Online Dispute Resolution and the Courts

Justice Brian Tamberlin[1]
Federal Court of Australia

Abstract

Online dispute resolution can be used both as a dispute resolution process for matters unsuited to the court system as well as a tool for courts. Apart from its obvious application to disputes where jurisdiction could be a problem, such as eCommerce and transboundary exchanges, it can also provide a tool to resolve more traditional problems like insurance claims, employment and workplace disputes and privacy conflicts. If the courts can take up the challenge to learn from, adopt, and adapt the evolving technologies and approaches to dispute resolution, they can develop more appropriate and efficient responses to the administration of justice generally, and to the resolution of some of those conflicts in particular, that are not suited to the more traditional litigation processes. The Federal Court of Australia has been a pioneer of electronic court technology in Australia. It has already begun implementing an electronic case management system and its eCourt project already provides a virtual courtroom allowing for online directions and orders to be made in certain matters. This paper will present these initiatives and the possibilities that they contain.

Introduction

Online Dispute Resolution (ODR) is the use of the Internet and related communication technologies, such as email, videoconferencing or interaction via a website or chat room in order to facilitate a resolution of disputes.

The development of ODR has largely been in response to dispute areas where the traditional court processes have been lacking, or are unable to meet the circumstances of the dispute, such as those arising out of eCommerce or online transactions, and cross-border transactions, both on and off-line.  To this extent, it is often thought of and spoken about as an electronically assisted form of Alternative Dispute Resolution (ADR), the “alternative” being to the avenues for dispute resolution that are available through traditional litigation processes.  There have been some developments in this regard that have been able to meet new areas of need.  One example is the Arbitration and Mediation Centre of WIPO, the World Intellectual Property Organization established in 1994 for the resolution of trans-border disputes between private parties, which is commonly recognised as providing dispute resolution methods that are appropriate for technology, entertainment, and other disputes involving intellectual property.[2]

However, the expression “dispute resolution” can encompass work done by the courts in hearing and deciding cases.  The Federal Court of Australia has been a leader in embracing new technologies to meet the special needs of its jurisdiction – particularly the demands of its native title jurisdiction, which necessitates hearings in remote locations.  This article considers the development of the eCourt strategy and the utilisation of other technologies by the Court, in an attempt to meet some of the same needs that have given rise to some of the online developments in ADR. 

Technical Developments the Federal Court

The developments that we have been implementing and trialling at the Federal Court in recent years notably include eCourt, eFiling, technological support systems for remote hearings and ongoing developments to the Court’s webpage.

Support systems that were originally developed to enable the Federal Court to conduct remote native title hearings have augmented the use of video-conferencing, telephone conferencing and other technologies by the Court generally.  It is not difficult to foresee the adoption of other technologies, such as electronic appeal books and bench books in non-remote trials as well.  Parties have been able to file documents, pay fees, and have their stamped and signed documents returned to them electronically since April 2001.  The Court’s webpage is one of the basic tools in which the Court incorporates technology into its work.  Developments with the Court’s webpage have made the Federal Court more accessible to the public and practitioners, providing access not only to the most up to date information about the Court and its practice, but to some of these new technologies such as the eCourt.

The eCourt Strategy

The Federal Court has conducted an eCourt forum since 23 February 2001, and was the first court in Australia to make directions online.   The eCourt is a virtual courtroom that assists in interlocutory matters and allows for directions and other orders to be made online.  It may also be used in mediations, where these are directed by the Court and conducted by one of the registrars.

Where a matter has been referred to the eCourt, the parties or their legal representatives, the Judge, associate and registrars may access the forum through the Court’s webpage by using a password, which is allocated to the parties once the Judge has directed (and the parties have agreed) that the matter is an appropriate one for the eCourt forum.  Protocol dictates that only the Judge (or the associate or registrar on the Judge’s behalf) may commence the “discussion threads” with orders or directions, and it is in response to these that the parties may submit submissions and affidavit evidence. Discrete interlocutory matters may be conducted this way, or this can be the means for the provision of extra information, submissions and evidence prior to a hearing in court.

There has been no formal evaluation of the eCourt pilot yet, but it has encouraged full and frank engagement with Court processes.

The needs that the eCourt was intended to meet

The eCourt forum was designed to assist the Court in conducting directions and hearings where:

·        it is inconvenient or expensive to physically attend Court;

·        a party is in a remote location, interstate or overseas, so that it is impractical or inefficient to come to Court for every pre-trial issue;

·        there are a large number of parties or overlapping claims or interests to coordinate, as is the case in native title claims.  The use of the eCourt for this purpose is discussed further below;

·        there are lengthy pre-trial interlocutory matters, particularly in intellectual property, commercial, trade practices, and other disputes where all the parties are represented.  A number of interlocutory issues, particularly in relation to discovery disputes in IP matters, have been resolved through the eCourt;

·        there is a large volume of documentary material.  Part of the eCourt is the implementation of a records and document management system that will enable the court to index, store, retrieve, view and manage electronic data, documents and emails. This has already been useful in large commercial matters.[3]

The eCourt and the “Kullilli Cluster”

I have been managing a group of native title applications known as the “Kullilli Cluster” on eCourt since September 2002.  This cluster of applications is actually 12 claims that either overlap or impact upon each other, covering a claim area that is made up of over 1000 parcels of land in south-west Queensland and north-west New South Wales.  This is a predominantly pastoral and mining region, and is in close proximity to a number of regional towns.

