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Online Courts and ODR in England and Wales

Online Courts and ODR in England and Wales

How do we innovate our justice system to make it more accessible, affordable and sustainable? The Civil Justice Council formed an advisory group of experts to look into this. The group, chaired by Professor Richard Susskind, looked at the feasibility of Online Dispute Resolution to resolve civil disputes. In this interview Professor Susskind talks about how the group approached the task and the proposals made for a dedicated ‘Online Court’ to run alongside the traditional court system. In the interview Professor Susskind also talks about the future for mediators and how online mediation is likely to be a key feature of this initiative.

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Full Transcript

Aled: 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 about new opportunities in our field, as well as how to overcome some of the challenges and dilemmas of life as a mediator. So that we can learn, grow, and improve our effectiveness.

All right, the big question for today’s interview is this, how do we innovate our justice system to make it more accessible, affordable, and sustainable?

Now, my guest is an author, speaker, and independent adviser to major professional firms and to national governments. His main area of expertise is the future of professional service and in particular, the way in which IT and the internet are changing the work of lawyers. He has worked on legal technology for over thirty years. He lectures internationally, has written many books and has lectured on numerous government inquiries. He is IT Advisor to the Lord Chief Justice, and is the Chair of the Civil Justice Council’s Online Dispute Resolution Advisory Group. It is a great pleasure to welcome Professor Richard Susskind onto Mediator Academy. Richard, welcome.

Richard: It’s a great pleasure to be with you.

Aled: Richard, you’ve been working diligently now, for some time, looking into the potential of ODR to handle civil disputes up to the value of about £25,000 as part of this ODR Advisory Group for the Civil Justice Council. I know you’ve reached some conclusions, and I’m itching to find out more. But before we get into that, could you set the scene? Say a little bit more about the group, the kind of thinking, the processes you’ve gone through, and why you feel the justice system needs to innovate.

Richard: Well, there’s so many ways I could delve into this subject, I will say immediately that although, I’ve been working fairly hard at it, also, the group has been working fairly hard.

We are a group who was essential set up by the Civil Justice Council, and we were asked, over a period of about nine months, to look at the potential and the limitations of the use of Online Dispute Resolution, where the resolution brought in low value civil claims. Really given quite a broad scope, I suppose, to delve into the subject of ODR, and in the end actually, we took quite a broad view of what that concept involves.

Probably, it would be best for me to rewind about three decades, though, because I’ve been banging on about the use of technology in the court system for many years, and I think it’s probably fair to say, without a huge deal of success.

The court system, it’s a conservative old beast, and there’s probably two things you can do with technology in the courts. The first is, you can essentially graft-on technology to the current way of working. So you can say, “Here’s our court system. Here’s the pre-existing, often inefficient, manual process, and why can’t we use technology? It’s document-intensive. It’s information-intensive. There must be scope for better use of systems, and better communications” and so forth. That’s, frankly, been the way in which technology has been used in most court systems around the world.

But in common with most public sector systems, indeed, quite a lot of private sector systems around the world, too, big technology projects have often disappointed. In the end, I think what you get from this application of technology to the current or pre-existing systems is what I call “Mess for Less” because you’ve inherited an old fashioned system. You graft technology on top of it, and not really sure you make fundamental change.

The interesting thing about ODR is, it really gave us the opportunity to start with a blank sheet of paper. What if you actually didn’t have physical court rooms at all? What if you could get away with the idea of suggesting that court’s not so much a place, but a service? How could we use a whole bunch of emerging technologies to help people resolve their differences in a new way?

So, rather than grafting, as I said, the new technology onto the old ways of working, we really start afresh. This, I think, afforded us a great opportunity to think differently, not just about dispute resolution, but about access to justice more generally.

Aled: Yeah. So, you formed this group made up of a number of academics, experts in the field, and what sort of thinking have you done? I mean, you talked about starting with a blank sheet of paper, and I think anyone developing technology or innovating, when you’ve got a legacy system in place, you have the benefit of being able to start with that blank sheet of paper. How have you gone about thinking this through?

Richard: Well, I should say a little bit about the group, because it’s a little bit of a dream team, I was lucky that I asked a number of people who are, frankly, more expert than I am, in online dispute resolution. People who have written doctorates on the subject, people who have actually been engaged in actually live use of systems. We assembled a team, a mixture of academics and practitioners, people from the public sector, too, and I thought a fairly good cross-section of individuals who have both experience and enthusiasm about the use of ODR.

