the scheme workable?<\/h3>\n
Will it be implemented?<\/h3>\n