Using Technology and ADR Methods to Enhance Access to Justice

• 1 Introduction

  There is a growing recognition that traditional judicial adjudication is not suitable for resolving many civil disputes.¹xP. Cortés, Online Dispute Resolution for Consumers in the European Union, London, Routledge, 2010. This is especially so when parties cannot afford legal representation (i.e. litigants in person or LIPs) or in the event of resolution of disputes of low or medium value for which through court litigations, which can be too slow, costly, unintelligible and out of step in the digital society. As a result, disputants are increasingly geared towards the use of more user-friendly, specialized, quicker and less costly alternative dispute resolution (ADR) processes such as ombudsman and mediation schemes. These processes are gradually adopting Information and Communications Technology (ICT) tools to deliver services. This is because a society that is progressively interacting online, especially through smartphones,²xThe Economist claims that in 2015 there were over 2 billion smartphones and that this figure is expected to double to 4 billion by 2020. See ‘The Truly Personal Computer’, The Economist, 28 February 2015. would normally prefer to take advantage of the online forum for resolving their grievances. When dispute resolution processes do not require the physical presence of the parties and allow for online communications, they are commonly referred as online dispute resolution (ODR) processes. However, ODR can also be used in a broader context, encompassing online courts.
  In consumer matters, ADR and ODR are increasingly being monitored and regulated because parties have unequal bargaining powers, resources and experience; whereas the consumer would normally be using the dispute resolution process for the first time, the businesses do so routinely. In the European Union, consumer ADR/ODR schemes have recently undergone important changes as a result of the implementation of the ADR Directive in all the Members States of the European Economic Area (at the time of writing in December 2018 there are 31 countries).³xDirective 2013/11/EU on Alternative Dispute Resolution for Consumer Disputes OJ L 165/63. This directive is supplemented by the Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters OJ L136/3. The ADR Directive requires national authorities to accredit those ADR/ODR entities that meet certain procedural standards, including the online processing of consumer complaints. While the Directive did not make business participation in ADR compulsory, there are a number of sectors where EU regulations do so,⁴xThere are EU legislations making it mandatory for businesses to be adhered to a publicly certified ADR body in sectors such as telecommunication, gas and financial services. These obligations are pursuant to Art. 3(13) Directive 2009/72/EC concerning common rules for the internal market in electricity OJ L211/94; Ann. I (1)(f) Directive 2009/73/EC concerning common rules for the internal market in natural gas OJ L211/94; Arts. 80 and 83 of the Directive 2007/64/EC on payment services OJ L 319. Art. 10(2) (t) and Art. 24 Directive 2008/48/EC on credit agreements for consumers OJ L133/66; Art. 14 Directive 2002/65/EC on distance marketing of financial services OJ L271; and Art. 10 of the Directive 97/5/EC on cross-border credit transfers OJ L43. and national laws can also extend the compulsion to cover additional sectors. The Directive is complemented by the ODR Regulation that has created a one-stop shop, the ODR platform, which enables consumers to submit complaints arising from online contracts in all the languages of the European Union. The platform sends consumer complaints to the trader or merchant and enables parties to choose a nationally certified ADR/ODR entity to assist them in the resolution of complaints.⁵xRegulation (EC) 524/2013 on online dispute resolution for consumer disputes OJ L165/1. These ADR/ODR entities, many of which previously relied on self-regulation, are now more firmly imbedded as part of the civil justice system.
  Considerable gaps in consumer redress however remain in many economic sectors, as the participation in the dispute resolution is not mandatory for traders, especially in non-regulated sectors such as home improvements, second-hand car sales and general retail.⁶xUK Department for Business, Energy and Industrial Strategy, ‘Modernising Consumer Markets: Consumer Green Paper’, April 2018, p. 50. This article argues that these gaps can only be met if either the participation of traders in ADR/ODR become compulsory or if an online court or tribunal is truly accessible for litigants in person, such the Canadian Civil Resolution Tribunal or the English Civil Money Claims Online.
  Even though a mandatory ADR/ODR body must be in compliance with the right to a fair trial, which in Europe is recognized under Article 6 of the European Convention of Human Rights (ECHR), this right must be considered in conjunction with the right to an effective remedy (Art. 13 ECHR) that requires the choice of appropriate redress⁷xCouncil of Europe Committee on Equality and Non-Discrimination, Equality and Non-Discrimination in the Access to Justice, Report Doc 13740, Rapporteur: Mr V. Riceard Badea, 31 March 2015, para. 10. and expeditious justice.⁸xCouncil of Europe Committee on Legal Affairs and Human Rights, Access to Justice through Online Instruments, Draft Report, Rapporteur: J. Xuclá, 2 November 2015, para. 13. The right to a fair trial, from which the right to access to justice originally stemmed, allows for mandatory ADR schemes before resorting to the courts as long as these court restrictions are considered to be legitimate and proportionate. An analogy can be made between ADR/ODR and the position taken by the European Court of Human Rights in favour of recognizing pre-action decisions made by administrative authorities as compatible with the right to a fair trial.⁹xECtHR, Le Compte, Van Leuven and De Meyere v. Belgium, Appl. no. 6878/75 and 7238/75, Judgment of 23 June 1981, para. 51. The European Court of Human Rights held that decisions by out-of-court bodies must be subject to subsequent control by a judicial body (through an appeal or review process),¹⁰xECtHR, Zumtobel v. Austria, Appl. no. 12235/86, Judgment of 21 September 1993, paras. 29-32. which should cover the facts, the substantive law and offer minimum due process standards.¹¹xL. McGregor, ‘Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the ECHR’, European Journal of International Law, Vol. 26, No. 3, 2015, pp. 607-634. In a similar vein, the Court of Justice of the European Union held that mandatory online conciliation and mediation are consistent with European legislation insofar as they do not make it too difficult for consumers (time-wise as well as cost-wise) to exercise their right of access to the courts.¹²xJoined Cases C-317/08 to C-320/08, Rosalba Alassini and Others v. Telecom Italia SpA and Others, 18 March 2010. See also C-75/16, Livio Menini and Maria Antonia Rampanelli, 14 June 2017.
  Therefore, it is plain that access to justice goes beyond judicial dispute resolution, and it may encompass mandatory ADR/ODR processes that seek early settlements. These processes in the European Union are increasingly being publicly certified and offer more than a mere private dispute resolution function since they provide a public service for consumers that complements, and often replaces, the role of the courts. Furthermore, what is quite unique of these certified ADR/ODR schemes is that they are legally required to cooperate with public enforcement bodies¹³xArt. 17 ADR Directive. whose role is not to provide individual redress, but to monitor businesses compliance and penalize those who infringe consumer protection laws. Yet, paradoxically, whereas courts require litigants more and more to consider or try non-binding extrajudicial techniques such as mediation, in the consumer realm, there is not enough cooperation between extrajudicial bodies and small claims processes.
  This article discusses how technology and extrajudicial processes can increase access to justice, especially for LIPs with low-value claims. The article argues for greater integration between courts and extrajudicial bodies, which are currently undergoing an institutionalization process as a result of recent EU legislation. Accordingly, it is argued that access to justice for consumers will only be achieved if they have access to either an accountable and effective extrajudicial scheme that offers adjudication or to a truly user-friendly and accessible online court that incorporates extrajudicial techniques as the UK government has recently endeavoured to deliver. To that end, this article examines the policy options for the English Online Court with a particular focus on the challenges faced by LIP. Finally, this article submits that dispute system design changes need to be informed by empirical research and a holistic policy strategy on dispute resolution.

