Courts and tribunals and the search for the holy ADR/ODR grail

What role does ADR have in administrative justice? And how might proposals for an online court feature in tribunals? Last November, Sir Jeremy Sullivan delivered a lecture in which he argued that challenges of maladministration should be dealt with not by the courts but by ombuds schemes. He also renewed the call for taking a holistic approach to administrative justice, which recognises that new forms of redress, including use of online dispute resolution, offer opportunities for achieving administrative justice that could not have been anticipated a half a century ago. UKAJI takes a look at some perspectives.

By Margaret Doyle

You could easily spend a morning watching the live feed from online searches on Citizens Advice website. It’s a fascinating snapshot of what people are worried about and what help they need with everyday problems. The trending scoreboard today shows that in the past 24 hours, nearly 8,000 individuals searched for ‘small claims’ – the second highest trend after ‘ending a marriage’, which is presumably a hot post-weekend topic.

Making the small claims process in England and Wales more accessible has been an ongoing concern of the Ministry of Justice (MoJ). Ten years ago the Department piloted a mediation service for small claims at Manchester, Reading and Exeter county courts. Although the evaluations of the pilots were unable to evidence clear cost savings (to the courts or to litigants), and in spite of subsequent research raising concerns about outcomes in court-based mediation, the pilot schemes attracted high satisfaction ratings, and the mediation service was subsequently rolled out across the country.

Online court

These days, although mediation and ADR are still very much in the mix, the focus is on online dispute resolution (ODR) and how to make the courts, and in particular the small claims process, digital by default. The final report of Lord Justice Briggs’ Civil Courts Structure Review (which builds on his December 2015 interim report) makes much of the unrealised potential of in-court mediation and a form of conciliation practised by judges in some county courts. But the big step change is the backing of his proposals for an online court. Justice Briggs notes that:

‘MoJ has agreed to implement the concept of the Online Court. Legislation is being prepared to provide for a new online procedure and for the development of a wholly new kind of simplified procedure rules for the Online Court. A new online rules committee will cover Civil, Family and Tribunals, and will be separate from the existing rules committees. This is to my mind a very welcome early development pursuant to which, even in advance of the passing of the requisite legislation, the development of the Online Court can proceed in a way which maximises its prospects of increasing access to justice for litigants without lawyers.’

The three-stage process (triage, conciliation by case officer, determination by a judge) for an online court looks remarkably like the process used by most ombuds schemes, a process set out in research including Models of Alternative Dispute Resolution. Responding to concerns in his interim report, Justice Briggs emphasises the distinction between the online court he proposes and ODR, stating that inherent in those concerns is a misconception ‘that the justice offered by the Online Court would be a form of ODR. While a form of online dispute resolution (where the parties seek to settle online without the intervention of a further human participant) may well be a part of the process, the main form of conciliation at stage 2 is to be by human intervention, while all decisions about substantive rights are to be made by a judge.’

Is ODR the new ADR?

Carrie Menkel Meadow, Professor of Law at the University of California, Irvine, as well as a longtime mediation practitioner and a frequent visitor to the UK, recently pondered whether ODR is a new twist on ADR. Attending the 15^th annual ODR conference in The Hague, she was left asking the question: ‘Do ODR and ‘A’ DR (now ‘appropriate,’ not ‘alternative’) dispute resolution have the same goals?  Access to justice?  Efficiency and transparency of dispute resolution? Quality of solutions? Satisfaction with dispute resolution?  Justice?’ She has her doubts, particularly in relation to the significant digital divide that exists among users of courts and tribunals, but is interested in the innovations taking place in the Netherlands and Canada, among other places:

‘What I wonder about is what drove me to ADR in the first place—where in the tick boxes and the email communications will there be room to brainstorm and create a different solution, give an apology, come to understand someone else’s perspective, and improve, rather than just ‘resolve’, relations and disputes. For me Online Dispute Resolution may be one tool for some ‘access’ to dispute resolution of some kind, but I wouldn’t overclaim the ‘justice’ part. …

I remain intrigued by what ODR might be able to do in some cases, but I remain a bigger fan of old-fashioned in-person ADR, because for me, one size will not fit all – I remain a process pluralist – ODR will work in some matters for some people, but let’s not yet throw out the baby (ADR) with the bathwater (the old and rigid legal system).’

Tribunals

UKAJI is interested in the way the language of ADR is being adopted increasingly in relation to online courts and especially what this means for administrative justice. Although much of the work on ADR and ODR has been done in the consumer and civil justice arenas, there are significant implications for tribunals and administrative decision-making. Some independent research exists – notably the 2010 evaluation of a pilot using early neutral evaluation in the social security tribunal – but many of the experiments taking place with ADR and tribunals fall under the research radar.

We know that initiatives with ADR and tribunal appeals are taking place – in relation to complex tax disputes and special educational needs, for example. We know of online developments in some tribunals – the use of electronic transfer of benefits appeals between the tribunal and the Department for Work and Pensions, the use of online mechanisms for appeals to the Traffic Penalty Tribunal. And we know that user testing of new systems and processes is a key part of the courts and tribunals reform programme. But what do we know about the impact an increased emphasis on ADR and ODR will have – including the potential benefits – across the administrative justice system?

Commenting here on UKAJI’s blog on developments in tribunals, Robert Thomas of the University of Manchester has noted the risks and benefits of online dispute resolution:

‘While the overall thrust of recent developments is on restricting access to justice, the possible use of online dispute resolution and getting it right first time could enhance the role of tribunals, but it remains to be seen whether these promised gains are in reality achieved. Online dispute resolution seems to have lots of potential, but will government be able to introduce it effectively?’

Administrative justice has often been referred to as the ‘Cinderella’ of the justice system. It is neglected and little understood – yet it encompasses decisions affecting the day-to-day lives of most individuals. If, as Justice Briggs asserts, civil justice is the ‘Cinderella that lays the golden eggs’ – ie, it gets less attention than family or criminal justice but raises more money – then administrative justice must be Cinderella’s bigger sister, who has an even bigger workload, free of charge to the users, and yet is even more ignored. The potential for ADR and ODR to transform the administrative justice landscape is significant, affecting many millions of people who make and receive decisions, those who challenge such decisions, and those who consider and decide on those challenges.

In a post published here in May 2016,  Robert Thomas explored the challenges faced by tribunals in moving online and the learning that must be taken from other major IT projects and ODR initiatives. We will be featuring a number of further posts for our blog giving different perspectives on key issues in ADR and ODR for administrative justice. In doing so, we have invited contributors from areas outside what is conventionally thought of as ‘administrative justice’ as well as those currently working in the field.

Look out for these posts this week:

This week we look at ADR and ODR in the context of small claims and other ‘low-value’ consumer disputes – the topic now trending on the Citizens Advice dashboard. We feature a mediation practitioner involved in the development of ADR for consumer disputes and a researcher specialising in consumer and civil justice. Both offer commentary on what they consider to be a lack of joined-up thinking by policy-makers in terms of how ADR and ODR might be developed more effectively.

Peter Causton of Promediate considers the problems with the way the EU ADR Directive has been implemented in the UK and the lack of awareness of this development by those taking forward the online courts agenda. Using redress for airline complaints as a case study, he argues that the UK’s decision to make use of ADR voluntary for traders hampers the effectiveness of the Directive as a mechanism to improve access to justice.

Pablo Cortes of Leicester University explores the policy push toward online courts and the parallel push towards appropriate dispute resolution (ADR). Driven by different central government departments (Ministry of Justice and what was formerly known as Department for Business, Innovation and Skills (BIS)), these two policies are potentially exposing a gap in provision for resolving low-value claims.