Please upgrade your browser.

ODR and the Civil Resolution Tribunal in British Columbia

ODR and the Civil Resolution Tribunal in British Columbia

How do we use the power of technology to make our justice systems work better? In British Columbia, Canada they are pioneering the way with the launch of the Civil Resolution Tribunal – a new and fully online tribunal that will handle many of the small claims and condominium disputes in British Columbia. In this interview we delve right into the system and understand what it is and how it’s all going to work. You can also learn more about the Tribunal from the chair of the CRT – Shannon Salter – here.

Sign up for FREE to access more videos

Sign Up NOW!

Transcript

Full Transcript

Aled Davies: Hi everyone, my name is Aled Davies founder of mediatoracademy.com, home of the passionate mediator. You know what we do on here. We interview the very best mediators and thought leaders from right around the world. This is the place for us to learn more about new opportunities in our field, as well as how to overcome the challenges and dilemmas in life as a mediator, so we can learn, grow, not just our thinking and our skills, but also our business. Okay, the big question for today’s interview is this, how do we use the power of technology to make our justice systems work better?

My guest today is an international justice celebrity. He is a lawyer with the Ministry of Justice in British Columbia, Canada. He currently serves as the acting legal officer for the British Columbia Civil Resolution Tribunal, a new, fully-online tribunal that is set to be rolled out very soon.

It is hoped the system will handle many of the small claims and condominium disputes in British Columbia. He has helped to initiate multiple projects using Online Dispute Resolution, and is a member of the Canadian delegation to the United Nations working group on ODR. He also sits on the board of the Justice Education Society, a Vancouver-based organisation that carries out public legal education and information activities, justice reform, and capacity-building programmes in British Columbia and in several jurisdictions outside Canada.

Look, it’s a real pleasure to welcome Darin Thompson onto Mediator Academy. Darin, welcome.

Darin
Thompson: Thank you, I’m pleased to be here.

Aled: Oh, it’s a real privilege to have a celebrity on Mediator Academy like yourself. Look, your Twitter profile describes you as a “justice innovation enthusiast”. What does that mean and why are you so enthusiastic about it?

Darin: Well, I’m a lawyer by training of course, but I’m also a lawyer with big dreams, lot’s of blue-sky thinking. I’m into all of these principles, ideas around disruption. How can we change? How can we rethink or redesign? All of these sorts of ideas. I try and bring that to my work as a justice systems design person. I have a big focus on technology. So we’ve spent a lot of time here in British Columbia in the last few years in particular, exploring new ways to use technology to create new services, to create new processes, and to address some of the pressures that are facing not only our justice system, but justice systems all over.

If you wrap all of that up together, I think innovation is a key principle, a key theme underlying a lot of these efforts to do something different. Another way of saying it, I guess, is we just really see the potential to expand the playing field here, in terms of justice and dispute resolution.

I like to work on all of these types of projects.

Aled: So, tell me, how are you expanding the field? What are you up to?

Darin: Well, as a starting point, we know again that there are a lot of pressures facing our justice system. There are pressures facing systems all over the place, and a lot of these pressures are resource-based, like are our courts sustainable? Can we afford to keep doing business the way we have been? Are the delays acceptable? Are the backlogs acceptable?

We’ve also got an access to justice problem, where we know that ordinary people have a very hard time accessing our existing justice processes and so on. The cost of legal services puts it beyond the reach of most ordinary people.

We’ve found that it’s very, very hard to innovate. It’s very hard to change in a way to address those problems within the current framework of justice. In many cases, to get straight to the point, it’s very court-centric. Even today, you’ll see a lot of justice reform reports that set out to propose dramatic, new, ways of doing things, but at the end of the day, they still anchor themselves in the courts.

They still give in to this inertia, which is very, very strong, of the courts. While we think that the courts are valuable and they still have a role to play, we think that there are a lot of other services, a lot of other processes, that we can create and that we can deliver to the public that don’t exist now. So this is part of expanding the playing field.

We borrow heavily on Alternative Dispute Resolution that, just by nature, I guess anything that doesn’t involve walking into a courtroom seems to be called “Alternative Dispute Resolution”, although we are fans of the definition of ADR being “Appropriate Dispute Resolution”.

These are some of the areas that we work in, some of the space that we explore, again, using new ways to negotiate resolutions to disputes, new ways to deliver information and self-help tools to people who are facing disputes, new ways to bring neutrals to the table and help facilitate resolutions with people involved in dispute. But, without assuming that it all has to happen in a courtroom or even a courthouse.

So, huge potential, I think. Again, technology takes a key role here in expanding the playing field, creating new services, new channels, new ways for people to access justice.