I think it’s fair to say, with a couple of skeptics there as well, people who would keep us in line when we got too enthusiastic. The idea was, broadly, a group of people who were sympathetic to draw in a number of techniques that seemed to have worked elsewhere, and say, “Could this work in the justice system of England and Wales?”

A fundamental question you need to ask, I think, is, for what problem is the courts a solution, as it were. Rather than thinking, what is the court, just now, how do we improve it? We have to take a step back and ask ourselves, “What are the fundamental problems that give rise to the need for a court system in the first place?” The obvious answer to that is dispute resolution.

But, as a group, and I have to say I did lead this aspect of the discussion, I wanted to widen this. When I was IT Advisor to Lord Woolf in the mid-nineties, and his Access to Justice Enquiry, I also said to him and I think he broadly accepted this, that the way that judges look at access to justice and improving access to justice, is really improving access to dispute resolution. How do we have cheaper, quicker, less combative, more convenient, resolution of disputes in the courts?

And I argue that there’s actually two further layers we need in the justice system, One, I call “Dispute Containment.” So, if you assume a dispute has actually arisen, how do we actually put a lid on it? How do we prevent it from escalating? How do we contain it?

Very often, I’m afraid to say that, the involvement of lawyers and the courts tends to give rise to escalation rather than containment. But we should, surely, in our justice system, have measures and mechanisms in place to help disputes from spiralling out of control, and certainly beyond the pockets of participants.

Then even before that, is what I call “Dispute Avoidance.” I sometimes say it’s like putting a fence at the top of the cliff, rather than an ambulance at the bottom. Because if we’re really honest, and we take this step back, that I’m asking us to do, forget that we’re mediators, forget that we’re lawyers, forget that we’re judges. Actually, most people don’t want a disputes at all. I’ve yet to meet a person who would like a big dispute, or would prefer big dispute, well resolved by lawyers or mediators, to not having a dispute at all. That’s not how rational, normal non-lawyers think about the world.

Aled: Yeah.

Richard: And if we have to think a little bit like rational, non-lawyers, if we’re really going to put in place something that works. So, one of our starting points was to think, “How could we have a system that doesn’t just help resolve disputes, but can actually help contain disputes and, indeed, help us avoid disputes in the first place?” So, that was a broad-as-we-get, a little bit of a philosophical discussion.

Aled: Okay.

Richard: About what it is that we have courts for, or whether or not we can think in broader terms. It is incumbent on those making policy, in the justice area, to strive now to find ways of containing and avoiding disputes in the first place. So, that was some of the underlying, if I can put it that way, philosophical thinking.

Then, what we had to was really build our collective experience and insight into what had been attained worldwide in the field of online dispute resolution, ODR.

It’s a field that’s been around for well over a decade. There’s a small communicative area area of enthusiastic individuals, and we come to the field, as most people do, with dramatic stories, for example, the eBay. Every year, there are 60 million disputes on eBay and none of them are sorted out in the court system, or almost none.

Almost all of them, sorted out by some form of online negotiation or online adjudication. So, you see some track record there. This technology, okay for a certain kind of fairly limited dispute, but certainly effective within its own boundaries.

And so we thought what we really needed to do was immerse ourself more deeply, and a few people on the team went off and pulled together, what eventually became, in our report a set of case studies. Punchy, practical commentaries on what had actually been achieved in a number of other countries, Holland, Germany, Canada, and within the U.K. as well.

So, we had our philosophical point of view. We also had a sense of what ODR could achieve in practice. What we, really, then wanted to do was come up with some practical suggestions about what could be done to improve the justice system.

Remember our focal point here was low-value claims in the civil system.

Aled: Yeah.

Richard: And our feeling was the current system, it just seemed to us, that it was too costly, too slow, too complex, too forbidding for most individuals. So if you’ve got a claim for a few hundred pounds, maybe go through the small claims path. You really don’t want, surely, to have to get heavily involved in difficult legal processes, and have it resolved maybe months down the road. You want something, it seemed to us, that was quicker and less painful.

