Online Dispute Resolution in civil claims
The expressed aim of the report, Online Dispute Resolution for low value civil claims (February 2015) by the Online Dispute Resolution Advisory Group (http://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf ) is to broaden access to justice and seek to resolve small scale (up to £25,000) disputes more easily, quickly and cheaply. It does this by ‘re-thinking access to justice’. It turns the present model of English justice, literally, on its head. As the authors demonstrate in Chapter 5, at present we have almost no state investment in ‘dispute avoidance’, not much in containment (forms of alternative dispute resolution). All investment is in dealing with litigation.
This is wrong, says the report: develop ideas around information to potential litigants so that they, for example, know what may be involved and what their entitlement is (in effect legal advice, but done in a neutral evaluative way). Next, comes dispute containment. Inquisitorial case consideration is conducted by on-line ‘facilitators’. This would be the stage at which mediation (in a conventional framework) would be involved. Finally if the case is not resolved then an online judge, working from papers and, perhaps some telephone conferencing, will determine the case. A court order will be produced, and will be enforceable, like any other.
The report illustrates this by a triangle. In the present system the triangle rests on its base, which represents the expenditure of conventional civil proceedings; whilst the narrowing apex of the triangle is the small state expenditure which is devoted to avoidance. In the on-line scheme the bulk of the work is in avoidance and evaluation, tapering – in expenditure terms – to a narrow court proceedings (what the authors call ‘dispute resolution’).
Clarity of law: essential for ODR
The real challenge, once the IT is accepted, and some rules redrafted, is to rewrite country’s laws and to set out the main contours of the common law in a form which people can understand (I defy most lawyer to understand what some welfare benefits law means). Clarity is fundamental. Then most averagely intelligent laypeople, with a dictionary, can follow the law and procedure; and so that, as happens in the administrative tribunals, there is not a festering priesthood of judges administering laws – which no one understands – like the medieval clergy with the Bible.
The possibilities for resolving disputes on family breakdown are enormous if it is understood that ODR ideas within the family breakdown process must be threaded into available Family Court alternatives where need be (eg domestic violence injunctions, urgent children proceedings). Procedure which was redrafted with ODR in mind and running in parallel with it, must help to reduce costs for those who have lawyers; and reduce the time and frustration – for judges and parties alike – where it works (money and some contact disputes, spring to mind; and why not – oh, come on, why not, seriously? – divorce on line).
Opportunities for mediation and busting Form E
As an example, imagine all ancillary relief cases being dealt with on-line. The model would not be quite the same as the ODR group propose; but the effect of completing an initial simple financial document on line early would give couples a preliminary idea (1) whether they should expect to have to engage in high-priced lawyers and barristers’ costs; or whether they can they do most of their case on line; and (2) how much of their case can be disposed of relatively simply because – on-line – they can find out how much of the facts can be agreed (valuations, documents to be disclosed etc). The more that a couple – even with quite substantial assets – come within range of (2) the more absurd the Form E exercise becomes and the more likely an ODR outcome might be achievable. Once you agree the assets in a financial case, the range of outcomes available to the court are narrow, and rarely depend on law. In the limited field of finance on family breakdown, there must be massive advantages to developing ODR ideas in the Family Court.
Joined up thinking is needed here. Instead of ODR, and apparently to increase its Alsatianisation of the Family Court from the CJC ideas, a Family Court judge-led group of mostly civil servants (assuming judges to be civil servants) have proposed that Form E, and most of the original financial remedy process, be retained. The Form E process becomes increasingly like the anaesthetist who is told always to administer a dose sufficient for heart surgery, before anyone in the operating room works out what the patient is in for. Front-loading of anaesthesia, and of litigation treatments, is not dissimilar.
ODR would go much further than family finances, I should have thought. Immediately it would reform family laws’ muddled mediation models. It would not replace face-to-face (adversarial) litigation in certain cases; but it would mean often that dispute resolution would precede legal advice not the other way around. This may not excite the bigger money lawyers; but it can only help a majority of the family breakdown population.