Aled: Tell us a little bit about the Civil Resolution Tribunal, which you have been instrumental in pulling together. Is that right?

Darin: Sure. I’m a member of a multidisciplinary team that’s been working on this for a few years. It’s an excellent team. We are a bit of rowdy bunch, and we have a great time advancing all of the initiatives that our Ministry of Justice lets us explore. So, the Civil Resolution Tribunal is an administrative tribunal. It follows an administrative tribunal framework here in B. C. The British Columbia legal system. That means it’s not a court. Our administrative tribunals have “members”, we call them, instead of “judges”, and so on.

The tradition here in British Columbia is to create administrative tribunals that are less formal than courts. They usually have more specialised decision-makers and, again, they are set up in a way that they can innovate a little more, I think, than courts. They are not quite so rooted in historical approaches to justice.

That had a great appeal to our Ministry in terms of the potential to create new ways to resolve disputes. So what the jurisdiction of the Civil Resolution Tribunal will be to begin with is small claims disputes. Here in British Columbia, that’s $0-25,000 Canadian and something that we call Strata Property Disputes. Strata Property is name of the regulatory regime here in British Columbia dealing with condominium ownership and condominium living.

Aled: When you say “condominium”, what do you mean by condominium? I’m not familiar.

Darin: “Condominium”? I’m not sure what the equivalent name would be in the U.K., but it deals with people who own a lot in a larger building or a larger development that will have individual lots within it sold and owned individually by owners, but it’s all administered as a corporation, as a corporate body, so you’ll have a council.

Aled: Like a tenancy – ?

Darin: It may be. Again, I apologise. I’m not sure what the equivalent regime would be in the U.K., but there are boards that administer the corporation, and they are usually owners who volunteer, and there are also byelaws that govern many aspects of the conduct of the corporation. So, it’s one of our great social experiments, ways to get people to live together, self-organise, and so on.

In a lot of cases, it’s a great way to go. It’s a great way for people to own property in, usually, urban areas, but invariably it also causes disputes. Disputes between neighbors. “Your cigarette smoke drifts into my balcony and I don’t smoke and I don’t like the smell,” or “The person in the unit above me runs a dance studio. That tends to be a little bit loud in a unit,” or, “The parking spot that I was given is too far from the elevator” and so on. To bigger things like, “Well, our building needs to have a roof replaced, and that’s going to cost $1.2 million and we all have to share the cost of it.” These are some of the disputes that come under the Strata umbrella of jurisdiction.

Aled: All right, so that’s the jurisdiction of the Civil Resolution Tribunal. Say a little bit more about the platform itself.

Darin: Sure.

Aled: If I’m a condominium owner, and I’ve got an issue with somebody’s dog barking at unsociable hours. I’ve had enough of it. What do I do? Where do I go, and how do I get some resolution to my problem?

Darin: When the tribunal begins to operate, what we will have is we will get the opportunity for Strata disputants to come in through a number of different channels. When we created the Civil Resolution Tribunal, the design is set up such that there is no assumption that you will have to have an in-person dealing in a court registry at a counter.

There will be no assumption that you have to have an in-person setting to have a mediation process in that regard, and you don’t have to go into a courtroom or a hearing room to do an adjudication.

We are certainly setting the system up so that in-person interactions can happen, but in contrast with the existing system, with the court system, for example, it’s not assumed that that’s how business will be done. So, we’ve been doing a lot of work designing a technology-based platform to, hopefully, handle the biggest load to carry the greatest amount of business cases in and through the tribunal process.

Much of our work in the last year or so has focused on developing what I think most people would call an “Online Dispute Resolution Platform” or an “Online Dispute Resolution System” that will be the virtual place where your condominium owner or your small-claims dispute will come. That’s how they will interact with the other parties, and that’s how they will interact with the tribunal itself.

I can walk through the steps if you like, just broadly outline the main phases of the process.

Aled: Yeah, why don’t you do that?

Darin: So –

Aled: Go on. Sorry.

Darin: Ideally, the disputant will begin using a tool that we are calling the “Solution Explorer”, and this is the first phase of the Civil Resolution Tribunals process. At this point, though, what we are doing is we are just dealing with this one dispute.

We can call them the “claimant”. We can call them the “initiator”. They are the person that has the problem that they are bringing to the tribunal, or that they think they are going to bring to the tribunal.

We’ve designed this process so that using this online tool, it provides us a smart questionnaire, type of approach, and it does a few things which I will outline now.

The first thing it does is it helps our initiator diagnose their problem. Through a series of questions and answers, in the example that we were talking about a minute ago, it would very quickly help the user recognise that they have a Strata- or condominium-based dispute.

