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Featured Post: Online courts must not compromise fairness

Online courts must not compromise fairness

 
By Julia Hörnle, Queen Mary University of London

Can the serious atmosphere of court, standing in the dock facing a be-wigged judge and barristers, be carried over into the world of video-conferencing? Skype of the Bailey, if you will.
 
This is what the Civil Justice Council’s recently published report recommends. The council’s Online Dispute Resolution Advisory Group has recommended setting up a pilot programme that would introduce online dispute resolution as an integral part of the court service – not as an alternative to it.

This parallel service – Her Majesty’s Online Court – would provide court users with a three-tiered service that would offer legal advice and guidance, a means to negotiate a settlement through mediation and a service for disputes not yet settled a binding online adjudication by members of the Judiciary. This process would be based on documents shared online, and through online video-conferencing – not that different to FaceTime or Skype. Judgements given during Tier 3 hearings would be fully enforceable legal judgements as from any other court.

Saving time and cost

It is envisaged that costly and complex cases may not be suitable for online courts and would be dealt with in a traditional courtroom. Assessing which sort of cases are more suitable for dealing with online is something that still needs to be established. For example, online courts would probably be suitable for small claims civil cases, those with a value below £10,000, which currently make up a large majority of cases filed in court.

By bringing legal advice to those in dispute, through sophisticated software tools and human advisers, online dispute resolution would provide complainants with easier access to justice, sooner. It could reduce some of the barriers that prevent some people from going to court, such as the need for legal advice and official documents. And it would do so more cost-efficiently by virtue of sidestepping the bottleneck of having to book time in limited, physical courtrooms.

More cases would hopefully be satisfactorily solved before reaching the stage of a formal adjudication, as users would be better informed about their rights and assisted toward reaching a mutually acceptable outcome.

Improving access to justice

But can online dispute resolution offer the same gravitas as the physical courts, and offer defendants their “day in court”?

The authority of online courts would be established by the expertise and high standing of the facilitators and judges. There is no reason why civil justice must be meted out exclusively in a physical building. One of the keystones of fairness is due process and open justice. Traditionally court hearings have been open to the public. But there is no reason why this cannot be implemented through technology. Audio recordings or video footage of hearings could be made available online.

This is currently done in respect of some public inquiries, such as the Leveson Inquiry of 2012. Transcripts of judgements and orders are already published through law reporting. Video-conferencing is presently widely available in civil courts, for example to allow testimony from witnesses, from children, or from serving prisoners.

However what’s most important for any online court service is that it is designed in such a way as to increase access to justice, and is not merely a cost-cutting exercise for the Ministry of Justice.

Some government IT projects cut costs for the taxpayer at the expense and inconvenience of those that use the services. For example some motorists are inconvenienced by the collection of bridge toll fees online, instead of simply dropping coins into the toll booth as they pass. In order to keep the system fair, it should not be assumed that everyone is online all the time, and timescales should not be unrealistically short to allow court users and their advisers time to respond.

Ensuring fairness

The right to a fair and public hearing under Article 6 of the European Convention of Human Rights applies to dispute resolution which is mandatory (in the sense that not all disputants are using it voluntarily) and coercive (in the sense that it produces a binding decision which is enforced by the state for example through bailiffs or by the confiscation of earnings or property).

So if the proposed online court service becomes the mandatory track for certain types of disputes (such as small claims) it will have to provide for due process and a fair hearing.

This does not necessarily mean that a physical face-to-face hearing must be held, nor does it mean that the parties should not try mediation first, nor that aspects of the legal process cannot be automated. But it does mean that the parties must have an equal and fair chance to present their case and respond to the other.

The proposed online court is also different from arbitration – arbitration also produces a binding decision which can be publicly enforced, but both parties must agree to choose arbitration. A future HM Online Court Service would have the authority of the state with the power to bring people to court, and this is why procedural fairness protections are so fundamental.

None of this is science fiction, as online dispute resolution of various kinds is wildly used in many contexts. For example disputes between trademark owners or domain names are settled via an online procedure – more than 30,000 disputes have been settled by the World Intellectual Property Organization in this way.

