How do you analyze the present state of cyberjustice?

Before expressing an opinion on the current state of cyberjustice, it is necessary to agree on the meaning of the expression. The phenomenon of cyberjustice covers a wide range of possibilities, and therefore, its definition should be broad enough to convey the width of its scope. In its broadest sense, “cyberjustice” refers to the integration of information and communications technologies (ICTs) to dispute resolution processes – whether they be judicial or extrajudicial. With respect to the extrajudicial sphere, cyberjustice regards online dispute resolution or ODR, which is essentially the migration, onto the Internet, of alternative dispute resolution, i.e. negotiation, mediation and arbitration. But cyberjustice also has to do with the introduction of IT in the traditional justice system to serve its various stakeholders (parties, lawyers, judges, court administrators, etc.). In this context, cyberjustice thus designates technological tools designed to facilitate every stage of the judicial process, from the filing of the motion to the writing of the judgement. The concept also evokes the technologically advanced courtroom or “cybertribunal”, equipped with, amongst other things, screens, digital cameras, computer stations, etc.  Cyberjustice as applied to the judicial field also implies the networking of actors and institutions taking part in dispute settlement.

Today, there are numerous technological advances from which the legal system can benefit. Furthermore, the viability of ICTs in dispute resolution has been demonstrated, in part due to the work done in the past 15 years by the Université de Montréal’s Centre de recherche en droit public (CRDP). However, actual use of technology and networking to facilitate dispute processing, management and resolution is still embryonic. Legal procedures remain strongly attached to paper and the parties almost obligatory physical presence at every stage. This type of conservatism comes at a cost: the numbers show that individuals seem deeply dissatisfied with and alienated by the system. Their primary complaints concern the high cost and excessively long delays associated with going to court. Frustration is also growing in the public sector, where the inherently inefficient way legal information is processed hinders its usefulness in a public security context. Moreover, to this day, most of ODR initiatives remain privately financed and managed, and the potential it holds in terms of access to justice has not been fully exploited yet. 

The CRDP’s Cyberjustice Laboratory plans on addressing these issues through technology. Its research facility, the high-tech courtroom to which it is attached, and the transportable courtroom housed at McGill University will be used to develop and test open and interoperable software solutions for facilitating online dispute resolution, virtualizing court files, managing court dockets in a more effective manner, helping judges write decisions, and so on. The goal is therefore to ease the justice system into the network age while making it more accessible and efficient. The Laboratory is also planning on conducting an analysis of the underlying rationales of procedural and evidentiary practices, in order to identify and address socio-cultural and other obstacles to implementation of technology within the legal field.

In your opinion, how will the situation likely evolve over the next five years?

A growing percentage of citizens are losing faith in the justice system because they feel they do not truly have access to it, mostly due to the excessive costs and delays mentioned above. This loss of faith has serious repercussions on the use of the legal system: courtrooms are deserted, especially by individuals. Given the urgency of this situation – some go as far as saying it has a crisis – we believe that in a near future, more and more justiciables as well as decision-makers will, if well informed, come to realize that access to justice can, and should, profit from the opportunities created by cyberjustice. To explore how ICTs can push back obstacles to an accessible justice system, we believe that in five years, most faculties of law will have, or be in the process of getting, their own cyberjustice laboratory or cybertribunal. Moreover, let’s not forget that cyberjustice can serve academic purposes as well. With the “technological shift” being well under way in all spheres of society, including in colleges and universities, it seems only fair to offer current and future students a teaching environment compatible with their technological expectations and aptitudes. 

While it is undeniably necessary and even crucial to increase the traditional justice system’s accessibility, we also believe that a court is not always the best forum to resolve disputes in a quick, efficient and affordable way. For instance, disputes flowing from consumer contracts entered into on the Internet often involve amounts inferior to the costs of going to trial. Furthermore, when parties to these web contracts are delocalized, i.e. residing in different states, legal issues regarding the applicable law and jurisdiction arise. When a triable gives up on the exercise of his rights because of these problems, it is nothing less of a denial of justice. Why not then settle these disputes using the very medium on which they have arisen, i.e. the Internet? With the popularity of ecommerce and keeping in mind the problems plaguing the traditional justice system, we are of the view that settlement of these types of conflicts online will become the norm rather than the exception.

