The new justice economy

Alternative dispute resolution, what used to be ‘the next thing’, has now become mainstream. However, attention is now turning to online dispute resolution, or ODR, a term used here to mean the use of technology to support the settlement of civil and commercial disputes.

Paris was the venue for the International Chamber of Commerce to host the 17th annual ODR conference in June. Some 170 participants from 35 countries explored the information communications technology playing a role in promoting access to justice and the problems that arise from such technology. Several themes emerged over the course of the two-day event.

Drivers for change

There are many forces for change but three in particular stand out. The first is the conundrum facing many jurisdictions worldwide: how can we provide more justice for more people but at less cost than is currently being incurred?

The second is the fact that a large percentage of the world population is now connected to the internet by computers, tablets, and smartphones. This is emphasised by the following statistics: of the total population of India, namely 1.335 billion, the number with mobile telephones is 1.059 billion, or 79 per cent of the population. A strand running through several conference presentations was that access to a mobile telephone may be key in facilitating access to justice.

The third is that this connectivity gives rise to an ever-increasing public expectation that everything can be dealt with, sorted, or delivered immediately: “Why can’t we sort this out online right now?”

These drivers were no doubt part of the reason that caused ODR guru Colin Rule to conclude, during his address, that courts throughout the world now see ODR as the route to access to justice. “We are on the cusp,” he said, of ODR being adopted by courts.

Responses to drivers

The initial response to these drivers is for courts to digitise existing processes. An example of this is the electronic filing of papers with the court and the move away from using paper anywhere in the process. In the UK, we are still waiting to see what our online court will look like.

In other places, paper is on the way out. In the US, the private sector has taken a lead, examples being the digitisation programmes introduced by Matterhorn and Tyler Technologies. Tyler claim that 75 per cent of the US population live in states that use Tyler products. Figure 1 illustrates Tyler’s services in the justice sector.

Another response to the drivers for change is a move to make ADR available online. One example discussed at the conference was the Montreal initiative ODR:PARLe, an online dispute resolution platform for small claims. This offers consumers and retailers a “quick and free” service to resolve low-intensity disputes. It uses a structured process, based on negotiation and mediation, within a secure and private environment, and is designed to be friendly and accessible. The project objectives include using technology to lower the cost and reduce the delays of justice – very Woolfian, for those who recall Lord Woolf’s reports of the 1990s, such as ‘Access to Justice’.

A further example of ADR moving online is the work of American corporation Modria, a leading ODR company, chaired by Colin Rule. The news at the conference – and this is a significant indicator of the current development of the sector – was that Modria has been acquired by Tyler. It is fairly easy to join the dots and deduce that Tyler considers it important to be able to add ODR to its current offering to the courts. Other examples of this type of development are the Civil Resolution Tribunal in British Columbia and, of course, the online court currently being developed in England and Wales by HM Courts and Tribunals Service.

It is not only the courts that are offering ODR. Presentations by ODR Latinoamerica and ODR Europe outlined embryo ODR schemes delivered via mobile telephone. The former was a free community scheme in the favelas of Buenos Aires, the home of 30 per cent of the city’s population. Given that 80 per cent of the population are accessible by smartphone, this medium was seen as the obvious one to deliver the scheme. ODR Europe showcased its ODR4refugees app, a smartphone-based ODR app for refugees to deal with disputes concerning camp administrators, other refugees, or the local community. The platform, which is described as a simple and friendly app, is multilingual and offers communication by audio, video, or text.

A more sophisticated ODR response to the forces of change is the significant investment in and practical development of what might be termed ‘predictive justice’. This phrase is used to denote the combination of data, artificial intelligence, and machine learning. The objective here, which represents a step change compared to putting paper processes into electronic form, is to enable answers to be given to these questions:

• Will I win or lose my claim? and

• What level of probability can you assign to your answer to that question?

Finally, there is a response to change which will take some time to fully develop, and this is an objective to use ODR capabilities not merely to resolve disputes, but to prevent them occurring in the first place.

When we look at these various responses through the access to justice prism, it can be seen that there are ways in which more justice may be provided for less cost. Further, these new tools and capabilities clearly have the potential to deal with an increasing workload and resolve cases at a much earlier stage than conventional systems.

The downside

It is generally accepted that the internet, for all of its many positive and sometimes revolutionary facets, also brings many problems. ODR will be no different and the conference heard how problems, issues, and challenges are arising.

Some of these are at a practical level. At last year’s ODR conference, the Dutch Rechtwijzer was hailed as the way forward. This conference learned that the project had been discontinued on the basis that it was not commercially viable.

There are many significant challenges on the ethical front. ODR Europe had noted that although ODR4refugees could track the movement of a refugee in a host nation, this could prompt human rights challenges.

There are other fundamental questions. Who controls algorithms? Are they designed by one party at the expense of another? Should there be universal quality and ethical standards? Human rights and consumer rights may not sit easily with some aspects of technology.

A number of academics covered these thorny subjects and one, Professor Brian Hutchinson, demonstrated the need for ethical, technical, and evidentiary standards in ODR. IT management consultant Tresca Rodrigues, with a business background and experience in helping the public access justice, advocated the importance of quality assurance and provided a practical outline of how standards might be achieved through a quality management framework. This approach, depicted in figure 2 above, translates theory into practice.

Solving these problems is not merely ‘nice to have’ or something that can stay in the ivory towers. Professor David Larson related how his work in developing a pilot online platform for credit card debt collection cases in New York state had run into problems with stakeholders. These occurred primarily due to the lack of a set of common ODR standards.

Clearly, there is a great deal of activity in this field. Those wishing to learn more would do well to refer to two recent publications: ‘Digital Justice’, published by OUP, and ‘Essays on Mediation: Dealing with disputes in the 21st Century’, published by Wolters Kluwer.

Giving the conference his view on the current state of ODR, Colin Rule said: “We have been talking about ODR for 20 years, but we are still at the beginning.” The proliferation of schemes being developed and in operation might suggest that we are at the very end of the beginning.

Tim Wallis is a mediator and solicitor at Trust Mediation