By Karen Mak
This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to the justice system to ordinary readers. The very best post on each topic is published here.
There have been many predictions of “digital disruption” in the legal industry. This prompts us to consider whether Australian courts have been able to harness new technologies to enhance access to justice, particularly for self-represented litigants. With increasing numbers of self-represented litigants, Australian courts are faced with significant challenges. How can courts adequately address the needs of self-represented litigants whilst also maintaining the efficient operation of the legal system?
Self-represented litigants are placed at a distinct disadvantage when navigating the court system without legal representation. Whilst Online Dispute Resolution (ODR) processes are already utilised in Australian courts, it can be better harnessed to overcome the obstacles faced by self-represented litigants. ODR could be used to better address the needs of self-represented litigants and the strains self-represented litigants cause on the court system.
ODR technologies or platforms aim to optimise the ADR experience and improve accessibility for a broad demographic of potential users. However, ODR may only be suitable for self-represented litigants with small or low-dollar value claims.
Impacts on the Court System
A self-represented litigant refers to an individual with a matter before a court or tribunal, who is unrepresented by a legal professional. Whilst some self-represented litigants deliberately choose to self-represent, others may only do so because they cannot afford a lawyer and are ineligible for legal assistance.
Although many self-represented litigants still receive some form of legal advice, such as from a community legal centre, they still differ from represented litigants because ultimately a lawyer is not responsible for their matter. Whilst self-represented litigants are predominantly present in VCAT, where it is assumed that most parties will self-represent, it is still possible to have self-represented litigants in the Supreme Court, even if legal arguments are more complex and parties are more likely to be represented by senior counsel.
As well as increasing the risk of an unfair outcome, self-representation can also compromise the efficient operation of the legal system. With the exception of VCAT, court processes have been established with represented litigants in mind. Self-represented litigants therefore can present administrative and resourcing difficulties for the courts.
Online Dispute Resolution (ODR)
Put simply, ODR is an amalgamation of ADR and technology; it can be broadly defined as the resolution of disputes using technology.
ADR is one of the oldest forms of non-adversarial justice. ADR has been defined by the National Alternative Dispute Resolution Advisory Council as “processes, other than judicial determination, in which an impartial person assists those in dispute to resolve the issues between them”. The term ADR also extends to approaches that enable parties to mitigate or manage their own disputes without external guidance.
ODR allows parties to resolve disputes using technology; this is in direct contrast to ADR, which requires parties to meet and resolve disputes face-to-face. In today’s globalised and technological world, ODR is quickly becoming the main point of call for disputes arising out of e-commerce transactions, and for disputants bound by the limitations of time and space. ODR can be defined as “processes where a substantial part or all of the communication in the dispute resolution process takes place electronically”. Thus, ODR applies to all ADR models including mediation, negotiation and arbitration.
Synchronous communication refers to communication occurring in real time. Users communicate “live” and the technology requires all users to be virtually present at the same time. Examples include instant messaging, video conferencing technology such as on Skype, webcams and the like. Conversely, asynchronous communication is the online exchange of messages, which happens at different times for each user. A prime example of this is email, as users can read and respond to messages as their respective schedules permit, rather than only in real time.
Use of ODR – Court processes
Australian courts should make better use of existing ODR technology in order to better address the needs of self-represented litigants. In addition to optimising ADR processes, ODR is also being slowly implemented in Victorian courts. At present, ODR has been limited to resolving small claims. For instance, “RedCrest”, an online filing and case management system, is used in the Victorian Supreme Court. This allows users to remain updated on relevant matters by allowing them to file and access documents at any time and from any location.
Similarly, as part of the Victorian Government’s Access to Justice Review, the Department of Justice and Regulation made a recommendation for the modernisation of user services at VCAT in respect of small civil claims. The Review recommended that the Victorian Government should provide financial support to VCAT to better utilise online technology to provide more accessible, user-focused and responsive administrative services. This has not yet been implemented, however the Victorian Government has agreed to this recommendation. This reflects recognition ODR has the potential to improve access to justice by providing litigants with a convenient and flexible avenue for seeking resolution of small civil claims. Unlike traditional courts, ODR is accessible at any time from any place. However, its implementation is heavily dependent on government funding and hence, may be slow to be adopted in the Australian courts.
Private Sector ODR Initiative
Australian courts could also utilise new ODR technologies devised by private sector groups. For instance, Australian courts could adopt ODR software such as Modria, an online dispute resolution provider based in the Silicon Valley in the United States. Modria ODR systems can incorporate mediation, negotiation or arbitration, or a mixture of ADR processes, and takes parties through each procedural step. This will better address the needs of self-represented litigants because this will allow parties to resolve disputes without retaining legal counsel.
Advantages of ODR
The procedural flexibility that ADR users have come to prefer may be enhanced through the use of technology. Firstly, ODR can be conducted anywhere and hence, results in significant costs savings for self-represented litigants, as parties do not need to physically meet at a particular place. Secondly, electronic file management also results in significant costs savings as large amounts of data can be stored and communicated without the printing costs that would be incurred in a traditional setting. Thirdly, ODR can increase access to justice for litigants who are disabled or live in remote areas. Finally, ODR can also result in better communication between disputing parties. For example, in situations where disputing parties have a history of domestic violence, ODR provides the benefits of keeping emotional and physical distance between the parties involved.
Risks and considerations
However, there are also concerns that moving court services online could create further barriers for self-represented litigants, especially for those who lack internet access, live in rural areas or have low levels of English literacy. For some self-represented litigants, direct contact with court staff and services is fundamental because it presents an opportunity for staff to identify and support the needs of the self-represented litigant.
Further, one of the most significant disadvantages of ODR is that a “large amount of data that underpins interpersonal communications is lost” such as body language and tone of voice. This forces parties to resolve disputes with incomplete information. The extent of this data loss will depend upon the communication type the parties use in ODR. In relation to text-based communication, parties may find it difficult to assess each other’s truthfulness and willingness to settle the dispute without surrounding physical clues. In relation to video-conferencing, whilst there is less chance of miscommunication, streamed video often experiences delays depending on internet speeds. This can cause unnecessary frustration to the parties involved.
Ultimately, Australian Courts should harness the benefits of ODR to better address the needs of self-represented litigants by streamlining the existing technology into pre-trial and court procedures. This will help self-represented litigants in overcoming the hurdles in lacking legal representation.
About Karen Mak
Karen Mak is a fifth year BA/LLB student at Monash University. Following on from her involvement in the student publication TechUp Law as part of the Monash Law Ambassadors Program, she is particularly passionate about understanding the role digital disruption can play in the legal industry.