Next week, the group which has been looking at online dispute resolution on behalf of the Civil Justice Council is to launch its report. I am genuinely excited by this. Watch out for detailed coverage on the main SCL news pages and, no doubt, in the mainstream press. The advisory group was set up in April 2014 (see {our report here: http://www.scl.org/site.aspx?i=ne37056}) and seems to have made rapid progress – and not just by Chilcot standards.
Given that SCL President Professor Richard Susskind OBE chairs the advisory group and that he has been a long-standing advocate of focused ODR, it will be no surprise if the report endorses its adoption in some way. I note too that a number of the group’s members have written for Computers & Law about ODR in a positive terms in the past. Since I take the view that ODR is A Good Thing, I do not see these well-established views as a problem; the only alternative would have been to set up a committee of the ignorant.
And the timing of the report could scarcely be better. ODR innovation is hardly likely to lead the election manifestos but I would not be in the least surprised if it does not get a mention by all the main parties. While such commitments are worth little, they are worth something.
So I really am feeling very positive about the upcoming report. But you will not be surprised to learn that I have some fears.
I don’t really share the obvious fear. The ‘obvious fear’ is that an expansion of ODR can be presented as a way of justifying the various restrictions which have been placed on legal aid eligibility in the course of the last few years. It may even (God forbid) be used as an excuse for further cuts. I may feel that it is anomalous that cutting health provision would be a sure-fire election loser but that cutting justice is considered acceptable (though it is not hard to see why that is). I will however be very surprised if a ‘cuts’ agenda forms any part of the justification for ODR in next week’s report. I anticipate that the report’s authors will be able to mark clear ground between the sort of proceedings where ODR can help (with or without lawyer intervention) and those where something more finely tuned is needed. If I may slip back to the health provision parallel, we know that the NHS’s problems might be solved if the elderly could be persuaded to carry out ‘routine’ operations like hip replacement themselves, with the aid of an online tutorial and following a chat with a pharmacist, but we don’t actually think that is an appropriate solution. ODR is about addressing a long-standing unmet need not an excuse for creating more unmet need. Clearly, it is not going to sort out the disasters that are becoming increasingly common in the family and other civil courts.
While that should not be a fear, I have may have some sympathy with those who suspect that, while those behind the report understand the right role for ODR, not all those in the MoJ who are newly converted to ODR’s virtues will be as honest.
All that apart, my worry is about implementation and the long-term commitment that may be vital. I have just finished reading {i}H is for Hawk{/i}, a complex tale of personal grief which centres around the training of a goshawk. The route to successful training of this controlled killing machine is a painful one that requires a level of dedication, perseverance and passion that I found hard to fathom; the trainer may not {i}have to be slightly mad{/i} but there seems to be a distinct correlation. I see obvious parallels with implementing ODR in the civil justice system.
Dedication, perseverance and passion will certainly be needed to combat the resistance that will be met in the civil justice environment. Many hours of slow progress and numerous bates* and alarms will have to be endured before ODR can be trusted to fly free. I am sure that the members of the advisory group are in full possession of their senses but it may require someone to volunteer to flirt with insanity if an effective ODR plan is to become the dispute killing machine that it might become.
*’bates’ is a hawking term – I am still wandering round in figurative gauntlets