So we’re not suggesting that what we are putting in place is going to be wildly better than the best judge sitting in the court room. What we’re trying to do is advocate some use of technology for the resolution of disputes that’s proportionate.

Given the nature and scale of so many hundreds of thousands of small disputes in our country, can we find a cheap and cheerful, but yet quick and just way of delivering some kind of dispute resolution? So, that was the challenge.

We, as a group, sat around for, I think our first meeting was many, many hours, where we, a fairly free format, brainstormed and we did that a couple of times. We divided and conquered. Some of us looked at past case studies. Some of us thought through the philosophy. Others looked at the legal and the policy issues. Others, and I was one of these, who looked at what technologies might come through in the future. Future generations of ODR.

Probably the most successful meeting we had was our second meeting. We set ourselves the task of, each of us, in pairs undertaking work. We came together, and everyone wrote really good working papers, which will be on our website. And from that actually, both consensus emerged and a fair idea of what ODR might look like in practice.

Now, for many people, I know we don’t really want to get bogged down in definitional issues of what ODR is, but many people say this online, “ADR”. Fair enough. Other people have an advice of some specific techniques, “e-mediation” “e-negotiation”, “e-adjudication”, and so forth.

We really took a rather broader view, quite early on, our thought was, “How can you use technology to help solve disputes?” But not necessarily using technology to streamline the existing court system.

Aled: Yeah.

Richard: So we’re not really interested in “virtual court” which is the idea of putting a camera in an existing court system, or case management for our current court system. We’re really interested in new ways of using technology to resolve disputes. And if the purist wants to say, “That’s not ODR,” we’re not too bothered. Really our passion is, it really reflects your own passion, I think, “How can we use technology to sort out disputes of low value in a way that’s quick, fair, inexpensive, that allows people to go with their lives.

Aled: What you’re describing is, I mean, it sounds like a disruptive technology right?

Richard: Yes, and the jargon is interesting, it’s one of my interests. Clayton Christensen, who’s a business school professor in Harvard, distinguishes between sustaining and disruptive technologies. Sustaining technologies are technologies that support and enhance the way that some particular industry or organisation or business has always worked. Disruptive technologies are technologies that come along that fundamentally challenge or change that particular industry or sector.

So, what we are saying I suppose is disruptive, if we’re honest, both for traditional lawyers and for traditional judges. If you’re in the business, in low value civil claims, of being the lawyer who represent the client assembling in a physical court room or judging the physical court room, then potentially what we’re seeing is disruptive.

But there’s another way of looking at it, because there’s two different markets here. On the one hand, is the question, “How do we resolve disputes that are perhaps inefficiently resolved today? How can we resolve them more efficiently? Question one.

But actually, my bigger interest is what I call the latent legal market, or unmet legal need. How do we provide a mechanism to help people resolve disputes where these disputes today simply go either unnoticed, or when they are recognized, the people just don’t believe the justice system’s for them? It’s unaffordable. It’s too forbidding. It just doesn’t seem that accessible.

So, it’s not just about saving costs, although we think we absolutely can do that, saving costs in the traditional system. It’s widening access. When you get into the business of offering access to dispute resolution where none existed before, then that disrupts no one. So, it’s partly disruptive, and partly, frankly, empowering.

Aled: Yeah. You talked about the sort of philosophical basis for your work, and you described conflict resolution, conflict . . .

Richard: Containment.

Aled: . . . containment, and avoidance. Say a little bit more about those three different strands and how those have put a structure on your thinking.

Richard: Well, what actually happened, from these three layers, as it were, was we concluded what an online court should look like and our fundamental recommendation is that, the government should set up an online court, is a three-tier court. And the first tier, the top tier, should help with dispute avoidance. The second tier should help with dispute containment. And the third tier should help with dispute resolution.

So, starting at the bottom, as it were, the third tier, Dispute Resolution, our recommendation is that judges, proper, full-time Her Majesty’s judges, should sit and decide some cases on an online basis. By which we mean, in the first generation of these systems, they will decide cases on the papers alone, and if necessary, do some kind of telephone conference call with the parties involved.

Nothing smarter than that. So, that’s the lower tier, the third tier. But that’s the tier of last resort.

Aled: Okay.