Various European countries already use online resolution for small claims disputes. While regulated industries such as financial services and telecommunications have to comply with decisions made by the relevant dispute resolution service, these initiatives are outside the courts. To bring online dispute resolution within the courts service is revolutionary in the UK – but lags behind Australia, Singapore and Canada who have taken the step already. British Columbia in particular is about to start its Civil Resolution Tribunal.

An online court service is necessary in order to make the civil courts more efficient but also chimes with the expectations of increasingly digitally native court users. But it will also lead to greater access to justice, if it is implemented in a way which guarantees procedural fairness. The days of “Skype of the Bailey” have just begun.
 
The Conversation

This article was originally published on The Conversation.
Read the original article.




American Arbitration Association Creates Consumer Arbitration Clause Registration Requirement

By the Securities Arbitration Commentator (“SAC”)

 

(This work was originally published in the July 10, 2014 online edition of the Securities Arbitration Alert, and is republished here with some stylistic changes as a guest blog post with the permission of and our thanks to SAC’s founder and president Richard Ryder, whose firm also has a blog, and can be followed on Twitter @SACDispres).

 

The American Arbitration Association (“AAA”) announced on July 10th that its Consumer Arbitration Rules are being amended effective September 1st to require firms to register consumer predispute arbitration agreements (“PDAAs”). The data will be maintained in a publicly-accessible Consumer Clause Registry (“Registry”). Specifically, Consumer Arbitration Rules rule R-12 now provides that, as of September 1st, “a business that provides for or intends to provide for these Rules or another set of AAA Rules in a consumer contract (as defined in R-1) should 1) notify the AAA of the existence of such a consumer contract or of its intention to do so at least 30 days before the planned effective date of the contract [and] 2) provide the AAA a copy of the arbitration agreement.”

 

The AAA announcement states that the Registry “was created to provide more access to information about the AAA’s consumer arbitration services. In particular, the Registry will contain a list of businesses that have submitted their consumer arbitration clauses with the AAA and where upon review the AAA has determined that the clause substantially and materially complies with the due process standards of the Consumer Due Process Protocol.” If a business hasn’t complied with the registration requirement when a consumer arbitration is started, the Association “will conduct an expedited review at that time.”

 

Registration is not free. There is a non-refundable initial “consumer clause review and annual consumer registry fee” of $650 for the rest of 2014. In 2015 this drops to $500, as do annual renewals. Expedited reviews cost $250. The Registry will be populated this summer and become available September 1st.

 

SAC’s Editorial Comments: *We like this approach. For some time now, we have believed creating a similar registry for PDAAs in brokerage agreements would be a good move (word to the newly-formed FINRA Arbitration Task Force…). **It would seem the registration requirement would apply to customer-broker agreements calling for AAA rules, since rule R-1 provides “the AAA defines a consumer agreement as an agreement between an individual consumer and a business where the business has a standardized, systematic application of arbitration clauses with customers and where the terms and conditions of the purchase of standardized, consumable goods or services are non-negotiable or primarily non-negotiable in most or all of its terms, conditions, features, or choices. The product or service must be for personal or household use.” The rules give examples of contracts that are included in the definition and those that are not; customer-broker agreements are not on either list.

 

 

***Many agreements between investment advisers and retail customers call for AAA arbitration.) (SAC Ref. No. 2014-26-06)




Forget the Court – Online Arbitration Saves You Time and Money

We at Arbitration Resolution Services (ARS) are the world’s first cloud-based ADR provider where the entire process can be completed online. With online arbitration, clients can save as much as 80% of the costs of traditional litigation in as little as 20% of the time. This affordability and online access means that individuals and small to mid-sized companies can pursue claims previously out of reach.

Technology has clearly impacted alternative dispute resolution and will continue to do so in the future. There are five things you should know about online arbitration. 

1. How Does Online Arbitration Work?
Before an application is filed, the parties must agree to submit the matter to binding arbitration via the ARS online system. Both applicant and respondent will have an opportunity to state their claims and submit any evidence that supports their respective positions. The claim is then assigned to an arbitrator. The entire process can be completed online from the comfort of your home or office.

2. How is Online Evidence Preserved?
The type of evidence can vary depending on the nature of the dispute. Parties can upload evidence to the ARS cloud-based service to preserve e-mails, voicemails, photographs, witness statements, police reports, video or audio recordings, etc. Uploading evidence to the ARS secure server preserves metadata (e.g. notes and edits in Word; date and time of edits) to prevent spoliation.

