In February 2015, the Civil Justice Council’s Online Dispute Resolution Advisory Group delivered a much needed step towards the implementation of an internet based dispute resolution system for the UK. Following Jackson LJ’s Civil Litigation Costs Review Final Report, published in January 2010, a large electronic filing and court fee payment system is being implemented and the use of emails in the Family and other Courts utilised. Internet based dispute resolution is the next logical step in providing more accessible and cost effective legal advice in the UK.
An online dispute resolution system brings three key benefits with it; it stops low value claims cluttering up the courts, it makes legal advice and the courts more accessible for litigants in person (particularly following the relatively recent reductions in legal aid) and it can reduce the large costs that are currently incurred in running the country’s network of courts. Whilst implementing an online IT system carries significant project and delivery risk, the clear emphasis on the implementation of these types of systems from the European Courts and the ever evolving applications of both the internet and the technology that runs alongside it mean that once set up effectively, this system could extract further benefits and synergies for the UK courts beyond those already highlighted.
The first reason that this online system could work practically is that it is already doing so; albeit on a smaller and more commercially focused scale. The retail giant eBay resolves around 60 million online disputes across the world each year through its remarkably effective system. Whilst eBay in Europe are effectively forced into this role by the EU Directive on Alternative Dispute Resolution, they run this system effectively worldwide across multiple jurisdictions. It should also be remembered that this directive has been implemented in the UK by the Alternative Dispute Resolution For Consumer Disputes (Competent Authorities and Information) Regulations 2015; if companies must run such online dispute systems, then the Court system in the UK should also be able to implement such a system.
Whilst many will argue that the eBay disputes are all quite minor, low value claims, it must also be remembered that the Civil Justice Council have recommended that only cases worth less than £25,000 are resolved using this system. These would in the main be claims where money is the only desired outcome and where complex legal questions would not need to be resolved. It is therefore entirely possible that by utilising members of the UK judiciary as online arbitrators, the system demonstrated by eBay can effectively be scaled up. This would reduce court costs and overheads as well as speeding up access to justice, in particular for litigants in person. This may appear to be a complicated system to set up initially but the significant benefits mean that it is worth developing a clear framework to make this possible. There are also standard ODR platforms already in existence that the courts can licence and deploy, reducing implementation risk and leading to large financial and time savings.
The Advisory Group envisage a three tier system; Online Evaluation, Online Facilitation and Online Judges. This demonstrates where the overhead savings would be realised for the Courts, and demonstrates the possibility for the system to be rolled out in three independent steps. Online Evaluation could be initiated first, allowing solicitors and the judiciary to provide basic and cost effective advice, in particular to litigants in person, to enable them to understand how best to proceed in their case, speeding up the process. This would be particularly useful for applications in the Family court. This could then be followed by Facilitation and Judges, possibly in tandem, allowing these smaller cases to be run entirely online and leading to quicker and more cost effective outcomes. Whilst Online Evaluation would be free, there would be set fees for Facilitation and Judges, allowing the system to recoup costs.
The Dutch system, Rechtwijzer, has evolved in a similar way; it began as a referral tool, developed into an interactive tool which lawyers could use to give further advice to their clients and is currently being developed into a dispute resolution platform where information and advice will continue to be available. Rechtwijzer has been running since 2006; the UK judiciary system will continue to fall behind that of its counterparts unless we progress the implementation of the recommended system. The Dutch approach to the implementation of Rechtwijzer demonstrates that the UK system could be built in a modular fashion, and gradually be built upon as it is used more widely by the public. Rechtwijzer 2.0, the section currently being developed, also anticipates some sections of the site, such as mediation, as being fee based, whilst the information areas of the site will remain free, allowing the system to recoup some of its own costs. It also intends to end with an ‘After care’ section, allowing it to follow users beyond the end of the legal process, ensuring that the system is ‘inherently dynamic and oriented towards settlement’ (Smith, R, ‘Online dispute resolution: ten lessons on access to justice’)
One area where online dispute resolution could be particularly useful is in Family cases, particularly divorce, as this is often a more emotionally charged area of the law. By allowing the parties to upload their documents in a more neutral online space, without the need for as much, if any, face to face confrontation, it could expedite these disputes ensuring a smoother resolution as the emotion is removed from the situation. This could lead to significant savings, especially as following the recent legal aid cuts the courts are seeing an increasing backlog and are struggling to move these sort of cases through to resolution as quickly as they would like. In this area in particular, all three key benefits to an online system are clearly met.
A key risk for legal firms is that any new system of online based resolution could reduce their fee earning capabilities. This is understandable in a country (and indeed world) where the economy is still recovering from the recent recession. I do not support this view for the following reasons. Firstly, a large number of the users will be people who would have benefitted from legal aid before this was recently reduced, of which only a small number of firms benefitted from. Secondly, this will only be used by litigants in person with smaller claims, who are unlikely to be able to afford legal advice and so pursue cases themselves; therefore only a small number of niche firms would target this market. Thirdly, if used effectively by firms, the online system can be promoted to clients with limited funds whilst being supported by the solicitors of the firm; this allows the client to reduce their legal bill, and the firm to improve efficiency and therefore protect margins. It also has the added benefit of allows the firm to retain clients they would otherwise be unable or unwilling to target.
