Emma McIlveen: Online Dispute Resolution – the future of justice in Northern Ireland?
Barrister Emma McIlveen makes the case for Online Dispute Resolution as Northern Ireland deals with the impact of the COVID-19 pandemic.
It goes without saying that we are in unprecedented times. Recent guidance from the President of the Tribunals in Northern Ireland has provided that employment disputes will not be heard until 1st July 2020 at the earliest (unless deemed urgent).
Even if the restrictions are lifted, it is hard to see how normality as we once knew it will return anytime soon. Indeed, many discrimination claims are likely to involve vulnerable claimants. Until a vaccine is found and developed, it is likely that vulnerable groups may be required to shield for quite some time.
As a result, I believe that the current circumstances provide legal practitioners with an opportunity to explore a different way of doing things.
Challenges facing our justice system
There is an Online Dispute Resolution Advisory group in England and Wales. In 2015, they produced a report regarding Online Dispute Resolution for low value civil claims.
Having reviewed much commentary on the shortcomings of the civil justice system, the report highlighted the need to provide a court-based dispute resolution service for low value claims that is:
- Affordable - for all citizens, regardless of their means;
- Accessible - especially for citizens with physical disabilities, for whom attendance in court is difficult if not impossible;
- Intelligible - to the non-lawyer, so that citizens can feel comfortable in representing themselves and will be at no disadvantage in doing so;
- Appropriate - for the Internet generation and for an increasingly online society in which so much activity is conducted electronically;
- Speedy – so that the period of uncertainty of an unresolved problem is minimized;
- Consistent – providing some degree of predictability in its decisions;
- Trustworthy – a forum in whose honesty and reliability users can have confidence;
- Focused – so that judges are called upon to resolve disputes that genuinely require their experience and knowledge;
- Avoidable – with alternative services in place, so that involving a judge is a last resort;
- Proportionate – which means that the costs of pursuing a claim are sensible by reference to the amount at issue;
- Fair – affording an opportunity for citizens to present their cases to an impartial expert, delivering outcomes that parties feel are just;
- Robust – underpinned by clear rules of procedure and fully implementing the law of the land;
- Final – so that court users can get on with their lives.
In the current circumstances, the need for practitioners as well as courts to provide online dispute resolution is arguably even more pressing.
What would it look like?
The platform that mediators and parties use can vary. Believe it or not, the process can be conducted via e-mail and telephone. Harvard University has found:
“The slower pace of e-mail talks (relative to real-time conversations) allows mediators to carefully craft their responses and strategy rather than needing to react in the moment to disputants’ statements. In addition, e-mail talks can level the playing field between disputants who tend to naturally dominate discussions and those who are more reserved”
Alternatively, video conferencing and real-time chats can be used. In such circumstances, parties virtually exchange documents in advance and the mediator guides the process. The mediator can also meet virtually with each of the parties in advance and make use of virtual break-out rooms during the dispute session itself.
There are several benefits to online dispute resolution:
- Flexibility in terms of meeting location, time & place
- Potential reduction in tension between the parties due to the fact that they do not have to meet in person
- Significant time savings- no need to travel to a specific place
- Removal of meeting location costs is likely to result in major costs savings which is ideal for low value cases
- Vulnerable claimants (including pregnant and disabled individuals) can progress their disputes
- Speedier resolution – no need to wait until Courts and/or Tribunals reopen
Where it may work
Online dispute resolution is already being used more widely than you may realise. Some examples include eBay; Rechtwijzer 2.0; the Canadian Civil Resolution Tribunal; the Financial Ombudsman Service; Nominet; Resolver; Youstice; Online Schlichter; Cybersettle; Modria; and the Traffic Penalty Tribunal.
Provided parties agree to participate, alternative dispute resolution can be used to resolve the majority of disputes. Some examples of areas where online dispute resolution may be useful include:
- Workplace disputes
- Contentious probate
- Conflicts between neighbours
- Business breakdown
- Debt recovery
- Disagreements over professional fees
- Family breakdown
Worth a try?
Consultations are already happening virtually in Northern Ireland. Virtual team meetings are now regularly occurring. Accordingly, if there ever was a time to explore the possibility of online dispute resolution, it is now. In my view, we have nothing to lose.
“Technology will be the main driver of this change. And, in the long run, we will neither need nor want professionals to work in the way that they did in the twentieth century and before” — Richard Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts
- Emma McIlveen is an accredited mediator with Mediation Forum Ireland and a member of The Bar of Northern Ireland’s Resolution Centre.