Is Alternative Dispute Resolution dead?
Article by Bruce Greig, member of IDR.
Sir Geoffrey Vos, the newly-appointed Master of the Rolls, seems to be on a mission to abolish Alternative Dispute Resolution.
The phrase, that is, rather than the mechanisms. He has repeatedly said that there is nothing “alternative” about Alternative Dispute Resolution. We should just talk about ‘Dispute Resolution’ and ensure that the most effective mechanism is available to the disputing parties at the right time. His definition of dispute resolution includes everything from eBay chat bots up to Supreme Court Justices. All have their part to play.
Sir Geoffrey has a revolutionary vision for how dispute resolution should work. All disputes should flow through a single process. Everything should be technology-enabled. And this doesn’t just mean using EchoSign and Zoom. He is talking APIs and blockchain.
An API (Application Programming Interface) is a data processing system that anyone can interact with if they structure their data correctly. If the court service published an API specification, anyone doing dispute resolution could structure their data (dates, amounts, descriptions of things, deadlines for other things, etc.) so that a dispute could pass seamlessly from one provider to another. If your claim with the Financial Ombudsman is not resolved, it could move to the Small Claims Track without anyone needing to re-organise and re-key the information.
Blockchain based systems allow people to rely on electronic records which cannot be manipulated. Rather than passing an actual paper bill of lading from one party to another, or passing an electronic version and hoping it hasn’t been manipulated, parties can rely on an entry in a blockchain ledger.
Vos envisages a world where disputes can wind their way through many stages, with the minimum of paperwork, and parties will have access to the most appropriate resolution mechanism for the dispute at that stage in its lifecycle.
Something that starts as a dispute on eBay over the purchase of an antique might move to the County Court, then be nudged into mediation by a district judge, and eventually resolved by a private arbitration service.
This whole process could be faster than a normal court claim, because less time will be spent gathering and sharing information between the parties, and because technology will streamline the process. You don’t really need a judge to tell the parties to, for example, file witness statements by a certain date. The technology should be able to assist the two sides in agreeing those kinds of deadlines, with a simple algorithm to fall back on if the parties don’t agree. A bot probably will not replace actual judicial decision-making, but technology could certainly replace a lot of the mundane case management work.
Vos points out that there are currently at least 14 different types of civil claims, each with their own systems and processes. Some are court-based, some use various methods of arbitration or mediation. We have Money Claims Online, Online Civil Money Claims, the Whiplash Portal, and so on.
He proposes that these systems should all be integrated together. Parties with any kind of dispute would head to one website, whatever type of claim they are making, and whatever outcome they are hoping for. So rather than having Money Claim Online, the Financial Ombudsman, the Whiplash Portal and so on, claims for these different situations would all at least start off from a single website. As the claim progresses, the most suitable form of resolution would be offered, whether that is an ombudsperson, a bot, a mediator, or a judge. Several different types of intervention might be attempted along the way to resolution.
For example, a pilot scheme in Birmingham assigns cases to judges for a half-hour early neutral evaluation slot with the judge, instead of a full two-hour hearing. Once parties hear, from a judge, the merits of their case, a mediated settlement often swiftly follows.
“My theory is that almost every dispute has a sweet spot when it is amenable to consensual resolution.” says Vos.
The current court system tends to quickly move parties very far apart, as the two sides prepare for what they see as the inevitable show-down in court. Each side writes stern letters to the other extolling the strengths of their own case and the hopelessness of the other side’s case.
A more flexible dispute resolution process might keep the two sides somewhat closer together for longer, making a negotiated settlement more achievable.
You still need the backstop of a judge-imposed decision to enforce property rights if the parties cannot reach agreement any other way. A democratic, free-market society needs a system of enforceable property rights. But if the system makes it painless and easy to resolve disputes through consensual resolution, then the parties are much less likely to need to trouble a judge with their dispute.
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