A report for the Council of Europe has argued that online dispute resolution (ODR) and use of IT could improve access to justice by “offering solutions to the problems of judicial inefficiency, the high cost of litigation and geographical barriers”.
The report, by the council’s committee on legal affairs and human rights, concluded that both ODR and IT were “by no means panaceas”, but member states should “recognise and utilise their crucial roles”.
It called on the Council of Europe’s Parliamentary Assembly, made up of politicians from across its 47 member states, to encourage the development of ODR.
The council aim is promote democracy and protect human rights and the rule of law in Europe; all of its members are signatories to the European Convention on Human Rights.
Whether the Ministry of Justice pushes ahead with a proposal to put ODR into the England and Wales court system through a new HM Oline Court – as recommended by a Civil Justice Council advisory group chaired by Professor Richard Susskind – is dependent on the financial settlement it reaches with the Treasury. This will be announced in the Chancellor’s autumn statement next week.
In a draft resolution for the assembly, the Council of Europe committee said member states should “make voluntary ODR procedures available to citizens in appropriate cases” and “raise public awareness of the availability of, and create incentives for the participation in such procedures, including by promoting the extra-judicial enforcement of ODR decisions and by enhancing the knowledge of legal professionals about ODR”.
However, the resolution also called for ODR procedures to contain safeguards taking into account articles 6 and 13 of the convention (right to a fair trial, right to an effective remedy respectively).
It said members states should ensure that parties involved in ODR “retain the right to access a judicial appeals procedure” to satisfy the requirements of a fair trial.
Member states should also develop minimum standards to make sure procedures did not “unfairly favour repeat players over one-time users”, and “strive to establish a common system of accrediting ODR providers satisfying these standards”.
The report said ODR processes should be “voluntary in nature and employed in situations where their advantages best come to bear”, and procedural safeguards should include review by the judicial system.
Professor Roger Smith, a former director of Justice and author of research on online access to legal services, said he was “in favour of ODR, but against it being brought in unthinkingly”.
He agreed that the decision to go to ODR must be taken voluntarily and outcomes must be subject to appeal or review. Some kinds of case would not be suitable for ODR, he said, such as judicial review, where there were major differences in fact or where one party would be under a disadvantage by going online.
“ODR must be the future, but we need to proceed with caution”.