The University of Cambridge’s Pro-Bono Project has produced a report for the International Legal Aid Group entitled 'A Comparative Analysis of Online Dispute Resolution’. The report analyses ODR systems in several jurisdictions and considers what lessons HMCTS can learn in the implementation of their own digitisation project.
As many readers will be aware, Her Majesty’s Courts and Tribunal’s Service (HMCTS) of England and Wales recently announced a £1 billion digitisation effort. This is intended to encompass over 50 distinct projects, including an integrated case management system and ODR systems. HMCTS has indicated that, by 2023, this will have delivered millions in annual cost savings and will have removed 2.4 million cases per year from physical courtrooms. HMCTS has to date undertaken very little consultation on this project and there appears to have been a lack of consideration of the far-reaching implications of such a project for access to justice.
In order to go at least some way to addressing these issues, the International Legal Aid Group commissioned a report from the University of Cambridge’s Pro-Bono Project (CPP) entitled ‘A Comparative Analysis of Online Dispute Resolution’. The report is available to download here and below. The aim of the CPP project was to explore the various concerns associated with ODR, particularly those relating to HMCTS’s proposed Online Court. It is hoped that the final report will provide useful background information that may assist and inform policymakers, together with a comprehensive analysis of the potential impact of ODR that has so far been absent from the debate.
At the heart of the CPP report lies explanation and analysis of first the proposed ODR system in England and Wales, and secondly ODR systems that have been implemented, or that are in the process of being implemented, in other jurisdictions, namely: the United States (specifically Michigan and Utah), Australia (specifically New South Wales and Victoria) and Canada (specifically British Columbia). The jurisdictional research was undertaken by four postgraduate students at the University of Cambridge: James Humphrey (England and Wales), Laura Hannan (United States), Long Pham (Australia) and Jennifer Anderson (Canada). The research was overseen and collated by Alex Allan and Ellie Brown, both PhD students and former practising solicitors.
The first step in preparing the report was the creation of a questionnaire that would be used to structure the report on individual jurisdictions. This covered all of the crucial issues associated with ODR, including the reasons for the introduction of ODR, how it has been implemented, any benefits and problems that have been identified, concerns regarding access to justice, transparency and open justice, together with a detailed explanation of the ODR mechanisms themselves. The structured format of the questionnaire meant that the same information was provided for each jurisdiction. This allowed for a more comprehensive and accurate comparative analysis. The jurisdiction reports were then collated, a summary table was produced and conclusions were drawn.
Summary of the Report’s Findings
It is immediately clear from the report that there is a substantial variation in the extent to which ODR has been implemented in each jurisdiction. This means that there is a corresponding variation in the availability and nature of information and accompanying commentary.
ODR in all of the jurisdictions under consideration is primarily confined to small civil claims. Some jurisdictions specifically confine the use of ODR to claims below a certain value. The reasons for introducing ODR systems are also generally consistent. The potential for a substantial reduction in costs and an increase in efficiency feature in every jurisdiction, as do justifications in terms of ease of access, reducing reliance on legal representatives and reducing the time that it takes a case to go from issue to resolution.
While the aims and intended benefits are similar, the nature of the ODR systems and the methods employed to attain those aims and benefits vary between jurisdictions. This is particularly the case as regards whether an ODR system will act as a procedural tool allowing easier case management, or whether it will eventually replace the traditional role of the court in terms of ruling on applications and adjudicating on claims.
Having undertaken this jurisdictional research, it proved difficult for the authors of the report to determine unequivocally the value of ODR. It appears to have been well-received by users in at least some jurisdictions. It has also been suggested that ODR provides access benefits, may reduce court time and reliance on costly legal representation, and may lead to quicker resolution of disputes. On the more negative side, concerns were voiced that ODR systems could negatively impact both access to justice and open justice. There are concerns across the jurisdictions that, for example, technology may prove a barrier to access for some and that an insufficiently well-designed ODR system could in fact cause additional delays. Care does need to be taken when evaluating the available commentary. The research reveals that much of it is provided by either creators of the system in question or the policy-makers driving its implementation. This means that truly neutral insights can be difficult to obtain.
Summary of the Report’s Conclusions
Four general conclusions were drawn from an analysis of the jurisdiction reports:
- There is a wealth of useful information and guidance for ODR in England and Wales to be obtained from the implementation and use of ODR in other jurisdictions.
- In practical terms, the technology is available to create a workable ODR system.
- Ensuring that practical reality, in terms of the design and functionality of an ODR system, lives up to theoretical potential will require investment of time and resources.
- It is essential for detailed studies to be undertaken in order to determine the success of ODR and to identify areas for improvement.
In short, the true implications of ODR systems for access to justice remain to be seen. Access to justice for all, achievable on a practical as opposed to merely theoretical level, is one of the fundamental principles that must underlie an effective justice system. ODR, if implemented carefully and resourced sufficiently, has the potential to achieve its aims without negatively affecting access to justice. The CPP report concludes that independent, ongoing and thorough research is required to ensure that this fundamental principle is upheld.
You can download the report in full below.
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