3. How are Online Arbitrators Chosen?
Our arbitrators are experienced litigation attorneys selected for their years of experience in various areas of the law. Before they are added to our panel of arbitrators, each potential arbitrator is interviewed, and their qualifications are verified. Once placed on the panel, they will only be assigned cases in which their background shows a high level of expertise. Before a matter is assigned to an arbitrator, ARS also conducts a conflict check to ensure the arbitrator has no connection to the parties.

4. Is the Site Secure?
Yes. The ARS site uses the industry standard SSL encryption to protect your information. If an unauthorized user attempts to gain access to your data, your account will be automatically locked. The account can be unlocked by the user by contacting us.

5. How Much Does Online Arbitration Cost?
A Fee Section of the our website lists the fees that must be paid before a matter is referred to an arbitrator. The fees are usually less than it would be to file and pursue a lawsuit. There are no fees other than those listed in the Fee Section.

 




Webinar: ADRHub Presentation of Arbitration Resolution Services

Don Law recently presented a webinar on the history of Arbitration Resolution Services, including a live product demo, during ADRHub‘s annual “Cyberweek.”

The first part of the webinar discusses the need for efficient and complete online arbitration, finding the sweet spot for simplified rules, making the process of online dispute resolutions more widely accessible, and streamlining the arbitration process without sacrificing the quality of the resolution.  The second part features a demonstration of a complete mock online arbitration, including consent, description of dispute, uploading evidence, exchange between parties, and the arbitrator’s decision.  The presentation will also visit the options for counterclaims, hearings, and mediation.

Click through to see the presentation.

Cyberweek 2013 – Arbitration Resolution Services Product Demo from The Werner Institute on Vimeo.

Webinar: ADRHub Presentation of Arbitration Resolution Services
Presented by Don Law

Don Law, the chief technologist at Arbitration Resolution Services, will present a live webinar covering the history and approach of the company, followed by a live demonstration.

The first part of the webinar will discuss the need for efficient and complete online arbitration, finding the sweet spot for simplified rules, making the process of online dispute resolutions more widely accessible, and streamlining the arbitration process without sacrificing the quality of the resolution.

The second part webinar will feature a live demo of a complete mock online arbitration, including consent, description of dispute, uploading evidence, exchange between parties, and the arbitrator’s decision. The presentation will also visit the options for counterclaims, hearings, and mediation.




The Basics Of Securities Arbitration

George Friedman, a member of our Board of Directors, today presented “The Basics Of Securities Arbitration” to Seton Hall Law School’s Investor Advocacy Project.  You can preview his presentation here.  Friedman is also an adjunct law professor at Fordham University.

 

The Basics of Security Arbitration from Arbitration Resolution Services



A-Rod and Arbitration: Finally an Alternative to Litigation Becomes Mainstream

By Mark Norych, Executive Vice-President/General Counsel, Board Director

For the vast majority of the people in the United States, disagreements or disputes wind up in lawsuits and Courts which everyone realizes takes a lot of time and money. Although arbitration as a way to settle disputes has existed for centuries, it is now finally coming out of the shadows and becoming a popular way for everyone to resolve their differences. Almost all professional sports collective bargaining agreements or agreements involving  unions and employers now have provisions that call for binding arbitration in the event a problem arises. So do your credit card, utility and cell phone company agreements. What’s going on and what is it about arbitration that is catching on?

Simply put, arbitration is a way of resolving differences privately, without the need to start lawsuits that drag on and on and on. With arbitration, a person is selected who is called the Arbitrator. The Arbitrator is picked either by the parties themselves, or by the company overseeing the arbitration, and functions like a personal Judge. The proceedings are usually much quicker than litigation and are often resolved in months rather than years. Because the process is so much shorter, the expenses and costs to the parties involved is also dramatically reduced. Depending upon the company that is conducting the arbitration, the costs may be only a small fraction of what they would be in traditional litigation.

The current dispute between Alex Rodriguez and Major League Baseball is expected to be resolved by the end of this year rather than several years from now. That’s why everyone is starting to appreciate and  prefer arbitration. It’s the quickest, simplest and cheapest way to resolve disputes.

Read more about A-Rod’s dispute with MLB: