The Civil Justice Council (CJC) set up an advisory group to explore the role of a new Online Dispute Resolution (ODR) in resolving civil disputes across the internet, using techniques such e-negotiation and e-mediation.
Sue Prince, Associate Professor of Law, University of Exeter was selected to be part of the group to advise the CJC, as she has previously carried out research on small claims and fast and multi-track mediation for the Ministry of Justice. The report calls for a dedicated state-run ‘Online Court’ to operate alongside the traditional court system.
A significant number of cases that go to civil courts tend to be small claims generally under £10000 or and are disputes over money, or services.£1000 for personal injury Money disputes such as contesting the estate of a dead relative, trying to get a rent deposit back from a landlord, buying something that doesn’t work from a store and trying to re-claim the money are problems that people may experience. Businesses may also use small claims to reclaim debt. Where people seek help for everyday problems can be complicated and expensive in the current court system. The proposal for an online system to help people access justice by using online services to provide a clear set of stages to follow through the court process would revolutionise the current system and bring public services into a user friendly future.
Professor Prince explains: “Public services are under increasing strain and the courts are no exception. I have seen the problems and passions of everyday life played out in the small claims courts but people do not understand how to work their way around the complex court system so the problems can become even more stressful. The integrated and intelligent use of interactive technology in the form of an Online Court will introduce a new kind of legal system. It can only serve to enhance access to justice and enable people to more effectively deal with the very traumatic and complex issues that traditionally arise in small claims such as building disputes; problems with neighbours; problems with debt or injury or business or consumer transactions.”
Rather than streamline the existing court system and focus exclusively on dispute resolution, the report recommends a three tier online court that turns the existing format on its head by focusing on dispute avoidance and dispute containment as well as on dispute resolution.
Tier 1 – Dispute avoidance – online evaluation of the problem with the support of interactive aids and information services. This will help people diagnose their issues and identify the best way of resolving them.
Tier 2 – Dispute containment – online facilitation. Trained, experienced facilitators bring an objective eye to the problem and try to help the parties reach agreement on resolving the issue.
Tier 3 – Dispute resolution - Online judges. Professional judges will decide suitable cases online, largely on the basis of papers received electronically, but with an option of telephone hearings. The decisions would be as binding and enforceable as court rulings.
The report recommends that Her Majesty’s Courts and Tribunals Service (HMCTS) set up a pilot as soon as is practicable with a view to rolling out an online court based on the findings. It is suggested that the first phase for this would be progressed in 2015-16 with an online court system pilot, ahead of an anticipated full roll-out in 2017.
Professor Richard Susskind, the report’s principal author said:“This report is calling for a radical and fundamental change in the way that our court system deals with low value civil claims. Online Dispute Resolution is not science-fiction. There are examples from around the world that clearly demonstrate its current value and future potential, not least to litigants in person.”
“On our model, an internet-based court would see judges deciding cases online, interacting electronically with parties. However, our suggested online court has a three tier structure, and we expect most disputes to be resolved at the first two stages without a judge becoming involved.”
The report advocates that pilots should be undertaken to test online courts in practice, focusing on small claims of low monetary value. This would complement the existing small claims mediation process and ensure that straightforward disputes could be resolved quickly and cheaply. The working group also looked at policy and legal issues arising from an online court – such as whether it offers a fair hearing process, and whether it excludes people with no easy access to technology.
The report envisages that in the first instance HMCTS will want to make a full feasibility assessment of the proposals, and the CJC has authorised the Working Group to continue its work so that it can offer expert advice and support to assist the developmental work.