In a world of online dispute resolution, why does the UK civil justice system need lawyers?

No sector is safe from the digital revolution. Despite the legal sector’s belief in its immutable uniqueness, the UK civil justice system is undergoing seismic changes with the Civil Justice Council’s plan to reform it entirely by emulating eBay’s highly successful online dispute resolution (ODR) platform. Virtual justice will pervade, and there may be no need for lawyers. The legal sector will be forced to ask a fundamental question: where does the value of lawyers lie?

The UK’s civil justice system remains expensive, complex and inefficient. The current system is at its breaking point financially, faces unprecedented backlogs, and has resulted in a significant proportion of the population lacking representation through the near destruction of the legal aid system.

The Civil Justice Council’s ODR Advisory Group’s plan to create Her Majesty’s Online Court, an ODR system for low value civil disputes worth up to £25,000 would remedy this problem and broaden access to justice. It would be affordable, user-friendly, and efficient by utilising advanced and enabling technologies, such as predictive algorithms, data and artificial intelligence (AI) systems.

The proposed system would have three stages: dispute diagnosis, dispute containment with a qualified facilitator involving mediation, and dispute resolution, where decisions by judges in an online environment would be as legally enforceable as court rulings. The system hopes to emulate eBay’s success, which resolves over 60 million disputes a year, by ensuring that more disputes can be resolved, and that most matters are resolved in the first two stages.

What is of most concern to those who fear that lawyers may be made redundant is that the world is increasingly relying on sophisticated technologies. For instance, a recent study has found that AI can predict judicial decisions in human rights cases with an impressive accuracy of 79 per cent.

Due to enabling technologies, a United Nations Commission on International Trade Law (UNICTIRAL) 2015 report emphasises that qualified facilitators required in ODR do not necessarily need to be qualified lawyers. The founder of Ross Intelligence, an AI system which is used by law firms globally, describes its vision as creating ‘the world’s smartest lawyer’.

ODR has gone global. It has spread to Canada and the Netherlands, companies such as Modria, which provides an ODR platform based in the United States dealing with family, tax, and insurance disputes, and UNCITRAL, which is drafting ODR Procedural Rules for e-commerce transactions. These countries, companies and organisations view ODR as a logical, natural and necessary evolution of dispute resolution. The UK is only just catching up.

A world where lawyers may be made obsolete and replaced by armies of emboldened automatons paints a worrying picture for the future of lawyers, and as the UK develops an online court system for the delivery of civil justice, the value of lawyers must be understood.

An important aspect of the delivery of civil justice is the human element of advice which clients seek. Enabling technologies have the power to perform remarkably accurate personality analyses, however, it is difficult to conceive of a world where AI can replace the humanity of physical presence that is so vital when interacting with the justice system. This is particularly true for cases with a high degree of complexity, value and public importance.

For example, for cases within a family context involving domestic violence, the element of humanity is crucial when interacting with the civil justice system. In these cases, the cognitive, moral, and emotional dimension that the lawyer provides cannot be replaced, as well as the lawyer’s empathy, and powers of persuasion, communication and relationship building. Even if exceptionally emotionally intelligent AI systems emerge, in many cases, clients will always seek the human touch that AI can never offer.

In addition, the right that the UK’s civil justice system gives to those who wish to air their grievances before a judge in the dynamic of the courtroom is undeniably important. Individuals must never be deprived of this right, particularly in complex cases where bespoke handling is required. In low value cases, a lawyer may indeed not be needed; however, on the grounds of complexity, value and public importance, where there is a need to sit before a judge, and where traditional bespoke services by a lawyer are required, Lord Justice Briggs has stressed that a ‘permeable membrane’ in the UK’s ODR system would enable cases to be transferred to conventional courts.

Indeed, the UK’s civil justice system can no longer ignore that user expectations are now being set by highly efficient online platforms such as eBay. However, the success of ODR is dependent on trust, and where people’s lives are affected by the outcome, there is no reason to expect higher levels of trust in ODR and its technology. In law, there are high stakes at play and there is no room for costly errors to be made.

For instance, although technology can significantly reduce error, algorithmic software used to predict future criminality has only been found to magnify racial biases in the United States. In the context of an ODR system, lawyers will be needed to meet client needs and expectations, adding the human touch, objectivity and trust that is so vital when interacting with the justice system.

As technological developments streamline, automate and commoditise time-consuming administrative processes, and tasks such as research and case predictions, lawyers will be able to focus more of their time on complex and stimulating work, developing legal arguments and thus demonstrate their value.

Moreover, Richard Susskind and Daniel Susskind note in their book The Future of the Professions that where bespoke services are needed, the lawyer’s value of strategic insight, creativity, and human expertise and experience cannot be replaced. Through the aid of AI, data and predictive algorithms, which can improve accuracy and maximise efficiency, lawyers can add confidence and value to legal advice. Rather than making lawyers redundant, technology can be used to empower lawyers.

Significantly, in the UK’s unintelligible civil justice system, it is difficult for clients to seek the jargon-free legal advice they desire. The online court system would provide this in the dispute diagnosis phase, through categorising user’s grievances, and ensuring that users understand their rights, obligations and the options available to them at no cost. Compared to the current system, where claimants must know where to look across a sea of providers, ODR would be user-friendly, provide clarity, and broaden access to justice in a system that is currently unnavigable for the lay person.

However, the Legal Education Foundation notes that it “cannot be assumed that effective access simply equates with access to the internet”. Regardless of the proposed online court system’s navigability, those without access to, or unfamiliar with the internet, as well as those with disabilities and individuals who may lack other means of access must not be forgotten. If a system without lawyers fails to protect the rights of the inexperienced or vulnerable litigants, it cannot be said to have truly broadened access to justice. Lawyers will always be needed to ensure that proper, rather than purely efficient legal process is followed.

The legal sector is one imbued with tradition, and the radical solution of ODR within the UK’s civil justice system will undoubtedly challenge the traditional role of the lawyer.

In a wired world, it is clearly time for the UK’s civil justice system to join the digital revolution. Instead of consigning lawyers to the dustbin of history, technological developments can be used as an opportunity to empower lawyers, and shape the legal sector as being compatible with the digital era. Technological advances may challenge and change the role of the lawyer, but the lawyer’s value can never be replaced.

Acknowledgement to Ms Hana Kapadia written for The Legal Mind competition 

Originally published by Lawyer2B on 6 April 2017