Based on how we set up the system to create the knowledge base for this Solution Explorer tool, we can diagnose it down to a fairly granular level. So if it was, for example, a dispute involving a fine that the Strata council has issued to our owner. Maybe they were accused of being too noisy at a party one night or something along those lines. We can set up the system so that people diagnose it down to a very specific or a very granular level, say, “This is a dispute over a fine” sort of thing.

Once we’ve got that symptom diagnosed, the system can start to offer many other services, now, to our user. The first thing that they can do is that they can give them specific information. We know that out there in the justice system that there are a lot of people who are not lawyers who need help, and they don’t know where to start.

There is lots of information out there, lots of great organisations pushing lots of information out there, but it doesn’t always get connected with the user when they need it.

Here, we’ve diagnosed the user’s problem, and we can start to pinpoint . . . We can deliver it straight to the user, right at that moment the problem has been diagnosed. Moreover, we can give them very, very specific information.

It’s the idea of “Tell me only what I need to know.” I don’t want to read a twenty-page PDF document that’s online that might talk a little bit about my dispute, but it might talk about lots of other things, and talk about it in a very generic kind of way.

Here, we have diagnosed the problem, so we can pinpoint and give them very, very specific information. There’s problem diagnosis and information. Yeah, sorry.

Aled: Just in the problem diagnosis, let’s say I’m going through maybe like a triage service, it sounds like?

Darin: Yeah.

Aled: Where I’m box-ticking, “Ah, I’ve been issued a fine and I want to dispute the fine.” Tick that box. What happens if I don’t see my option there? Do I have a bit of free text?

Darin: No, we are avoiding free text in this system. To describe it in technology-based terms, it’s an expert system, and it’s set up so that we go out into the world and deal with subject-matter experts. This is a process we call knowledge engineering, where we acquire the expert knowledge from them and build it into the system.

We structure it in a way that it can be input into this system so the users can interact with it. What we will do is we will ask the subject-matter expert, “Try to think of every possible issue, question, or problem that we need to ask or every possible answer that we can provide for the user to select.”

If we don’t do our jobs as well as we would like, and we miss something, then we will have at various points, escape valves, where we can say to a user, “If none of the following address your particular problem, click here” then we’ll get out into what we expect to be a multi-level or multi-stage help system.

For example, the first stage might be, in effect, saying, “Are you sure that the answer wasn’t there?”, and maybe try and provide the information in a slightly different way so the user can say, “Oh, okay, now I get it. I have to go back and click that other answer.”

The second stage, or higher-level stage might be asking for a virtual chat with someone at a help desk sort of thing if it’s at certain hours of the day.

It could also be filling out a form that then gets e-mailed into our help desk and it says, “I’ve gotten to this point. I can’t find the right answer for my situation.”

That might cause our help-desk person to say, “Well, we need to take you back there, because there is the right screen there. You just kind of got off course.” It could also be our help-desk person saying, “You know what? We didn’t complete this area. It looks like we need to add another stream or another set of answers there”. So that builds into a continuous improvement cycle that we have to employ.

Aled: I guess the person on the help desk doesn’t really tell them that their problem is a ridiculous one and they should go and [inaudible 00:18:44].

Darin: No.

Aled: That’s another option, right?

Darin: I can’t say that will never happen, but that’s not the idea here. Our idea is to, of course, in all seriousness, is to provide service and guidance and the right information to our disputants.

In some cases, though, let’s not rule out the possibility that what we are doing is helping the disputants recognise that they don’t have a dispute worth pursuing. That’s an outcome.

In some ways, that’s a resolution.

Aled: Very interesting, yeah.

Darin: If that’s the best thing for this user, if that’s the guidance we can give, it would be appropriate in some circumstances.

Aled: All right, so problem diagnosis.

Darin: We’ve given them information, and the other thing we can do since we’ve diagnosed this problem is we can give them some self-help tools. Self-help tools in technology terms, they’re still pretty basic, but we think that they can be tremendously helpful for some people.

Some examples might be a calculator. Say we’ve got someone in a small claims situation who has a debt and they can’t make their payments. It’s a very common problem. So one of the things we might do is help that user figure out why they can’t make their payments, and one of the very elementary things we can do for them is say, “Let’s figure out what your monthly disposable income is.”

We can provide a calculator to the user that says, “Put your monthly rent here, put your cell phone bill here, put your grocery expenses here,” and so on, and all that it does is it adds it up for them and says, “Okay, this is a rough approximation of your monthly disposable income.” whatever is left over. Then, we can compare that with the payments they are supposed to make every month, servicing their debt.