• 2 The Institutionalization of ODR in the European Union

  The institutional support for ADR/ODR is not limited by efforts to not only increase access to justice for those with unmet legal needs but also to increase consumer confidence in the digital market. It is thus not surprising that the legislative justification of regulatory initiatives in this field is the fundamental right to access to justice, and on the other hand, the pursuit of a more competitive and sustainable market. In the international arena, UNCITRAL Working Group III (ODR) has presented rules for an ODR tiered process that is designed to resolve cross-border low-value disputes.¹⁴x See UNCITRAL Working Group III (Online Dispute Resolution), 33rd session, New York, 29 February-4 March 2016. Note by the Secretariat, ‘Draft Outcome Document Reflecting Elements and Principles of an ODR Process’. See also P. Cortés & F. Esteban, ‘Building a Global Redress System for Low-Value Cross-Border Disputes’, International Comparative Law Quarterly, 2013, Vol. 62, No. 2, pp. 407-440. But greater impact on ODR has been achieved through concrete initiatives at regional and national levels. As noted earlier, at the regional level, the European Union has produced legislation that requires Member States to ensure the availability of certified ADR/ODR entities that comply with procedural standards. It also requires traders to inform consumers about the EU ODR platform and the ADR/ODR entities therein contained; however, traders are not required to used them unless a sectorial law compels them to do so.¹⁵xP. Cortés, ‘The New Landscape of Consumer Redress: The European Directive on Consumer Alternative Dispute Resolution and the Regulation on Online Dispute Resolution’, in P. Cortés (Ed.), The New Regulatory Framework for Consumer Dispute Resolution, Oxford, Oxford University Press, 2016. Accordingly, the EU ADR/ODR legal framework has three goals: to ensure the availability of ADR/ODR for consumer matters, to guarantee these entities’ compliance with minimum standards, and to raise awareness about these schemes.¹⁶xCommunication on ADR for Consumer Disputes in the Single Market, COM (2011) 791. See generally, P. Cortés (Ed.), The New Regulatory Framework for Consumer Dispute Resolution, Oxford, Oxford University Press, 2016. These three goals are examined in the following sections.
  As already noted, the first goal seeks to ensure the availability of ODR in all sectors where there are contracts between consumers and businesses. Although the regulations do not make the participation compulsory, there are a number of sectorial regulations in the United Kingdom that require EU traders to be covered by a certified ADR scheme.¹⁷xThese sectors are energy, estate agents, financial services, higher education, gambling, legal services, pensions, postal services, property letting agents and telecommunications. However, as noted previously, gaps remain in important sectors such as home improvements, property rentals, and traditional retails. It is submitted that these gaps can be filled by having a residual ADR/ODR entity that covers those sectors not already covered by a sectorial ADR body, or by having a truly accessible online court. A number of jurisdictions have sought to meet this gap by making ADR mandatory across all sectors through complaints boards, such as the case of Sweden, or by requiring traders to offer ADR free of cost to their consumers, such as the case in France where traders are legally required to participate in, and pay for, mediation. Yet these mediation processes do not guarantee the resolution of a complaint, and traders will have very little incentive to reach a compromise knowing that the consumer will not be able to escalate a dispute. Also, accessible courts, especially through small claims processes available online, can help to fill these gaps and ensure an effective consumer redress system. These gaps are expected to be covered in England by the online court, but, as will be discussed in the following sections, it remains unclear how it would interact with the existing consumer ADR/ODR infrastructure. Arguably, this untapped synergy will be eventually realized as courts continue to adopt or require parties to try ADR processes.
  The second goal of the EU legislation is to ensure quality standards for the certified dispute resolution bodies, which are now being certified by national competent authorities (typically the regulators in each sector) when they meet the procedural standards set in the national legislation that transposes the ADR Directive. The legislation has triggered the professionalization of previously unregulated ADR/ODR schemes, which triggered the launch of new schemes, including for-profit bodies that saw a new market opportunity. The new populated ADR/ODR landscape in the European Union is favouring forum shopping where there are multiple ADR/ODR providers in each sector. This raises concerns about the independence of these ADR/ODR entities because these entities have economic incentives to attract traders, who will not only choose but often pay for these processes.¹⁸x See P. Cortés, ‘The Impact of EU Law in the ADR Landscape in Italy, Spain and the UK: Time for Change or Missed Opportunity?’, ERA Forum, Vol. 16, No. 2, 2015, p. 125. Lessons should be taken from the experience of domain-name dispute resolution bodies, which, similar to what is now happening in many European jurisdictions with multiple ADR/ODR providers, the party choosing and paying for the dispute resolution provider will naturally pick a provider based on their performance, that is, choosing a resolution provider who will more likely decide in their favour at the lowest cost.¹⁹xM. Geist, ‘Fair.com? An Examination of the Allegations of Systematic Unfairness in the ICANN UDRP’, Brooklyn Journal of International Law, Vol. 27, 2002, p. 903. Therefore, regulators should monitor closely that ADR/ODR entities comply with due process standards, including independence, and limit the number of certified ADR/ODR providers per sector when competition amongst providers compromise quality standards.
  The third goal is to increase awareness about these certified dispute resolution bodies. Traders in the European Union are required to signpost consumers to certified dispute resolution bodies, and those operating online, including online market places such as Amazon, have also the obligation to provide an easily accessible link to the EU online platform.²⁰xOnline Dispute Resolution platform, available at: http://ec.europa.eu/odr. Controversially, all traders, even those who have not signed up with an ADR/ODR body, must inform consumers in writing about the availability of these bodies every time they have an unresolved dispute. The purpose of this information obligation is to encourage traders to opt-in the ADR/ODR process. This information, however, must be provided regardless of the traders’ willingness to participate in the process, which inevitably delivers confusing information to consumers who are presented with the details of an ADR/ODR provider and ODR platform will not help them in resolving their complaints.
  The first-year report of the EU ODR platform found that only around 30 per cent of online traders complied with the obligation to provide the link to the ODR platform.²¹x Report from the Commission to the European Parliament and the Council on the Functioning of the European Online Dispute Resolution Platform Established under Regulation (EU) 524/2013 on Online Dispute Resolution for Consumer Disputes, December 2017. Hereinafter, the EC First Annual Report, 2017. Available at: https://ec.europa.eu/info/sites/info/files/first_report_on_the_functioning_of_the_odr_platform.pdf. Although this percentage appears to be quite modest, it does represent a notable growth from the beginning of the year where the percentage was much lower. The same can be said about the volume of complaints, with the first year of operations having registered only 24,000 complaints (a very modest number for the half-billion EU consumers). However, the number of complaints have increased steadily since its launch receiving 36,000 complaints in the second year of operation between 15 February 2017 and 14 February 2018, which represents an increment of over 50 per cent.²²xEuropean Commission, Functioning of the European ODR Platform – Statistics 2nd year, December 2018, p. 2. Available at: https://ec.europa.eu/info/sites/info/files/2nd_report_on_the_functioning_of_the_odr_platform_3.pdf. At the time of writing, the platform has received around 80,000 complaints since its inception, and the website has received over 8 million visits. In terms of the types of claims, 61 per cent were domestic and 39 per cent were cross-border (within the European Union). The sectors most complained about were consumer clothing, airline tickets and ICT goods, and the main issues related to delivery of goods, nonconformity and defective goods.²³x See the statistics available at: https://ec.europa.eu/.
  But the most surprising finding was that only 1 per cent of the claims submitted in the ODR platform were resolved by a certified ADR/ODR entity, and the remaining were either resolved through direct negotiation between the trader and the consumer or not resolved at all.²⁴xEC First Annual Report, 2017, p. 7. The European Commission found that 85 per cent of all complaints submitted were closed automatically after 30 days because the trader did not reply to the complaint through the platform. Yet, further research on these cases found that, of this bulk, 40 per cent of consumers were contacted directly by the trader with a view of resolving the complaint. In addition, 9 per cent of the cases submitted to the platform were refused by the trader, of which two-thirds of these consumers were also contacted directly by the trader outside the platform. Out of the remaining complaints, 4 per cent were withdrawn by either party before reaching the ADR entity, and only the outstanding 2 per cent were referred to a nationally certified ADR entity; however, only half of these reached a final outcome through the ADR/ODR entity.
  The data of the second year of operation of the ODR platform are very similar to the first one: 81 per cent of cases were automatically closed, but the Commission survey amongst consumers found that 37 per cent of consumers had been contacted by the trader to settle the dispute outside the platform;²⁵xEC Second Annual Report, 2018, p. 4. 13 per cent were closed because the trader indicated they did not want to use the platform, but the majority of these cases were resolved through bilateral negotiations. Last, 4 per cent of cases were withdrawn from the procedure, which the Commission indicates was because parties were likely to have reached a solution.²⁶x Ibid.
  Thus, in both years of operation, it was found that only 2 per cent of cases reached an ADR entity and only half of these, 1 per cent of total complaints, were resolved by a third neutral party through an ADR/ODR entity. The Commission highlights that, overall, 44 per cent of complaints were resolved successfully through bilateral negotiation outside the platform. Therefore, whereas one can agree with the Commission’s complacent conclusion that the EU ODR platform is contributing to incentivize traders to cooperate on an amicable solution,²⁷x Ibid. the platform is seen to be performing clearly below its potential. As it has been discussed elsewhere, the platform should provide additional functions that support the resolution of the majority of disputes, such as a trustmark that encourage traders participation – a negotiation tool that facilitates early settlements – and automatic referrals to ADR/ODR bodies when traders are already adhering to an ADR entity.²⁸xP. Cortés, ‘A New Regulatory Framework for Extra-Judicial Consumer Redress: Where We Are and How to Move Forward’, Legal Studies, Vol. 35, No. 1, 2015, pp. 114-141. The European Commission has recently undergone a ‘substantial overhaul’ to make the ODR platform ‘more user-friendly, informative and engaging’, and it continues to carry out awareness campaigns to promote its use amongst consumers and traders.²⁹xEC Second Annual Report, 2018, p. 5.
  Although the goals of the EU legislation have not been fully realized, the European legal framework for consumer ADR/ODR incorporates recognized best practices and an accreditation system, and in doing so, it has started a process of professionalizing a traditionally unregulated sector. The rationale behind this regulatory effort is the promotion of ADR/ODR as the primary form of dispute resolution for consumer disputes. Presently, the EU ODR platform contains a network of more than 400 certified ADR/ODR providers that have been publicly certified to resolve consumer disputes within the European Economic Area. This new structure has trigged an institutionalization process that is moving ADR from the unregulated models of redress to an increasingly important part of the civil justice system in the European Union. Moreover, as noted earlier, from an EU view point, consumer ADR, like courts, is more than a mere tool of dispute resolution; it is an important mechanism to widen access to justice by expanding the avenues to ensure better compliance with consumer protection laws. Accordingly, ADR/ODR entities are delivering a public service whose remit goes beyond the provision of individual redress, as under the ADR Directive, they are now legally required to cooperate with the trade industry by identifying common causes of complaints as well as with enforcement bodies in improving standards and compliance with consumer law.

