Professor of Private Law and Academic Director Tilburg University and Hague Institute for Internationalisation of Law
Online courts imminent
In 2014, homeowners in Vancouver renovating their house will have access to a new way of sorting out problems about the quality of the job done. If there is an issue with the construction company hired, they can explain the problem online, in their own words, and follow a menu that will help them with a diagnosis. The Civil Resolution Tribunal will ensure a low cost and effective resolution of such disputes, based on a law that establishes principles of collaborative forms of adjudication, instead of litigation on an adversarial basis. This is but one example of a major trend: courts are moving their services online.
The British Columbia Civil Resolution Tribunal
An online dispute resolution system for claims below €25 000 will help the owner to contact the construction company for negotiation, which will be monitored so that the parties are stimulated to be reasonable. If no result can be achieved, mediation will be available, through phone, Skype or email. Eventually, an adjudicator may have to come in to decide on the amount of compensation to be paid, or the work that has to be done by the constructor (see the process pictured below).
Litigation process reengineering in Singapore and the Netherlands
Courts have long struggled with their strategies to move online. Early efforts were focused on pdf-ing the court files, without any substantial changes in procedure. The second generation of online courts is in the making, though, based on “litigation proces re-engineering”, a term invented by the Singapore courts, one of the early adapters of online technologies.
In our Justice Innovation Lab, online adjudication is hot. Dutch courts developed a prototype for a platform for neighbour disputes supporting diagnosis, negotiation, legal information and adjudication. Judges will be accessible online, but can also go to people’s homes in order to help implement solutions on the spot. More generally, the trend is towards a combination of online information sharing, replacing the need for repeated intake of the same problem by many professionals, in combination with more close and more human interaction.
Client organisations also worked with us on online supported processes for personal injury claims. Legal aid boards from the Netherlands and other countries are now moving beyond experimental sites and seriously exploring how ODR platforms can support divorce litigation and processes to resolve complaints of consumers.
In Canada and the US, the trend towards online platforms rides on a wave of indignation about the fate of self-represented litigants. A very large proportion of users of courts cannot afford a lawyer. Others do not want to hire a lawyer, because they want to stay in control of the process themselves, needing guidance instead of directions. A well-received study by Julie MacFarlane also shows that court forms are complex, lengthy and difficult to understand, even for trained professionals. Most of these litigants end up being disillusioned about the court experience.
Supreme court endorsement
Another incentive to develop excellent online interfaces comes from a 2011 decision of the Supreme Court in the case Turner v. Rogers. The court points out the alternatives to providing assistance by a lawyer, stressing that courts can also provide clear information about the legal issues at stake, develop appropriate forms for submitting information on a claim, question the litigants triggered by responses to the form and set up help desk facilities.
This case, which was framed to force a decision on a (state-subsidized) right to assistance by a lawyer, has lead to a renewed, and lively debate on how to improve access to justice. The emerging consensus is that this should happen through a combination of changes in the services and roles of judges, courts, lawyers, social workers, paralegals and yes, online platforms.