Richard: If you go up a level and we’re making a recommendation here that we think is quite innovative for the justice system. We recommend introduction of a new sort of court official we call “the facilitator.” Now, we’ve been very much impressed here by the work of the financial ombudsman service, and you may know, that they receive about hundreds of thousands of disputes every year, and only about 10% of these disputes actually reach the ombudsman themselves.

Ninety percent handled by what they call “adjudicators”. They’re individuals who, in our language, rather than participating in an adversarial trial, where they don’t sit as judges. It’s more inquisitorial. They poke and prod. They make enquiries. It’s a whole bundle of ADR techniques rolled into one, as I understand it.

Also, we certainly recommend some facilitators. The facilitators are there to identify, understand, categorise, classify the particular problems that are coming through. If, frankly, it’s absolutely clear that this is not the case that should reach a judge at all, then they will advise in that way.

They’ll poke and prod and make enquiries, and try to get a clearer picture themselves of what the issues are, what the merits are and so forth. It’s a whole mixture and bundle, and I see this in a fairly unstructured way, so far. The whole theme is having these level of facilitators who act as a kind of filter. So that, we hope, many disputes that would hitherto, have gone through to a physical resolution in a court room, before a judge will actually be settled online, by a Facilitator on papers, or perhaps again through telephone conferencing calls.

The level above that, actually even earlier, that’s the dispute avoidance level, we call this “online evaluation.” What we want to do there, and is partly, we believe, this is a collaborative project between the online courts and perhaps the voluntary sector as well, where we should have online guidance, online advice, online diagnostics, to help individuals themselves understand their entitlements, try to classify and categorise what kind of problem they have, understand what options are available to them, what remedies might be available to them. In many cases, we hope, just having an understanding of one’s position and options will avoid having a dispute in the first place.

So, online evaluation is the top level, the first level one comes across, and that is essentially online assistance. I’d say, partly we believe should be offered, or at least hosted by the online court, but there are so many very useful websites already out there. In due course, you’ll have things like useful diagnostic expert systems, which will ask people a series of questions and out will come some kind of preliminary recommendation.

But if you don’t actually think there’s a way to avoid your problem, you’ll then proceed to the online facilitator, and if that doesn’t work, on to the online judge. They are a three-tiered court matching the online evaluation, online containment and online resolution.

Aled: Yeah.

Richard: A different model. There’s two innovations therefore. The first is that judges are actually deciding cases on an online basis, if that ever happened in this country. And the second is, that for certain types of civil action or civil claims, in the first instance, we try to dispose of them through the use of facilitators rather than judges.

Aled: Yeah. It sounds like then, certainly the top tier is consistent with this idea or aspiration to improve access to justice. It’s giving people the tools, the ability to learn, develop their thinking about their own predicament, their own dilemma, their own situation, so they can make better choices, more informed choices, and not feel like there’s a barrier to enter this process.

Richard: Oh that’s right.

Aled: I imagine there will be, it will be free to access that information.

Richard: The top level we are envisaging, there’s no fee.

Aled: Yeah.

Richard: Level two, tier two, though there would be, in tier three there would be. I think the style and interfaces of these systems would have to be considerably friendlier, the interfaces that one comes across just now between lawyers and clients and the courts. So, I think it’s animations, it’s friendly diagrams, it’s flow charts, it’s bullet points. This is not large bodies of impenetrable text.

So, what we hope is that it’s a welcoming, affordable, in a sense it’s costing nothing, but clearly intelligible set of guidelines, for people who need help. We have in mind a lot of the time, litigants in person. As we know, going through the court process can be terribly difficult. Our intuition is that a user-friendly online service might be more convenient, less forbidding, and more intelligible to the litigants in person.

Aled: What sort of challenges do you envisage encountering, trying to get this implemented over the next few years?

Richard: Where do I start? I think the first thing to say is that, of all the projects I’ve been involved with over the last 30 X years, in technology in the courts, this is the one I am most excited and optimistic about it. That’s partly because there’s remarkable support coming from senior judges. If you didn’t have support from senior judges in all this, this really would be a project with very little future.

Secondly, I’m optimistic about the new wave of policy makers. Thirdly, we’re making, our report calls for all-party support. We don’t think this is party political. We can’t see any political party would not want to increase access to justice and save costs in the court system. So, we think the proposition’s quite attractive.

