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Trend Report 2016
Humanizing justice through IT
Can online dispute resolution really help courts and access to justice?
[This outline is based on research and interviews with leading experts on online dispute resolution and
on innovation at courts. Experts will work at the Peace Palace in The Hague in May 2016 to enrich the
draft of the report with best practices and a better understanding of possible ways forward. This will lead
to a final version in June 2016. The resulting report will be presented to chief justices and ministers of
justice of countries considering ODR]
Courts are proud, ambitious and essential organizations. They hold people to account and
resolve conflicts, in accordance with the rule of law. They are also selfcritical about their
services and uncertain about their future. Many are overburdened and struggle financially.
Courts, which originally means an enclosed space where people were allowed to submit
their issues and conflicts to agents of the ruler, are also severely restrained. Rules that are
key to their operation, such as the rules of procedure, the rules for their finance and the rules
for their human resources, are outside their control. This is not an ideal environment for
fruitful innovation.
Can online dispute resolution provide a breakthrough? Or will it remain just another form of
alternative dispute resolution, much talked about as a great method for managing conflict,
but operating at the fringes of the legal system? ODR is promising. It can help to
standardize, simplify and humanize legal procedures, empowering people seeking access to
justice to negotiate first and submitting remaining issues to courts. Organizing information
online can greatly facilitate all (legal) professionals working on a case, streamlining their
interventions into a more seamless process. ODR can also solve the eternal dilemma of
courts: if they offer more effective and fair procedures they will be overburdened with cases.
This trend report analyzes the many challenges encountered by ODR providers and courts
when they try to realize these benefits. What are best practices to overcome issues of
privacy and security, professional rules, tendering and the many more barriers to
implementation? And above all, how can ODR get the best out of judges, lawyers and
litigants?
In the final chapter, the report develops the contours of a breakthrough understanding
between stakeholders. What could each do and require, in order to open the door for a next
generation of court procedures, with evidencebased human interventions by (legal)
professionals? What deal between old and new is needed to sustainably achieve the goal of
100% access to justice, currently promoted by court leaders and the UN SDG no. 16?
1. Understanding courts
1. Essential and ambitious
In our 2013 trend report, Trialogue, Releasing the value of courts, we argued that courts
will continue to be essential for holding societies together. Some form of third party
adjudication, public or private, is necessary for resolving the most difficult conflicts and
dealing with the worst possible crimes. No country, no city, no community of reasonable size
can do without these institutions. Courts can start procedures and take decisions to which all
parties have strong incentives to submit. They also provide a check on government power
and thus help to give government actors legitimacy. Courts provide symbols and rituals
aimed at doing justice and, through their decisions, they further develop laws and
regulations. Finally, courts deliver highly valued goods such as recognition, voice, respect,
fairness, financial security and proportionate retribution. They contribute to finding peace of
mind and sustainable relationships.
ADR cannot replace courts . Mediation and private arbitration only tend to survive in the
shadow of wellfunctioning courts, with the proximity of a neutral, enforceable decision.
Voluntary ADR, and voluntary new procedures added to court procedures, do not
attract users . The submission problem: both parties have to submit to the mediator, arbiter,
or new procedure. They are unlikely to do so.
Some ADR providers are performing court services under different names . As kind of a
first instance resolution mechanism. Ombudsmen, tribunals, prosecutors or administrative
agencies imposing sanctions, informal dispute mechanisms, and many more. They are also
tending to become like courts over time: more formal, more legal, more overburdened. Not
always solving the fundamental problems courts have, as we will see.
Courts are ambitious : Defend themselves fiercely as an independent third branch of
government. US court leaders want to provide 100% access to justice.
Enormous amounts of pilots and small scale innovations are currently running and being
implemented
in courts.
Box with examples: California courts. German courts. Australia. Netherlands.
More meaningful interventions, ever increasing pressure on judges. The variety and
complexity of crimes and disputes brought before courts is ever increasing. Like most
independent professionals in the public sector, judges are wary of bureaucracy and strive to
make a meaningful contribution to people ’
s lives. They are now aiming to resolve problems
such as the impact of divorce on children or to break cycles of substance abuse, mental
health issues and crime. This comes on top of their constitutional duty to render decisions
which are legally sound and based on facts established beyond a reasonable level of doubt.
“
Letting people participate, settle or at least ”
own the outcomes achieved, has become part
of judicial ethics. Victims and suspects are entitled to procedural justice.
Major shift in activities . Although the focus always has been on the quality of decisions,
more recently the attention shifted to organizing the process (casemanagement) and
facilitating/supervising settlement . This happens through ADR, settlement conferences,
overseeing pleabargaining, supervising financial reorganization, etc.
2. Selfcritical and uncertain
Judges are increasingly selfcritical about what they deliver. Procedures are “
designed by
lawyers for lawyers”. Too costly. Too complex. Not delivering what people need. Lack of
specialization.
Summary of latest reports and developments.
Overburdened with cases . Almost everywhere, with Greece, Italy, India as the extreme
examples.
