The European Union, the Netherlands and Canada were the first. Now the UK body responsible for overseeing and co-ordinating the modernisation of the civil justice system is recommending setting up an online dispute resolution service for small civil claims – i.e. an ‘eBay-style’ justice system.
The wheels of justice tend to move slowly in all democracies. Many people are therefore now advocating the creation of a sort of Courts 2.0 system, online platforms set up to deal with low value civil claims in order to relieve congestion in the traditional judiciary system. This solution would of course only be used for civil/commercial cases, not for serious crimes. In a recently published report entitled ‘Online Dispute Resolution For Low Value Civil Claims’ Lord Dyson, Master of the Rolls – i.e. the third most senior judge in England and Wales after the President of the Supreme Court of the United Kingdom and the Lord Chief Justice – and Professor Richard Susskind, who is inter alia IT Advisor to the Lord Chief Justice of England and Wales, recommend using the Internet to resolve civil claims under £25,000 (€35,000).
Back in 2009 the EU created a European small claims procedure for cross-border claims under €2,000, following the example of initiatives in the Netherlands (the Rechtwijzer 2.0 website) and Canada (the Canadian Civil Resolution Tribunal, which will begin work this summer). The idea then was to use the web at EU level to link up parties to a dispute with a judge. When a cross-border dispute arises, the distance is a factor that may well slow down resolution. This is precisely the kind of distance issue that led eBay to create its own online dispute resolution system for the convenience of buyers and sellers on its site.
Remote justice tool
The eBay system is based on a remote justice procedure whereby a counsellor tries to bring the two opposing parties to an agreement. This is the first aspect envisaged by the UK report, i.e. judges will decide cases online, by looking at the facts as supplied by the parties concerned and if necessary talking to them on the telephone. As with eBay, the Web makes it easier for the various parties concerned to get in touch with each other, especially where distance makes face-to-face resolution of the dispute unfeasible. The idea is to “rationalise our current system rather than make fundamental changes” says the UK report. In other words, change the physical process rather than the justice system itself. Richard Susskind argues in a video outlining his report that it “will increase access to justice because we believe more people will use the system. It will be cheaper, more convenient, less forbidding”.
eBay Resolution Center: a new model for delivering justice?
Algorithm and FAQs the new judges?
Moreover, the website can go much further than just getting the opposing parties together. The report also plans for a more automated claims processing system based on a Frequently Asked Questions (FAQ) section, with everything linked through algorithms and formulae. The report says that this could avoid people bringing claims that are without merit. The user ticks a number of boxes and will then automatically receive appropriate advice. eBay already provides this type of assistance on its site, and while the report seems to wish to mark a distance from eBay, it would nevertheless seem to advocate moving to a similar model. Meanwhile in France the DemanderJustice.com site uses the same sort of algorithms, with the notable difference that there the goal is to draw up your case brief so as to either convince or threaten your adversary. “This is a software programme that covers any type of dispute you might encounter. You can find ready-made case brief templates, to which you can add your own information. Basically the software will take care of implementing the procedure (...). We’ve tried to implement everything online: electronic signatures, sending registered electronic mail, and semantic document analysis,” explained founder Jérémy Oinino on the L’Atelier numérique (L’Atelier Digital) radio programme. However, it is precisely the automation aspect, which some may find rather cold and forbidding, that is being roundly criticised by many law practitioners in France, who are extremely reluctant to use the tool.