family law, mediation, online dispute resolution, financial remedy working group, Form E, ODR
Online Dispute Resolution in low value claims
Over last week-end (15/16 February 2015) the Civil Justice
Council published its report on online dispute resolution (ODR):
Online Dispute Resolution for low value civil claims (February 2015) by the Online Dispute Resolution Advisory Group. The terms of reference of the authors of the report included to review the
‘potential and limitations [for] the use of Online Dispute Resolution for
resolving civil disputes’ of less than £25,000; and to look at how ODR could
develop and how it might overlap with ‘virtual courts’. Possible parallel
developments with family proceedings were outside the terms of reference of the
report; though the potential for civil justice identified by the report could
be translated easily to many family breakdown disputes (financial remedy
proceedings are an obvious example as explained later). (The authors use the
term ‘dispute resolution’ (eg online ‘dispute resolution’: ‘DR’) to mean
litigation as a whole, not – as do many family lawyers – to mean mediation and
other non-court dispute resolution.)
The primary aims of the report are contradictory, it might
be thought: to broaden access to justice, but still to seek to resolve small
scale (up to £25,000) disputes more quickly and cheaply. The report shows how
this apparent paradox –
broadening
access to justice – can be resolved.
No state investment
in dispute avoidance
As the report explains, English courts have almost no state
investment in ‘dispute avoidance’, and not much in containment or prevention of
litigation (ie mediation and other forms of alternative dispute resolution).
Thus all the investment in ‘justice’ by the Ministry of Justice is in the end
product. We provide litigants with a system which deals only with the dispute
itself (para 5.3); and in a procedural framework (certainly conducted by
lawyers who wear much the same dress) which most of Dickens’s characters would
recognise (I owe this image in part to Stephen Anderson a mediator: see
https://dbfamilylaw.wordpress.com/2015/02/16/online-dispute-resolution-can-it-work-for-family/comment-page-1/#comment-457
).
This puts the needs of the person who wants his/her problem
solved, the wrong way around, says the report. Much better, it recommends,
would be to extend the work of the justice system to the pre-issue stages
(examples of similar models in other jurisdictions are considered (Chapter 4)).
ODR would operate in three tiers:
- Tier One: is to develop ideas in relation to
information to potential litigants so that they, for example, know what seeking
resolution of their dispute through the ODR system may involve; and what their
entitlement is (in effect legal advice, but done in a neutral evaluative way)
(para 6.2).
- Tier Two: dispute containment, which is done by independent
on-line ‘facilitators’ on a more or less inquisitorial model (6.3). This
involves full case consideration and is a mixture (as I understand it) of
mediation and case management.
- Tier Three: finally if the case is not resolved then an
online judge, working from papers and, perhaps some telephone conferencing with
the parties, will determine the issues between the parties. A court order will
be produced. It will be enforceable, like any other such order (6.4).
The contrasts between the present system and the ODR model
are illustrated by the report’s triangle diagram (Chapter 5). In each triangle
the litigation, court-based element, is at the base. In either model this is
where the case is argued out if agreement (and a consent order, if required) is
not achieved pre-issue. For the current court system the triangle rests on its
base: that is, the widest point which represents the highest expenditure. The
narrowing apex of the triangle is the small state expenditure which is devoted
to mediation and dispute avoidance, and nil to independent evaluative
exercises.
Final hearing
litigation: ‘invasive surgery’
With ODR the triangle rests on its tip. The bulk of the
dispute resolution work is in avoidance and evaluation at the wide upper part
of the triangle. The triangle tapers from the top – in expenditure terms – to
the narrow more cost-effective court proceedings tip. The bulk of expenditure
is with diagnosis and mediation; and litigation – the invasive surgery (say) –
is only undertaken if mediation and evaluative help have failed.
The report starts from thirteen essential bases for ‘a court
based DR service for low value claims’, such as that it should be affordable,
accessible, intelligible, consistent, trustworthy, fair and final (seven of the
epithets in para 3.2). These are the yard-stick by which a scheme such as that
proposed by the report should be judged, say the authors. Of these factors,
perhaps ‘intelligible, ‘consistent’ and fairness are surely the hallmark of any
scheme which seeks to deliver justice.
ODR and the family
courts
So where does this leave a family
breakdown law procedural system. To a degree family courts have eased
themselves out of civil justice and common law mainstreams. Those who need the
help of the family courts will suffer. For example it is easy to see how a
scheme like this could appreciably save costs in financial remedy proceedings,
where – in the majority of cases – assets and other facts can be agreed (or
could be agreed if the omnibus family finance Form E could be avoided and
mediators left to sort out between most couples what they both own etc: as at
Tier One/Two in ODR). Yet for now, we have the
Final Report of the Financial Remedy Working Group, 15 December 2014 which makes no reference to ODR, or to mediation; and, for example, requires
that the original ‘only one’ Form E (para 6(iv)) should stay. Scope for
agreement between the parties and, for example, their definition of issues and
what needs to be disclosed is closed off.
Family lawyers have lead the dispute resolution
(ie mediation) field; though they are in danger of being eclipsed by their
civilian colleagues. If family lawyers do not embrace ideas in this report and
if they do not start to emerge from their Dickensian court box (as the authors
of this report have done) then family mediation will suffocate as ODR, its
adherents and practitioners, take over important parts of the family law field
– at least as to Tiers One and Two of a family law HM Courts and Tribunal
Service run ODR scheme.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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