What role might ADR play as the justice system digitalises?

HM Courts and Tribunal Service's current Reform Programme aims to make justice more accessible and to digitalise the justice system to make dispute resolution processes simpler and more efficient. This initial reform project ends in 2023 by which time all civil cases are expected to begin and continue online.

Progress is also being made with adapting/creating court rules to prepare for the digital justice system (DJS). For example, the Judicial Review and Courts Act 2022 enables the establishment of the Online Procedure Rule Committee that will make Online Procedure Rules to govern civil (and other) practice and procedure.

So what place will ADR have in the DJS? Sir Geoffrey Vos, Master of the Rolls and digitalisation advocate, has spoken instructively about this issue several times.

In Reliable data and technology – the direction of travel for Civil Justice (28 January 2021), Sir Geoffrey said that the DJS would feature sophisticated, integrated ADR mechanisms, accessible to all, that would reduce the expenses and delays of the present paper-based approach. All claims would pass into the DJS through a single "front door"/"online funnel" and be directed to the appropriate online dispute resolution process (e.g. mediation/arbitration/ombudsmen/court) each of which would have ADR processes built in both before and after proceedings are commenced.

As each dispute progresses to resolution, a single data set would be collated within the DJS to monitor efficiency, including the effect of ADR on the process. Using this data, the DJS programmes themselves would "learn to detect" when to offer ADR and the particular mediated intervention most likely to be effective – whatever the particular type of case. Users would gradually come to expect early resolution, while safe in the knowledge that a live hearing in a physical court remains available for appropriate cases.

Sir Geoffrey went on to say in Mediation and Dispute Resolution (27 April 2022) that "mediation" should be interpreted far more broadly than the traditional approach which focuses on a face-to-face virtual or in-person meeting. While he does recommend greater use of mandatory mediation (having endorsed the Civil Justice Council's findings in the Compulsory ADR report), he did not want parties to have to work their way through a prescribed list of interventions. Rather, once in the DJS, "bots" would pop up proposing tailored suggestions to the parties to prompt resolution. As data collated on disputes grows, so will the systems improve, enabling smarter processes to be offered that result in smarter decisions.

Interventions should be made early on and reflect a more flexible and persistent approach to resolution. Sir Geoffrey expanded on this in Mandating Mediation – The Digital Solution (8 June 2022). The "Smart [Digital Justice] system" will both identify the disputed issues and encourage resolution of those issues as early as possible by making repeated "mediated interventions" at every stage to ensure that parties are exposed to mediation when they are amenable to it.

Using data shared across the DJS, these mediated interventions will direct parties to the most appropriate process and/or solution at that time, e.g. to a pre-action online portal, a judicial evaluation or a digital court. Traditional/mandated mediation will remain an option but, over time, the interventionist approach will shift users' focus to resolution and away from court process, and could render the issue of mandatory mediation academic. The DJS will create an environment in which flexible ADR solutions, both virtual and face-to-face, will be fundamental.

This article was first published here by Construction Law on 28 June 2022. You can sign up to Construction Law's newsletter here.