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Thursday, November 19th, 2015 technology  research  practice

A Practice Tip

  • Practice

♫ Light gives way to darkness
Unless we come alive.
So be the change you need to see.
Let yourself ignite…♫

Lyrics, music and recorded by Heartist.

flaming-gavel320

(image by Erralix)

In the UK, “The Lord Chief Justice and the Master of the Rolls, as Head of Civil Justice, have asked Lord Justice Briggs to carry out an urgent review of the structure of the courts which deliver civil justice.” As part of this review is the consideration of the creation of an on-line court (“OC”) for ‘lower value disputes’. (http://www.chba.org.uk/news/civil-court-structure-review )

It is designed primarily for use by litigants, in person; it is to be ‘investigatory rather than purely adversarial’; it is to include conciliation, mediation and it is to be a mainstream rather than an alternative method of dispute resolution.

Face to face hearings are to be used only if ‘documentary, telephone or video alternatives’ are unavailable.

The issues that they will be examining and considering are:

At what level of value at risk (or other criteria) to set the ceiling of the OC.

Whether there are types of case which, regardless of value, are unsuited for resolution in the OC.

Whether use of the OC (once fully tested and proved) should be compulsory.

How to assist those for whom the conduct of litigation on-line is impossible or difficult.

Costs shifting between the parties.

A suitable rules regime for the OC.

How to achieve the transparency needed for the process to comply with the requirements of open justice.

The design of an appropriate appeals process.

If this sounds at all familiar, it should. British Columbia’s Civil Dispute Tribunal will be coming on-line in the near future. The Civil Resolution Tribunal Act will require parties with minor strata (i.e. condominium ) disputes and small claims matters (expected to be $10,000 or less) to use the mandatory CRT. The CRT will be Canada’s first online tribunal.

The CRT is intended to be a cost-effective and accessible process for resolving disputes.  Parties will not be filing documents in a courthouse or indeed attending hearing or trials.  They will be accessing the CRT online. No need for taking time off work to go to the court registry; the CRT website will be available 24/7 and asynchronous communications can be used.

The CRT will consist of two systems: the Solution Explorer is intended to help people with tools to access their options and resolve their dispute themselves. The second system will be the Dispute Resolution Service which will enable early resolution options and adjudications if necessary. In this way it is similar to the online dispute resolution mechanisms of eBay which assist parties to resolve their disputes. eBay’s system works: they resolve some 60 millions disputes a year, of which  over 80% are settled by the two parties and the software.

Indeed the Independent reports that the UK OC will be modelled on the eBay system:

Thousands of legal disputes would be settled online each year under plans for an eBay-inspired revolution in the civil justice system.

Judges would rule on cases involving up to £25,000 without the need for courts to be booked or for the parties involved to appear in person to give evidence. The proposed shake-up – which is supported by senior judges –  could also save large sums for the Ministry of Justice (MoJ).

These innovations in civil justice are just starting. But the advantages of ODR (Online Dispute Resolution) as compared to traditional trials are quickly apparent. The Canadian Department of Justice lists the advantages of ODR as follows:

  • ODR is a generally informal, flexible and creative tool of dispute resolution which is not governed by strict rules of procedure and evidence. This may allow the parties to design or participate in a process which can be moulded to suit their needs and encourages a consensual rather than an adversarial approach.
  • ODR may reduce litigation costs: this is of importance both to corporate parties who wish to keep costs down and to parties who otherwise might not be able to afford the cost of litigation. The costs of the process or compensation given to the neutral evaluator are generally borne equally by all parties, providing all parties with an equal stake in the outcome and an equal sense of ownership.
  • ODR may be the appropriate option particularly for low-cost, high-volume transaction as it often allows for a timely, cost-efficient and efficient resolution to problems where the amounts in dispute may not be sufficiently high to justify the cost of a meeting-based mediation (e.g. consumer disputes).
  • ODR also allows for a more cost-efficient resolution of disputes where there is significant geographic distance between the parties and the amount in dispute may preclude the cost of travel.
  • ODR may be appropriate where there are sensitivities between the parties that may be exacerbated by being in the same room (e.g. matrimonial disputes).
  • ODR may allow for the participation of parties who could not otherwise attend an in-person meeting due to a severe disability.
  • ODR is confidential (unless agreed otherwise by the parties), subject to the application of the Access to Information Act and of the Privacy Act when the federal government is a party. The process is appropriate when confidentiality is considered important or necessary to the parties, which is often the case: parties utilizing DR mechanisms usually do so on the basis that they can discuss matters freely in the expectation that they will be disclosed, neither publicly, nor to a court.

Certainly there are disadvantages of ODR, not the least of which is having those who are disadvantaged or with disabilities access the online resources necessary to participate.

However, when it comes to increasing access to justice and moving the justice system into the 21st century, there is no question that greater online resources will play a big part. The challenge for the legal and the justice system is to be the change that we need to see and let ourselves ignite to the possibilities that change might bring.

-David  J. Bilinsky, Vancouver.

 

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