• 3 Mind the Gap in Access to Justice

  3.1 Mandatory Sectorial ODR and Incentives for Voluntary ODR

  This article has observed that the participation in ADR/ODR is often optional in the consumer realm; there are exceptions, though; for example, businesses of entities operating in regulated sectors such as financial institutions, energy or telecommunication providers are subject to independent dispute resolution bodies.³⁰x Supra n. 4. With regards to other civil and commercial disputes, a well-known and early ODR process is the one used to resolve disputes between domain-name holders and trademark owners.³¹xP. Cortés, ‘Online Dispute Resolution Services: A Selected Number of Case Studies’, Computer and Telecommunications Law Review, Vol. 20, No. 6, 2014, pp. 172-178. However, as noted earlier, there are still many gaps where individuals with legal needs have the only option of seeking redress and justice through an unsuitable and expensive court litigation process.
  It has already been discussed elsewhere that these gaps in access to justice should be met by ensuring that, on one hand, regulated sectors make it mandatory for licensed businesses to adhere to an ADR/ODR entity as a precondition to benefit from the market participation.³²xP. Cortés, ‘Consumer ADR in Spain and the United Kingdom’, Journal of European Consumer and Market Law, Vol. 7, No. 2, 2018, pp. 82-88. As for non-regulated sectors, such as retail, traders must be subject to incentives and penalties that encourage their participation in an ADR/ODR process. In terms of incentives, these can come from an online label or trustmark that provides visibility to the business trading standards, for example, Trustmark in the United Kingdom or the BBB in North America.³³x See https://www.trustmark.org.uk/ and https://www.bbb.org/. Another strategy is the use of penalties for reluctant participants. In England, the Small Business Commissioner resolves complaints regarding late payments from large to small businesses, and although its decisions are only recommendations, the Commissioner can publish cases to promote compliance.³⁴xThe Office of the Small Business Commissioner was created by the Enterprise Act 2016. Similarly, the ARN, the main ADR/ODR provider for consumer disputes in Sweden, does not require the participation of traders in its complaint boards; however, if the recommendations are not followed, the name of the trader is published online and in a consumer magazine. This approach seems to be quite effective in ensuring that the majority of recommendations are followed. In a similar vein, the UK aviation regulator, the Civil Aviation Authority, gives airlines the option of either signing up with one of the two approved ODR providers or the regulator itself will process passenger claims. Interestingly, the regulator only issues decisions in the form of non-binding recommendations but charges airlines a fee per case that is processed (currently £150), which is higher than the fees charged by certified dispute resolution providers. Nevertheless, the latter, which are private ADR/ODR entities, issue contractually binding decisions on the airlines once the outcomes have been accepted by the passenger-complainant.³⁵x See https://www.caa.co.uk/home/.
  Access to justice will only be met if individuals with unmet legal needs have either access to a residual dispute resolution scheme, which can process the complaints even when the trader has not signed up with an ADR/ODR entity because it is mandatory for the businesses or because it relies on incentives and penalties, or, as discussed in the next section, if there is a truly accessible online court, especially one that incorporates ADR/ODR techniques that promote early resolutions. Furthermore, ADR/ODR processes need to be monitored to ensure that they operate in an impartial and effective manner. The monitoring can be carried out by accreditation agencies, as it is largely the case in the European Union, or through court supervision.

