As debate heats up in the UK over a proposed online dispute resolution (ODR) system for low-quantum claims, many are considering the merits of such a model in Australia. What are the pros and cons of the proposed regime? And what could it mean for legal professionals here?
There is no doubt that the Australian justice system is struggling under its load of litigation as the number and complexity of matters filed continues to rise each year. The need for greater utilisation of technology to cope with litigation is widely recognised and it’s prompted nationwide efforts to digitise traditional court procedures. But is it enough?
The UK Civil Justice Council (CJC) doesn’t think so. Its recommendations for the UK include the adoption of a radical new internet-based court service (HMOC) to operate in conjunction with the traditional court regime, with the aim of broadening access to justice and improving the ease, time and cost of resolving low-value disputes.
The proposed online court comprises a three-tier process similar to dispute-resolution regimes employed by the likes of eBay and tribunals in Canada and Holland. The first tier evaluates the legal issues involved and provides advice to the user on their rights, obligations, options and remedies. The second tier facilitates online mediation and negotiation, providing an opportunity for parties to resolve the dispute without the intervention of an adjudicator. If the parties are unable to settle the dispute themselves, judges are employed at the third tier to decide cases online, based on electronically submitted evidence.
Advocates of the new system believe taking matters online will reduce both outlays and operating expenses and provide affordable dispute resolution for all members of the community at a value-proportionate cost and with minimal use of the judiciary, thereby freeing up court resources to handle more complex matters.
While there’s no doubt that the potential of this model is remarkable, and Australian courts could stand to benefit considerably if it were implemented, Lord Dyson, chairman of the CJC, says, “The challenge lies in delivering a system that fulfils that objective.”
There is some conjecture that the ‘existing available technology’ underpinning the model may not be as easily adapted to the court’s requirements as some assume, resulting in potential economic blowouts. Concern has also been raised as to the accessibility of the medium to those without computer or internet access, and critics have condemned the eBay dispute-resolution model as ‘buyer biased’.
As for lawyers, the impact of this initiative would most likely be beneficial. The reality is that most of our small-claims courts do not allow litigants to have legal representation and, in any event, the quantum of the claims would not warrant the engagement of a lawyer. If anything, the increased capacity of courts to process and hear applications, trials and appeals and the associated focus on digitisation and IT upgrades would probably be likely welcomed by the legal community.
As to how and when the proposed HMOC project will come to fruition, only time will tell. However, Australia and other international jurisdictions will be watching closely with the hope of jumping on board if the model performs as promised.