I originally suggested that the Kullilli Cluster be placed on eCourt because I considered that this would assist in producing more efficient directions hearings.  The parties would be able to post information that was available to them prior to the hearings so that the parties on a directions hearing, were not hearing information as to proposed orders or the status or the progress of the matter at those hearings for the first time, and would therefore be in a position to prepare appropriate responses.  I considered that the use of the eCourt would facilitate a greater level of participation and commitment by all the parties and this has proven to be so.

Almost all the parties requested have agreed to take part in the eCourt pilot, as they recognised its potential to facilitate better communication between the parties, by allowing them to communicate in a structured way prior to the directions hearings, with the Court acting as a clearing house, and that this could result in a more organised and efficient use of the directions hearings.

The eCourt has been used by the parties to the Kullilli matter, for example, as an effective forum for the posting of submissions in response to notices of motion filed, the posting of status reports by applicants prior to directions hearings, and the posting of the directions and orders of the Court.

The requirement to post submissions or status reports in advance of Court dates has resulted in more detailed information not only being provided to the Court, but to the other parties.  The online forum is accessible to the parties 24 hours a day, 7 days a week, so that the parties may often have more time to prepare and submit considered submissions and responses, because they are able to attend to these outside of normal business hours, if they so choose.  The use of the eCourt has also reduced the time spent in Court for directions and the hearing of interlocutory matters.  Uncontested notices of motion have been dealt with on the eCourt without the need for Court appearances, resulting in tangible costs savings to the Court in not having to organise telephone and video conference links for the numerous parties.  Important disputes as to discovery, particulars, privilege and timetables have been decided on eCourt without the necessity of attendance at the Court.

Reservations about the eCourt

Despite the significant advantages that can flow from the adoption of this new technology and online strategy, it is also important to avoid being overly prescriptive in these matters, to be alive to the advantages and disadvantages, and to work to improve upon areas of important concern, such as access to justice issues, convenience, efficiency, and publicity, where this is possible.  The eCourt forum is a flexible tool.  This section reviews some of the main criticisms that can be directed towards the adoption of online technologies in the dispute resolution process through the courts.  

(a)         Access to justice

The eCourt exclusively utilises written communication, and it is said that this may disadvantage those with literacy or language difficulties, creating a different, but still very important, access to justice issue. 

In my view, this criticism of online technologies is related to the trend we are seeing in any event, of matters being decided “on the papers”.  Federal Court judges have been commenting on the trend away from “orality” in civil litigation in Australia for a number of years now, and the pros and cons that this entails.  This has arisen from developments such as increased intervention by the Courts in case management and the interlocutory process, as well as greater reliance upon written submissions and affidavit evidence in order to limit the amount of time and money involved in bringing matters to trial.[4] 

More recently, the High Court decided, in an application for special leave to appeal a criminal conviction to the High Court, that the applicant had no right to make oral, as opposed to written submissions.  His Honour Justice McHugh noted that applications by unrepresented applicants are usually best presented in written, rather than oral submissions.[5]  My experience has been that submissions on eCourt are often of a higher quality than oral submissions in court, given that the parties are given an opportunity to prepare and submit more carefully considered responses.

(b)        Losing the human element

Another issue is that the use of online technology in dispute resolution depersonalises the process, and denies the parties a range of communication skills and valuable tools such as body language and the impact of eye contact.

It is important in an appropriate case to give parties their “day in court”.  There is no doubt that in some cases where a dispute is being resolved through legal representatives and judges predominantly on the papers, the parties may not feel that they have been “heard” fully, and may feel isolated from the judicial process.  It is also true that Judges are not able to benefit from the dialogue that can take place in the courtroom, or from actually assessing the credibility of a witness in the witness box. 

However, the use of online technologies does not depersonalise the process of dispute resolution through the courts, where, as in the majority of matters that utilise the eCourt, it is a supplementary, rather than exclusive tool.  Indeed, it has humanised the native title matters in facilitating communications and hearings that would otherwise be non-existent.  There is a greater risk of depersonalisation with an exclusively online approach but this consideration needs to be balanced by other access to justice issues, and by the awareness of trends away from oral presentation of argument and evidence that is taking place.