In our report we quote a man called Sir Muir Gray, who’s a very eminent physician, and he says of the NHS at one point, “we’re not going to change until we run out of money”, and to some extent, that’s where we’re at with the justice system.

If our conventional system was entirely affordable, – and this not a comment on legal aid – if the system was proportionate and affordable, and intelligible, then no problems, as I say, about cash, then I think there’d be no real imperative to bring about this change. But we are, it seems to me, in a stage where people simply cannot afford legal services, and that, even before legal aid problems, the cost of pursuing a small claim, for example, was disproportionate to the amount in issue.

So it seems to me that the business case, as it were, is fairly compelling.

Support from the judges, support from officials, we hope support from the politicians at a time when, frankly, we’re running out of options, I’m optimistic. And another dimension to all of this is that we’re making this recommendation to a society in which around 80% of people are pretty sophisticated internet users.

If we would’ve been making this recommendation three or four years ago, and certainly I was and have been for many years, people were saying, “Yeah, I get it but actually, there’s lots of people who don’t use the internet, and this is just going to be a new form of exclusion.” But now, we really are, the research shows this, we have about 80% of people who are actually using the internet, and of that remaining 20%, people who aren’t users, know someone who is. So, Granny might not use the internet but her grandchildren or children certainly do.

So, we’re at a time where, I think, for the internet generation, if we’re thinking of our legacy, what the next generation of people will use for resolving disputes, I think we’re [inaudible 00:23:19], is it really sustainable to assemble, physically in a wood panelled room, X months down the road to sort out a dispute of this size? and we think not.

We think for the next generation, online dispute resolution will just become a very, very natural facility, far more natural, far more intuitively plausible and appropriate than the physical courtroom.

Aled: Yeah. So, what’s the time scale, then, for the implementation of something like this? I mean, what are your plans in terms of developing a pilot?

Richard: Yeah, very much a pilot. It’s what we recommend. Our biggest recommendation is that the court service, the court tribunal service take online dispute resolution into part of their ongoing civil reform programme. We’re very much hoping in 2015/ 2016 there’ll be a series of pilots, and we look at a variety of areas which are possible domains for piloting. With a view, we hope, to some kind of launch in 2017. At a certain stage, of course, as an advisory group, we are losing grip of the management of the process.

Still, the Justice Council have supported our ongoing activity, so we’re going to be looking, in greater depth at, for example, what rules of court would be required for online dispute resolution? What enabling technologies would be most appropriate? What areas of dispute are best suited to this kind of technology? and so forth. There’s a chunk of work still to be done and we hope, therefore, to do this, to help the court services, they themselves think how best to implement this.

Aled: So, it’s likely that a pilot would focus on a particular type of dispute?

Richard: Yeah, the example we’ve given in our report is small claims.

Aled: Okay.

Richard: Say claims under ?10,000, where really the amount at issue is modest, and to instruct lawyers and to use court time, judge time, so forth, doesn’t seem a proportionate way to proceed.

We also looked at landlord and tenant disputes, we looked a little at road traffic disputes, and intuitively, these very large areas of dispute seemed to us, to be appropriate, too. But we didn’t want to, it’s too early until one pilots really, to say, “this area is definitely appropriate and suitable, and this area is not.”

So, we have to identify what it is, what characteristics of disputes will make them most suitable for this kind of treatment? That’s important as work.

Aled: Yeah.

Richard: But I’m anxious, and I know the group is anxious, that we don’t hang around, so I want to say that there’s very little reason, looking at what other jurisdictions have done, that we couldn’t get this up and running by 2017.

Aled: Yeah. So, Richard, what are the implications of this, on mediators and the ADR community more broadly?

Richard: It wasn’t really from the scope of our work to look at that question specifically, but I think a message emerges fairly clearly, that the kinds of tools we’re talking about for use within the courts, should equally be used by the ADR community itself. Seems to me people are disappointed, and some are, by the uptake, for example, with mediation, in certain sectors. This is my own personal intuition, one wonders if mediation, it’s certainly true of arbitration, has become quite court-like.

For the average non-lawyer, I’m not sure they know the difference between a judge and indeed a lawyer, an ombudsman, an arbitrator, a mediator, all looks pretty official to them. I’m not sure assembling in a room with someone, whether or not they’re mediating or adjudicating or whatever it is they’re doing, someone who seems to know more than everyone else. Whether that’s sufficiently different from the conventional court process to be distinctive in the way that I believe the original ethos of ADR.

