Posted by Charles Feeny, director of Legal Futures Associate Complete Counsel and Complete Mediation, and Sammy Nanneh, paralegal and Cambridge law graduate
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.
In addition, the report supported the transfer of some judicial procedural work away from judges and into the hands of ‘case officers’. Another potentially far-reaching recommendation was for the creation of an electronic platform for the uniform enforcement of awards. Finally, there was a focus on the potential for a nationwide re-allocation of judges to ensure regional trial centres are more fully resourced.
The wider aim of the report to reduce the law’s reliance on physical buildings and to free our legal system from the stranglehold hold of paper should be welcomed. The online court has to be regarded as a likely development but the Briggs report is arguably marred by the underlying assumption that any reform is a sad inevitability leading to an inferior alternative to the traditional court system.
The digitisation of our legal system must be viewed as more than merely a cost-saving exercise. Access to justice is vital, but 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 refers in terms to the much-loved oral system. The possible drawbacks of our traditional system of open court justice administered by a judge are not fully addressed.
Despite many attempts to make judges more ‘user friendly’, many litigants – particularly those appearing in person – will be understandably daunted by their appearance in court before a robed judge sitting in an enthroned position.
The reality is that many will, simply through nerves or reticence, fail to get their point across in such an environment. A form of Socratic dialogue by email might enable many people to express themselves more forcibly and in the way that they would like.
Further, a hearing in person is thought to be preferable so that a judge can assess a witness. However, this involves an assumption – deeply embedded in the common law tradition – that a judge has the necessary skills and knowledge to assess veracity from the appearance of a witness.
The assessment of witnesses is often, in fact, based on stereotypical assumptions about body language, an obvious example being the avoidance of eye contact. However, the judge has no real reference point in relation to an individual whom he or she has never previously met. Avoiding eye contact may simply reflect shyness rather than any lack of honesty, amplified in the intimidating environment of a courtroom.
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. Many of those with experience of the courts might consider this somewhat optimistic and the ‘DIY’ mentality underpinning the recommendation of an online court risks making the process yet more stressful.
It may therefore be slightly premature for the report to seek to abolish the concept of a legal system that is ‘designed by lawyers for lawyers’. Doing away with the need for legal representation may reduce costs, but it may also be throwing the baby out with the bathwater.
The report, therefore, could be described as 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.
This has to be seen against the emergence of the digital age. In reality, the transition from the industrial age to the digital age is as profound in its implications as the Industrial Revolution itself, when labourers moved from the open fields into the dark satanic mills. However, there is an important difference – the labourers must have known instantly that their world had changed irrevocably.
The passage into the digital world is more subtle. On the surface, workers are doing the same things, travelling to buildings and engaging in interpersonal communication at the workplace. In many cases, digital technology is being used only to the extent that it is a quicker way of undertaking a traditional process.
However, digitisation is not simply a way of supplementing a traditional process but is a new process in itself. There is therefore no reason why alternative dispute resolution cannot have the same qualities of just resolution as a traditional process (particularly if the assumption that the traditional process is near perfect is removed).
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.
It might be thought that replacing the traditional regime with a digital mediator process in its entirety is a radical step. But in reality, is it any more of a radical step than the distant day when fractious neighbours were first obliged to settle their dispute before a judge as opposed to settling it themselves?
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.