  3.2 Pathways for Increasing Access to Justice

  Courts have a fundamental function to ensure that those individuals with legal needs who cannot resolve their complaints through an ADR/ODR process could obtain redress through the court. An additional function that the courts can also take is to monitor and ensure that ADR/ODR providers deliver substantive justice. This could be done through pathways from ADR/ODR to the courts (and vice versa) in order to clarify when necessary the interpretation of substantive law (e.g. on mandatory consumer protection rights), as is currently done by the Court of Justice of the European Union when a national court is unsure about the interpretation of EU Law.
  An online court process would be the most obvious fit to accommodate the collaboration between ADR/ODR bodies and courts. There are already come examples of this model in a number of regulated ombudsman schemes for pensions and financial or legal disputes. Similarly, the Irish Financial Ombudsman can also refer a point of law to the high court. However, caution should be exercised to avoid courts from deciding the procedural standards of ADR/ODR processes based on judicial due process standards. This was a concern raised in relation to the Financial Ombudsman in Ireland that allows financial institutions to appeal decisions to the high court. It has been argued that this court-monitoring of the ADR process led to an increase in due process standards, and hence formality, in the adjudication stage of the ombudsman process.³⁶xJ. Williams & C. Gill, ‘A Dispute System Design Perspective on the Future Development of Consumer Dispute Resolution’, in P. Cortés, The New Regulatory Framework for Consumer Dispute Resolution, Oxford, Oxford University Press, 2016, p. 383. To counterbalance the descend of the ADR towards a more formal process, the ombudsman decided to implement changes in its process to promote the use of mediation with a view to achieving early settlements and reducing the number of adjudications. Therefore, it is suggested that although statutory interpretation should be largely left to courts, procedural standards for ADR/ODR processes are better left to the administrative authority, regulator or accreditation agency.
  In addition, court processes are increasingly requiring parties to consider ADR ahead of judicial adjudication. These requirements in England come in the form of pre-action protocols or mediation information and assessment meetings (MIAMs) mandating parties to explore ADR options prior to opting for court litigation, or as part of the procedure where, for instance, parties are invited to participate in a telephone mediation ahead of the judicial hearing or trial. Online court processes are also incorporating these ADR stages, encouraging parties to explore settlements through online communications with or without the assistance of a third-party neutral.
  The efforts to interconnect different processes, especially formal and informal ones, have been labelled as ‘process pluralism’,³⁷xMenkel-Medow et al., Dispute Resolution: Beyond the Adversarial Model, 2nd ed., New York, Aspen, 2011. which acknowledges the need to provide access to justice in different ways.³⁸xM. Galanter, ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law’, Legal Pluralism and Unofficial Law, Vol. 13, 1981, p. 1; M. Cappelletti, ‘Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement’, Modern Law Review, Vol. 56, 1993, pp. 282-284. However, this view has faced criticism; some experts argue that although ADR processes may increase access to redress, the kind of justice they deliver to a weaker party is of lower quality;³⁹xO. Fiss, ‘Against Settlement’, Yale Law Journal, Vol. 93, 1984, p. 1073; R. Abel, The Politics of Informal Justice, New York, Academic Press, 1982; M. Palmer, ‘Formalisation of Alternative Dispute Resolution Processes: Some Socio-Legal Thoughts’, in J. Zekoll, M. Balz, & I. Ambling (Eds.), Formalisation and Flexibilisation in Dispute Resolution, Leiden, Brill, 2014, p. 21. in other words, the charge levelled here is that there is a trade-off between the goals of efficiency (i.e. access) and fairness (i.e. justice),⁴⁰xFor a discussion on justice in the mediation process and the requirements to achieve it, see D. De Girolamo, ‘Sen, Justice and the Private Realm of Dispute Resolution’, International Journal of Law in Context, 2017, (First-View 20 December 2017), pp. 1-21. which is particularly acute when technology is incorporated in the dispute resolution process.⁴¹xE. Katsh & O. Rabinovich, Digital Justice, Oxford, Oxford University Press, 2017. The English Online Court is a good example of what has been referred to as “the juridification of private-organized dispute resolution versus the growing informality of state court proceedings”.⁴²xZekoll et al., in Palmer, 2014, p. 3. See also The European Law Institute and the European Network of Councils for the Judiciary, ‘The Relationship between Formal and Informal Justice: The Courts and Alternative Dispute Resolution’, 2018. Available at: https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/ADR_Statement.pdf. This is because the online court seeks to benefit from the flexibility of ADR while court-annexed and certified ADR processes are becoming more formalized, particularly in those areas where disputants are signposted to it and parties are likely to face power imbalances; for example, in family, employment and consumer sectors, and arguably in small claims, it is often the case that at least one litigant does not have legal representation.
  The remainder of this article examines the development of the English Online Court and the policy options that are available to ensure that it meets its goals of increasing efficiency and access to justice.

• 4 Policy Options for the English Online Court (the Civil Money Claims Online)

  With an effort to revert the deterioration of the civil courts, the UK government has recently committed the investment of £732 million to modernize its courts and tribunals, which are expected to operate ‘digital by default’.⁴³xMinistry of Justice, ‘Transforming Our Justice System’, September 2016, Government Response (updated February 2017). A fundamental element of the reform will be the launch of a new Online Court Process by 2020 that will process the majority of civil claims for sums below £25,000. The online court implements a proposal that originated in the Civil Justice Council, and it was subsequently recommended in subsequent landmark reports by Lord Justice Briggs.⁴⁴xCivil Justice Council Online Dispute Resolution Advisory Group, ‘Online Dispute Resolution for Low Value Claims’, February 2015; LJ Briggs, ‘Civil Courts Structure Review: Interim Report’, December 2015 and ‘Final Report’, July 2016. The large public investment (part of which is being raised by the sale of court estate that is underused, dilapidated or too close to another court) seeks to modernize all the courts and tribunals so that they can operate under one single software base, or ODR platform. The changes are taking place in a piecemeal manner through a number of projects and upgrades based on an agile methodology. The main transformation is expected to be completed by 2022, but some projects are expected to be finalized earlier. Amongst this project is the so-called online court, which is being implemented through an online process called the Civil Money Claims Online. Other recent projects include new digital processes such as applying online for divorce or for applying for probate.
  The modernization programme represents the most important change in the field of civil justice in the United Kingdom in a generation. Furthermore, given its scale and the novelty of its procedures, the online court (i.e. the Civil Money Claims Online) is expected to have a profound impact in the United Kingdom and beyond. The online court, akin to tribunals and small claims courts, will be inquisitorial in nature, and its design is hoped to be user-friendly for litigants in person. The online court processes are multi-tiered; there are three specific online stages: (i) a software assists litigants to fill in claims and responses, (ii) a case officer helps litigants settle claims and (iii) remaining cases are decided (whenever possible) by a district judge on the basis of documents presented.⁴⁵xFor detailed information about the procedure, see HMCTS, Money Claim Online User Guide for Claimants, available at: https://www.gov.uk/government/publications/money-claim-online-user-guide. This section examines policy challenges faced in each of the three stages and discusses the particular needs of LIPs that are an important priority for the online court as it aims to widen access to justice for this growing cohort.

  4.1 Stage 1: Online Submission of the Claim and Response

  Stage 1 allows for the issue of the claim as well as the submission of the response online. This stage, however, has a more ambitious goal: promotion of early settlements. In essence, this stage seeks to replace the pre-action protocols, which cannot be expected to be complied in full by LIPs as they do not have the benefit of legal representation. Currently, the pilot process also allows for the parties to use an online tool to carry out negotiations without prejudice. It can be forecast that in the near and foreseeable future more sophisticated negotiation tools will emerge, including those where the technology proposes a solution, such as bling bidding systems that compare confidential offers that are only disclosed to the other party when there is a match or overlap in the submitted offers.
  A medium-term ambition for this stage is to incorporate a triage or diagnosis tool for certain types of disputes. For instance, the Her Majesty’s Courts and Tribunals Service (HMCTS) has been working on a dispute resolution tree for passengers and airline disputes over delays and cancellations. In this regard, a leading example of triage tool is the Solution Explorer employed by the Civil Resolution Tribunal,⁴⁶xS. Salter & D. Thomson, ‘Public-Centred Civil Justice Redesign: A Case Study of the British Columbia Civil Resolution Tribunal’, McGill Journal of Dispute Resolution, Vol. 3, 2017, p. 113. whose procedure, similar to the one offered by some ombudsman, has been hailed as the blueprint for the English Online Court. The Civil Resolution Tribunal boasts that the bulk of the users of the Solution Explorer do not proceed to the next stage of online negotiation. Although it is presumed that most resolved their disputes after using it, research would need to be conducted to ascertain how many of these users have actually managed to resolve their disputes.
  When designing an online process and choosing amongst the various dispute system design options, it is important to consider the goals of the process, which in terms of court digitalization programs are often related to enhancing efficiency and increasing accessibility to courts. However, these goals can conflict, for instance, charging court fees at different stages of the process would make the process more cost-efficient and might encourage early settlements, but it may also lead to under-settlements or decrease access to justice for poor claimants or those with low-value claims. Thus, policy decisions need to be taken on how these goals should be prioritized.
  Nevertheless, the design of most ODR processes, including online courts, seem to favour tiered processes, where the first tier or stage involves self-assessment or triage and negotiation, followed by a facilitation stage where a neutral third party helps litigants to settle their claim. This is what Lord Briggs referred as the conciliation stage.⁴⁷xBriggs, 2015 & 2016.

