In the latest Civil Justice Council report, Professor Richard Susskind proposes to reduce expenses to the judicial system by establishing “Her Majesty’s Online Court” (HMOC), an Online Dispute Resolution system for civil court cases below £25,000. Online Dispute Resolution (ODR) has successfully allowed parties who are unable to meet face-to-face to negotiate and resolve their disputes over the internet. Most often, ODR has been used to bridge the gap between consumer and supplier in an online purchasing era. Examples include eBay (for online bidding), Youstice (for low value consumer complaints), Resolver (for complaints between consumers and retailers), and Modria (for companies who want to build their own ODR system).
The proposed HMOC would establish a three tier online court system. The function of the first tier would be “dispute avoidance.” In tier one, claimants will have an opportunity to evaluate their problems and become informed of both their rights and obligations, as well as their options and available remedies. At no cost to the user, users will have access to a system of relevant legal information established by charitable bodies and law firms on a pro bono basis.
The second tier would be “dispute containment.” This tier will be more inquisitorial as opposed to tier one’s informational nature. At a low cost to the user, expert online facilitators will review papers and statements from both parties. Similar to the spirit of Alternative Dispute Resolutions (ADR), the facilitators will set up online sessions to mediate and encourage potential negotiations. Additionally, some of the negotiation process will be automated allowing parties to settle their disputes without an online facilitator. The committee anticipates that 90% of claims will be resolved at this tier, while the last 10% reach the costlier tier 3.
The third and final tier would be “dispute resolution.” Resembling a typical adjudicatory system, online judges (full-time or part-time members of the judiciary) will decide cases largely based on electronically submitted papers. At a cost higher than tier 2, but still lower than the current court system, users will gain access to an online structured pleading and argument system. In addition, teleconferencing and similar technology may be used when necessary. Although the judge’s decision will be final, a user will still maintain his/her right to appeal similar to the conventional court system. Lastly, if there is an important legal issue at hand, the online judge can refer the case to a conventional court system for traditional adjudication.
Establishing an ODR for civil court cases will have numerous advantages. First and foremost, it creates a more affordable and accessible system for potential claimants. In addition, ODR will create a system that is non-lawyer friendly saving users’ money and time, as well as instilling a sense of self-legitimacy. Moreover, the traditional concerns of judicial economy will be met by preserving limited resources and encouraging early dispute resolutions. Lastly, a more automated and informative system will produce both speedier and consistent results.
While there are numerous advantages to a civil court ODR, there are many obstacles that still need to be overcome. At the forefront, the committee will need to determine exactly what cases HMOC will have exclusive jurisdiction over. In order to prevent a situation where a traditional court serves as a “business class” service and HMOC as an “economy class,” the report proposes that certain categories of claims will not have the option of using the traditional court system. However, this raises another problem: will the compulsory online nature of HMOC actually limit justice to certain potential claimants who cannot use the internet? The report, citing to a study by Roger Smith, estimates that around 5% of the adult population does not have internet, nor has access to someone who could assist them in using HMOC. Finally, there is the traditional floodgates of litigation argument: will an easy to use system create a society of overzealous litigants? As a solution, the committee suggested that fees at tiers 2 and 3 should be adjusted to provide a balance between deterrence of arbitrary claims and affordable access to the legal market. How does the committee propose to do this? As of now, no one knows.
Currently, the report has been welcomed by Her Majesty’s Courts and Tribunal Services. A pilot is in plan for as soon as this year, with the committee aiming to launch the HMOC in 2017.