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Time to go online

Time to go online

By Katarina Palmgren

Access to Justice Courts Dispute Resolution Innovation Technology 

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Snapshot

  • The establishment of an online court in Victoria presents an unprecedented opportunity to dramatically improve access to justice for those experiencing small claims disputes.
  • The aim of the online court is to provide a modern, simple, efficient and user-friendly forum that focuses on early and expeditious resolution of disputes.
  • By focusing on early dispute resolution the online court frees up the judiciary to deal with more complex matters that genuinely require its expertise in a timely manner.

The introduction of an online court in Victoria for low value civil disputes would present an unprecedented opportunity to truly modernise the civil justice system, increase access to justice and reduce the strain on the Victorian courts.

In Victoria, across Australia, and around the world, the public justice systems are creaking. Courts are overwhelmed by huge caseloads that create backlogs and delay the finalisation of court proceedings. The issues of backlogs and delays are compounded by inefficient and outdated court processes, procedures and case management systems. In addition to the slow and inefficient processes of the courts, access to legal representation for those experiencing low value civil disputes is limited due to high or disproportionate legal fees. Without access to legal representation or assistance, many people do not resolve their legal problems. Alternatively, they elect to represent themselves in court. For those who decide to represent themselves in court the environment is often daunting, the language foreign and the court processes complex. This makes the experience of going to court both stressful and intimidating for many court users. Moreover, self-represented litigants are often not able to represent themselves effectively and therefore risk unjust outcomes.

Online dispute resolution

Recognising that the public justice system is currently unable to provide the public with meaningful access to the court system and that there is an urgent need for the modernisation of outdated and inefficient systems and processes in the overburdened courts, we have in recent years witnessed an increased interest in online dispute resolution (ODR) among courts and public justice systems around the world.

So what is ODR? Simply put, ODR is where dispute resolution processes are conducted online as opposed to in the “traditional physical setting”.1 That is, the dispute resolution process, be it litigation, arbitration, mediation, facilitation or negotiation, is conducted entirely or largely online without the need to attend a physical court or hearing facility.2 ODR has its origins in e-commerce. PayPal and eBay both have extra-judicial private redress processes and it is well documented that eBay resolves approximately 60 million disputes per year using ODR. The use of ODR has, since its inception, expanded well beyond the realm of e-commerce and is used by private companies, governments, non-profit organisations and courts around the world.

ODR is recognised as suitable for matters that are high in volume, of low complexity and where the cost of legal representation as well as the length and complexity of court processes are disproportionate to the dispute at hand. By and large, the subset of cases that is considered the most appropriate for ODR is small civil claims. This is because small civil claims are generally low in both factual and legal complexity, there are typically only two parties involved in the dispute, the parties are commonly self-represented and the claims are high in volume and suffer a high rate of default judgments.

International developments

The potential of ODR when integrated in the public justice system is showcased in British Columbia, Canada, where the Civil Resolution Tribunal (CRT) sits as the first fully integrated online tribunal in the world. The CRT has jurisdiction over small claims disputes (of a sum up to C$5000), strata property disputes (unlimited amount) and is later this year set to expand to include certain types of motor vehicle accident claims.3 In the United Kingdom, a proposal for an ODR system fully integrated in the public court system has been accepted by the government and if implemented will constitute the first fully integrated online court in the world. The jurisdiction of the proposed online court is small civil claims of a value not exceeding £25,000.4

The online court model

The online models developed in Canada and the United Kingdom, although not identical, have strong similarities and share the same objective, namely, to put the court user in focus and create a justice model that focuses on early and collaborative dispute resolution as opposed to your “day in court”. The purpose of the online court is not simply to replicate the traditional court system in an online format but to radically reform the civil justice process to empower the parties to reach resolution without the involvement of a judicial officer or the need to attend a physical court.

The online court model constitutes four stages: online evaluation, online negotiation, online facilitation and online adjudication. The most useful way to illustrate the online court process is by analogy to a food pyramid with the first stage, the evaluation of the dispute or problem, sitting at the bottom of the pyramid and the final stage, adjudication by a judicial officer, sitting at the top of the pyramid with the other two stages in between. All matters enter the process at the bottom of the pyramid (evaluation) with the aim of resolution at the earliest possible stage without the need to progress up through the levels of the pyramid, avoiding adjudication altogether.

The evaluation stage allows people who are experiencing a legal problem to access the online court and follow a “guided pathway system” which essentially is a series of questions and answers designed to reveal the relevant facts and nature of the dispute. Based on the answers provided in the guided pathway system, court users are provided with an information page that sets out, in plain English, the general legal information applicable to the dispute. This information allows court users to educate themselves about their rights and obligations and make informed decisions as to how to proceed. At the CRT in Canada, in addition to the legal information, court users are provided with self-help tools such as template letters that can be sent to the other party with the aim of early resolution of the dispute. There will be instances where the legal information provided in the evaluation stage allows court users to recognise that they do not have a legal claim to pursue in court. This early understanding will save the court user time, expense and angst and it will keep the matter out of the already overburdened court system.