  4.2 Stage 2: Conciliation Stage

  Like in the Canadian Civil Resolution Tribunal, this conciliation seeks to settle the majority of cases reaching this stage. At the time of writing this article, this stage has started to operate on a pilot basis. It is managed by case officers who have inherited some of the judicial functions in terms of case management and referring parties to mediation and other ADR methods.⁴⁸x See Courts and Tribunals (Judiciary and Functions of Staff) Act 2018. This change may produce a significant shift in achieving higher levels of court settlements and participation in ADR processes, as case officers may be more forceful than judges in recommending parties to attempt ADR and to settle their claims since, unlike judges, they will not adjudicate unresolved disputes. Court officers however are not allowed to provide legal advice.
  In terms of ADR options, currently the main model is telephone mediation delivered by HMCTS trained staff, but it is expected that more ADR/ODR options will soon be available to the parties, including early neutral evaluation (ENE) carried out by a different district judge to the one deciding on the case in the final stage, stage 3. A challenge for case officers and policymakers will be to meet the ‘forum to the fuss’ (i.e. the dispute) as well as ‘to the folks’ (i.e. parties’ preferences), matching disputes and disputants’ needs to the most appropriate dispute resolution processes.⁴⁹xF. Sander & S. Goldberg, ‘Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure’, Negotiation Journal, Vol. 10, No. 1, 1994, p. 68; T. Heeden, ‘Remodeling the Multi-door Courthouse to “Fit the Forum to the Folks”: How Screening and Preparation Will Enhance ADR’, Marquette Law Review, Vol. 95, 2012, p. 941. An important consideration will be whether referrals made by case officers are optional or not. In other words, it is about whether the conciliatory stage follows an opt-in model or an opt-out model. In the United Kingdom, the predominant model thus far has been the opt-in model of mediation, whereas the opt-out models have been favoured in certain jurisdictions in Australia and Canada.⁵⁰x See B. Billingsley & M. Ahmed, ‘Evolution, Revolution and Culture Shift: A Critical Analysis of Compulsory ADR in England and Canada’, Common Law World Review, Vol. 45, No. 2, 2016, pp. 186-213; T. M. Sourdin, ‘Good Faith Participation in Mediation: An Australian Perspective’, ACResolution, Spring 2014, pp. 31-34.
  A new important change which is due to be tested from April 2019 is an opt-out mediation process for claims under £300, which currently represent 20 per cent of the all the claims below £10,000 (though this limit is expected to be raised in 2020 to £25,000). For these cases parties will be automatically allocated a mediation slot, unless one litigant expressly opts out, without the need to justify it given the low value of the dispute. The Ministry of Justice plans to evaluate these cases and raise the economic threshold progressively.
  If an opt-out model is adopted, policymakers will need to consider when litigants will be able to rely on opt-outs; whereas, if an opt-in model is chosen, it will be crucial to imbed incentives into the procedure to ensure an adequate level of participation. More important, the online medium may change existing incentives. For example, presently the small claims telephone mediation model has a powerful built-in incentive for opting in, as it is free and parties opting to use it could save themselves from having to take a day off work to attend a court hearing, possibly intimidating, especially for LIP and defendants. Yet this incentive may disappear once stage 3 becomes fully operational, and since parties will not be required to attend physically a court room as the case will be adjudicated based on the parties’ online submissions.
  In addition to participation, incentives as well as penalties can play an important role in encouraging litigants to settle their disputes. In terms of incentives, eBay boasts of resolving 60 million disputes a year, mostly without human intervention, and that is because parties have incentives to settle: the buyer seeks compensation and the seller positive feedback, and the eBay Resolution Centre provides them with automated settlement options that have learnt from the preferred choice made in millions of similar disputes.⁵¹xP. Cortés, The Law of Consumer Redress in an Evolving Digital Market: Upgrading from Alternative to Online Dispute Resolution, Oxford, Cambridge University Press, 2018. With regards to penalties, as noted earlier, blacklists could be used in certain cases, and that is the reason behind the English Small Business Commission’s ability to publish recommendations especially if they are not followed by the corporation. Although an online court will not hold blacklists, they could penalize litigants who have ignored an invitation to try ADR or who have rejected an adequate offer to settle.⁵²x See Halsey v. Milton Keynes General NHS Trust, [2004] EWCA Civ 576 and PGF II SA V OMFS, [2013] EWCA Civ 1288. See also Pt36 Civil Procedure Rules (England and Wales), 1998.
  Furthermore, it is essential to ensure capacity. Currently, under the Online Court pilot, only around 50 per cent of small claims where parties requested a mediation are allocated to a mediation slot, and out of those, 62 per cent settle during the telephone mediation. The reasons behind the inability to meet the existing demand are twofold. On the one hand, litigants are offered only two time slots that fall between normal working hours (8AM-6PM) Monday to Friday, and if they cannot meet any of them, then the case automatically proceeds to trial. There are also a number of cases where one party does not show up (i.e. does not answer the phone) on the appointed day, so these cases proceed directly to trial. On the other hand, litigants who have opted for trying mediation in the Allocation Questionnaire are subsequently offered more information about the mediation process, which includes that parties are required to listen to each other and work out a compromise. At this point in time some litigants drop outAnother policy choice would be to choose between doing the conciliation in-house or outsourcing cases to out-of-court ADR/ODR schemes, for example, to publicly certified ADR entities or ombudsman schemes dealing with consumer disputes. Inevitably, there will always be a number of disputes that cannot be settled, and those cases will need to proceed to the last stage of the procedure, where a judge will adjudicate the dispute.

  4.3 Stage 3: Online Judges

  The final stage of the online court, which is expected to be rolled out in 2019, involves having district judges to adjudicate remaining disputes that could not be settled in the previous two stages. This stage will replace largely the traditional face-to-face trials for judicial adjudication based on written submissions; nevertheless, it will still allow for online or telephone hearings if considered necessary by the judge – including continuous hearings – which are already being used in the Social Entitlement Chamber of the First-Tier Tribunal, enabling judges to contact parties to the dispute if they need additional information.⁵³xHM Courts and Tribunals Service, HMCTS Monthly Bulletin, December 2018. Available at: https://content.govdelivery.com/accounts/UKHMCTS/bulletins/21ef201. The expectation is that only in most exceptional circumstances will there be a face-to-face hearing, but even that hearing may not require the physical presence of both parties.
  Litigants attending online hearings should be able to do it from home as well as from approved hearing centres such as from universities, libraries and consumer associations, where LIPs may find additional support and advice.⁵⁴xJustice, What is a Court?, 2016. Available at: https://2bquk8cdew6192tsu41lay8t-wpengine.netdna-ssl.com/wp-content/uploads/2016/05/JUSTICE-What-is-a-Court-Report-2016.pdf. Clearly, many of court users will need to obtain support to get online access and to articulate their arguments. This support may come from outside the legal profession as well as from unbundled legal services, where LIPs can pay for legal advice during specific parts of the dispute resolution process instead of paying for legal representation during the whole dispute resolution process.
  Moving from face-to-face proceedings to online adjudication by judges opens up the opportunity to reimagine justice. In the online court context, this means that moving from the traditional system of having district judges in county courts for adjudication to a centralized system of judges who can be contacted through an online platform will allow for specialization of judges. Thus, there is no longer any need to have generalist judges to serve their local communities; instead, there is an opportunity to have specialized judges who can decide cases more efficiently and consistently. Indeed, it is true that high court judges, who are largely centralized in London, are fairly specialized. It is also important to consider here that the case volume and the number of district judges in the online court will be much higher than that of the high court. In a similar vein, currently large ADR entities, such as the Financial Ombudsman Service in the United Kingdom that processes more than 400,000 complaints per year⁵⁵xFinancial Ombudsman Service, Annual Review 2017/2018. Available at: https://www.financial-ombudsman.org.uk/publications/annual-review-2018/index.htm. have case handlers and ombudsman with field-specific expertise in different types of financial disputes (e.g. personal protection insurance, mortgages, current and credit accounts etc.).
  Moreover, judges are progressively using technology tools to inform their decisions, even in criminal cases. In the United States, many judges in criminal proceedings routinely use a software called Compas, which assesses the risk of reoffenders.⁵⁶x See Northpointe, Practitioners Guide to Compass (Correctional Offender Management Profiling for Alternative Sanctions), 12 August 2012. Available at: www.northpointeinc.com/files/technical_documents/FieldGuide2_081412.pdf. This software calculates the risk of reoffending based on the data gathered from the contents of questionnaires filled in and recorded in its database. It must be noted that these types of online tools may also have built-in biases, and this has been the focus of criticisms levelled against Compas. An academic evaluation has found biased algorithms in the software that resulted in black defendants being frequently predicted to be at a higher risk of recidivism than they actually were, and the opposite was found for white defendants.⁵⁷xLarson et al., How We Analyzed the COMPAS Recidivism Algorithm, 26 May 2016. Available at: https://www.propublica.org/article/how-we-analyzed-the-compas-recidivism-algorithm. In spite of that, the Supreme Court of Wisconsin confirmed the legitimacy of judges in using this tool but warned about the repercussions of overreliance on these types of software tools.⁵⁸x State of Wisconsin v. Eric Loomis, [2016] WI 68.
  Open justice will be an important factor to ensure transparency. It could also operate as a powerful incentive to encourage settlements because information on settlements reached via online adjudication are kept confidential; by contrast, judicially adjudicated decisions are not kept confidential and can be accessed by anyone upon requestIn a similar vein, oral hearings will need to remain open to public. Here, technology can help and make it possible for outsiders to connect live and watch the proceedings without disruption.
  The main challenge will be, however, to ensure that LIPs get enough support to guarantee them a fair trial and to avoid under-settlements. For that reason, LIPs need to be empowered with additional safeguards.

