While the “In-person” use of ODR is still not utilized fully in the UK, a functioning ODR system is already being used in Canada.
Read more about key issues for the future of justice in Online Dispute Resolution: The Future of Justice and mediation Key Issues for Successful Online Mediation
ODR in the United Kingdom
A study conducted in 2015 by the Civil Justice Council – Online Dispute Resolution Advisory Group titled Online Dispute Resolution for Low Value Civil Claims with the purpose of demonstrating areas where ODR is successful (nationally and internationally) and its potential in the UK concluded the following (Civil Justice Council – Online Dispute Resolution Advisory Group, 2015) – Link for the study can be found here :
- The current court system is too slow and expensive for low value claims and litigants in person.
- An Internet–based court service is proposed as a remedy for these issues.
- The court system proposed consists of three tiers; Evaluation, Facilitation (without Judges) and Judgments.
In addition, the report raises other supporting arguments on the basis of comparison with ODR systems established in other countries and the necessity for a mechanism to resolve high volume and low value disputes quickly. The reader concludes that the main mechanisms to achieve the sought-out recommendations are to:
- Evolve the current judicial system and utilize the modern and available technologies, namely the Internet.
- Replace the traditional block and mortar court houses with robust online systems – This will benefit the litigants too as it will reduce the transportation and travel required, as well as associated costs.
- Allow for evaluation of the alleged case prior to proceedings – This will allow parties to understand their positions and complaints before they blow out into a legal problem. Ultimately, it will help parties avoid legal problems in the first place.
- Utilize trained facilitators (Facilitation stage) who will advise, mediate and negotiate between the parties.
- Efficiently utilize judges, who will have to decide cases electronically and with the support of the Internet and latest telecommunication technology. The most important aspect is that these judgments will be binding and enforceable.
It is observed that the proposed use of facilitators is to some extent inspired by the role of adjudicators who work in the UK financial ombudsman service[1].
ODR in Canada
While the use of ODR in the intent described above is still not utilized in the UK, a functioning ODR system is already being used in Canada; The British Columbia Civil Resolution Tribunal (hereinafter CRT). It is important to note that the CRT handles low-value claims, including construction disputes. The CRT offers 24/7 services at a reasonable cost. While the CRT is not a court, it is part of the public justice system, with neutral and independent tribunal members, and is required to apply the law and make enforceable decisions (The Civil Resolution Tribunal, 2020). In order to provide a reflection on an existing ODR platform that can be used as preliminary model for guidance, the CRT four-stage process is listed below for information:
Explore and apply – This stage provides free legal information and allows the proponent to fill out applications and forms for the dispute.
Negotiate – A secured and confidential platform for talking and attempting to reach an agreement.
Reach an agreement – If the dispute is not resolved, a Case Manager will help in finalizing an agreement. These agreements are enforceable like a court order.
Get a decision – If no decision can be reached by the above stages (negotiation and facilitation) an independent CRT member will issue a decision for the dispute. Such decision is enforceable by court.
More info can be found on the CRT website.
Many similarities are observed between the functioning Canadian ODR system and the proposed ODR system particularly in the utilization of mixed ADR types. This is mainly due to the fact that the proposed UK system was partially inspired by the CRT.
Moreover, Small claims disputes statists for the month of January 2020 (The Civil Resolution Tribunal, 2020) demonstrates the possible opportunities of a working ODR system:
- A total of 12,615 disputes were handled,
- 1,209 are open small disputes as of end of January 2020.
- 11,406 are closed small disputes.
- 1,819 small claims were resolved by online adjudication.
For more about ODR platforms, here.
ODR initiatives in the UAE and existing technology infrastructure
On 31 October 2017, Dubai’s Dispute Resolution Authority (DRA) which is the appointed authority for administering justice and legal excellence in the Dubai International Financial Centre (DIFC) announced that another step has been taken for international integration of dispute resolution centers by making an agreement with one of China’s leading arbitration bodies. The Memorandum of Understanding (MoU) scope is for the expansion of online dispute resolution solutions to improve global e-commerce and the utilization of smart technologies, such as artificial intelligence and block chain. The MoU will also help in supporting the plans and methods for enforcement mechanisims between Hangzhou and DIFC Courts(2010b).
