Online Dispute Resolution and the impact of technology on Access to Justice

ALT Law & Technology Project

Following on from last year’s workshop on teaching law & technology, we are moving on to the second stage of the project and planning a book proposal on the opportunities and challenges created by the impact of technology on legal services and higher education. In the next few weeks we will be posting contributions from the workshop’s rapporteurs to encourage interest and discussion and will be seeking contributions. Please contact us if you would like to propose a chapter. The book will be in three parts: 1). an introductory overview of key issues, 2). chapters on the impact of technology on specific legal disciplines and, 3). Chapters on the impact of technology on legal pedagogy. We are particularly keen to hear about how teachers are changing the content of specific modules (public law – rule of law, contract law – contract automation, tort law – self-driving cars, cybercrime, etc.)

Please contact us if you would like to discuss a potential contribution:

Andy Unger – ungerad@lsbu.ac.uk

Ben Turner – TurnerB5@cardiff.ac.uk

Emma Jones - emma.j.jones@sheffield.ac.uk

The following blog is written by Professors Jane Ching and Lisa Webley

Lack of access to justice for many, if not in some respects most, of society, is widely recognised by legal professionals, academics and policy makers. The mechanisms by which it may be addressed are not. There are real complexities, recognised in the ground-breaking Paths to Justice studies in the 1990s; there is a need for greater public legal education, more low cost and/or subsidised legal services, legal advisers in the right places providing the right type and level of legal help, more efficient and effective dispute resolution systems and better routes to redress. Put bluntly, a lack of access to justice is a lack of the rule of law, most usually for the most vulnerable in our societies. Once the rule of law has been eroded for some it is effectively eroded for all of us. It is thus pressing that we address unmet legal need in all its forms to strengthen the legal system and our system of law for everyone.

On the ground, even for those able to characterise their problem as being “legal”, there are

challenges in locating legal advice which is competent, delivered in a sympathetic and understanding way, by a trusted advisor, when and where it is needed, and at no, or low cost. As Sarah Stephens showed us in this session, the route to obtaining advice, or resolution, is by no means simple. When funding under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is limited, and provision of this kind of advice in the private sector is often not economically viable, charities, universities (and charities and universities acting in tandem) have a significant role to play and many are playing it.  Part of that role is understanding how, when and where, technology is best used.

This stimulating session considered two main aspects of the challenge:

Digital provision and digital exclusion in a way that hampers access to legal information, legal help and dispute resolution mechanisms

OfCom treats digital exclusion as having three components: access, ability and affordability.As we may see from our own students, access to technology is not the same as competence or confidence in using it (the ‘capability gap’).  Owning a smartphone is not the same as having access to wifi, data, electricity to charge it or the English/Welsh language skills to make sense of what it reveals.  We cannot assume that every lawyer is digitally competent, but we can think about the technology we ask our students to use (or our institutions require our students to use), and its relationship to competence and confidence in the working environment.

COVID-19 both accelerated online skills for many and exacerbated digital exclusion for others.  Many law firms now offer online services, including video conferencing and interactive websites.  That is, they are using technology in direct lawyer to consumer work.  Some of this may be free or on a self-serve basis, but requires firms either to work with law tech suppliers, or self-design, especially in non-commercial areas of law.  Some is provided beyond individual firms and ABS, by charities and by joint ventures such as Legal Utopiaand Legal Choices.  Other technology is used within the organisation, to streamline processes, or for triage, to make lawyers’ and advisors’ activities better directed and more cost-effective.  Universities, especially when their law schools and Computer Science departments can work together, have much to contribute, as we saw from Andy Unger’s introduction in this session to the LSBU contribution to an initial advice and triage system developed for Access Social Care. Andy set out some of the benefits and challenges that this work brings; how it can support students to become legal innovators alongside providing pro bono legal help to those lacking access to formal legal assistance in mainstream legal contexts. It was a thought-provoking introduction to what was an invigorating panel session with lively discussions from people representing different types of law school and teaching traditions.

Even once we are clear that our students, as would-be future lawyers, and their organisations, have efficient digital systems that help to reduce cost and improve the quality of their work, there is still much to do to support consumers to be able successfully to access and use any direct to the legal consumer digital interfaces or tools so that they may gain access to the help that they need. This requires developers and legal organisations to consider the consumer within the design framework, including accessibility needs and with non-digital routes to help for those who may otherwise be digitally excluded. Jane Ching discussed the way in which universities may be at the forefront of this work, whether through partnering with students to consider their digital literacy, through their legal curriculum design or through their student law clinic and outreach work. There was a good discussion about how to integrate technologies into law school environments and the challenges and benefits this may bring.

Online dispute resolution (ODR)

Sarah Stephens then introduced us to her work with the Online Procedure Rules Committee established in June 2023 under the Judicial Review and Courts Act 2022 to regulate civil and family procedures in courts and tribunals.  This includes setting standards for ODRproviders and aims to use technology to assist consumers in navigating the system, and, where necessary, obtaining relief through the courts and tribunals. The presentation revealed fascinating insights into the work of the Committee, her research agenda and how she has sought input from a wide range of stakeholders. There is much work to be done to bring the courts and tribunals into the digital age in a systematic, rather than a piecemeal,way and to ensure that the rule of law is advanced rather than degraded by greater use of digital technologies. Her presentation provided opportunities for much optimism.

Lisa Webley then provided some concluding thoughts on how increased use of digital technologies had the potential to strengthen access to justice and the rule of law and also to undermine it. She briefly considered the importance of the rules of natural justice in public quasi-judicial decision-making and the threat that may be posed by black-box machine learning algorithms, if they are used to support or replace judicial decision-making.  This is significant given the right to know the case against you; the right to make representations - and in some instances to cross-examine the case being made - which has a bearing on the outcome of the decision, the right to reasons for a decision once it has been made, and the right to appeal in many instances on the basis of challenging the reasons given for the decision. This brought together the key areas of access to justice, the need for legal help, the importance of digital literacy and means to redress digital exclusion and the forms that ODR may take. The session concluded with a range of thoughtful interventions from law teachers at the session, many of which have been integrated into the discussion above. We would like to thank all who contributed to make this a lively session.