The government should invest in online dispute resolution (ODR) for small claims – but not until 2016 so lessons can be learnt from pioneering projects in Holland and Canada, a major new report has advised.
Meanwhile, Professor Richard Susskind, who is heading a committee investigating ODR, has called for ODR to be explored in “greater depth and urgently”.
The report on the digital delivery of legal services to people on low incomes was written by Professor Roger Smith, solicitor and former director of JUSTICE, and backed by the Legal Education Foundation (LEF).
He said the Dutch were leading the way with user-orientated legal advice websites, while British Columbia looked likely to be the first to deliver “online dispute determination” next year.
“If it was my money, I would want to see what was happening in Vancouver first,” Professor Smith told Legal Futures. “We can watch what happens and learn a lot”.
The professor said version two of the Dutch Rechtwijzer programme was due to go live in March 2015, which would take users to the point where Dutch law requires lawyers to review documentation before it is seen by judges.
Meanwhile in Canada, a Civil Resolution Tribunal would be set up in British Columbia next year, providing an alternative to the traditional small claims court.
Professor Smith said too many legal advice websites were based on print, with many still using the expression “fact sheet”. He went on: “The best sites, like the Dutch one, are turning themselves around so they ask questions of the user and identify exactly what the user wants. Airline websites don’t give you a suite of timetables – they ask you where you want to go.”
Professor Smith said Holland had led the way with user-orientated legal advice websites, funded by the Dutch legal aid board.
The LEF report recommended that the Ministry of Justice and Courts Service should commit to a “pilot small claims online dispute resolution programme”, from 2016 onwards.
In April, the Civil Justice Council (CJC) set up an advisory group, chaired by Professor Richard Susskind, to explore the role that online dispute resolution (ODR) can play in resolving civil disputes.
Professor Susskind spoke last month at a CJC event on litigants in person, and a newly published summary of the event reported him saying that there was no doubting the huge potential ODR offered in terms of resolving disputes quickly and cheaply.
ODR tended to take one of three forms – either a form of e-adjudication, a type of online ADR negotiation via IT or a tool for diagnosing problems.
The summary continued: “Good ODR systems were already available, and the question now was to what extent the state would take ownership of an ODR structure. In other jurisdictions, e.g. Holland and British Columbia, state-run services were in operation, and parking adjudications offered a UK model.
“There was no doubt ODR would appeal to the under 30s. It would not solve all disputes, but it was a topic that needed to be explored in greater depth and urgently.”
Among other recommendations in Professor Smith’s report, he said that following the example of the technology initiative grants programme of the USA Legal Services Corporation, 1% of the annual legal aid budget should be invested in a competition innovation fund.
The LEF report recommended that the Legal Aid Agency should have greater “operational independence” from the Ministry of Justice with “more freedom to manage delivery and drive innovation on its own initiative while keeping within budget”.
Among other recommendations were that the Law Society and Legal Services Board should encourage private providers to develop services for those on low incomes; the Lord Chancellor should re-evaluate legal aid priorities so that funding is aimed at the resolution of disputes as early as possible, and deploy internet-assisted provision to meet the need for initial advice and information; and providers of digital legal information should debate whether some form of voluntary quality assurance mark for websites giving legal information might be desirable along the lines of the NHS Information Standard.
Professor Smith added: “I would like to see a re-engineering of legal aid, so that lawyers and advice agencies are integrated in an end-to-end service.”
The report follows on from an initial report he published on “lessons from the digital revolution”, with Strathclyde University’s Professor Alan Paterson and funded by the Nuffield Foundation, in January this year.
The Legal Education Foundation has pledged to update the report on an annual basis as a record of developments in the provision of IT-based legal services.