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Online resolution can help shape justice reform

Can judges – or lawyers – be agents of change in our justice system?

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Forgive me if the question is rhetorical, but in recent months we have heard countless alarming predictions that lawyers will be replaced with machines and courts with private companies – all more effective, more efficient and more attuned to the sway of economic actors devoted to rationality and efficiency.

Returning from these flights of fancy to the more practical, it appears that reform of our current justice system is concerned with determining whether to first increase the number of judges (so far only a mildly successful approach), divert some litigation outside the justice system or modernize proceedings using information and communication technology. What should we prioritize? Therein lies the very thorny question our different levels of government feel compelled to address in the aftermath of the R. v. Jordan ruling, which continues to unsettle public opinion on a daily basis.

This is where a close look at the evolution of online dispute resolution (ODR) can assist us and provide some serious food for thought.

Then and now

The concept of ODR was largely developed at Université de Montréal’s public law research centre (Centre de recherche en droit public) based on groundbreaking work by Professor Karim Benyekhlef. It has since been used in a host of areas: from the remote arbitration of domain name disputes (eResolution), to disputes on major e-commerce platforms (eBay) and amicable divorce negotiations (Rechtwijzer). Although ODR is no longer reserved for low-intensity disputes, it has yet to achieve its full potential.

For almost 30 years, experts have debated ODR’s role and place in the judicial landscape. Should it be confined to the private sector, as the emergence of certain legal tech start-ups, such as U.S.-based Modria, would lead us to believe? Or can it be a legitimate option for governments eyeing projects to improve legal services, like PARLe, a joint initiative of Quebec’s consumer protection office, its department of justice and the Cyberjustice Laboratory?

The answer has only recently come to light

In recent years, several private ODR companies have folded due to impartiality issues, in the case of the National Arbitration Forum, or lack of funds and business model shortcomings, in the case of Rechtwijzer. Modria abandoned the idea of becoming a private centre for justice when it agreed to its acquisition by Tyler Technologies, which specializes in software for courts in the United States.

In just a few months, the ODR model seems to finally have taken shape. It is becoming incorporated into the judicial process where the courts can administer ODR in a sustainable, efficient and legitimate way.

One high-profile example of this is the Civil Resolution Tribunal in British Columbia, which incorporates an ODR mechanism to promote the amicable resolution of condominium-related disputes and, more recently, small claims. Ontario is expected to follow suit with the new Condominium Authority Tribunal. The Judiciary of England and Wales also took inspiration from ODR when developing its ambitious Civil Court Structure Review. Numerous other similar projects are coming out of the U.S., Australia and hopefully Canada. ODR holds the promise of an enhancement of the judicial offering rather than reduced access to courts.

By whom? For whom?

So if justice reform is making strides among judges, how about with lawyers?

At first glance, the first ODR platforms that came along promoted self representation and disintermediation. The Civil Resolution Tribunal only allows representation by a lawyer in exceptional circumstances. However, we support the position of lawyers who denounce this decision; why can’t they contribute to the development of a legal practice that would respect the ODR model? Other platforms have allowed representation by lawyers. Litigants can reasonably expect to be represented in the ODR ecosystem.

What’s more, we should be able to incorporate new legal services, such as an impartial dispute assessment service, mediation, and an agreement writing service for certain proceedings. There is an array of affordable legal services that lawyers can offer online that can be included in a package with other services. Whatever services the courts do not have the authority or budget to provide should also be part of ODR platforms. That would present opportunities for judges and lawyers to work together and hopefully make new strides in justice reform.