Overburdened with information. At the same time, judges are overloaded with information,
and under great pressure to deliver timely interventions.
Unrepresented litigants. In most cases, courts cannot rely on lawyers anymore to assist
them. Increasingly, they have to streamline the interaction with clients themselves.
Individuals seeking access to justice are less likely to hire a lawyer than they were ever
before. This is a matter of costs, and may also reflect a desire to feel empowered, and to
stay in control, even during the most difficult moments of their lives.
Overburdened by clients with a huge variety of skills, who are used to multichannel
services. People appearing in courtrooms vary enormously in their skills, their motivation
and their needs for assistance. Nowadays, clients expect to be served through multiple
channels. This may include a person at a desk, in a courtroom, by smartphone, by email, by
chat, by videoconferencing and through webinterfaces helping them to navigate
complicated procedures, available 24/7. They tend to see access to the legal system as one,
integrated journey, in which they interact with the other party, with lawyers and with a court,
and sometimes with mediators and experts. People are less likely to rely on authoritative
views by judges and want to be empowered to take informed decisions.
Low skills, difficult people. People appearing in courts and other clients have little IT skills
and need to be assisted because of low social skills.
Ambiguous in their strategy : What is the focal point of courts’ strategies? Are they an
instance of last resort? Early intervention? Serve people? Send them elsewhere to more
suitable interventions? Standardization, or individualizing?
3. Enclosed by rules
Court means enclosed space. Indeed, they are very much restrained by rules they cannot
easily change. By rules about allocation of cases. Rules about who can be a judge. Rules
about who can appear in court. Rules about independence. Rules about costs and financing
of courts. And in particular by rules of procedure.
The format of the procedure is problematic. Jurisdiction, rules, facts, claims, defences,
decision, appeal formats are very powerful. They contribute to enhanced, prolonged conflict,
which is costly.
This
format also influences the leadership and the governance processes . It allows
judges to take joint decisions that are guided by the current ordering about things that
happened in the past. This is not exactly the right format for solving complex problems, for
building partnerships or developing strategies.
And certainly
not good for innovation . This may be one of the reasons that potential
innovations remain ideas, have the form of (costly) addons, that are piloted but not really
further developed and implemented. Or are operational in nature: huge IT systems codifying
19th century procedures; computer screens in courtrooms; closing local courts;
2. The promise of ODR
2.1 A breakthrough proposition?
ODR can provide a breakthrough with huge benefits ...
ODR can be a powerful tool for courts to address these challenges. It can provide guided
pathways that help people navigate their own first steps on their justice journey. It can
organize and select relevant data and inform people about their rights. Every participant in a
court procedure can add to the process at his own pace, at her own time, and from their own
home. During a hearing, the interface can guide the process and nudge people towards fair
resolution, much similar to how good problemsolving lawyers do that. Results can be
immediately logged. Roles, such as the ones of mediators, helpers to the parties, experts,
casemanagers and deciding judges can be assigned and configured.
Costs of implementing ODR modules can be very limited compared to the costs of the
current generation of custom built casemanagement systems for courts. Suppliers and
investors will be willing to bear most of the development risk if they see a realistic
opportunity to deliver their online services to courts from Australia to Zimbabwe.
Or is ODR the next ADR hype that will soon evaporate into an add on?
Assessing it realistically; that is the challenge of this chapter.
Brazil courts developments.
2.2 What is already under way
Digitization preparing the road to ODR. Online forms connected to case management
systems. Helpdesks and court selfhelp centres.
MyLaw BC
Informing and assisting to settle
Legal information. Online document assembly.
Consumer dispute resolution ODR. Beyond eBay. Modria approach. Colin Rule.
Courts are looking at ODR , but not yet doing it very extensively or often.
It has not yet been taken on by many of them. So what is going on?
2.3 The promise of procedures fit for pressing problems
What do people want? A day in court? Not: Second best justice? Not: Robotised justice?
Justiciable problems. What casetypes are we talking about? High volume, recurring
disputes, following a certain pattern.
Strata, community, neighbour dispute. Shannon Salter
Procedure designed for endusers, not for lawyers.
Enabling law and legally trained
professionals to add more value.
Landlord tenant disputes.
What ODR can achieve
● Structured, issuebyissue, information
● Informing people. Relevant rules as plug ins.
● UX more. Beyond rules and forms.
● Settlement and adjudication.
● Enriching information.
● Nudging
● Delivering add on services and apps.
● Integrated systems, with lawyers, police etc.
2.4 The promise of fairness
Justice needs: the 7 forms of justice. Results from justice surveys.
Informational justice: Just in time, relevant and sufficient information.
Interpersonal justice (respect): It is between people. Structured dialogue.
Our Family Wizard
Jainarain Kissoon
Procedural justice voice . In your own words. In your own time. Reflect, reduce stress.
Feeling to have been heard. View taken into account. How can this be supported online?
Distributive justice Fair, balanced outcomes.