  4.4 Empowering Litigants in Person

  The number of LIPs in civil and family courts is growing very fast in the United Kingdom, where in 2014 as much as 80 per cent of all family court cases had at least one party who did not have legal representation.⁵⁹x See National Audit Office, ‘Implementing Reforms to Civil Legal Aid’, HC 784 2014-15, 20 November 2014, p. 15. This trend is also seen elsewhere, especially in common law jurisdictions, such as the United States, where the proportion of civil cases in 2013 with at least one LIP was 76 per cent.⁶⁰xS.K. Urahn, The Modernization Our Civil Legal System Needs, 6 November 2018. Available at www.governing.com/columns/smart-mgmt/col-technology-modernization-civil-legal-system.html. The needs and vulnerability of LIPs vary significantly and depend on factors such as age, education and IT skills. A crucial challenge that policymakers are consequently facing is to come up with a strategy to empower LIPs that can also help decide whether LIPs require tailor-made processes to cater to specific needs, including adopting different procedural tracks for LIP and represented litigants. This is particularly challenging when only one party has legal representation. In the United Kingdom, this has recently been addressed by the Supreme Court, which led to a split verdict that decided against giving special treatment to LIPs.⁶¹x See Barton v. Wright Hassall LLP, [2018] UKSC 12. There are however different dispute system design options that will need to be considered to address the imbalance of power, especially when designing processes for tribunals, small claims and online court processes.
  In addition to confidentiality, cost is also a major deterrent because court fees and cost penalties may adversely impact not only the number of settlements but also the level of access to justice. The CPR and case law have already developed economic strategies to promote settlements, such as Part 36 that offers to settle disputes in England (what used to be called Calderbank offers and still is the case in some common law jurisdictions),⁶²xP. Cortés, ‘A Comparative Review of Offers to Settle—Would an Emerging Settlement Culture Pave the Way for Their Adoption in Continental Europe?’, Civil Justice Quarterly, Vol. 32, No. 1, 2013, pp. 42-67. and cost penalties are imposed for unreasonably refusing to accept or ignoring an invitation to ADR/mediation. Nevertheless, these penalties do not normally apply to small claims or LIPs. Over the next few years, policymakers will need to consider whether these incentives and penalties should be extended to LIPs, and if so, whether to build in safeguards to ensure that the most vulnerable court users will not be left out or pushed towards a second class justice of under-settlements.
  The Internet has empowered individuals with information about their rights that previously was only available to them via professionals.⁶³xJ. MacFarlane, ‘ADR and the Courts: Renewing Our Commitment to Innovation’, Marquette Law Review, Vol. 95, No. 3, 2012, pp. 927, 930. As already mentioned, the growth of unbundling of legal services allows clients to pay for expertise for only certain elements of the dispute, whether it is the initial legal advice or the need for cross-examination for the most complex cases. In the next few years, we are going to see more provision of information through technology for LIPs, whether it is automatically generated, such as the Solution Explorer of the Civil Resolution Tribunal, or through the provision of human assistance through a mix of technology and human support via chats, telephone and in-person support, as they are already doing in Orange County, South California.⁶⁴x See Legal Aid Society of Orange County. Available at: www.legal-aid.com/.
  Technology can empower LIPs, but it can also put barriers to access to justice. The limited empirical research available on ODR in courts have thrown paradoxical findings; for instance, in Michigan, the online court has increased efficiency in terms of cost and time as well as number of users, yet the number of LIPs have dropped.⁶⁵xJoint Technology Committee, ‘Online Dispute Resolution and the Courts’, JTC Resource Bulletin, 30 November 2016. See also Joint Technology Committee, ‘Case Studies in ODR for Courts: A View from the Front Lines’, JTC Resource Bulletin, 29 November 2017. Conversely, a recent study of an online court pilot process to deal with credit card debts in the State of New York reduced the number of default cases and showed that the number of defences by LIPs raised significantly.⁶⁶xD. Larson, ‘ODR in the US Courts—What Works, What Doesn’t, Where Do We Go from Here’, ODR Forum, Auckland University, 14 November 2018. Hence, it can be concluded that, fundamentally, access to justice has improved as a result of bringing the litigation processes online. Furthermore, research on the small claims procedure in Ireland (and the limited experience of the English Online Court pilot) have found that allowing for the online submission of claims can reduce their admissibility when an unrepresented claimant could not identify the correct legal name of a business defendant;⁶⁷xP. Cortés, In-depth Analysis, ‘European Small Claims Procedure and the Commission Proposal’, Workshop for the Legal Affairs Committee (JURI) of the European Parliament on Cross-Border Activities in the EU – Making Life Easier for Citizens, 2015, pp. 249-279. Available at: http://tinyurl.com/gv8hr3v this also creates problems in the enforcement stage. By contrast, the recent pilot allowing individuals to file for a divorce online using plain-language forms in England has reduced the dismissal rate from 40 per cent of the more legalistic paper-based applications to 0.6 per cent in the online system that helps to ensure that applications are error-free before they are allowed to be submitted online.⁶⁸xHMCTS, ‘Fully Digital Divorce Application Launched to the Public’, 6 May 2018. Available at: https://www.gov.uk/government/news/fully-digital-divorce-application-launched-to-the-public.

