Sir Geoffrey Vos outlines vision for integrated dispute resolution system
Sir Geoffrey Vos, Master of the Rolls, outlines his ideas for bringing all types of dispute resolution -- litigation, arbitration, mediation, and ombudsman schemes -- under one umbrella.
Sir Geoffrey Vos has used a speech at the University of Hull to propose some quietly radical proposals for civil justice in the UK.
He points out that there are currently at least 14 different types of civil claims, each with their own systems and processes. Some are court-based, some use various methods of arbitration or mediation.
He proposes that these systems should all be integrated together, so that (for example) whiplash claims and family children disputes both start off at the same place, but may follow different paths as the claims progress. Equally importantly, he wants to soften the distinction between court-based solutions and out-of-court mediated solutions. He doesn’t like the term “alternative dispute resolution” - everything should be part of the same system, whether the users are engaging in a mediated negotiation, or a judge led resolution.
“The way I see all these ADR interventions is that they need to be entirely integrated with both court-based dispute resolution and all other dispute resolution processes.”
He envisages a world where parties with any kind of dispute would head to one website, whatever type of claim they are making, and whatever outcome they are hoping for. So rather than having Money Claim Online, the Financial Ombudsman, the Whiplash Portal and so on, claims for these different situations would all at least start off from a single website. As the claim progresses, the most suitable form of resolution would be offered, whether that is an ombudsperson, a bot, a mediator, or a judge. Several different types of intervention might be attempted along the way to resolution.
Senior members of the judiciary have spoken about wanting to promote alternative dispute resolution in the past, but this feels different. Sir Geoffrey is the second most senior judge in England and Wales, and is responsible for the administration of civil justice. He is describing something really quite radical - he wants to do away with the notion of ‘alternative’ dispute resolution altogether, and bring all types of dispute resolution under a single umbrella, allowing parties access to the most suitable solution for their circumstances.
“Why do we keep on talking about Alternative Dispute Resolution? Dispute resolution should be an integrated whole … There is nothing alternative about either mediation, early neutral evaluation, or judge led resolution.”
Mediators like me tend to argue that mediation is the answer to everything. But there are cases where formal mediation might not be the best solution, which Sir Geoffrey points out.
One situation is where a party lacks legal advice. “For formal mediation to work well, the parties require to be advised of their rights, so that, for example, a spouse cannot be expected to give up a shared asset, and a tenant cannot be expected to agree to become homeless, unless, at least, they have their rights properly explained to them and they are in receipt of independent legal advice.”
The other situation relates to timing: “My theory is that almost every dispute has a sweet spot when it is amenable to consensual resolution. But that sweet spot will occur at different times for different disputes, and in many cases will be hard to identify.”
Hard to identify? Too hard? No, says Sir Geoffrey, the solution is to allow “mediated interventions to be suggested frequently at almost every stage of the resolution process.” The OmniDisputeMegaBot running his proposed system might not know when the case will be most suitable for mediation, but a simple solution to that problem is to ensure that mediation is available frequently and easily at every stage.
And it seems quite possible that the OmniDisputeMegaBot could learn what type of resolution is most suitable at what point. If the artificial intelligence engine GPT-3 can write convincing fiction about unicorns in the Andes, then making a weighted recommendation for the parties to use a courtroom or a mediator seems very achievable.
Will such a system always terminate with a court case, if all else fails? I suppose it has to - you still need the backstop of a judge-imposed decision to enforce property rights if the parties cannot reach agreement any other way. But he even points out that judges don’t have to impose judgements. A pilot in Birmingham assigns cases to judges for a half-hour early neutral evaluation slot with the judge, instead of a full two-hour hearing. Once parties hear, from a judge, the merits of their case, a mediated settlement often swiftly follows.
One of the hallmarks of a fair democratic society is a system of enforceable property rights. Sir Geoffrey is well aware that it isn’t enough to have laws and courts available in theory to enforce property rights. Society needs to ensure that these systems work swiftly, and harnessing the full range of possible resolutions is part of that.
“An efficient debt recovery system can be the difference between solvency and insolvency for literally thousands of consumers and SMEs alike. The psychological toll on individuals involved in family, civil and administrative disputes makes them less efficient in their work and can cause health and other social problems. ADR and effective dispute resolution generally have a much bigger part to play in economic prosperity than most people realise.”
Note the comment about psychological toll: he’s not saying this to garner sympathy for people stuck in protracted court proceedings, but to point out that they are being distracted from being economically active. You can’t focus on building your business if years of your life are dominated by litigation.
Sir Geoffrey’s insight is that putting effort into building an integrated system of dispute resolution, of which the courts might just be a small part, is a worthy and achievable goal, and it needs senior leadership to make it happen.
Overly ambitious public technology projects have often failed in the past. But the Government Digital Service in the UK has a strong reputation, even among techies, for being able to deliver on ambitious projects. Anyone who has recently renewed a passport (you literally upload a selfie); or filed a VAT return (a single click from within your accounts software) can attest that many ambitious UK government tech projects do succeed.
There are lots of small pilot schemes in the justice system, like the Online Civil Money Claim service, currently in beta-testing. This is likely to become the successor to the now decades old, and confusingly named, Money Claim Online service. The older Money Claim Online service basically just helps you fill out an old-fashioned claim form and send it to the court. The new beta version for Online Civil Money Claims actually manages the whole process online, serving notifications and allowing each party to submit structured data (dates, amounts, and so on).
You can easily imagine this small beta service expanding so that it covers everything that the old MCOL service covers. Then you drop MCOL. Then you build a good web-based tool to run, say, financial ombudsman claims. Then roll that into the new money claim service, so if your ombudsman decision is not accepted, the parties can smoothly move on to asking a judge or mediator to get involved, without re-keying all their data and starting all over again.
As a technologist, I see this as mostly a tech project. But it isn’t really, of course. It is an operational project. The tech just enables all the different parts to work in harmony, so the dispute can work its way effortlessly to the swiftest and most cost-effective solution.
Sir Geoffrey also touches on the question of making ADR compulsory. Apparently the Civil Justice Council will be issuing a report on that question soon. I think compulsion will be unnecessary, though, in the world which Sir Geoffrey envisages. If alternatives are offered, and easily accessed, then you shouldn’t need to make them compulsory. If mediation, or early neutral evaluation, or arbitration appear in the case workflow at the naturally opportune moment, then parties will surely try it? There are lots of ways to influence users, without making something compulsory.
I think the ideas laid out in this speech are very exciting, and this is the next step in what could become a transformation of civil justice in England and Wales.
(Photo credit: Chensiyuan, Creative Commons licence)