If the legal problem cannot be resolved with the assistance of the information and tools provided in the evaluation stage, the court user can institute online proceedings and progress the matter through to the negotiation stage. The negotiation stage provides the parties to the dispute with a conducive online environment in which to come together and negotiate a resolution. This will hopefully mean that more parties come to the table and, as a result, fewer default judgments are entered. The online platform allows for asynchronous interaction between the parties. This allows court users to access the court at any time of the day from the comfort of their home without the need to take time off work and, in some cases, travel great distances to attend court.

If resolution cannot be reached in the negotiation stage, the matter progresses to facilitation where a court appointed facilitator reviews the parties’ statements and evidence and assists the parties to reach agreement without having to proceed to adjudication. The facilitator will have an inquisitorial and advisory role which allows them to help the parties evaluate their legal positions and adjust any ill-founded expectations as to their legal rights and obligations.

If resolution cannot be achieved through facilitation, the matter proceeds to the final stage, adjudication. While settlement discussions in the negotiation and facilitation stages are without prejudice and will not be disclosed to the judicial officer, a summary of the facts, the issues in dispute as narrowed down during the preceding stages of the court process, and the parties’ submissions and supporting evidence are provided to the judicial officer. Based on this information the judicial officer makes a decision on the papers without the need for a court hearing. However, if the judicial officer deems the matter too complex to be done on the papers or is of the view that there are credibility issues in relation to witnesses or the evidence, the judicial officer has the power to transfer the matter into a physical courtroom for a hearing.

The benefits of an online court

The creation of an online court in Victoria that is accessible and user-friendly and where the cost and time spent on the resolution process is proportionate to the dispute at hand will ensure the integrity of the public justice system. By embracing modern technology and creating an online court that focuses on early dispute resolution, the number of matters that come before the judiciary is reduced and the judiciary’s time can be reallocated to more complex matters that genuinely require its expertise. Moreover, it is important to recognise that the vast majority of people in today’s society are tech-savvy and it is not only the younger generations that expect services to be provided online. We live in an age where computer literacy is the norm rather than the exception and the courts’ slow adoption of technology may be seen as not merely conservative but regressive. Even if we accept that the court provides a service that is very different to banking, shopping and hotel and restaurant reservations, it remains clear that “[a]s processes in the private sector become more and more user-centric and finely-tuned to suit individual customer preferences, the public will become increasingly frustrated with low-tech, inconvenient and complicated court-centric processes”5 that appear antiquated in modern society. In fact, the failure to leverage technology to promote online services that are readily accessible and intelligible to the public may cause the public to lose trust in the court system.

The role of the lawyer in the online court

A question that is frequently asked by the legal profession is what is the role of the lawyer in the online court? Will the online court exclude the participation of lawyers in small claims disputes? Although there are diverging views on the role of the lawyer in the online court, the purpose of the online court is not to exclude lawyers where they are available to a litigant. Rather, the purpose of the online court is to simplify court processes in case types where lawyers are generally not involved because litigants cannot afford representation, the cost of a lawyer is disproportionate to the value in dispute, or the matters are of such low complexity that legal representation would not be required if the court processes were simplified to suit the low complexity and value of the disputes.

Where to from here?

We live in an age where we have the potential to leverage technology to dramatically improve the public’s experience when faced with small claims disputes. Instead of being confronted with a bewildering process where court users struggle to understand what is required of them and how to present a coherent legal argument to the often intimidating court, the online court provides a modern, simple, efficient, user-friendly and accessible forum that focuses on early and expeditious resolution of disputes. An online court, fully integrated in the Victorian public justice system, presents an unprecedented opportunity to truly modernise the civil justice system, increase access to justice and reduce the strain on the courts. The time is ripe for the introduction of an online court in Victoria. 

Katarina Palmgren is a court legal advisor at the Magistrates’ Court of Victoria and a 2017 Winston Churchill Fellow. This article is an edited version of her 2018 Churchill Fellowship Report, available at www.churchilltrust.com.au/media/fellows/Palmgren_K_2017_Use_of_online_dispute_resolution_to_resolve_civil_disputes.pdf.

1. Shannon Salter, “Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal”, (2017) 34 Windsor Y B Access Just 112, 113.

2. Note 1 above.

3. See Civil Resolution Tribunal: https://civilresolutionbc.ca/.

4. See UK Civil Justice Council Online Dispute Resolution Advisory Group “Online Dispute Resolution for Low Value Civil Claims” Report, February 2015 and “Response to Lord Justice Briggs Report”, March 2016, www.judiciary.uk/reviews/online-dispute-resolution/odr-report-february-2015/; Lord Justice Briggs “Civil Courts Structure Review: Interim Report”, December 2015, www.judiciary.uk/wp-content/uploads/2016/01/ccsr-interim-report-dec-15-final1.pdf; Lord Justice Briggs “Civil Courts Structure Review: Final Report”, July 2016, www.judiciary.uk/wp-content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf.

5. Joint Technology Committee, “Resource Bulletin: Case Studies in ODR for Courts: A view from the front lines”, Version 1.0, adopted 29 November 2017, 18.

 


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