And so, my gut reaction is, that what will really kick-start ODR like nothing else, “kick-start” is probably the wrong phrase, it’s already up and running, what will turbo-charge ADR, perhaps is a better way of putting it, is actually delivering mediation online, negotiating online.

Using all the techniques that have been evolved and honed over the years for ADR specialists that actually are making some kind of virtual experience. So that’s where I think ODR and ADR come together, but what ODR is offering is a new channel, a new mechanism for delivering ADR services.

My guess is, that when mediators start to embrace online techniques, virtual hearings, ODR, and so forth, this will give a great, great boost to those who are involved with ADR.

Aled: Yeah. Very interesting. I know a few mediators who are very busy doing online mediation, and not just in the Skype forum, but the synchronous text, just facilitating discussions between parties from different parts of the world.

Richard: Yeah, I think it’s important to say, it’s not just simply sitting at Skype and chatting to people. What we will really want is an entire environment where people will to submit their thinkings and there can be a multimedia dialogue, and the screen and the system will be designed in a way that people will feel they’re engaged in part of a serious process.

So although actually there is some mileage, even today, in having Skype calls, I have no doubt. I have in mind something that’s more of a hearing room environment that we haven’t yet designed. We did some research to find if anyone had done this and we couldn’t really find anywhere around the world somewhere where a mediator or an adjudicator could sit online with facilities around them and give the feeling to the users of the weight and substance that I think is necessary to the process. But that, I think will be, as I say, a great boost to the ADR community.

Aled: Yeah. That’s very interesting. You know, in thinking about the generation that will be accessing this stuff in years to come, their familiarity with technology, picking up a tablet, a phablet, or a device of some kind, and interacting with someone, that will be the norm. The idea of going to, as you said, a wooden panelled room, will be alien to the vast majority of the population in 10-20 years time, so we need to adapt.

Richard: I think you put it better than I did. It’s precisely the point, I don’t think our court system, or frankly, our ADR system, is fit for purpose for the internet generation. The internet generation would have to be far more electronic online engagement. Because it’s affecting all other aspects of our lives so somehow, I think, to maintain credibility, the legal process has to engage, too.

Aled: Yes, absolutely and technology, in Mediator Academy, for example, we’ve got mediators in Cambodia watching these interviews that couldn’t dream of getting access to some of the thought leaders that we’ve interviewed on this. It’s just amazing, the scalability, how the reachability of the internet and technology. It’s fantastic.

Richard: I think the other interesting thing is that, while our recommendation is largely for, in fact, entirely, for a public sector service, there is a fairly active and competitive private sector online dispute resolution community.

I think, over the next five years or so, we’ll see some pretty impressive systems and platforms emerging. There already are some, and the world wants more competition. I think it can become fiercely competitive, because the global market for dispute resolution is not small.

Aled: Yeah. Do you have a vision, you know, sort of ten years from now of a justice system, and if you do, what is that? That sort of magic wand idea?

Richard: Yeah, well, I’m not sure about my vision. Well, I am sure about my vision, but I’m not sure this is the place to discuss my vision. But what we said in our report about online dispute resolution, is we could see two later generations of systems.

The first generation is when this becomes video-enabled. So, you remember I said that judges will decide cases, in the early days, on the papers alone and perhaps by telephone conference call? The next generation of system will be probably clicking in about 2018, 2019, realistically, will be using high-quality video techniques. We’ve got a whole lot of things to do there, in terms of setting up what would be an appropriate online environment for this, with gravitas, that has the appropriate trappings. Sorry, that’s an old fashioned technology called a telephone. I can’t pretend it didn’t ring.

So the video conference will have this facility essentially embedded in the ODR process. That will widen the number of disputes that can be sorted, because there will be a number of disputes people will say. . . Well, excuse me, that’s the phone again.

A number of disputes people will say, “it’s simply not appropriate not to meet in person”. So we’ll say, “Actually, why can’t you use video conferencing for that technique instead?” And that’s the second generation.

