Online dispute resolution: making it happen

By Robert Thomas

UKAJI is interested in providing a forum for exchange of views on new developments in administrative justice. In this piece, Robert Thomas of the School of Law, University of Manchester, discusses the challenges of implementing online courts and tribunals. We welcome comments and contributions from a range of perspectives.

Behind the scenes, enormous changes are in progress in the justice system. The Government has announced that £700 million will be invested to deliver online courts and tribunals. Online dispute resolution (ODR) is likely to transform the justice system and the process by which people engage with the justice process. For a comparison with previous major reforms, we might have to look back to the court reforms of the 19^th century. For more insightful background and comment on this development, see Sir Henry Brooke’s blog.

The Senior President of Tribunals has noted, in his 2016 Annual Report, that “A central part of our vision for the future of tribunals is that services will be ‘digital by default’.” From its offices in Wilmslow, the Traffic Penalty Tribunal operates a successful ODR system. It is widely seen – rightly in my view – as a world leader in ODR. Online processes will soon be piloted on social security appeals.

There are clear benefits from online dispute resolution: it should make the delivery of justice quicker and more accessible, efficient, user-friendly, convenient and effective. It should widen access to justice and reduce costs. The project could make the UK a world-leading country in terms of using IT to resolve disputes. The leading law and technology guru Richard Susskind has provided a vision for ODR in his book Tomorrow’s Lawyers.

Let me set out my view: I support this project. I believe that it could have numerous positive advantages. I want to see it work in practice.

It is precisely because of this that I also want to highlight the risks and draw together existing learning as to how those risks can be effectively managed. Having an idea such as online dispute resolution is great; putting it into practice is an entirely different matter. And it cannot be assumed that implementation is a simple process. Indeed, all the masses of political science literature on implementation tell us that the delivery and implementation of policy is, more often than not, an incredibly problematic and complex endeavour.

Every organisation setting up an IT scheme has a responsibility to do its best. There is an additional responsibility when it comes to government IT schemes for two reasons. First, government is spending taxpayers’ money to fund the project. Second, there is no market competition and correspondingly little ‘exit’ built into the system. In the private sector, a consumer let down by one supplier can take their custom elsewhere. But in the context of a public sector IT project, there are no alternative providers. There is no alternative to the justice system. There is, however, the prospect of scrutiny by both the National Audit Office and the Commons Public Accounts Committee.

A successful ODR system would have all the gains just mentioned, but an unsuccessful project would represent a waste of taxpayers’ money, it would let people down, and it could have severe reputational costs for both government and the judiciary. No one would like that to happen. So, what can be done? Fortunately, there is plenty of existing learning on this.

A principal reason for caution is that the record of success for past public-sector IT schemes has been mixed, to the say the least. This is a generous assessment. Some would say that governments’ record on IT has been appalling. Two recent books about government failure both contain a separate chapter on IT failures within government: King and Crewe, The blunders of our governments (2013) and Bacon and Hope, Conundrum (2013). These chapters provide chilling reading. These chapters – and indeed, the entirety of both books – should absolutely be essential reading for anyone involved in any way with a public-sector IT programme.

Both books reach identical conclusions on successive governments’ IT projects. Bacon and Hope describe public-sector IT programmes as a ‘permanent disaster’: “Government IT projects seem to have an endless capacity to go wrong and it seems that we never learn.” King and Crewe state: “One of the remarkable features of successive governments’ ventures into the field of IT is that they have gone on and on making the same mistakes. They never seem to learn.” Consequently, much of the literature is critical of the failings of public-sector IT projects.

Bacon and Hope summarise the key issue:

“The shelfloads of studies and reports about IT project failure all say roughly the same thing: if you don’t know what you want, or what you want keeps changing; or you can’t commit the required money to the project; or you don’t have anyone in charge, or the person in charge, or the person who is supposed to be in charge doesn’t really call the shots; or the person at the top of the business doesn’t care about the project; and you don’t focus on what the actual benefit to the business is; and you don’t regularly talk to the people who will have to use the system; and you don’t constantly check progress; or you have an unrealistic timetable and try to run before you can walk; or you fail to test the system properly before you launch it; or if you don’t provide enough training; or you don’t have a Plan B in case things go wrong; or you try to bite off more than you can chew in one go; or you don’t realise that the bigger the project the greater the chance of its being overtaken by events or new technology or new legislation; or you don’t realise that you may not have the skills you need to manage the project; or you don’t realise that some suppliers are quite capable of telling you they can deliver when they can’t; then don’t be surprised if you end up with a mess that is way behind schedule, damages your organisation, traumatises your staff, costs much more than it is supposed to, and doesn’t work.” (p 228).

IT projects are hugely complex. They have many different aspects to them: technical, political, financial, personal, emotional and logistical. Research indicates that more than three in five new IT projects fail (Simon, Why New Systems Fail: An Insider’s Guide to Successful IT Projects (2010)).

One key theme in the literature is the importance of having clear priorities, aims and objectives. Devise clear measures of success. Do not be over-optimistic. The ‘planning fallacy’ tells us that human beings often adopt unrealistically optimistic forecasts of the outcome of projects. This leads to an overestimation of duration and benefits and the underestimation of costs and risks. One antidote is the old technique of premeditating adversity: think of every conceivable thing that could go wrong, however unlikely it may seem. The experience of IT projects tells us that if something can go wrong, then it probably will. Avoid groupthink by designating someone as the awkward member, whose role is to think about how things can go wrong, to play devil’s advocate.

A related theme is to open up plans to scrutiny and robust challenge. Gary Klein’s proposal is to hold regular premortems. When an organisation has almost come to an important decision but has not formally committed itself, people should gather for a brief session to discuss the following: “Imagine that we are a year into the future. We implemented the plan as it now exists. The outcome was a disaster. Please take 5 to 10 minutes to write a history of that disaster.” (Kahneman, Thinking Fast and Slow (2011) p. 264). The benefit of premortems is that they can be used to overcome the over-optimism and suppression of doubt that characterises groupthink. They also encourage an imaginative search for previously unidentified threats in a positive desire to search out weaknesses.

Embed learning into the project. Pilot, pilot, and pilot. And then do it all over again. Undertake detailed reviews. Engage independent reviewers from a range of different backgrounds/perspectives/disciplines to review how the project is progressing – and not just the usual City-based consultancy firms. Similarly, senior managers must have a deep awareness of the strengths and limitations of IT. Delivering justice is a major responsibility of the state.

Another theme is the need to engage with the full range of stakeholders. How will they be affected by the project? Consult effectively with them. Understand your users and customers. Which factors motivate these people? How do they behave in practice? There needs to be input and engagement from the full range of sectors, public, private, charitable, etc. Engage with ordinary people. Edmund Burke noted: “I have never yet seen any plan which has not been mended by the observations of those who were much inferior in understanding to the person who took the lead in the business.”

Providing the right set of incentives and levers to ensure effective delivery also surfaces in the literature. As Daniel Kahneman notes:

“Organizations face the challenge of controlling the tendency of executives competing for resources to present overly optimistic plans. A well-run organization will reward planners for precise execution and penalize them for failing to anticipate difficulties, and for failing to allow for difficulties that they could not have anticipated – the unknown unknowns.” (p 252).

From a general point view, a key issue for policy-makers and those responsible for operational matters is to understand and manage Cobb’s paradox: “We know why projects fail; we know how to prevent their failure – so why do they still fail?”

This note, of course, can only to scratch the surface of this huge issue. There is a much wider literature on this, including many NAO reports. But, if all goes to plan, we should see digital courts and tribunals in operation – and this will enhance the justice system.