From Bleak House to The Promise of Online Dispute Resolution

On such an afternoon some score of members of the High Court of Chancery bar ought to be … engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horse-hair warded heads against walls of words and making a pretence of equity with serious faces, as players might…between the registrar’s red table and the silk gowns, with bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense, piled before them… This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every man’s acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give — who does not often give — the warning, “Suffer any wrong that can be done you rather than come here!

Sadly, the words of Charles Dickens in Bleak House ring true even to this day, where delay runs rampant in our courts, rotting the goal of justice.

It is time that we stop dogmatically accepting delay as an inevitable cost of doing business. Progress in online dispute resolution promises a brighter future, a future where dispute resolution moves quickly and fairly. Two great examples of the promise of online dispute resolution are eBay and the Civil Resolution Tribunal.

Over the years, eBay has processed an impressive 60 million disagreements between buyers and sellers on their site using online dispute resolution. e-Bay has different types of online dispute resolution processes depending on the issue. For disputes about payment, parties are encouraged to reach an agreement amongst each other. e-Bay provides them with advice on how to reach a negotiated settlement, even going as far as explaining how eBay would assess the merit of their complaint. If negotiations fail, the parties enter a discussion area to present their argument. After submissions, an e-Bay adjudicator determines the outcome of their case. All of this takes place online at a quick rate without sacrificing the ideals of justice.

Similarly, in British Columbia, the Civil Resolution Tribunal promises to deliver quick and fair resolutions over an online platform. The Civil Resolution Tribunal intends to be a comprehensive alternative to the traditional court system. The Tribunal uses a platform that incorporates strict timelines and templates for statements and arguments. Parties begin the process by using the tribunal’s online negotiation platform. If negotiations fail, a case manager is appointed to oversea the mediation. If the mediation fails, the parties enter the final stage of adjudication. The adjudication takes place over either an online platform, phone, or video-conferencing.

Although not presently in practice, I am looking forward to watching the Civil Resolution Tribunal blossom. Hopefully, it will be an example of a workable solution that other provinces can follow as an alternative to the traditional, bloated, and slow court system.

For more on online dispute resolution click here: https://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf

(I originally posted this article on Slaw.ca)

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