What does it take to bring justice online?
by Mirèze Philippe*
Technology and communication have revolutionised the world in the last century like nothing before, and have become an indispensable tool in our daily personal, social and professional life. Instantaneous access to information and services has become normal and a must. Everything is online, and yet, justice cannot be accessed online like any service.
Although efforts are undertaken in various countries by public and private initiatives, they are only a handful, and public and private justice remains severely missing online. Providing access to justice through online dispute resolution (“ODR”) can be an effective way to cure denials of justice to many people who have no other means to seek remedy. The role of technology in dispute resolution is high on the agenda and the topic is being increasingly at the centre of discussions. In a world that is rapidly developing it is surprising to observe that ODR is lagging behind.
Over two decades have passed since building platforms, promoting ODR, holding annual ODR Forums in addition to all conferences discussing the potentials of ODR, publishing about the benefits and the need for online justice, discussing standards and best practices. One would think that given the time spent on theoretical and practical issues with international ODR thought leaders, justice would already be available online. Why is this service still missing and what does it take to make it available? Where have we failed in making ODR part of our lives? Can we draw lessons from the past and provide recommendations about the way forward? Should we not start by going back to the basics to understand the benefits of ODR?
One of the major unfortunate mistakes is the fact that platforms were built but abandoned for many reasons. The lack of continuity has contributed to the users’ scepticism about the feasibility of online justice. Users hesitate to file claims with state courts because procedures are extremely long, they can be costly especially if users are represented by professionals, and the value of the claims may not be worth going through such a process. How can users trust online justice if they have doubts about the efficiency of offline justice that may not be able to provide swift and satisfactory decisions for the reasons above mentioned? Building trust requires proven results which are so far lacking as no statistics exist to measure progress. This is a second major mistake. A third dominant mistake is the lack of promotion and education on using technology in dispute resolution. Online trade gained success over time as users needed to discover how useful and reliable it can be before shifting from offline to online trade for most products and services. Likewise, trust may be gained with visible, measurable, efficient dispute resolution services provided online.
There is a huge demand for redress mechanisms in consumers and small disputes, mainly cross-border disputes. ODR services are extremely limited and there exists very few signs of progress. ODR is considerably under-explored despite the remarkable advantages of ODR. In the 21stcentury we should no longer be discussing about the benefits or need of ODR, we should rather be already using it on a regular basis. ODR services are long overdue.
This blog is part of a series leading up to the 2019 ODR Forum in Williamsburg, Virginia (USA), taking place on 29 and 30 October 2019. The above issues raised will be discussed at the Forum. Join us there and contribute to the discussions which will no doubt contribute to bringing ODR forward. The blog page is available at this address https://odr2019.blogspot.com.
* Mirèze Philippe is Special Counsel at the Secretariat of the ICC International Court of Arbitration. She is co-founder of ArbitralWomen and Board member, member of the Equal Representation in Arbitration Steering Committee, member of the ICCA Diversity Task Force, member of the Board of Advisors of Arbitrator Intelligence, member of the Advisory Board of Association Arbitri, member of the Editorial Board of International Journal of Online Dispute Resolution, and fellow of the National Centre for Technology and Dispute Resolution (‘NCTDR’).
The views expressed are those of the author only and should not be thought to reflect those of ICC, the International Court of Arbitration or its Secretariat.