Furthermore, it is our contention that in five years, an increasing number of states, or even better, association of states, will have come to the same conclusion and put in place ODR platforms to resolve electronic consumer disputes as well as any other conflict for which the amount claimed does not justify going to court. For instance, offline disputes normally falling into the jurisdiction of a Small Claims Court could be resolve using these platforms. It is to be mentioned that the Cyberjustice Laboratory is currently working on a pilot of such platform for the Court of Quebec’s Small Claims Division. Moreover, on the international level, the United Nations Commission on International Trade Law (UNCITRAL) has created a Working Group to outline model rules for a global ODR system which would handle cross-border, low value e-commerce disputes. We feel that a truly successful deployment of online dispute resolution in this context calls for the involvement of the public authorities for both resources and safeguards necessary to the viability of ODR initiatives.

What are the structural long-term perspectives?

In order for the legal system to be more accessible and efficient through technology, the starting point is to model the judicial process and see, through simulations, how it affects each step of a trial as well as the stakeholders taking part in it. This first stage calls for the continuing participation of representatives of the main players in the court system (i.e. parties, lawyers, judges, court clerks, etc.), to ensure that their real needs, and not just apparent or perceived wants, are met. But even technology perfectly adapted to stakeholders’ needs would be useless if it were not consistent with the applicable legislative framework. Thus, in a first phase, a computerized legal process  will have to comply with existing legislation.

But in the longer term, implementation of cyberjustice will also depend on the adaptability of contemporary procedural justice to new technology. Simply putting rules of procedure and evidence online is not sufficient and might not allow to take full advantage of ICTs’ potential. In the long run, to really embrace cyberjustice will mean that we depart from a mere transposition, into the virtual world, of procedural rules that were developed in the physical world. Rather, we assert it will be necessary to rethink these procedures in light of the opportunities offered by networking and related technology. We believe this more profound reflexion on how to articulate processual and evidence law in a technological context, combined with the computerization of justice, will ultimately result in amendments to the law to render possible a re-engineering of the court system.

As the Internet has no territorial boundaries, so should cyberjustice. We are of the view that a full deployment of justice online will also mean taking advantage of this a-territorial nature of cyberspace to allow closer collaboration and exchange between states. Furthermore, online dispute resolution holds great promises in terms of globalization of law, as is shown by the worldwide ODR system envisioned by the UNCITRAL Working Group. We believe states will thus be called upon to work closely together towards the emergence and exercise of this global law.

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Some useful links on cyberjustice and ODR:

-    Cyberjustice Laboratory: http://www.laboratoiredecyberjustice.org/

-    National Center for Technology and Dispute Resolution (NCTDR), one of the primary portal for the field of online dispute resolution: http://odr.info/

-    UNCITRAL online resources on ODR: http://www.uncitral.org/uncitral/en/publications/online_resources_ODR.html 

Selected publications on cyberjustice and ODR:

1. -   Karim BENYEKHLEF and Fabien GÉLINAS, “Online Dispute Resolution”, (Summer 2005) 10-2 Lex Electronica, online: http://www.lex-electronica.org/docs/articles_87.pdf
   

2. -    Ethan KATSH, “Some Implications for the Emergence of Law in Cyberspace”, (Winter 2006) 10-3 Lex Electronica, online: http://www.lex-electronica.org/docs/articles_65.pdf
   

3. -    Colin RULE and Chittu NAGARAJAN, “Leveraging the Wisdom of Crowds: The eBay Community Court and the Future of Online Dispute Resolution”, (Winter 2010) ACResolution Magazine 4, online: http://colinrule.com/writing/acr2010.pdf
   

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Karim Benyekhlef is director of the Université de Montréal’s Centre de recherche en droit public (CRDP), scientific director of the Centre d'études et de recherches internationales de l'Université de Montréal (CERIUM), and director of the Cyberjustice Laboratory. He is also a professor at the University’s Faculty of Law since 1989.

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