Legal Futures has suggested that the new online Court proposal should be made more radical by introducing a new “digital mediation” process.
Lord Justice Briggs last month published his interim report on the structure of the civil courts in England and Wales. The most far-reaching of his recommendations was the creation of an online court for claims valued at less than £25,000, to be governed by a new set of simplified procedural rules.
The wider aim of the report is to reduce the law’s reliance on physical buildings and to free our legal system from the stranglehold hold of paper. In fact there may be no choice as physical Courts are earmarked for closure before any alternative has been introduced. That is akin to closing roads without providing any public transport alternative. The litigation journey is about to become more difficult and expensive for many.
The article argues that it is important that reform is not just about increasing access to justice by providing a cheap alternative. Digitisation of the highest quality should be an end in itself.
A recurring theme of the report is that the traditional system of justice, as given by judges in open court, is to be preferred and preserved, if possible.
The report addresses the paradox of the courts resorting to more sophisticated approaches to litigation whilst an increasing number of litigants are in person. However, many of these same litigants lack digital competence, and the report’s only suggested solution to this is to draw upon the resources of the court staff (or those that are left).
At the moment it is not even possible to have a telephone hearing if you are unrepresented and the option of having a small claim dealt with on the papers is not much used. It is a quantum leap to change from this to an online process.
According to Legal Futures, the report is seeking to introduce cheap and cheerful solutions merely supplementing or adapting to a traditional process. The option of a real alternative is not addressed in a positive way.
The article suggests that once the nature of the opportunity presented by digitisation is appreciated, then there is a clear connection with alternative dispute resolution as properly understood. It is a true alternative. The best example would be the development of early evaluative mediation, a clear way forward in relation to low-value disputes currently litigated at vastly disproportionate costs.
These costs are not only driven by the lawyers, but also by the cost of the entire court system in terms of buildings and staff, none of which would be necessary with an independent mediator substantially using a digital process. The question of digital inclusion could be addressed by the mediator using similarly impartial paralegals.
The article concluded that it is important to remember that the normative rationale of legal digitisation is to usher in a new, revolutionary way of doing things. It must not be seen as a cheaper supplement to an otherwise perfect legal system.
Here at ProMediate we already operate a digital mediation system through the EU ODR Platform that became operational on 15 February 2016