What do our regulators have to say about the part lawyers will play in online justice?
The role of lawyers in online dispute resolution (ODR) is causing enough of a dispute to merit its own special resolution service.
In England and Wales, there has been the growing spat over the role of lawyers in the new online court proposed by the interim report of the Civil Courts Structure Review. Lord Justice Briggs, who leads the review, has now confirmed that the repeated - and I mean repeated - mention in his report of the online court as being a court without lawyers does not really mean that. Not at all.
Instead, he now says: 'It should not be thought, merely because the online court may be designed in a way which enables people to litigate without lawyers, that lawyers are intended to be excluded from it. Not at all. Such a design would, however, encourage barristers and solicitors to provide unbundled and therefore more affordable services to those thinking of using the online court.’
Now the issue of lawyer involvement in ODR has gone global. UNCITRAL (the United Nations Commission on International Trade Law) has been working on ODR for some years, with the aim of developing principles of fairness, due process, transparency and accountability in ODR systems. Its Working Group III on ODR has produced a ‘Draft outcome document reflecting elements and principles of an ODR process’.
In that document’s terminology, a ‘neutral’ is ‘an individual who assists the parties in settling or resolving the dispute’ – what we would call the arbitrator or mediator, or indeed judge, in other circumstances. So here it is not about someone assisting one of the parties in a partial way, as in the dispute in England Wales, but in deciding the matter. The neutral becomes involved at the second stage of UNCITRAL’s framework, when there needs to be a facilitated settlement, for instance if negotiation via the platform has failed, or where either party wants to move directly to the second stage. The neutral is appointed by the ODR administrator.
An alarming statement appears at paragraph 46. I am told that there was a long argument about the wording, but this is what emerged: ‘It is desirable that neutrals have the relevant professional experience as well as dispute resolution skills to enable them to deal with the dispute in question. However, subject to any professional regulation, ODR neutrals need not necessarily be qualified lawyers.’
The trend is clear. ODR is obviously the way of the future. Governments can no longer afford to maintain the full panoply of courts, judges and legal aid. In any case, the current system denies access to justice to a significant proportion of the population. Technology appears to provide a solution to both. And, along the way, the role of lawyers (including judges) is being reduced to – what exactly? The question which is impossible to answer in advance is whether the complicated rules of civil litigation have developed because they are necessary for justice, or useful for lining the pockets of lawyers. The consequences for the administration of justice are uncertain until we know which is correct.
For that reason, I endorse two responses given to the Briggs proposals so far: that of the Bar Council for rigorous testing and careful piloting, and that of Roger Smith for learning the lessons from abroad, where such systems are sometimes more advanced.
A question impossible to answer is whether the complicated rules of civil litigation have developed because they are necessary for justice, or useful for lining the pockets of lawyers
All this is taking place within the broader framework of technological change upsetting markets and traditional practices. In the context of legal services, it means: document-assembly sites run by non-lawyers; legal services and lawyer-rating websites owned by non-lawyers; and the strides being made by artificial intelligence. But it particularly means the growth in electronic systems for dispute resolution, such as the system developed by Modria for eBay, in which the vast majority of small claims are settled without any human intervention.
Many of these services operate in the poorer end of the market, but I suspect that the outcome will be that when the poorer end has been perfected and dominated, the new systems will be in a good position to tackle the part traditionally occupied by most lawyers.
I am not one who thinks this is the end for lawyers, but our role is clearly mutating fast. It includes incredible shrinkage, but doubtless - I want to accept this as true - huge expansion elsewhere. ODR is one of the areas of shrinkage. We should be hearing from our professional bodies with a plan for the future, about where to retreat, where to fight and where to develop. A plan… anyone?
Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs