First posted on Slaw in April 2014.
As a PhD student studying the use of knowledge technologies and access to justice strategies, I am following with interest the development of the Civil Resolution Tribunal (CRT) [Civil Resolution Tribunal Act, SBC 2012, c.25; ] in BC - an online dispute resolution process which will provide an alternative to the courts for small claims and strata property disputes. I want to share some thoughts regarding online dispute resolution processes and to pose the possibly provocative question: Are online dispute resolution processes necessarily access to justice strategies?
You might ask how an online process could not be an access to justice strategy. The CRT, for example, is designed as an alternative to the court process. It aims for a low cost (even no-cost), timely, simple, and self-directed dispute resolution mechanism. Studies demonstrate cost (in particular), complexity (another important factor) and time (to a lesser extent than the other two) are significant factors that influence people’s decisions in civil justice matters. So why question the impact of strategies, such as the CRT, on access to justice?
My primary concern relates to the self-directed aspect of these processes. For many of us the notion of sitting at our computer after work resolving a small debt matter seems quite plausible. An online process relieves you of taking time during your work day to travel to the courthouse and wait for your case to be called. Instead, you sit at your computer, navigate to the online dispute resolution site and negotiate a resolution. This seems like access to justice. However, this image is not one that may be shared by all. For some, these processes could create new barriers not only because they will require access to a computer and the internet, but because they will require the individual to work through the process on her/his own. These processes could become an isolating, disempowering and ultimately unsuccessful experience.
There have been a number of process strategies (think rule reform) in Canada in the past few years. While these strategies do have an impact, concerns of access to justice have not diminished and, arguably, have even increased of late. Why is this? One reason is that, while the CTC factors (cost, time, complexity) are important, they are not the only factors that influence an individual’s decision on whether to engage in a civil justice process. More importantly, they are not necessarily the first factors that influence these decisions. Studies demonstrate that an individual’s sense of disempowerment is a powerful and early factor that influences action or inaction. Not surprisingly, it is the most vulnerable members of society who are least likely to take action on a justiciable dispute. Canadian research indicates as many as 34% of law-related problems experienced by low to moderate income Canadians are abandoned or remain unresolved (Currie, A National Survey of the Civil Justice Programs of Low and Moderate Income Canadians, 2005). Similar results have been found in studies in Britain and the United States.
Online dispute resolution processes are solitary processes conducted between parties through computers. Various studies (see Julie MacFarlane’s study of self-represented litigants, 2013) demonstrate that most individuals with a justiciable issue seek advice (sometimes legal, sometimes other) for dealing with the matter at some stage before and during proceedings. A seminal study from Great Britain (Genn, Paths to Justice, 1999), found that 90% of individuals with a justiciable issue sought some form of advice at some time. Other studies have noted the importance of in-person assistance. For those who feel disempowered in the face of a justiciable issue or who are vulnerable, a self-directed process is unlikely to encourage their participation.
Further, there is evidence that 42% of the working-age population in Canada score below the threshold needed by adults to participate fully in the knowledge economy (The Daily, Statistics Canada, January 2008). These individuals are challenged to read, follow directions, and fill in forms. This does not bode well for their success with an online dispute resolution process.
Online dispute resolution processes have the potential to create convenient and lower cost spaces for people to negotiate and resolve problems. In this sense, they may be successful. But, should we expect a little more from access to justice strategies? Should access to justice strategies be designed to challenge barriers that prevent individuals from participating in current dispute resolution mechanisms and to create real opportunities for those individuals (as well others) to seek resolution to a justiciable problem? I believe the answer is yes. We should watch with interest the BC process for what it can tell us about the success of online dispute resolution strategies to challenge access barriers.