The third generation’s where we use artificial intelligence. That’ll click in in 2020s. We’re not saying, and we genuinely aren’t saying here that this will replace judges, but you’ll have intelligent assistants. Systems that can actually take the data from online forms that people have filled in and will be able to undertake some kind of diagnostics as well. We’ll have big data clicking in, so we’ll hopefully have lots of information about past cases and likely outcomes which will help people and guide people on future of probable decisions.

So, the first generation, very straight forward and simple, deciding cases on the papers, supported by telephone conferencing. Second generation, video conferencing. Third generation, some kind of A.I.

Aled: Yeah. I’ve got to ask you now that you’ve . . . Okay, that’s the vision of the group. What’s your vision?

Richard: Oh well, thank you for that Aled. Now I’m writing a book with my oldest son. It’s called “The Future of the Professions”, so we’re looking a lot at the latest generation of artificial intelligence and so forth. I’ve been saying for some years, and I joke, I write the same book every four years, and this is just the technology changes.

I’ve got new examples of the principles that I’m laying forth. It seems to me that in the law and in judging generally, we have to accept that much of the activity that we used to think was uniquely the problems of human beings, will increasingly be taken on by machines.

So, I’m very much of the view, in the world of artificial intelligence, and I’m not really talking about time scales here, but I think if you have a look at the achievements in big data, if you look at the achievements of something like IBM, Watson, if you look at what’s happening in robotics, you’ll see that many human tasks will be better discharged by computers.

So, if you’re think in law, or for example, review of documents, it’s already pretty well established that if you’ve got a large number of documents to review, in terms of precision and recall, intelligent systems and predictive coding and these kind of techniques, essentially systems, are outperforming junior lawyers and paralegals. They’re only going in one direction. They’re getting better and better.

Then, you’ve got the drafting of documents, and you’ve got automatic document assembly. So, huge numbers of documents, fairly standard documents, will be generated by answering a series of questions on screen outcome support, and polished by staff [sounds like 00:34:37]

Now, every area of legal practice you look at, you can see chunks of it that, it seems to me, will be better discharged by computers. There are some fascinating questions, though, about the extent to which, even if you can replace some of the worker lawyers or judges by computers, whether or not you ought to.

And, that said, I’ve written for many years about this, starting with my doctorate in the ’80s, really asking the question, “can and should computers replace judges?” And this is absolutely not the context of this ODR project, but even if you could, I think most of us wouldn’t want them to. Who knows how we’ll feel in 200 years time.

Aled: Yeah.

Richard: It does seem important to us, I think, when we have disputes between human beings, that there’s actually another human being directly involved in some way, in coming to some kind of authoritative binding conclusion. As a generality, we are I think, privileged but it’s quite scary, to live in an era where many cognitive tasks as well as clearly many physical tasks, will be better undertaken by machines. Which raises fascinating questions about what we’ll all do with our time, but that’s the way the wind’s blowing.

So, I’ve said for many years, and I wrote a book called “The End of Lawyers?” that once you look at legal work in a kind of manufacturing mentality, if you break down legal work into its component parts, you’ll find that there will be better, and that will be to a lower cost but a higher quality, ways of undertaking work that won’t involve a human being.

So, just as we’ve seen the mercers, the tallow chandlers, and other crafts fade over the years, my guess is the same will happen with much of the work that’s done by lawyers. This is not over the next few years, folks. I’m really not saying that the end is nigh. I never have said that, but if you’re thinking 2040, it’s pretty hard for me to imagine that lawyers and judges will be conducting work in the way they do today.

Aled: Yeah, yeah. Brilliant. Okay. Richard, thank you very much. If people want to find out more about the report, where do they go?

Richard: It’s on the Judicial website, and hopefully, there’ll be quite a lot of publicity around it so if you Google it. It’s the ODR report looking at low value civil claims and we’re the ODR Advisory Group of the Civil Justice Council.

Aled: Wonderful, Richard. Thank you ever so much. Have a great day.

Richard: Thanks very much.

About the mediator

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Professor Richard Susskind OBE is an author, speaker, and independent adviser to major professional firms and to national governments. His main area of expertise is the future of professional service and, in particular, the way in which the IT and the Internet are changing the work of lawyers. He has worked on legal technology for over 30 years. He lectures internationally, has written many books, and advised on numerous government inquiries.. ... View Mediator