As courts go digital: what about online dispute resolution?

Your technology is fifteen years old, a member of the Bar said to me recently, implying we were way behind the times with the technology the Dutch judiciary uses to build its digital procedures. Even if that is right (which it isn’t), that would be a great leap forward from our current systems dating from the 1980s. And yet, he had a point. The new procedure is simpler, but it still looks a lot like the old paper process. A lot of what we do still is a digital version of our paper process. The evolution of the Google car shows we need to develop one step at a time. Moving from a paper based organisation to online dispute resolution, or to an information-based organisation, involves learning to work with new technology. However, we also need to think about what comes after this step. This blog tackles one of the - for traditional courts - most disruptive technologies around: online dispute resolution (ODR).  

As the Dutch judiciary is going digital, the question arises whether this should also include ODR, and whether ODR can replace a face to face hearing in court. Are Skype and FaceTime capable of supporting a debate about the merits of facts and rules, and are people familiar enough with remote communication to grasp new ideas remotely? Or will ODR be suitable for simple disputes only?  

ODR is in the spotlight. In February 2015, the ODR Advisory Group of the Civil Justice Council in the United Kingdom presented Online Dispute Resolution for low value civil claims. Presided by Richard Susskind, the Group examines the field of ODR and makes recommendations for ODR in the legal system of the UK. The report is supported with a wonderful web site  full of background documents, video’s and interviews.  

The system, Her Majesty’s Online Court (HMOC), has two main goals: reduce the cost of dispute resolution and increasing access to justice. Whether or not these two goals are mutually exclusive has been a subject for heated debate for years.
HMOC’s scope will be disputes that are not too complex, and with a value of £ 25.000 at most. It will have three tiers. 

Some first impressions

Tier 1 is mainly about providing information. A web platform can serve to provide this kind of information, unilaterally or through interactive Q&A. My favourite platform is the UK’s Advicenow.org. In the Netherlands, het Juridisch Loket, the government-provided free legal kiosk, is such a platform, and there is interactive Q&A on Rechtwijzer, by the Dutch Legal Aid Board. Modria, the makers of the eBay and PayPal dispute resolution systems, also built Rechtwijzer 2.0. This new Rechtwijzer, now in the final phases of development, is, at present, meant to provide support for couples managing their separation or divorce.
Automated negotiation support in a web platform with user interaction, like Cybersettle, segues into Tier 2. In Tier 2, a human facilitator/mediator can use remote communication, either synchronous such as instant messaging, video conferencing or the telephone, or asynchronous communication like messages or email. Communication with parties is needed to reduce the complexity of the dispute to a level that enables resolving it.   
In Tier 3, the online judge can also use remote communication where needed. This judge also needs a digital case file and secure web communication.
Hazel Genns research taught us that the nature of the problem people have is an important determinant for the type of resolution they require. Consumer problems are resolved easily if the seller has an effective complaints procedure. Problems in long term relationships like family and labour problems are hard to resolve, but also hard to bear, which is an incentive to resolve them consensually. Problems with government agencies tend to be harder to resolve... Our own experience with the eKantonrechter, a simple, consensual court procedure for simple problems, shows that there seems to be little inherent demand for this type of procedure. Consensual dispute resolution has its limits. On the adversary side: low value disputes are not always simple. ODR can be suitable for low value disputes if it can reduce costs, to the user and to the taxpayer, and on the condition that it keeps the complexity of the dispute at an acceptable level – neither over simple nor unnecessarily complex.  

·         Tier One of HMOC should provide Online Evaluation. This facility will help users with a grievance to classify and categorize their problem, to be aware of their rights and obligations, and to understand the options and remedies available to them.

·         Tier Two of HMOC should provide Online Facilitation. To bring a dispute to a speedy, fair conclusion without the involvement of judges, this service will provide online facilitators. Communicating via the Internet, these individuals will review papers and statements and help parties through mediation and negotiation. They will be supported where necessary, by telephone conferencing facilities. Additionally, there will be some automated negotiation, which are systems that help parties resolve their differences without the intervention of human experts.

·         Tier Three of HMOC should provide Online Judges – full-time and part-time members of the Judiciary who will decide suitable cases or parts of cases on an online basis, largely on the basis of papers submitted to them electronically as part of a structured process of online pleading. This process will again be supported, where necessary, by telephone conferencing facilities.

The proposal takes the insights from Hazel Genns Paths to Justice on the needs of people with justiciable problems into account. Genns research was replicated in the Netherlands by Ben van Velthoven and Marijke ter Voert and reported in the dispute resolution delta. This research and its later additions shows that often, information is enough to help people resolve their problem. Sometimes they need someone to help them. If that also fails, there is still the court of law.  

The report does not explicitly analyse the process of dispute resolution, perhaps because there was no judge or magistrate in the Group. Here is what I mean by analysis. Parties first discuss the problem between them. They both introduce information into the debate. Tier 1 can help them with new information suggesting how to resolve their problem. This information can be about ways to resolve problems, but also about legal rules and trends in case law. If they find a solution that satisfies them both, the problem is resolved. If not, they can then choose to use tier 2. In tier 2, the facilitator enters the arena. He or she can help the parties to introduce even more information about their side of the dispute. It is important that the information the parties used in Tier 1 is also still at hand. Next, all that information can be reduced to what is relevant for resolving the problem. Some negotiation or mediation may be useful to help parties find a solution. If that fails as well, the online judge in Tier 3 can decide the dispute with a judgment.

This brief description provides some indication for the way in which information technology can be leveraged to resolve disputes.

Back to my initial questions

Hazel Genns research taught us that the nature of the problem people have is an important determinant for the type of resolution they require. Consumer problems are resolved easily if the seller has an effective complaints procedure. Problems in long term relationships like family and labour problems are hard to resolve, but also hard to bear, which is an incentive to resolve them consensually. Problems with government agencies tend to be harder to resolve... Our own experience with the eKantonrechter, a simple, consensual court procedure for simple problems, shows that there seems to be little inherent demand for this type of procedure. Consensual dispute resolution has its limits. On the adversary side: low value disputes are not always simple. ODR can be suitable for low value disputes if it can reduce costs, to the user and to the taxpayer, and on the condition that it keeps the complexity of the dispute at an acceptable level – neither over simple nor unnecessarily complex. There is more to ODR than just an alternative to a face to face court hearing. When a dispute needs a fresh look at the merits of facts and rules, and possibly a new idea of the stakes involved, a face to face court hearing may still be the most effective way of resolving it. As remote communication becomes more mainstream and cheaper, remote hearings may also become more mainstream.