Hi Graham
I purposely started a new thread because the subject of this one differs slightly from your last.
Your last concerned the question of whether, in principle, readers considered that an online solution was more desirable than the traditional day in Court. My point was whether a mediation based approach was an efficient solution for the dispute resolution industry, particularly taking into account the statistics released by the Government earlier this month. I’m certainly happy to continue under your thread but I had wanted to avoid hijacking it.
To address your points in the order in which they are made:
1/ There are no misunderstandings on my part. Of course people are less able to afford lawyers – we agree on that. I’ve made the point myself enough times.
I made the two points
in my first blog on this subject that:
a/ unless it is done properly, producing an online system which uses software to diagnose legal issues will inevitably risk miscarriages of justice, and;
b/ this Government does not have a great track record for implementing computer systems.
These views do not arise, as you suggest, out of negativity.
The first
has already happened. The RTA Rapid Claims Portal system
implemented by the Government is leading to miscarriages of justice, and a burgeoning professional negligence industry, one consequence that I am sure they did not foresee. That is not news.
The second
has also already happened. These points are not simply me
“looking for hidden agendas”.
To clear up one “misunderstanding”, you go to pains to say that this report was not commissioned by the Government. Whilst I accept that that is technically true, the report was commissioned by an advisory group to the CJC which is an
advisory non - departmental body, sponsored by the Ministry of Justice. Obviously I don’t have to tell you that, sitting on the advisory group, but I am not wrong in giving the impression that these exercises are Government driven, as you say I am.
I would also like to make it clear that my criticism of these proposals is not because I don’t agree that they are in principle good ideas. Far from it. My first blog article on this concluded with the words
“If done properly, this could work, but peoples’ rights are at stake, and another botch job for no reason other than to alleviate pressure on a beleaguered court system will not serve peoples’ interests well”. If they are not implemented properly, and it won’t be the CJC implementing them, but the Ministry of Justice, we could end up with a system with similar problems to the Rapid Claims Portal.
2/ I am afraid with your second point, the misunderstanding is yours. I am not saying that your proposed approach is the same as, or similar to, what we have now. I am saying that with the legal landscape as it is, that may well be the way it ends up. Your response on this point does not address the main point of my post, which is the MOJ’s significant evidence of the lack of engagement of defendants. I make the very clear point that I cannot see how a mediation driven dispute resolution process can operate with only one party at the table. Obviously that will not be the case on all matters, but the numbers produced by the Government are significant and whichever way you look at it, that is a significant number of matters that are likely to fall at the first hurdle in this process.
Since you make the point that
“Online hearings (Tier 3) is a very minor aspect of what we propose. The overwhelming majority of cases that escalate up from Tier 1 self-evaluation will be dealt with fully in Tier 2, I reiterate my point that a process in which “
online facilitators Communicating via the Internet……..will review papers and statements and help parties through mediation and negotiation. They will be supported where necessary, by telephone conferencing facilities. Additionally, there will be some automated negotiation” (Tier 2)is not likely to
“deal with fully” cases in which defendants are not co-operating. If you disagree, how do you suggest Tier 2 will operate with no defendant at the table, given your belief that “
The overwhelming majority of cases will be dealt with in Tier 2”?
3/ My blog doesn’t wrongly assume that facilitators will be lawyers.
Proof of this can be found in my
first blog on the subject when I went to great pains to explain my concerns that
“It is all very well de-skilling the court process, and even judicial staff, but you can’t “de-skill” the law – no dumbing down of the legal process will change the law, nor its applicability”.
The report makes it very clear that facilitators are unlikely to all be legally trained, and I dealt with that in my first blog article. I make the point in my latest post that Facilitators will for the most part be
replacing the role of the parties’ lawyers. My clear point is that the parties (or claimant at least in the event of no defendant participation) need legal advice as part of the process, particularly if this process is to govern cases up to £25,000. As I understand it from our earlier exchanges, there are no plans to allow a successful claimant to recover the cost of legal representation.
For cases of such significant value, people need legal advice and may well not pay for it if they know they will not be able to recover the cost. I am currently acting for one client on a prospective case worth hundreds of thousands of pounds, on fixed fees, because he does not have the money to pay for a firm of solicitors to run the case for him. My point is, there are usually complex legal issues involved with claims of up to £25,000, and in such situations, people don’t just need “facilitation” they need legal advice, and if there is no cost shifting, many are unlikely to pay for it.
As I said in my first blog,
“a cheap, efficient dispute resolution system is a good thing, provided people do not haemorrhage more of their legal rights in the process. Any system which cuts corners, sacrificing detail for cost cutting, risks producing the wrong decision”.
4/ I remain to be convinced that automation will not be implemented at the expense of manpower, in the legal field or otherwise. I dearly hope you are right.
As a matter of interest, I submitted a similar, albeit much abbreviated, post on LinkedIn yesterday, on a thread called
“Lunchtime discussion – is Online Dispute Resolution the way forward for low value claims?” It was the only “dissenting” opinion, and given that my words were both benign and polite, I was surprised that it was not approved. In its place first thing this morning, I found a comment by a Mr Tim Wallis which said
“As a member of the Advisory Group led by Richard Susskind I have been monitoring responses to the Report with interest. I think Richard Moorhead's comments above are very much to the point and need to be kept firmly in mind as thought is given to possible pilots studies and implementation generally.Two points keep occurring to me when the report is discussed: 1) Much of what has been recommended is already happening elsewhere. 2) Increasingly, for obvious reasons, people want to do business online”.
It is anyone’s guess whether that remark was directed at me, but I did not consider the rejection of a dissenting voice to be either democratic or conducive to an empirical approach. I resubmitted the post a few hours ago and hope that this time it will be approved.
Thanks for your response, Graham, and for your blog link, which I look forward to reading.
Dean