If clients are aware that their legal bills will be smaller and more manageable, a large group of people who may have become litigants in person will seek out paid legal advice in conjunction with utilising an online dispute resolution system. Particularly for smaller, high street firms this could in fact increase the pool of people who are looking to utilise their resources. It was recently pointed out that ‘you may provide less chargeable hours and enjoy less fees in each individual case, but you would be able to market a more innovative and collaborative approach, resulting in not only more cases but also a significant and consistent growth in your client base and overall revenue.’ (Ross, G, ‘Online dispute resolution: the resolution revolution’), an accurate perception of the situation. It should also be remembered that the Master of the Rolls, the President of the Supreme Court, the Secretary of State for Justice and the Law Society have all recently spoken in favour of online dispute resolution; as we move inexorably towards a wider digital economy the law firms that will thrive are those that will adapt and embrace the new technology.
I can sympathise with the view that such a system would be unlikely to work in practice. The UK court and legal system is very complex and cannot simply be reproduced on a website. It must be remembered however that this is not what the advisory group are seeking to do. They are simply looking to expand access to justice for litigants with low level, simple claims. Judges would not be making decisions on either new or complicated areas of law. In the main, the system would guide litigants through what can be a complicated process, providing arbitration if necessary. Setting out all of the information and processing it step by step is likely to encourage people to settle as they clearly see the development of their case. This likely reduction in the time spent on each case is one of the clear advantages of the system.
A demonstration of this can be seen in the Financial Ombudsman Service (www.financial-ombudsman.org.uk), which was set up in 2000 and resolves disputes between consumers and UK-based businesses. In 2013/14, it ‘resolved 518,778 disputes, of which 487,749 were resolved by adjudicators and 31,029 by ombudsmen’ (‘Online Dispute Resolution for Low Value Civil Claims‘, by the ODR Advisory Group) This meant that 90% of the Financial Ombudsman’s workload was resolved within 8 weeks, by the arbitrators and without the need to involve the Ombudsman. In a country where 70% of the total number of hearings in the Civil Courts are small claims (‘Online Dispute Resolution for Low Value Civil Claims‘, by the ODR Advisory Group), the rolling out of the Online Evaluation tool could lead to a large reduction in the number of these cases reaching the Courts at all, which would have a significant impact on the costs of running the courts whilst also increasing access to justice, demonstrably supporting the 2 main aims of the Advisory Group.
Practically, the Online Evaluation system would allow people to upload the necessary documents online, a simple and cost effective method. Online Facilitation and Online Judges would require advice to be provided by the arbitrators, but as many Case Management Conferences in civil cases already take place on the telephone, conducting them via email or perhaps an online face to face system such as Skype is not such a radical step. The cost reduction implications of this are clear, as Judges will be able to work remotely, lowering Court overheads and improving access to skills.
Overall, a system of online dispute resolution for the UK courts is both a proactive, positive idea and demonstrably feasible in practice. As Graham Ross recently pointed out ‘just imagine for a moment living in a world without the telephone, car or light bulb […] these indispensable items were considered by eminent experts at their launch to have no future’, (Ross, G, ‘Online dispute resolution: the resolution revolution’) and this should not be the case for online dispute resolution in this country. Whilst it may be complex to set up initially, all websites and online systems are expected to, and do, evolve. Once created the system would provide a platform to update and would not be expected to require an entire re working as technology updates. Whilst this will of course involve expense, the reduction in low level cases from the courts, the increased access to justice for litigants in person and the reduction in costs to the courts will outweigh this increase. Other countries and corporates have proved that these systems are possible; the UK must take steps to implement such a system before we are left behind with an antiquated system which is not adequately providing access to justice to the people who rely on it.
References:
Practical Law Company, (2015) ‘CJC working group recommends new online dispute resolution system by 2017’. Available at – http://uk.practicallaw.com/5-600-4725
Practical Law Company, (2015) ‘Electronic working in the UK courts: tracker’. Available at: http://uk.practicallaw.com/4-581-1926?q=Civil+justice+council+dispute+resolution
Practical Law Company, (2016) ‘Practical Law Dispute Resolution: What to expect in 2016’. Available at: http://uk.practicallaw.com/0-619-9626#a975012
Ross, G, (2016) ‘Online dispute resolution: the resolution revolution’. Available at – http://disputeresolutionblog.practicallaw.com/online-dispute-resolution-the-resolution-revolution/
Smith, R, (2015) ‘Online dispute resolution: ten lessons on access to justice’. Available at: https://www.judiciary.gov.uk/wp-content/uploads/2015/02/ODR-access-to-justice.pdf
Official PDF report from the Advisory group, available at: https://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf
Official website from the advisory Group, available at: https://www.judiciary.gov.uk/reviews/online-dispute-resolution/
