Technological Impacts on Civil Dispute Resolution
Technology, from the well-known computing and internet developments to the more recent innovations such as block chain and artificial intelligence (AI), evolves every day and contributes to the change of the landscape of human society. Clearly, the use of these technologies in the justice sector has changed the operations of justice system and its associated dispute resolution processes. As the Honourable Thomas F. Bathurst AC observed in his address in 2018, ‘the influence of technology on dispute resolution has already been significant.’ Naturally, the topic of technological impacts on civil dispute resolution has become the substance of much legal literature and discussion. In our article entitled Just, Quick and Cheap? Civil Dispute Resolution and Technology, we examine how different types of technologies have influenced and will continue to influence the justice system, in particular exploring the technological impacts on the just, quick and cheap resolution of civil disputes.
The article suggests that, in theory, there are three levels at which technology is already reshaping the justice system. First, and at the most basic level, technology is assisting to inform, support and advise people involved in the justice system (supportive technology, such as online legal services in the form of legal applications (‘apps’)). Second, technology can replace functions and activities that were previously carried out by humans (replacement technologies, such as online mediation processes). Finally, at a third level, technology can change the way that judges and legal professionals work, providing for very different forms of justice (disruptive technology, such as AI judges), particularly where processes change significantly, and predictive analytics may reshape the adjudicative role. However, it is worth noting that due to the complexity of technologies these three categories of impact can be intertwined in the sense that one single technology can fall within any of these three categories. For example, in terms of legal apps (which are supposed to facilitate and support people seeking legal information), some of sophisticated legal ‘chatbot’ or ‘robolawyer’ apps can offer recommendations or solutions based on conditional and causal decision logic trees, and in some cases, more advanced AI techniques. Obviously, those legal ‘chatbot’ or ‘robolawyer’ apps are undertaking work that may previously have been undertaken by legal professionals and are disruptive in terms of the way in which the lawyers, conciliators or even judges may work.
From the perspective of the purposes of civil dispute resolution, there are also a wide range of issues arising from the use of technology. By the ‘purposes’ of civil dispute resolution, we refer to the ‘just, quick and cheap resolution of the real issues in the proceedings’ set out in Section 56 (1) of the (Austrailan) New South Wales Civil Procedure Act 2005 (NSW). It appears that there is an overall consensus across society on introducing technology into dispute resolution processes to achieve ‘quick’ and ‘cheap’ resolution of civil matters, while there are many more concerns about the ‘just’ criterion in the settlement results. It is suggested in our article that to assess whether the settlement results are ‘just’, a number of factors need to be considered by the commentators. First, how should ‘justice’ be conceptualised? Can ‘justice’ be achieved only through the courts or can ‘justice’ also take place in the alternative dispute resolution (ADR) processes? Different understandings of the definition of ‘justice’ can lead to distinct answers as to whether the use of technology in ADR processes can produce a ‘just’ outcome. Second, how might budgetary issues in the civil justice system undermine the ‘just’ resolution of disputes? As noted by Chief Justice James Allsop of the Federal Court of Australia, the courts (as core public institutions) need to take a leading role in the implementation of technology in the law and in legal practice. In reality, however, ‘private’ parts of the civil justice system, which includes large law firms are more likely to be able to afford investment than some parts of the court sector. In this context, the challenge of ensuring that legal technical systems are kept up to date as technology develops quickly means that technological improvements are unlikely to occur in an ‘even’ manner across the sector. Does this ‘unevenness’ undermine the courts’ capability to deliver ‘just’ outcomes to disputing parties? Does this ‘unevenness’ further encourage parties to resort to legal apps developed by large law firms and/or legal tech firms even though the necessary oversight is not in place?
In addition to some scepticism about the extent to which technology can assist in dealing with the ‘current’ (unjust, slow and expensive) problems of the justice system as noted above, there are also possible ‘new’ risks caused by the use of technology in the sector, including how courts can preserve open justice in a technological era. At any rate, it is hoped that our article can be a good starting point for all stakeholders across the board to further deliberate on the relevant issues around technology and law.
Tania Sourdin - The University of Newcastle Law School, Australia.
Bin Li - The University of Newcastle Law School, Australia