Vos: Continuous mediated interventions
Online bots powered by artificial intelligence will be one way simple disputes are resolved in the future, the Master of the Rolls predicted last week.
Sir Geoffrey Vos also revealed that the Civil Justice Council (CJC) is likely to recommend shortly that small claims worth less than £500 should be subject to mandatory mediation and then, if necessary, resolution by a judge on the papers.
His latest speech outlining a vision for online dispute resolution, given in Dublin, explored the opportunities for mediated case resolution.
The online system he envisaged would have a website and associated app at the front end – what Sir Geoffrey has dubbed ‘Claims R Us’ – which would signpost users to all accredited dispute resolution platforms, whether linked to an ombuds scheme, a review mechanism, or some other portal as the second stage – or, where there is no pre-action scheme, directly to the online court.
The site would be regulated, and the platforms accredited, by the new online rules committee for which the government is currently legislating.
Sir Geoffrey said accreditation could also require portals to produce a common data set “so that any case that does not settle within the portal can be seamlessly transmitted directly either into a more suitable portal or ultimately by API into the appropriate online court-based dispute resolution service”.
The online court process would be the third layer of the system.
The judge stressed that “most cases are, in fact, amenable to consensual resolution in one way or another provided that the intervention is applied at the right time and in the right way”.
He envisaged the system allowing for “continuous mediated interventions”.
Sir Geoffrey explained: “The range of mediated interventions includes, first, bots that pop up online suggesting resolution in a simple case based on the parties’ positions.
“A claim for €1,000 defended on the basis that only half the goods were delivered may be settled instantly if a bot pops up and suggests that the defendant should pay for what it accepts was actually delivered.
“Secondly, if the AI driven bot fails to resolve the claim, the judge looking to make directions in an online case may be able to see, and then suggest, an obvious resolution. No harm is done if the resolution suggested is not accepted. Obviously, the judge in question can recuse themselves from the substantive determination if necessary.
“Thirdly, in the county court in England and Wales, we are now suggesting telephone mediation, undertaken by trained HMCTS officials, in almost every small claim, whether started online or not. These are very successful in large numbers of cases.
“Fourthly, where all of the previous interventions fail, face-to-face mediation can also be proposed. There are some cases that require it, though a surprisingly small number in the small claims firmament.”
Other interventions for more complicated cases included early neutral evaluation, but Sir Geoffrey said there should not be a set order.
He added: “I have asked the Civil Justice Council to prepare some advice on the how the online dispute resolution space could work best with an emphasis on resolution rather than dispute. I hope to be able to share that report next year.”
Earlier this year, another CJC report said that any form of compulsory ADR which was “not disproportionately onerous and does not foreclose the parties’ effective access to the court” was lawful.
Sir Geoffrey endorsed this view and said it should be possible, particularly in small claims, for the court to direct a party to attempt to reach a consensual resolution through mediated interventions.
“The mandated process should not, of course, be costly or cause delay in judicial resolution. But none of that should mean that parties can, as they sometimes do, resolutely refuse to consider mediation.
“Being entitled to one’s day in court is not the same thing as being entitled to turn down appropriate and proportionate attempts to reach consensual solutions.
“Indeed, another Civil Justice Council report is expected shortly to recommend that small claims worth less than £500 should be subject to mandatory mediation, and should then, if not resolved consensually, be resolved by the judge on the papers without oral evidence or submissions.”
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