Dispute resolution in England and Wales: the full power of technology yet to be unlocked

On 29 March 2022, the Ministry of Justice (MoJ) published its summary of responses to Dispute resolution in England and Wales: call for evidence, which sought insights on how disputes might be best settled out of court. While the MoJ made no specific recommendations off the back of the 193 responses, it has said the exercise will inform its work on how to utilise dispute resolution processes to “deliver swifter, more cost-effective and more consensual access to justice”.

For now, there are a number of interesting themes arising out of the report which we explore in more detail below.

Theme one: the knowledge gap must be addressed

The MoJ reported that a number of respondents testified to parties’ lack of awareness about dispute resolution processes, due to a lack of publicly available information. These respondents called for greater public education by emphasising the vital role of government in making information and guidance about dispute resolution options available on its official channels.

Supporting a greater need for further education, respondents identified a range of common misconceptions about dispute resolution which form a barrier to engagement. That included mediation being perceived as a tick box exercise before applying to court and therefore preventing parties “viewing the process as a serious route to a sustainable solution”.

Many respondents stipulated that the judiciary could do more to endorse and encourage engagement with dispute resolution by way of more rigorous cost sanctions for non-compliance with protocols, in addition to using “softer incentives” such as more visible guidance.

Theme two: the benefit of flexibility and ownership of outcomes

One of the strongest themes across case types was the capability of dispute resolution processes to produce more creative and flexible solutions, especially those designed by the parties themselves. Of particular significance to organisations and businesses, a vital element of this capability was the opportunity for wider learning and therefore improvements. Respondents empowered to create their own resolution were "more likely to take ownership of that settlement, which ultimately increased the likelihood of compliance".

Theme three: the importance of data collection and user feedback

The evidence highlighted the need for more data in order to understand and compare the quality of outcomes available through litigation and dispute resolution processes.

Respondents consistently advocated that qualitative user feedback on dispute resolution processes is crucial to understand whether the parties were satisfied with the process and outcomes. Further, some participants considered that if this data and research were made publicly available, engagement and public confidence with dispute resolution would improve.

Theme four: the role of technology - there is still a way to go

The ongoing development and use of technology was identified as a way to increase accessibility of dispute resolution.

In the context of responding to the COVID-19 pandemic, many respondents spoke about the increased application of technology – notwithstanding that the settlement rates had stayed the same.

An overwhelming majority acknowledged that online dispute resolution was logistically much simpler, easier and cheaper for geographically dispersed participants, particularly where one or both the parties reside overseas. On the other hand, access to technology, reliable internet, or a private place to take a video call were identified as risks.

Specifically, the use of artificial intelligence (AI) was generally understood by respondents in one of two ways:

The use of AI before dispute resolution takes place: This was generally viewed positively with respondents demonstrating situations where AI could usefully augment online disputes, for instance in relation to administrative/guided pathways such as referrals to appointments, payments, coordination and attending meetings.
The use of AI to resolve disputes: The concept of utilising AI to replace mediators was viewed negatively on the whole. Integral to this were concerns around the loss of personal interaction and lack of transparency of how AI makes decisions, as well as potential bias in design.

Overall, some respondents - which will have included Kennedys - were positive about using AI to resolve disputes, highlighting the potential of AI platforms.

What does the future hold?

Notwithstanding the progress already made within the HM Courts and Tribunals Service (HMCTS) reform programme, a perfect storm of circumstances seems to have converged, driving a push towards embracing and harnessing the full potential of technological solutions.

In addition, Sir Geoffrey Vos, Master of the Rolls and Head of Civil Justice, has advocated three clear objectives: (i) an online court-based dispute resolution system, (ii) pre-action protocols to “help disputes enter the court system only when they really need to do so” and (iii) digital-integration of alternative dispute resolution (ADR, or DR) within dispute resolution. As such, it is clear that the direction of travel has been set.

However, as the evidence indicates, there is some way to go to remove the barriers identified. The need for greater awareness and public education must be central to that mission, with the government taking a central role – especially with regard to more vulnerable parties. The importance of data collection and user feedback also needs to be central to future planning and there remains the need to drive a cultural shift away from the need of some to have their ‘day in court’. All these issues will need to be addressed in order to realise the aim of utilising dispute resolution processes to “deliver swifter, more cost-effective and more consensual access to justice”.

In terms of the timetable, Sir Vos announced in February 2022 that forthcoming legislation will create broad pre-action protocols and a general litigation portal. Embedded in that process will be regular ADR prompts. Similarly, work also continues around preparing rules which will enable the court to order the parties to engage in ADR. The detail of those policy proposals is, therefore, awaited with interest.

Read other items in Legacy Disease Brief - April 2022