(c)         Inefficiencies

It is said that the use of the new technology will not necessarily save time or money. There can be a “false economy” in the utilisation of these procedures, which is highlighted in the pilot phase where all the participants (including support and technical staff) are learning the new processes and ironing out technical glitches.  Beyond this, it can take a substantial amount of time for the parties to prepare, and for the Judge to read, all the information and evidence submitted.  

(d)        Loss of publicity

It is said that online process necessarily leads to a loss of publicity, which is an important aspect in the administration of justice.  To a certain extent this is true of any matter that is being dealt with on the papers.  Nevertheless, the public can go to the registry and seek access to the file in order to know what the parties have submitted.  When the eCourt pilot was being developed, some concern was expressed at a possible erosion of publicity, particularly with the password-protected access to discussion threads.  As a result, the eCourt section of the Federal Court website has a public access facility where the public can access the discussion threads in transcript form.  If there is an entitlement for a non-party to access an attached document referred to in the public transcript, they can be accessed in the usual way via the registry of the court.

Possibilities for Mediation

The Federal Court does not conduct any online mediation.  However, there are significant possibilities for conducting mediation and arbitration procedures through the technology of the eCourt.  

In mediations where parties are in remote locations, or need to travel long distances to attend, online technology can obviously be helpful in conducting the pre-mediation phase.

In the Federal Court, judges can refer matters to mediation, at any stage in the proceedings, whether to the registrars of the Court, or to private mediators.  When this happens, the standard letter sent to the parties asks that prior to the mediation, the mediator be advised of the state of any prior negotiations, that the parties calculate the costs spent to date, obtain estimates of further costs in trial preparation and to the end of the hearing.  These matters are explored at mediation.

Time is often spent digesting position papers that have been prepared but are only delivered at the mediation, and there is often discussion about who is or should be attending, who had authority to settle, and so on.  Time can also be spent discussing what will be discussed at the mediation.

There may be value in posting this sort of material on a confidential site accessible to the mediator and parties prior to the mediation.  This could save time and reduce areas of difference prior to the start of the mediation.

When a matter is settled in mediation there is merit in drafting terms and signing them on the spot.  However, there are cases where an in principle agreement is reached at mediation, and there are pressures to finalise matters quickly.  Further material may need to be collated, or complex terms may need to be drafted prior to the finalisation.  Again, this phase is suited to an online forum.  Terms could be drafted where due consideration can be given to them.  Software with change tracking and digital signatures could be utilised.

Continuation of online negotiations could occur.  The online platform has the advantage over email that all relevant individuals can view it, and it has the benefit of a discussion thread.

Online capacity could also be utilised for the mediation itself, particularly where the participants reside in remote locations or in different countries and the stakes are not high enough to warrant face-to-face mediation.  Parts of the mediation can be segregated, and access to the online forum can be restricted.  Caucuses between party and party, lawyer and lawyer or mediator with parties could be achieved. 

The Possibilities for Arbitration

Arbitration is not a mode of dispute resolution that is generally utilised by the Federal Court, even though the Federal Court Act and Rules do provide for it.

However, it is worth mentioning that arbitration also lends itself to the eCourt type facilities, particularly where matters can be handled “on the papers.”  If the volume of documents is significant, having a search capacity or electronic file management is also useful.

Conclusion

Courts must meet with the challenges of a technological world.  In the case of the Federal Court, an important impetus to adopt and develop new technologies has arisen from its native title jurisdiction.  We have found, as have other sectors in dealing with new technologies, that opportunities can grow out of new technologies.  Our courtrooms now regularly feature video links and other technical forms of litigation facilities, and more are considered for the eCourt pilot.

Courts have been slow to pursue new technology.  It is important for this to be done in a thoughtful and considered way, and to constantly monitor and address issues such as security, public confidence, access to justice and transparency.  The successful handling of these concerns is vital, particularly when legal practitioners acknowledge that the impact of technology on the practice of law, which is largely an information exchange activity, is significant.[6] 

The Australian Law Reform Commission had accepted that technology is changing all aspects of modern life, including law and legal practice, and has had an issue paper published on the impact of technology on federal dispute resolution for a number of years.[7] Recommendation 26 made by the Federal Attorney-General’s department in the recently completed Federal Civil Justice System Strategy Paper (9 March 2004) was “that federal courts consider supplementing existing ADR processes through the increased use of information and communication technology.”  As the Productivity Commission has indicated, one of the measures of a court’s effectiveness is the success of the ADR services it employs. 

In my view, given the current state of the technology, the success of the online initiatives such as the eCourt pilot in the litigation process, and the real possibilities that they represent for improved efficiency and access to justice, the courts have an opportunity to take a leading role in working with practitioners and the public by taking advantage of online technology for dispute resolution.  It is incumbent on the courts to encourage the fullest use of information technology.