If it shows the monthly debt payments are bigger that the disposable income, then we’ve now given this user a good idea about why they are in trouble.

It’s different things like that were we can help, again, very basic information. Our subject matter experts still might tell us, “Yeah, people get into debt problems all the time, some people very frequently. It’s because they don’t have a very good handle on their finances.” Let’s help them address that with a very simple tool.

The most common tool we expect to use is a letter template. The letter template, you can probably imagine what it will look like. It’s just a word processing sort of opportunity or tool on the site that will provide some opportunities for the user to put in their own, custom information, their own name, their own address, they might be describing their own dispute.

We’ve also, in the process of knowledge engineering, we’ve asked our subject-matter experts, “Hey, what should this communication, what should this letter tablet have in it?” So, for that Strata example that we gave about the fine, it will have very, very custom content in there saying, “I am writing to you about the issue of the fine. I don’t think that the fine was issued in an appropriate way” or, “I think the amount was too big.”

Depending on where we’ve walked the user through our Solution Explorer system, we will know what that letter should say, what some of that custom content is.

That letter can be used, by the way, as a letter. It can be completed, printed, and sent as a letter, but it can also be copy and pasted as an e-mail, it can be used as a script if they are going to have a telephone conversation with the other party and so on.

The idea here, though, I hope you are picking up on it, is all of this is happening outside of the process. We haven’t asked our user to file anything yet with us. We haven’t started a case or anything. We are trying to deliver all of this service at the earliest possible stage, with the least amount of time invested, and the least amount of expenses.

Aled: What’s going through my mind as you are walking me through all of this. One gets a real appreciation of how time-consuming the whole process is, if it’s in person, how resource-heavy it could be. It’s phenomenal.

Darin: You picked up on one of the design elements, a few of the design elements or principles here, of the Civil Resolution Tribunal. One of these things is to provide the earliest opportunity to resolve that we can provide to our user, so absolutely.

What we have done here is tried to create some processes that will indeed give this person a chance to resolve their dispute before they go any further down the line. Very different from our court process where the first thing that you have to do is walk in to a registry, file your documents, and the documents that you file in that registry have outlines of the arguments that you will make if you are one of the 1% or 2% of people who actually make it to trial.

In British Columbia as in many other places, it can take a very long time to get to trial if you are in that 1% or 2% of people. What we have tried to do is set up a system that can serve the other 98% or 99% of people in the dispute resolution process, and not only that, but to serve them as quickly as possible.

One of the ways to do that is, again, to give our users the tools, and that’s what the Solution Explorer, we’re still talking about the first phase of the Civil Resolution Tribunal process, but these are some of the steps and you are picking up on them. Absolutely.

From an administration of justice perspective, it takes a tremendous amount of work and effort to build this system. Let’s be clear about that. It’s very intensive. To give you a caricature, once it’s built, you turn it on, and it carries a lot of the load for you. It’s very scalable in that respect, in that it can handle a huge amount of traffic.

We are not talking about every person going through to a call centre. We are not talking about every person coming into a court registry and lining up. We are talking about technology, in this case, the internet helping us share a huge amount of the load.

Aled: The brilliant example when I interviewed Ethan Katsh, he talked about the pilot that he did with eBay, whenever that was, in the early ’90s or late ’80s. They had a real, living-and-breathing mediator handling the disputes between buyers and sellers, and the guy or lady, whoever it was, burned out after two weeks, just couldn’t handle the two-hundred mediation or disputes that they had. Now they’ve built a system, like the one you are describing, that last year handled something like 60 million. That’s just . . .

Darin: Yeah, so it’s a good example. The people who Ethan and others like Colin Rule, the people who built and operated that system, I think they describe it as it would be like trying to drink from the fire hose. If they were trying to handle all of those disputes with a person.

The idea here is, and of course, eBay is a walled garden. It’s very inspiring, but of course, there’s some differences between eBay versus your public justice system, but we’ve definitely worked hard to explore ways, to try to find opportunities to carry some of that approach, to carry some of those system design perspectives, back into the public justice system.

The Solution Explorer as the first stage, is a very good example of that. It’s a way to try and use technology to provide service to people in a very efficient, very fast way.

Aled: I think what eBay have done well, is they have been able to incentivise people to participate or engage in that process. How is your system or how does your system intend to incentivise or engage people in the process?

Darin: From a starting point, to use the blunt hammer of the law, sort of approach. We’ve created a quite comprehensive piece of legislation that our legislature passed in 2012, authorising the creation of the Civil Resolution Tribunal.

