Technology innovations changing the legal landscape
Today, lawyers are bombarded with technological innovations designed to improve access and efficiency. The online world presents lawyers with new challenges in privacy and data protection, as well as in their practice before the courts.
These innovations can be exciting for some but bewildering for others. As new innovations like online dispute resolution and online courts come into their own, benefits are apparent but challenges to counsel also arise.
The purpose of litigation and dispute resolution
Let me begin with a quick look at the main principle that drives parties to litigate. The purpose of litigation is to provide an end to a dispute. This end is designed to be final and to prevent parties from re-addressing arguments – the principle of res judicata.
By contrast, in alternative dispute resolution (ADR), trained practitioners work as either arbitrators or mediators (or both in some cases) to assist parties with development of resolutions to their problems with an aim to final resolution. Where the two approaches differ the most is that litigation takes place in the court environment and in general involves matters that require interpretation of the law (Bulk Gas Users Group v Attorney-General  NZLR 129 (CA)).
Automated online dispute resolution
There is no substitute for the trained legal mind in interpreting things like disputed data or questions of statutory interpretation. However, that does not mean that simple problems cannot have an automated solution, and it is here where automated online dispute resolution (ODR) systems have a role to play. Dispute resolution solutions such as those employed by eBay and developed by Modria are examples of automated systems that can work for simple transactions requiring no maintenance of relationship and involving no real legal technicalities.
Traditional ADR and litigation, on the other hand, are designed to deal with complex issues that may require ongoing relationships and discussion of technicalities (for example, separation agreements, commercial relationships and environmental disputes – I am sure you can think of more!) and as such, require a more considered approach than can be offered by ODR. This is where they and ODR differ – matters involving this level of complexity (and the potential for error where law is not correctly applied) are not, in the author’s opinion, suited to being placed into the realms of automated ODR.
The move to online courtrooms
However, properly designed and established online courtrooms (as compared to automated ODR) can be well-placed to assist both judges and ADR practitioners where disputes require a considered approach, because they still allow for litigation and ADR tools to be employed and for the resolution of complex disputes involving considered legal argument and issues such as cultural understanding and relationship maintenance.
In 2013, I developed a system designed to address the considered approach missing in ODR technology, and in a paper and speech to the International Alternative Dispute Resolution Conference held in Toronto, Canada, I presented an online courtroom that allowed parties to interact via secure document and video link exchange to present considered arguments for resolution of disputes. This all-in-one solution allowed ADR and courts to sit and resolve all manner of disputes, not just the simple ones that were the focus of the ODR solutions then available. It also had the advantage of working from any location in the world, with parties located anywhere in the world.
Problems with ODR
Despite the complexities of our legal frameworks, some still argue that ODR is the only technology needed to resolve disputes, as everything can be boiled down to an algorithm of pros and cons that a heuristic artificial intelligence (AI) system can interpret to achieve resolution. However, these arguments usually come from ODR software developers and anyone who has ever sat across from arguing parties knows that not all disputes are that simple.
Disputes escalate from emotional perspectives that often take the irrational as rational and see disputants approaching litigation with a “scatter gun”. Litigants often miss issues or combine issues in a way which even the most advanced AI system is unlikely to be able to detangle. Further, litigants can become disgruntled with resolutions which they consider may have failed to hear or properly take account of their arguments and points of view.
Discovery also creates a range of technical difficulties that are not well suited to basic ODR solutions. Lack of data input where a complex problem is in issue and parties are still getting to the heart of the dispute only confuses heuristic responses (similar to how Google searches can be frustrating depending on how you input your search terms).
A further example of the potential unsuitability of automated ODR is where there may be congruent legislation – by which I mean “congruent” in its mathematical sense, i.e. legislation that is of the same shape as another piece of legislation, that has the same meaning, has terms that mirror those of other legislative instruments. While such legislation will have distinguishing elements, legislative provisions often “cross swords” or encroach upon other legislative instruments with similar intent or focus (environmental and resource management law in particular is subject to this problem). These kinds of difficulties can lead an algorithm to make mistakes of which law to apply, and any ODR system must tread carefully to focus its data input upon the correct legislative framework.
People and technology – working together
This is where online courtrooms come into their own, as there is no attempt to substitute trained practitioners or judges out of the equation. Lawyers and judges can still apply the appropriate framework, sift through complexities and bring parties back on task (as seen in Waitakere City Council v Estate Homes Ltd  2 NZLR 149;  NZSC 112, which was a good illustration of practitioners and the Court working through difficulties and challenging arguments and data). Technology should provide tools to assist, not a replacement for, the considered mind and logical approach that allow people – judges and practitioners alike – to reason and determine complex matters involving cognitive and behavioural issues.
As online solutions grow and online courtrooms become adopted, the public still needs to be able to have confidence in and trust the integrity of the legal system. Therefore, any online solutions seeking to be part of that system needs to have a similarly high level of integrity and operate within the controls of our constitutional and legal frameworks, or they will risk the public (and the profession) failing to buy in to them, or seeing them simply as the brainchild of technology providers rather than a considered response to a need. Properly designed and set-up online courts should meet those criteria and will be a design with which the public is familiar – just in the virtual space.
The need to upskill
As more and more providers take the stage with differing ideas, practitioners will need to upskill themselves in these new environments and technologies, understand how litigation interacts with and sits alongside the technology and their own role within these frameworks, and to appreciate when it may be appropriate to direct people towards ODR (i.e. for the resolution of simple disputes), and when matters are more complex and require the more considered treatment of ADR or litigation. In that case, they will need to be prepared to act in virtual courtrooms and understand how to best use this technology in assisting parties to resolve their disputes.
It will also be important for practitioners to be comfortable with the technology – to play with it and understand what to do if things go wrong, as they inevitably do on occasion. It is for this reason I am excited by the recent launch of the Centre for ICT Law at Auckland University and I encourage practitioners to engage with the training on offer and to embrace the opportunities offered by the Centre to play with new ideas.