• 5 Conclusion

  This article has examined how technology and ADR processes are increasingly available through ODR processes that seek to widen access to justice. The article has focused on the European regulation on consumer redress and the English Online Court. It found that ADR/ODR for consumer matters is undergoing a process of institutionalization in the European Union and that approved ADR/ODR providers are gradually being considered public interest companies that are largely specialized, publicly certified and expected to cooperate with the industry and regulators. However, it was noted that the EU goals of ensuring the availability and awareness of quality ADR providers have not been fully achieved. It is submitted that availability can only be ensured if ADR/ODR is mandatory for traders, if it is able to adjudicate complaints when parties are unable to settle them or if parties have access to a user-friendly online court process. This article has advocated for mandatory ADR/ODR in regulated sectors and the use of incentives and penalties for traders in non-regulated markets. With regards to the quality criteria, the new standards are a welcome development, but national competent authorities should monitor closely to ensure that there is no a race to the bottom in terms of standards since typically traders choose and pay for the ODR process. Last, in terms of awareness, there is still an important gap since the majority of traders still do not comply with the information provision requirements. Although awareness campaigns are very important, regulators and enforcement bodies should also continue to monitor and enforce compliance.
  The article also observed that although the English Online Court (i.e. the Civil Money Claims Online) incorporates ADR techniques within its procedure, as currently envisaged, it largely disregards the newly certified ADR/ODR bodies. Thus, it is necessary to identify pathways that align the online court with the existing publicly certified ADR/ODR schemes, in particular to clarify points of law as procedural standards can be monitored better by accreditation agencies. This article has examined the policy options for the English Online Court with a particular focus on the challenges faced by LIPs. The article examined the three stages of the online process and noted that the potential of the first stage lies in the design of effective triage models such as those developed by the Solution Explorer of the Civil Resolution Tribunal. The second stage needs to consider whether to make conciliation an opt-out system or develop incentives for parties to opt in when recommended by the case officer. The final stage has not been implemented yet, but moving to online written processes with some online hearings will inevitably carry out important implications; hence transparency must be paramount, including publishing judgments and making online hearings accessible to observers. Last, this article submitted that the online centralization of judges will enable their specialization delivering greater efficiency and consistency in the adjudication stage.
  Although it is hoped that the accessibility and user-friendliness of the online court would facilitate access to justice for LIPs, this assumption will need to be tested empirically once the online court is fully operative. Undoubtedly, maximizing access to justice can only be achieved if policy changes are informed by empirical evaluations and by identifying best practices in comparable ODR processes. Currently, there is very little information on the impact that online processes have on litigants, let alone on LIP. However, on a positive note, digital processes enable the capture of information that would help to assess the journey of disputes and adopt dispute system design options that maximize both access and justice, thus, increasing efficiency and fairness. Rigorous empirical analysis will help us to monitor procedural and distributive justice for online courts. Some factors that will need to be assessed will be the accessibility and user-friendliness of the process, identifying bottlenecks and floodgates, the time and costs involved in resolving disputes and the level of user satisfaction. Furthermore, distributive justice factors, such as the socioeconomic composition of litigants and the fairness of outcomes (e.g. whether there are under-settlements), also need consideration. Some of these issues, especially fairness of outcomes, are not easy to measure, but unearthing this information is crucial for making better policy choices that contribute to enhance access to justice.
  Cappelletti and Garth identified three waves in the movement of access to justice: the widespread availability of legal aid formed the first one, collective redress the second one and ADR the third one.⁶⁹xM. Cappelletti & B. Garth, ‘Access to Justice: The Newest Wave in Worldwide Movement to Make Rights Effective’, Buffalo Law Review, Vol. 27, 1978, pp. 181-292. A fourth wave, one could argue, may come with a widespread of technology in dispute resolution processes, and this may also facilitate the integration of different dispute resolution processes. Now, 40 years later, realistically it can be considered that the rise of ODR could pave the way for a fourth wave.

Noten

• 1 P. Cortés, Online Dispute Resolution for Consumers in the European Union, London, Routledge, 2010.

• 2 The Economist claims that in 2015 there were over 2 billion smartphones and that this figure is expected to double to 4 billion by 2020. See ‘The Truly Personal Computer’, The Economist, 28 February 2015.

• 3 Directive 2013/11/EU on Alternative Dispute Resolution for Consumer Disputes OJ L 165/63. This directive is supplemented by the Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters OJ L136/3.

• 4 There are EU legislations making it mandatory for businesses to be adhered to a publicly certified ADR body in sectors such as telecommunication, gas and financial services. These obligations are pursuant to Art. 3(13) Directive 2009/72/EC concerning common rules for the internal market in electricity OJ L211/94; Ann. I (1)(f) Directive 2009/73/EC concerning common rules for the internal market in natural gas OJ L211/94; Arts. 80 and 83 of the Directive 2007/64/EC on payment services OJ L 319. Art. 10(2) (t) and Art. 24 Directive 2008/48/EC on credit agreements for consumers OJ L133/66; Art. 14 Directive 2002/65/EC on distance marketing of financial services OJ L271; and Art. 10 of the Directive 97/5/EC on cross-border credit transfers OJ L43.

• 5 Regulation (EC) 524/2013 on online dispute resolution for consumer disputes OJ L165/1.

• 6 UK Department for Business, Energy and Industrial Strategy, ‘Modernising Consumer Markets: Consumer Green Paper’, April 2018, p. 50.

• 7 Council of Europe Committee on Equality and Non-Discrimination, Equality and Non-Discrimination in the Access to Justice, Report Doc 13740, Rapporteur: Mr V. Riceard Badea, 31 March 2015, para. 10.

• 8 Council of Europe Committee on Legal Affairs and Human Rights, Access to Justice through Online Instruments, Draft Report, Rapporteur: J. Xuclá, 2 November 2015, para. 13.

• 9 ECtHR, Le Compte, Van Leuven and De Meyere v. Belgium, Appl. no. 6878/75 and 7238/75, Judgment of 23 June 1981, para. 51.

• 10 ECtHR, Zumtobel v. Austria, Appl. no. 12235/86, Judgment of 21 September 1993, paras. 29-32.

• 11 L. McGregor, ‘Alternative Dispute Resolution and Human Rights: Developing a Rights-Based Approach through the ECHR’, European Journal of International Law, Vol. 26, No. 3, 2015, pp. 607-634.

• 12 Joined Cases C-317/08 to C-320/08, Rosalba Alassini and Others v. Telecom Italia SpA and Others, 18 March 2010. See also C-75/16, Livio Menini and Maria Antonia Rampanelli, 14 June 2017.

• 13 Art. 17 ADR Directive.

• 14 See UNCITRAL Working Group III (Online Dispute Resolution), 33rd session, New York, 29 February-4 March 2016. Note by the Secretariat, ‘Draft Outcome Document Reflecting Elements and Principles of an ODR Process’. See also P. Cortés & F. Esteban, ‘Building a Global Redress System for Low-Value Cross-Border Disputes’, International Comparative Law Quarterly, 2013, Vol. 62, No. 2, pp. 407-440.

• 15 P. Cortés, ‘The New Landscape of Consumer Redress: The European Directive on Consumer Alternative Dispute Resolution and the Regulation on Online Dispute Resolution’, in P. Cortés (Ed.), The New Regulatory Framework for Consumer Dispute Resolution, Oxford, Oxford University Press, 2016.

• 16 Communication on ADR for Consumer Disputes in the Single Market, COM (2011) 791. See generally, P. Cortés (Ed.), The New Regulatory Framework for Consumer Dispute Resolution, Oxford, Oxford University Press, 2016.

• 17 These sectors are energy, estate agents, financial services, higher education, gambling, legal services, pensions, postal services, property letting agents and telecommunications.

• 18 See P. Cortés, ‘The Impact of EU Law in the ADR Landscape in Italy, Spain and the UK: Time for Change or Missed Opportunity?’, ERA Forum, Vol. 16, No. 2, 2015, p. 125.

• 19 M. Geist, ‘Fair.com? An Examination of the Allegations of Systematic Unfairness in the ICANN UDRP’, Brooklyn Journal of International Law, Vol. 27, 2002, p. 903.

• 20 Online Dispute Resolution platform, available at: http://ec.europa.eu/odr.

• 21 Report from the Commission to the European Parliament and the Council on the Functioning of the European Online Dispute Resolution Platform Established under Regulation (EU) 524/2013 on Online Dispute Resolution for Consumer Disputes, December 2017. Hereinafter, the EC First Annual Report, 2017. Available at: https://ec.europa.eu/info/sites/info/files/first_report_on_the_functioning_of_the_odr_platform.pdf.

• 22 European Commission, Functioning of the European ODR Platform – Statistics 2nd year, December 2018, p. 2. Available at: https://ec.europa.eu/info/sites/info/files/2nd_report_on_the_functioning_of_the_odr_platform_3.pdf.

• 23 See the statistics available at: https://ec.europa.eu/.

• 24 EC First Annual Report, 2017, p. 7.

• 25 EC Second Annual Report, 2018, p. 4.

• 26 Ibid.

• 27 Ibid.

• 28 P. Cortés, ‘A New Regulatory Framework for Extra-Judicial Consumer Redress: Where We Are and How to Move Forward’, Legal Studies, Vol. 35, No. 1, 2015, pp. 114-141.