In its initial stages of operation, it will be done on a voluntary basis, so what that means is we will need all of the disputing parties to consent, with just one exception in the Strata context that I won’t go into detail about. But the idea here is it will be a voluntary process.

I think our expectation is, though, it will become a mandatory process. At that point, while using the power of the legislature incenting people to come, it becomes a little less important. However, the philosophy of the Civil Resolution Tribunal is to try to create justice services that people might actually want to use rather than ones that they have to resort to using.

Aled: That’s a lovely distinction that, isn’t it?

Darin: Yeah, this is a big deal for us, so user-centred design, putting the interests and needs of the user at the centre, is something that we work very, very hard to do. It’s not easy to do this in the justice context.

You’ve got a lot of external pressures coming from rules of procedure, natural justice, and all of these other things, all of these other pressures. It can make it very difficult. We use lots of words in law. We use lots of big words in law.

We are still trying to find the right balance though, where we create processes that take a very sincere look at what do people want, what do people need if they are in a dispute?

Just to give you an idea, outcomes. People are really interested in outcomes. Lawyers and judges, well, we are very interested in process, aren’t we? Many mediators are very interested in process. We know, though, from talking to people and studying different systems out there, that people are really interested in outcomes. They want their dispute resolved. They want it resolved in a reasonable amount of time. They want it resolved at a reasonable cost.

Aled: You’ve got a slight smirk on your face. I’m thinking, are you about to say something controversial?

Darin: No. I think I just did, really. It’s all relative, isn’t it? These are indeed some of the principles or the philosophy that we are working very, very hard to stay true to. Much of the design work we do, actually, we try to follow some user experience design principles. Lots of different things like developing user personas. This is a technique that some people might be familiar with. It’s used in eCommerce and website design. It helps you imagine what some of your users might be like and make sure your design is designed for them.

Aled: Like an avatar.

Darin: Other things we are doing, we have prototyped some of our work, so the Solution Explorer system that I’ve been describing, we’ve created many prototypes where we’ve actually gone out and found people with real disputes and asked them to use the prototype.

We watch how they do with it. We ask them if it works, if it makes sense. We take that learning back, and we use it to inform our design process. In this way, we are following an iterative design process, which traditionally, is never something I’ve done when I’ve been sitting around in groups drafting court rules or anything like that. You’re not drafting for the user. Not necessarily. You might try, but usually, you are drafting for the process itself, and you certainly don’t do iterative design where you say, “Let’s get this court rule drafted and then send it out in the world and see how it does. Then we’ll bring it back and tweak it a little bit.”

This is exactly what we are trying to do with the Civil Resolution Tribunal.

The Solution Explorer, I better finish that off really quickly, sorry about that. We’ve got problem diagnosis, we’ve given you specific information, we’ve given you some self-help tools so that you might be able to resolve it on your own, and the last thing that happens is streaming and triage.

We’ve kind of combined these two ideas, so “streaming” basically means we’ve brought our user through the system. We’ve guided them down a very customised pathway. We’ve given them some tools and so on, and some information, and we will tell them at the end, “Your dispute, if you are not able to resolve it on your own using the tools and information we’ve provided, here’s what you could consider for the next option.”

The next option, in many cases, will be the Civil Resolution Tribunal, the further phase. There might also be other places where we’ll direct people, other service providers and programmes around. It might be that you don’t belong in the Civil Resolution Tribunal, so we think you might want to go here.

The aspect of “triage” for us, just means doing a little bit of work to identify especially high areas of need, so it might be that a user is in a really difficult situation. Their circumstances are such that they are not well equipped to handle the Dispute Resolution Process on their own. Maybe we need to refer them out to another resource provider.

A very easy example, to go back to that debt example, might be that maybe you need to see a debt counselor. That sort of thing. That might be that that’s the best option for you, so those are the four phases and it ends with streaming and triage.

After that, I can try to very quickly describe the subsequent phases of the Civil Resolution Tribunal, if you like. That was only the first phase.

Aled: Yeah, okay, so the first phase is really getting them as far down through the process as possible, so that they can get the information that they need, reach a resolution or an outcome earlier on before actually engaging with the other party. Is that – ?

Darin: That’s right, and at least before engaging with the other party through the formal process. We encourage them with the letter template and so on, that type of tool, to try to resolve the dispute by engaging with the other party. But they are doing it outside the system, so it’s a very radical idea that you should talk to the other person to see if you can resolve the dispute.

We know that that’s not always going to work. We are fully aware of that. In fact, we know that some people won’t try, but we want to give them the chance if they are willing to try and if that user thinks it’s appropriate and worthwhile.

