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Online Dispute Resolution
(ODR): pipe dream or
possibility?

Online Dispute Resolution (ODR): pipe dream or possibility?

June 2, 2015
Online Dispute Resolution (ODR): pipe dream or possibility?

The answer to this question, believe it or not, appears to be: possibility.

The Civil Justice Council is currently preparing a report on the potential development of an Online Court. At a recent event, speaking about the delay in legal proceedings, Lord Dyson opined that this ”convincingly demonstrates one of the ways in which we could develop the justice system to make it more accessible and more efficient, speedy and affordable than it is now”.

Developing an online dispute resolution system and increasing the use of technology involved in court actions, should reduce the delay in legal proceedings.

Lord Dyson pointed to the example set by France, where they have introduced a system which allows for filing online for parties in smaller claims. The parties are then taken through an online dispute resolution mechanism. If the dispute is not resolved, the system will generate the necessary documents. He suggested that soon all claims might be handled and filed online.

Potential advantages to increasing the use of technology

As it stands many firms already operate some form of case management platform, storing files electronically and even permitting clients to simply ”log-in” and check the progress of their case. Utilising technology to get the most out of the process can really improve the efficiency of the legal system.

It is likely that increasing the use of technology will reduce the current delay in resolving claims. It may also have the effect of making the process appear more accessible to party litigants and those without a legal education. Consequently, this might mean that more small claims can be resolved through some form of online dispute resolution rather than going to court, especially as the cost and trouble of finding legal representation deters some people from pursuing legitimate claims.

From a very pragmatic point of view, the use of technology and online filing, should increase the efficiency and be cost-saving. It may also reduce the dependency on paper, and have a positive impact on the environment.

It is no secret that some people find the thought of bringing a claim in the court intimidating, complex, expensive and time consuming. Implementing measures to reduce delay, increase efficiency and make justice appear more accessible should increase the profile of the judiciary.

Potential disadvantages

In his speech Lord Dyson referred to two potential dangers. The first being that: ”Just as excessive delay can reduce the quality of evidence and the quality of judicial adjudication, so too can excessive speed. In pursuit of efficiency, there is a danger that we overlook this”.

Where speed becomes the overarching aim of proceedings, it may negatively impact on the determination of claims if, for example, the time to prepare a case is reduced. It is therefore necessary to find a balance between what is reasonable and what is delay.

The second danger concerns the transparency and openness of legal proceedings. If online dispute resolution was to be implemented in some form, we would need to ensure that it does not lead to the creation of a culture of secret determination of disputes.

Conclusion

At Taylor Law we are very excited about the prospect of potentially developing an online dispute resolution programme. Having this kind of programme in place will make our jobs significantly easier in litigation. Having to rely on paper documents in the courts, and navigating the various court rules about how to properly lodge documents sharply contrasts with the large amounts of electronic communication to and from clients. It provides some perspective on our not so tech-savvy legal system.

Furthermore, keeping in mind the best evidence rule it might well be argued that the legal system is obligated to adapt to the increased use of technology. In general terms the best evidence rule provides that the best evidence is always the original and never the copy. It is not unusual to lead evidence of what was said in emails. In these circumstances the best evidence is the actual email sent or received, not a printed copy. On this basis the increased use of technology must be facilitated, or at least be encouraged, by the courts to keep within the framework established by the legal system.

Of course it remains to be seen if and how such a system would be developed in Scotland. The idea is innovative, and focused on finding new solutions to established problems. It would bring interesting opportunities and if nothing else it is about time, that the court process benefitted from the technological advancements made.

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