• 29 EC Second Annual Report, 2018, p. 5.

• 30 Supra n. 4.

• 31 P. Cortés, ‘Online Dispute Resolution Services: A Selected Number of Case Studies’, Computer and Telecommunications Law Review, Vol. 20, No. 6, 2014, pp. 172-178.

• 32 P. Cortés, ‘Consumer ADR in Spain and the United Kingdom’, Journal of European Consumer and Market Law, Vol. 7, No. 2, 2018, pp. 82-88.

• 33 See https://www.trustmark.org.uk/ and https://www.bbb.org/.

• 34 The Office of the Small Business Commissioner was created by the Enterprise Act 2016.

• 35 See https://www.caa.co.uk/home/.

• 36 J. Williams & C. Gill, ‘A Dispute System Design Perspective on the Future Development of Consumer Dispute Resolution’, in P. Cortés, The New Regulatory Framework for Consumer Dispute Resolution, Oxford, Oxford University Press, 2016, p. 383.

• 37 Menkel-Medow et al., Dispute Resolution: Beyond the Adversarial Model, 2nd ed., New York, Aspen, 2011.

• 38 M. Galanter, ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law’, Legal Pluralism and Unofficial Law, Vol. 13, 1981, p. 1; M. Cappelletti, ‘Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement’, Modern Law Review, Vol. 56, 1993, pp. 282-284.

• 39 O. Fiss, ‘Against Settlement’, Yale Law Journal, Vol. 93, 1984, p. 1073; R. Abel, The Politics of Informal Justice, New York, Academic Press, 1982; M. Palmer, ‘Formalisation of Alternative Dispute Resolution Processes: Some Socio-Legal Thoughts’, in J. Zekoll, M. Balz, & I. Ambling (Eds.), Formalisation and Flexibilisation in Dispute Resolution, Leiden, Brill, 2014, p. 21.

• 40 For a discussion on justice in the mediation process and the requirements to achieve it, see D. De Girolamo, ‘Sen, Justice and the Private Realm of Dispute Resolution’, International Journal of Law in Context, 2017, (First-View 20 December 2017), pp. 1-21.

• 41 E. Katsh & O. Rabinovich, Digital Justice, Oxford, Oxford University Press, 2017.

• 42 Zekoll et al., in Palmer, 2014, p. 3. See also The European Law Institute and the European Network of Councils for the Judiciary, ‘The Relationship between Formal and Informal Justice: The Courts and Alternative Dispute Resolution’, 2018. Available at: https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/ADR_Statement.pdf.

• 43 Ministry of Justice, ‘Transforming Our Justice System’, September 2016, Government Response (updated February 2017).

• 44 Civil Justice Council Online Dispute Resolution Advisory Group, ‘Online Dispute Resolution for Low Value Claims’, February 2015; LJ Briggs, ‘Civil Courts Structure Review: Interim Report’, December 2015 and ‘Final Report’, July 2016.

• 45 For detailed information about the procedure, see HMCTS, Money Claim Online User Guide for Claimants, available at: https://www.gov.uk/government/publications/money-claim-online-user-guide.

• 46 S. Salter & D. Thomson, ‘Public-Centred Civil Justice Redesign: A Case Study of the British Columbia Civil Resolution Tribunal’, McGill Journal of Dispute Resolution, Vol. 3, 2017, p. 113.

• 47 Briggs, 2015 & 2016.

• 48 See Courts and Tribunals (Judiciary and Functions of Staff) Act 2018.

• 49 F. Sander & S. Goldberg, ‘Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure’, Negotiation Journal, Vol. 10, No. 1, 1994, p. 68; T. Heeden, ‘Remodeling the Multi-door Courthouse to “Fit the Forum to the Folks”: How Screening and Preparation Will Enhance ADR’, Marquette Law Review, Vol. 95, 2012, p. 941.

• 50 See B. Billingsley & M. Ahmed, ‘Evolution, Revolution and Culture Shift: A Critical Analysis of Compulsory ADR in England and Canada’, Common Law World Review, Vol. 45, No. 2, 2016, pp. 186-213; T. M. Sourdin, ‘Good Faith Participation in Mediation: An Australian Perspective’, ACResolution, Spring 2014, pp. 31-34.

• 51 P. Cortés, The Law of Consumer Redress in an Evolving Digital Market: Upgrading from Alternative to Online Dispute Resolution, Oxford, Cambridge University Press, 2018.

• 52 See Halsey v. Milton Keynes General NHS Trust, [2004] EWCA Civ 576 and PGF II SA V OMFS, [2013] EWCA Civ 1288. See also Pt36 Civil Procedure Rules (England and Wales), 1998.

• 53 HM Courts and Tribunals Service, HMCTS Monthly Bulletin, December 2018. Available at: https://content.govdelivery.com/accounts/UKHMCTS/bulletins/21ef201.

• 54 Justice, What is a Court?, 2016. Available at: https://2bquk8cdew6192tsu41lay8t-wpengine.netdna-ssl.com/wp-content/uploads/2016/05/JUSTICE-What-is-a-Court-Report-2016.pdf.

• 55 Financial Ombudsman Service, Annual Review 2017/2018. Available at: https://www.financial-ombudsman.org.uk/publications/annual-review-2018/index.htm.

• 56 See Northpointe, Practitioners Guide to Compass (Correctional Offender Management Profiling for Alternative Sanctions), 12 August 2012. Available at: www.northpointeinc.com/files/technical_documents/FieldGuide2_081412.pdf.

• 57 Larson et al., How We Analyzed the COMPAS Recidivism Algorithm, 26 May 2016. Available at: https://www.propublica.org/article/how-we-analyzed-the-compas-recidivism-algorithm.

• 58 State of Wisconsin v. Eric Loomis, [2016] WI 68.

• 59 See National Audit Office, ‘Implementing Reforms to Civil Legal Aid’, HC 784 2014-15, 20 November 2014, p. 15.

• 60 S.K. Urahn, The Modernization Our Civil Legal System Needs, 6 November 2018. Available at www.governing.com/columns/smart-mgmt/col-technology-modernization-civil-legal-system.html.

• 61 See Barton v. Wright Hassall LLP, [2018] UKSC 12.

• 62 P. Cortés, ‘A Comparative Review of Offers to Settle—Would an Emerging Settlement Culture Pave the Way for Their Adoption in Continental Europe?’, Civil Justice Quarterly, Vol. 32, No. 1, 2013, pp. 42-67.

• 63 J. MacFarlane, ‘ADR and the Courts: Renewing Our Commitment to Innovation’, Marquette Law Review, Vol. 95, No. 3, 2012, pp. 927, 930.

• 64 See Legal Aid Society of Orange County. Available at: www.legal-aid.com/.

• 65 Joint Technology Committee, ‘Online Dispute Resolution and the Courts’, JTC Resource Bulletin, 30 November 2016. See also Joint Technology Committee, ‘Case Studies in ODR for Courts: A View from the Front Lines’, JTC Resource Bulletin, 29 November 2017.

• 66 D. Larson, ‘ODR in the US Courts—What Works, What Doesn’t, Where Do We Go from Here’, ODR Forum, Auckland University, 14 November 2018.

• 67 P. Cortés, In-depth Analysis, ‘European Small Claims Procedure and the Commission Proposal’, Workshop for the Legal Affairs Committee (JURI) of the European Parliament on Cross-Border Activities in the EU – Making Life Easier for Citizens, 2015, pp. 249-279. Available at: http://tinyurl.com/gv8hr3v

• 68 HMCTS, ‘Fully Digital Divorce Application Launched to the Public’, 6 May 2018. Available at: https://www.gov.uk/government/news/fully-digital-divorce-application-launched-to-the-public.

• 69 M. Cappelletti & B. Garth, ‘Access to Justice: The Newest Wave in Worldwide Movement to Make Rights Effective’, Buffalo Law Review, Vol. 27, 1978, pp. 181-292.