Aled: Okay, so they’ve reached that point and they’ve concluded, “Right. Nothing’s changed. I’ve still got this issue. I’ve still got this debt.” What next?

Darin: Our user, maybe they’ve attempted to resolve, maybe they haven’t. In any event, they have decided to carry it forward into the next phase of the Civil Resolution Tribunal, and that next phase is an online negotiation, so what they will do is invite the other party. It will be an ordinary type of notice process, giving notice to the other party that this dispute is going forward in the Civil Resolution Tribunal. The next phase that will happen is a negotiation between the parties. But what the idea here is, again, one of the design principles, is we asked our user to do all of this work in the prior step, going through the Solution Explorer.

We’ve diagnosed that problem. We’ve given them some specific information about it. We’ve also really put some structure around the dispute, so what we want to do, and the way we are designing the system, is so that gets pushed forward into the online negotiation phase.

Rather than start with a blank slate where they are just out there on their own, saying whatever. We understand that when people are in disputes, they can go on very long sort of rants, say all kinds of things that are not necessarily relevant or going to help them resolve the dispute. Instead, we’ve designed it so that they’ll have this structure around the dispute and they will carry that forward.

That will form the basis of the negotiation with the other party or with the other parties in the dispute. We will encourage them to negotiate on the basis of, it’s a Strata property dispute with a fine issue, sort of thing. That’s what we will ask them to talk about. The more typical ADR language would be “These are the issues.” We are helping them identify the issues that they are going to have to negotiate around. That’s what happens.

Next, we envision that the negotiation phase will be a relatively short process. It’s not going to be very intense. We recognise that the responding parties might not participate, so we are designing around that idea.

Our goal here is to take the cream of cases out of the system that don’t need to go further along. There is a percentage of cases, albeit maybe a small percentage of cases, that just need a little nudge and they will resolve. So here is where we want that to happen.

Maybe the respondents weren’t willing to engage outside the system with this letter that they got from this other party, and now they are thinking, “Wow, this person’s serious, and I see now we’ve got a chance to resolve this by agreement. Okay, I’ll give it a shot.” They might resolve some issues. They might resolve all the issues at that phase.

Aled: Okay, good.

Darin: Carrying on from there, if that doesn’t resolve the dispute entirely, the next phase in the tribunal is case management. “Case management” is a very broad term that we’ve given to a phase that is meant to be very, very flexible. It’s meant to be the one-stop shop where much of the magic happens at the tribunal. We kind of split it up into two main thrusts.

The first thrust is having a neutral from the tribunal, that’s a case manager, come on and work with the parties to see if they can facilitate a resolution. This is going to look very much like a mediation. It will be about working through some of these issues that were carried forward from the Solution Explorer, through negotiation, and into the case management phase. Working through to see if we can resolve some or all of them by agreeing.

If that isn’t possible, if we don’t resolve the dispute in its entirety, then the case management phase turns to its other thrust which is preparing the dispute for an adjudication. We don’t want to just let the parties head off into adjudication and start over entirely. We want the adjudication to be as streamlined and as focused as possible.

The case manager will work with the parties to ensure that the issues are well-defined, that the evidence that they’re going to need in the adjudication is ready to go, that if there is going to be any witnesses, that they are all ready to go, and all of these sorts of things. To, again, help ensure that that dispute is as prepared as we can get it before we send it into an adjudication, and that is the last phase of the tribunal.

It is the adjudication. It is not a case manager anymore. It’s now gone to a tribunal member, again, in British Columbia, our administrative tribunal equivalent of a judge. A tribunal member will look at the dispute and they will resolve it by a decision. The decision will be enforceable as if it were an order of the courts of British Columbia, so the parties can enforce that way. But if we do our jobs right, if the system is working, very, very few cases will make it through to adjudication and most of them will be resolved by agreement.

Aled: At what stage, then, do the parties have to, I’m assuming, do the parties pay for this?

Darin: Yeah, so there will be fees for going through the Civil Resolution Tribunal. Our current expectation is that they will be equal to or less than court fees. We are trying to innovate a little bit around fees, and we are trying to stage the fees, so the Solution Explorer, we expect that to be free. “Here is your chance to resolve this dispute on your own.” Now we are talking about . . . You asked me earlier about incentives. Here is an incentive to use the Solution Explorer and to try hard to resolve your dispute on your own, to not just throw up your hands and say, “Someone else is going to look after this for me.”

This is the free stage, and if the parties go into negotiation, then there will be a fee for that, but it’s not like you are going to be paying the entire court fee, the equivalent to a court fee then. It will be a smaller fee, and again, here is some incentive built in for the party to try and resolve.

