Courts: access all areas

Professor Richard Susskind is a very modern type of academic. He marries considerable substance with fearsome marketing. It is no surprise that these qualities are visible in his committee’s report on the future of online dispute resolution (ODR).

Go to the webpage blagged from HM Courts & Tribunal service; watch his video; download the report and read the background papers. Your time will be well spent.

Let me declare an interest. I was a member of Susskind’s committee. I sign up for its signature idea – that we must develop online approaches to dispute resolution. I have seen – and been bowled over by – the ODR systems developed in Canada (British Columbia’s Civil Resolution Tribunal) and the Netherlands (Rechtwijzer 2.0). It is true that these present, as assorted naysayers have said, all sorts of difficulties yet to be fully resolved. But one passage screams out of the Susskind report: ‘The number of small claims going to hearing has decreased over the past 10 years from 51,046 in 2003 to 29,603 in 2013.’

And why would small claims have dropped so fast? It is clearly because of reductions in legal aid allied with excessive court fees. Who is going to pay large costs for the resolution of small disputes?

In the 1970s, a whole consumer movement demanded small claims adjudication outside the court system because of values which were precisely those now expressed as being behind the drive for ODR (and listed in paragraph 3.2 of the report): affordability, accessibility, intelligibility, proportionality, fairness and finality. In the end, the small claims jurisdiction was incorporated within the courts. And that decision was, in principle, right. The state has a role in ensuring the fair and proportionate determination of small claims.

The Susskind report argues that there are three phases to online dispute determination. The first is dispute avoidance through the availability of advice and information (followed, in its taxonomy, by ‘dispute containment’ and ‘dispute determination’).

For this first phase, it would be odd not to build on the existing advicenow.org.uk and adviceguide.org.uk networks to provide a national net-based, but adviser-supported, network of assistance which integrates lawyers where needed. I would contract this initial phase out to a mosaic of provision with government co-ordination, but aggregating the best from Citizens Advice, Shelter and websites provided by solicitors such as roadtrafficrepresentation.com.

As to online ‘containment’ and ‘determination’, all current systems are basically the children of eBay and often the product of Modria, the online settlement company it spawned. On the good side is the attendant paradigm shift to a more ‘collaborative’ approach between the parties.

The Dutch and Canadian systems should provide good examples of this. But courts are fundamentally different from auction houses. Traders on eBay are kept in line by the commercial disadvantage of reputation loss: no wonder that disputes are so well contained. Any court-based system must compensate for imbalances of power and resources between parties. A robust ‘triage’, ‘early neutral evaluation’ or mediation phase may be ways of doing this – with the help of court staff whom we might, with a sense of history, call registrars.

Any court-based ODR system also has to be able to ‘red flag’ those cases which by their nature are inappropriate for online resolution: disputes where there is any element of likely violence; where one or both of the parties is not seeking an honest settlement; and where there is a third-party or public interest in the resolution of the dispute.

Technology provides the one hope that courts may remain open to all – unlike, in the famous analogy, the Ritz Hotel. It may allow the necessary reduction of cost to keep ordinary citizens engaged. But let us be clear about how we would measure success. We want more citizens to enter the system – not fewer – because we want it to be more useful.

True, we might want fewer cases to proceed to judicial determination if they can be appropriately settled beforehand. We want to contain the costs of the court service but we should be cautious about thinking that online determination will bring savings for government. The priority must be to bring costs down so that people of modest incomes – they may even be members of the ‘hard-working families’ otherwise so assiduously courted by politicians – can find a fair and cheap way of resolving disputes.

And, if we can bring costs down enough, we may liberate one of Susskind’s most thought-provoking ideas – the ‘latent legal market’ of those on low incomes who would pay to resolve legal problems if we could get the price low enough. Now, there is a challenge.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice