One of the enjoyable aspects of working with technology clients and fin-tech firms is that it opens your eyes to new, more efficient, ways of doing business. The business of dispute resolution is no different: ripe for disruption, if not revolution.
At the core of the problem is traditional court processes. Going to defended trial is a long, intensive and stressful process, for all but the most combative personality types. Litigation costs a great deal, not just financially, but also the opportunity cost of management time locked up in it.
Access to justice problems have been increasing for years and, even among commercial clients who could afford it, many are turned off by the whole process. As a very labour intensive, public forum, with procedural-heavy systems, even some case management obligations aimed at trying to speed the process end up being of dubious value in saving costs. The reality is that the court system has developed to meet the needs of the government’s function to dispense justice (and especially an ever-growing criminal law workload), not the needs of those coming to it with contract or commercial concerns.
Today, technology can be harnessed to provide quicker, cheaper options to help people sort out disputes digitally and remotely, to then move on with their lives, loves, or business relationships.
The first New Zealand online dispute service is up and firing – CODR, established in 2016. It was great to see Mike Heron QC (former Solicitor-General and a leader amongst the profession) putting his money where his mouth is to invest in it.
CODR www.codr.co.nz (Complete Online Dispute Resolution, pronounced ‘coda’) aims to provide better access to justice for civil and commercial disputes, especially small to medium sized disputes. CODR is about independent, expert and fair resolution of disputes in a digital setting via video-conference and document/chat room technology.
I am delighted to be involved as one of the panel of independent experts working with CODR.
Key features of CODR
Barristers are in a good position to offer independent expertise and flexible resource for an online dispute resolution service. The key is finding low cost independent providers, each with expertise in certain areas of law and also in dispute resolution techniques generally. CODR will provide the tech platform and will invite appropriate experts to offer their services for the job at hand, depending on the subject matter and needs of each dispute. For example, my specialist areas include consumer, insurance and regulatory problems, but if the issue is matrimonial or trust law, then you want somebody with different specialist expertise. That is the way it should be, but that is not the situation with our courts. They still insist upon generalist judges, who rely on legal counsel for each side to then guide them through specialist areas as needed.
CODR is private, fast, and uses the Zoom video-conference technology (better than Skype, in my opinion). It also relies on fixed fees, trying to bring some cost-certainty to small disputes. Barristers should be prepared to apply their expertise at reduced cost, if it will help alleviate the access to justice problem for smaller cases.
It is a Med-Arb system, meaning CODR tries to take the best elements of mediation and of arbitration, as the two leading forms of non-court ADR processes. Of course, negotiation between the parties can and should continue in parallel throughout. As an expert on the panel, it means if the parties agree and the issues are suitable, I will first try to mediate and nudge them towards self-determined settlement outcomes. If not successful, then we switch to a binding determination to ensure finality to the process.
What CODR is not
Bear in mind that this is not about artificial intelligence, or cyber justice, or decisions made by algorithm. The parties get access to a real person, experienced and versed in the dynamics of disputes. That is important: in my experience, most people stuck in conflict mode still want to know they have been listened to, and reasoned with, and fairly assessed by a human element. Although video-conferencing can inevitably seem a little impersonal in the hearing process, that is perhaps outweighed by the efficiencies.
Also bear in mind not every type of dispute will be suitable, and it is probably best suited for matters under the District Court jurisdictional limits (recently raised to NZ$350,000). And realise that the parties themselves have a huge role to play in how they approach dispute resolution and prepare themselves for it. To that end, some of the expert barristers involved have helped by sharing insights and tips in video vignettes; here is mine: https://www.youtube.com/watch?v=qq2fWogcCDI
In the UK, much controversy and discussion has accompanied Lord Briggs’ review in 2016 of the future of the civil courts, building upon Prof. Richard Susskind’s recommendations, especially for online courts for small claims: https://www.newlawjournal.co.uk/content/civil-courts-briggs-publishes-final-report
But that approach, asking the courts to reinvent their own traditional process, rooted in procedure and jurisdictional limitations, is a tall order. Turning to private digital dispute resolution outside the court system may get to the heart of things quicker. So on the whole, I applaud Mike Heron’s initiative, and am very pleased and proud to support it:
For the CODR terms, see here: http://www.codr.co.nz/codr-terms-and-conditions/
For more background press, here: https://www.lawsociety.org.nz/lawtalk/lawtalk-archives/issue-895/online-lawyering