What we expect is you will pay the balance of, again, getting you up to the sum total of the court fee. You’ll pay, really, two fees as you head into case management. One fee for case management, and one for adjudication. If you resolve in case management, you resolve by agreement, then the adjudication fee will be refunded to the person who paid.

I hope what you can see here is we’re trying to stage the fees in such a way that there are some incentives for the user to resolve earlier, it also in some ways reflects the “you use what you pay for” I’m sorry “you pay for what you use” – where if you are not going to adjudication, then you don’t have to pay that portion of the fee. I will say it’s not, by any stretch, 100% cost recovery. The fees do not cover the cost of the services that are delivered, like most justice processes, but this is the idea of having users pay for what they use.

Aled: Yeah, it’s a bit like having a bit of skin in the game, really, isn’t it?

Darin: Sure, that’s our idea anyway.

Aled: You know, you’ve laid out, Darin, in really great detail how you use the power of technology to make a justice system work better, you know, more efficiently, more effectively, cost effectively, and you know what I like about the initial phase? If I think about what transformative mediation tries to achieve through party empowerment, I do get a sense that the initial phase is about empowering parties to resolve it or to try as best as they can to reach an outcome independently of any other, sort of, third-party intervention.

Darin: Yeah, this is, of course, there is lots of literature out there around empowering users to take control of their disputes. We are very sensitive about it, too, because the justice system, and many processes, are set up in a way that an ordinary person can never learn enough about it or understand what is happening.

So the first idea is that we have a great opportunity here to sort of start over in B.C. in creating this tribunal. That’s the first idea, that you create something that people do have a chance to understand.

But you are quite right. We are trying to give the user information. Somebody who might not have much dispute resolution experience, we are trying to give them some basic guidance. Here are some of the steps that you might want to take. Here is what an acceptable outcome might look like to you. It’s not going to be a case where you are going to put that, the TV store out of business because you are mad about the broken TV. A reasonable outcome might be that you get a discount or that you get a refund or something along those lines. This is the idea to give people this basic guidance.

If you think about it in the way that we are trying to do it, it’s just-in-time knowledge. It’s just-in-time information. It’s a little different than just-in-case knowledge where governments or public, legal-education information organisations want to put people through a training course to learn all about the law of contracts or consumer law or residential tenancy law, all of these sorts of things.

We’re not taking that approach where we’re educating them just in case they have a dispute in the next two-to-five years and they can use that knowledge. It’s the other way around where we’ve got somebody with a dispute and we know, again, we are trying to put ourselves in the mindset of that user saying, “Just tell me what I need to do. Just tell me how I can resolve this.” That’s the spirit, at least in the Solution Explorer, trying to give the user just the information that they need to resolve their dispute.

To be sure, it’s a fine balance. You can’t deliberately hold back some information in some cases, because it can get a little bit dangerous, would put the user in a bad situation. But at the same time, we are not setting out to boil the ocean and have our user read thousands of pages of information about the law of contracts, because we know that’s not what they want. We know our user is saying, “Just somebody, please tell me what I need to do,” and that’s the approach we are trying to take.

Aled: Look, I’ve got one hour on the clock. You’ve been really generous already. I’ve just got a couple of questions.

Darin: Sure.

Aled: So, when is the platform going to be ready? When is it going to be live?

Darin: All I can tell you right now is we are working very hard to open it sometime this year, so in 2015 we want to open the virtual doors of the Civil Resolution Tribunal, but along the way, it’s not going to be a single event where it all happens on one day.

As I mentioned earlier, we are trying to embrace the notion of iterative design. We are prototyping things, so I imagine that certain portions of the process will be available at different times. We’ll get them up and running. We’ll start user testing them with the public and presumably, before the tribunal comes fully online. As for now, that’s the information I can provide on dates.

Aled: All right, and coming right back to something that you said at the very beginning, about dreaming big dreams, right? What’s the big dream? If you could look into the future, if you could influence the future, which is what you are trying to do, what are your hopes, dreams, aspirations?

Darin: Well, what we are trying to do – first of all, it’s an excellent question, and if we had another forty-five minutes, I could probably fill it. I’m sure you expected that, but what we are trying to do, a few things. First of all, we think justice should be a service. Not necessarily justice being a place. This is the same thing that Richard Susskind has said, it doesn’t just mean a courthouse. We really believe that justice can be a service, and that is what we are working hard to create, new services for people who are in disputes and so on. This is one of the ideas.

The other thing is, again, this whole idea of putting the users at the centre. All too often, despite our best intentions, the justice processes that we create tend to focus more on those justice processes than they do on the people who need to use them. It’s a very easy trap, despite the best intentions.