Furthermore, in November 2017 DIFC launched the Technology and Construction Division. The purpose of this division is to handle the most complex commercial disputes for construction companies in the region within DIFC courts (Dubai International Financial Institution Centre (DIFC), 2017). The division offers features such as large uploading capability for documents, simple Small Claims Tribunal (SCT), and integration with Emirates Identity Authority[1]. The latter is an important security feature as it enables verification of court users via the Emirates ID. The SCT enables users to resolve disputes from any location and is compatible for smart phone use.
Existing Technology Infrastructure in UAE courts
The following section discusses the available infrastructure in UAE courts as it reflects the ability of the UAE in implementing and extending the use of technology into ADR into a larger scale.
As of May 2015, the UAE Ministry of Justice transformed 95% of its services into electronic services (Ministry of Justice, 2019). These services include viewing the hearing schedule online, search engines for finding lawyers, eNotary public, eFiling, eCalendar and searching Shariah Maazoon [1]. Furthermore, the Federal Decree No. 10 of 2017 amending the Civil Procedures Law, issued by Federal Law Number 11 of 1992 (the “Law”), issued on 18 September 2017, introduced the use of distant communication technologies – namely e-trials – into the UAE civil proceedings. The law came into force six months after publication in the official Gazette law on 28 September 2017. The law currently allows video conferencing in civil courts and for the hearings in various disputes such as labor cases, financial and contracting cases, and intellectual disputes.
The UAE is signatory to a number of reciprocal judicial cooperation treaties with various countries, including those in the Gulf and France, China, India and Egypt. As per the UAE Ministry of Justice, a primary aim of the recently established laws and initiatives is to obtain foreign judicial assistance in addition to testimonies from experts in various countries, all of which will be in line with the applicable international treaties and agreements.
Further examination into the UAE Ministry of Justice legasilation and services shows that the current framework is capable of utilizying technology to various extents. This evident by the online services provided by each emirate. For example, Abu Dhai and Dubai provide the following online servies:
- Case management system – Abu Dhabi Judicial Department
- Manual of applications and services – Dubai Courts
- Case registration – Dubai Courts
- eApplication – Dubai Courts
Special free zones in Abu Dhabi and Dubai are discussed in the forthcoming section.
Similiarly, the Ras Al Khaimah (RAK) Emirate provides e-registration of civil lawsuits which enables advocates or their representatives to register civil lawsuits electronically from their headquarters without the need to go to the printer offices (Government of Ras Al Khaimah, 2020).
Abu Dhabi Global Market Courts
The Abu Dhabi Global Market (ADGM) was established pursuant to the Federal Law No.8 of 2004, Federal Decree No.15 of 2013, Cabinet Resolution No.4 of 2013 and Abu Dhabi Legislation including Abu Dhabi Law No. 4 of 2013 as a financial free zone that directly applies English Common Law. The reason ADGM is examined in this study is that the Core goal of ADGM is providing full digital transformation of justice and legal services. The array of services provided online that are of interest to this research includes;
- Online fillings and Online hearings
- Electrnic document management – ability to add and moify documents online
- Access to video conference facilities and transcript facilitated by the Court.
Dubai International Financial Centre – DIFC Courts
The DIFC courts are based in Dubai and apply the law governing the contract between disputants; if it is not specified they apply the DIFC’s common law system, which is primarily based on that of the United Kingdom (Dubai International Financial Centre, 2017). DIFC courts adopt a fully paperless system. In addition the practitioner registration process is fully automated. Abu Dhabi and Dubai free zone and emirate courts are real life examples that can be further studied and analyzed to generate protocols, lessons learned and mistake to avoid while preparing on ODR system for general public use
[1] Shariah Maazoon are court-authorized officials who conclude marriages outside the court premises.
[1] Federal Authority for Identity and Citizenship (ICA) was established on 29 September 2004 under the name “Emirates Identity Authority” under Federal Law No. (2) for the year 2004. The Emirates ID card includes personal data for all the population residing in the UAE.
[1] The UK Financial Ombudsman Service was established by the parliament as the mandatory ADR body in the financial services sector to sort out complaints between financial businesses and their customers (Financial Ombudsman Service, 2020).