Effectiveness Timely, workable outcomes that are likely to be complied with.
Restorative justice Repairing, compensating for harm.
Transparency Transparent outcomes. What did I get compared to what others got in a
similar situation?
2.5 The promise of financial sustainability and growth
A model for 100% access to justice . The promise of ODR is that it can even break the
problematic cycle of attracting too many cases, which every real improvement in court
procedures is threatened by. With ODR, the marginal costs of serving an extra pair of clients
can drop to levels that make it feasible that court interventions are primarily paid by the
users.
The Rechtwijzer approach to sustainable delivery
Jin Ho Verdonschot
Since the marginal costs drop with ODR, each extra case is no drain on the budget. It is an
’
extra opportunity to assist people who need the courts assistance at a reasonable price.
2.6 The promise of partnership
Consortia for ODR: deep international cooperation.
Achieving economies of scale
. IT risk
sharing, building purchasing power.
How to build a partnership?
Peter van den Biggelaar.
Quality through developing international standards.
International standards
Continuous development and improvement . A product road map.
2.7 The promise of humanizing the delivery of justice
Vision of a judge. Lawyer.
Positive framing of judge 2.0,
generation shift. Judges of the
future were raised with iPads.
Next generation criminal procedure
Map of facts, neutral description, review, ask for comment/further investigation
The advantages for the legal profession . Moving up the value chain. Interventions they
are really excelling in. leaving administrative work behind.
3. Issues to be resolved
… ’
so lets talk about the challenges of integrating ODR in courts
The challenges are real. Although judiciaries increasingly open up to justice technology in
their courts, and have explored the potential of ODR, we do not yet see courts who have
fully integrated it. There are clearly barriers to adopting this technology, which will be
addressed during the conference. We see four broad categories of these:
3.1 Integration with human interventions
What is the optimal combination and how to support both clients and lawyers?
Technology as a fourth party will empower people. But justice will always require
sophisticated human interventions.
Integrating human and ODR interventions
Relate UK
Laura Dowson
How can informed consent, legitimacy and fairness be guaranteed when people take up
more responsibility themselves?
Diagnosis and triaging : who can use ODR and who needs what level of support?
Supporting
lawyers, mediators, reviewers, judges optimally.
3.2 Investing, selling and buying
For innovators and legal (tech) entrepreneurs this is
a difficult market
. Courts tend to
develop systems in house, with the help of IT consultants, but are then likely to stay close to
the centuriesold ways of doing legal procedure.
The dilemmas of owning, developing or buying IT supporting court procedures
Natalie Ceeney
How can tendering procedures be reconciled with the need for collaborative networks that
can overcome the technological challenges and achieve the scale that is needed? Are courts
really well placed to develop IT in house? A
right to challenge?
At the other side of the bargain,
can a court deliver its core processes to Silicon Valley
companies? What about the pledge to open source and the political need to run a national
justice system independently?
The Modria Cloud Based Platform
Scott Car
Funding models for courts are not designed to stimulate innovation. How can they be
adjusted without court expenditure becoming a drag on state budgets again?
3.3 Legislative space and framework
Reinventing rules of procedure Rules of procedure are difficult to change and can become
a bastion for those with vested interests in the current system. How can they be adjusted so
that the benefits of innovation can flow towards the majority of judges and clients who want
or need it?
Youstice, consumer complaints.
Independent of courts?
For many courts, the business case for change is still unclear. This is partly a matter of
vision: what exactly is the promise of a much more effective, legitimate and userfriendly
legal system? And is it realistic? Where are the courts who are willing to take the lead in
ODR, with the risk of failure and a tiny opportunity for Hammurabilike fame?
Singapore Supreme Court vision
3.4 Risks of implementation
Security and privacy risks have to be managed. Operational and IT risk can be substantial.
What are the best practices for this?
KEI project, Netherlands
Courts have legacy IT systems and administrative systems, and are investing heavily in
digitizing current court procedures. New technologies have to be tested safely, scaled up
next to the existing systems, and then fully integrated. What are the requirements for high
level change management, IT and operational management skills?
4 Contours of an access to justice deal
What could each stakeholder do and require , in order to open the door for a next
generation of court procedures, with evidencebased human interventions by (legal)
professionals? What deal between old and new is needed to sustainably achieve the goal of
100% access to justice, currently promoted by court leaders and the UN SDG no. 16?
How to set goals? Focus on adding more value to users and beneficiaries. Specific goals
per problem type, as well as general goals, would be needed.
For which paths to justice ? Priority setting and stimulating bottom up development: family,
neighbour, land use and ownership, landlord/tenant, employment, etc.
How to achieve and measure success, outcomes and quality of interventions ?
How to challenge current procedures ? Stimulate stakeholders and newcomers to develop
improved or new procedures. With or without IT support.
How to frame and update the rules of procedure and safeguard the underlying principles
of procedural justice?
How to adjust the financing method of courts and legal aid for this?
How to safeguard the current and future operations , managing risks?
Accountability and roles