If anything, the processes tend to serve the interests of judges and lawyers maybe more than the users, in some cases. Again, I don’t mean it’s a bold, self-interest sort of thing. I just mean that those processes are set up so that they work for judges and lawyers. They don’t always work for users. That’s another idea.

If I were to have my eyes open very wide and gazing at the blue sky, what we are trying to do is move the ability to resolve disputes as far back as possible, as early as possible. We don’t want people to languish for two years while they are waiting to get the possibility of getting into a courtroom. Spending money along the way, experiencing terrible stress along the way and so on, and having this uncertainty.

We want to move the dispute resolution back, very early, stop the dispute before it gets any bigger than it needs to be. I think that the full manifestation, the fully transcendent version of a system like this, it would move us into dispute prevention.

If we can get there, I think that will be really amazing. I think technology could play a big role in helping us move into dispute prevention, but I think we are going to keep working to see if we can get there.

Exactly what that will look like, I can’t tell you. I think we are taking a pretty good step in that direction with the Solution Explorer and giving the users, our disputants, some information before they even engage the other party. In some cases, they are going to get that information and say, “Oh, man. I was wrong, and I should pay the fine,” or, “This is going to be too much work. I’m not going to pursue this, but I’m going to close it off and move on with my life” or, “move on with my business.”

We are trying to move in that direction, but if we can get there and move into dispute prevention, that’s where, I hope, every justice system in the world eventually can get.

Aled: It’s a bit like the moment that somebody cuts you up in traffic, and that red mist . . . What you’re accomplishing in that initial phase is helping that mist settle so you get a little bit of perspective and a bit of reflection time, but you are sort of being guided through that process.

Darin: Absolutely. We are starting to see some examples of different systems like that, the Dutch system, the Rechtwijzer, pardon my Dutch pronunciation. Martin Langham has a system for road traffic disputes there in the U.K. These are some of the examples where you are, I think, trying to get there very early and give some help to our user very early. Rather than taking, again, the opposite approach where you assume they are going to get into a courtroom and make people wait until that time.

Courts will still, by all means, have an important role. The idea here is that, as I said, only a small portion of cases ever get there now, so isn’t it a great idea to help the other 98%-99% of people? We think so, and I hope this Civil Resolution Tribunal will serve as a model, as a way we can do that.

Aled: Fantastic. What’s the URL?

Darin: Oh, boy. Let’s make it available below. I’ll see if I can bring it up on my other screen. civilresolutionbc.ca is the URL for the website.

Aled: It’s a lovely, sort of, clean-looking website, you know?

Darin: Yeah, the team members, including the chair of the civil resolution tribunal, Shannon Salter, they worked very hard to set up a site that would be engaging, still be pretty light, and also set the right tone. Again, we are writing for ordinary people, not dispute resolution professionals, not for justice stakeholders. We are writing for the average person out there, so they worked very hard to bring it into that tone. I think they did a nice job.

Aled: I think they’ve done a real lovely job. It is very subtle. What do I know about websites? But just looking at it, it looks like a blog. It looks like – who’s your chair?

Darin: If you go into the “About Us” portion there on the main menu, there’s a page for the chair. Her name is Shannon Salter. She is very dynamic and enthusiastic. She is very keen to get going. She knows she has a big job ahead of her, an unruly team to work with and organise all the time, but she sets a great tone. She has a really great, a very strong commitment to increasing access to justice and wants to carry us forward into implementation and beyond.

Aled: Brilliant. Darin, look, it’s been a real pleasure. I really appreciate your time, and it’s been a real insight. I can tell you’re passionate about this. We could talk for hours, I’m sure. Hopefully, we’ll get the chance at some stage. If people want to get hold of you, find out more about your work, at least say, “thank you,” how can they do that?

Darin: I’ve set up an “About Me” page, so if you go to about.me/darint, that will get you linked up with all of my social media channels, including my Twitter, my LinkedIn page and so on.

Aled: Brilliant. I’ll pop that underneath the interview when it goes live.

Darin: Thanks.

Aled: Let me say a big thank you, Darin. Have a great day, and let’s stay in touch.

Darin: My pleasure. Thanks again for the opportunity.

Aled: Thanks, Darin.

About the mediator

Darin Thompson Profile Pic

Darin Thompson is a lawyer with the Ministry of Justice in British Columbia, Canada. He currently serves as the Acting Legal Officer for the BC Civil Resolution Tribunal, a new, fully online tribunal that will begin operations in 2015, handling small claims and condominium disputes. He has helped to initiate multiple projects using Online Dispute Resolution and is a member of the Canadian delegation to the United Nations Working Group on ODR. ... View Mediator