Accessing justice online

The Civil Justice Council (CJC) has called for lower value disputes to be resolved through a new state-run 'online court'.
It would run parallel to the traditional court system, allowing the courts service
to free up valuable time and resources.

The inspiration for this comes from the private sector, for example eBay's dispute resolution model, which resolves over 60 million disputes between traders
every year.

The proposed new model comprises a three-tier system, covering dispute avoidance, dispute containment, and dispute resolution. We've partnered with Small Claims Mediation (UK), who have conducted extensive work
in this area. Our combined experience shows that an
online court system has great potential, but to be successful with the public it will need to learn some key lessons.

A good lawyer

The first stage of a litigation avoidance mechanism is the right starting point. People will need the system to do what a good lawyer does - help the aggrieved party articulate to their opponent why they are unhappy and understand what they can realistically achieve.

Therefore, the online system needs to:

• Provide support, to help the claimant to communicate to their opponent, concisely and without inflammatory language, why they feel wronged; and
• Direct the claimant to guidance on their legal rights, so they have a realistic understanding of possible outcomes. It is only with this that they can also articulate what solution they reasonably require.

Even with this support, I suspect the vast majority of disputes will not settle directly between the parties, but that is not to discount the importance of having set the right tone and direction.

Affordable mediation

We all know that the traditional litigation process is too expensive for most people to pursue their rights. The next stage the online system needs to provide is an affordable mediation service.

In mediation, both parties should buy into the process, split fees, and feel that they remain in control of the dispute and its outcome. This means both parties will feel they have had their say and are more likely to recognise there is some merit
in their opponent's position, leading to an outcome they
can both live with. Data from Small Claims Mediation (UK) shows that 80 per cent of mediated disputes have been successfully resolved, meaning there is no need to progress to a judicial finding.
They prove that it can be done quickly too, with the majority
of their mediations being accomplished within two weeks.

Crucially, effective mediation removes the outdated 'winners and losers' psychology that has dogged our traditional litigation system. This in turn leads to extensive non-compliance with judicial decisions. In contrast, enforcement applications are rarely needed with mediation - saving further legal costs.

Client-led

Next, the new model needs to
be kept genuinely accessible.
The whole service needs to be client-led and not just assume what people want. Last summer we researched the potential reaction to using an online portal for legal services. Surprisingly, our focus groups indicated that the vast majority of people are not yet ready for webcam mediation. Even those used to 'Skype-ing' members of their family do not want to see a video stream of their opponent. Therefore, also offering mediation or hearings by
phone would improve take up.

The new service also needs to avoid alienating legal jargon
and instead use clear and
simple language. Replicating
the complex forms and legal language of the current small claims court would hinder the success of the online system.

Finally, to really succeed, the system needs to move parties swiftly from dispute to mediation. The current mediation offering in our legal system kicks in far too late in the process. Anyone who has not already given up will need to have issued proceedings and gone through several adversarial exchanges before they are offered mediation. This can
often be a year after the original dispute occurred. By then views will have become entrenched, and willingness to compromise evaporated.

Unfortunately, delays act as a catalyst for unseemly, drawn-out, and costly litigation. It is crucial that investment is made in the resourcing of the new system to avoid them. This needs to be a core aim of the proposed online court system, which in turn will save on the resources needed
for both judicial findings and enforcement.

Ultimately, the proposal from the CJC of an online court system is a step in the right direction, as long as it is developed in a way that is user-led, and resourced
to facilitate swift progression
to mediation. The opportunity
is there for an intuitive service, with hearings or mediation that could be accessed from the comfort of your own home
and during out of office hours.
This would be seen as a genuine modernisation of the accessing of justice. SJ

John Baden-Daintree is a director of legal services at QualitySolicitors

Copyright & permissions