Coimbra, Portugal (online)
Panel discussion: Innovation & ADR/ Inovação e ADR: Friday 9 October 2020
Please read the text of Tony Guise’s speech at the Xth International Arbitration Meeting held in Coimbra recently. The pressing issue of integrating ADR into Civil courts, the importance of learning the lessons of history as well as DEF’s development of the ADR Exchange are all touched upon.
I am honoured and delighted to be speaking as a perhaps dimmer light amongst otherwise stellar speakers. Sadly my delight is matched by my disappointment in not being physically in the wonderful city of Coimbra today.
This talk is prepared from the perspective of an English Common Lawyer with increasing familiarity of ADR as practiced in other jurisdictions.
My contribution is grounded in a law reform agenda originally developed by Jeremy Bentham.
I seek to share with you today perspectives of civil justice in which ADR is integrated in court processes around the world and delivered by 21st century (not 20th century) technology enabling the citizen to access justice cost-effectively and quickly.
I do so by drawing on the long history of such aims with the intention of showing how tools readily to hand can solve the everyday problems we confront.
Causes and effects
The Preface to Charles Dickens’ Bleak House
Charles Dickens wrote this preface to his famous novel, Bleak House:
At the present moment (August, 1853) there is a suit before the court which was commenced nearly twenty years ago, in which from thirty to forty counsel have been known to appear at one time, in which costs have been incurred to the amount of seventy thousand pounds [today: €9,861,612], which is A FRIENDLY SUIT, and which is (I am assured) no nearer to its termination now than when it was begun.
This miserable situation came about because of a perfect chaos of different rules in different courts each competing for attention which led to the Backlog described so well on this oft-overlooked preface to Bleak House.
155 years later Justice delayed remains an ever present curse. Mark Twain wrote,
History does not repeat itself, but it often rhymes.
The world’s justice systems respond to COVID-19
In many if not all jurisdictions around the world the Pandemic has exposed issues with the delivery of Justice causing delays and the failure of successive Governments to invest enough in building a deep and effective IT infrastructure for Courts. Those Courts that have effective IT (e.g. the Business and Property Courts in England & Wales) have a reported 85% of normal business being transacted.
Those Courts that do not have any IT infrastructure, for example the County Courts in England & Wales (where most of the 2.1m cases issued every year in England and Wales take place), are suffering a rising Backlog that threatens to overwhelm the Courts.
In the 19th Century the solution was arrived at only after almost 75 years of Inquiries and Commissions to explore what should be done. Eventually the UK Parliament took control and passed the Judicature Act, 1873. This rationalised the structure of the Courts in England and Wales, removed the Backlogs and enabled the citizen to access Justice in a timely and cost-effective way.
155 years later history is, if not repeating itself, then certainly rhyming.
The Pandemic is an incendiary accelerant for the Courts’ natural tendency to ossification.
Within a short time of Lockdown two things began to occur almost simultaneously:
- Whether Backlogs existed before Lockdown or not Backlogs developed or grew almost as fast as the spread of the virus; and,
- Overnight the hesitant piloting of video-conferencing was ditched in favour of all-out embrace – the New Normal of video enabled hearings came to be.
In England and Wales we have witnessed more justice reform in 6 months than in the whole of the previous 6 years put together. Remarkable what a Pandemic can do! But how much of this is truly innovative?
The Pandemic required an imaginative response and video conferencing was it, and to a large extent, remains it. However, as Sir Geoffrey Vos (E&W’s Master of the Rolls from January 2021) said recently “video-conferencing is old hat”.
The point he makes is that video conferencing (useful though it undoubtedly is) can only replicate the existing process of the Courts. It is not innovative.
In the same speech Sir Geoffrey called for much greater use of ADR and much greater integration of ADR in the Court process.
The fusion of the Common Law and equity in 1873 sought to mitigate the Common Law’s delays and harsh approach. In 2020 the widespread adoption of ADR comes from similar recognition to similar ends.
Innovation brings benefits for the many
In April 1956 a refitted oil tanker carried 58 shipping containers from Newark to Houston. From those modest beginnings container shipping grew into a huge industry that re-shaped the world economy. As Marc Levinson describes so vividly in his book “The Box” (2nd edition, 2016) this led, via a tortuous path, away from the loading and unloading operations enabled by tens of thousands of workers to the computer powered container freight industry of today. In doing so it led to the boom in globalisation that was seen in the second half of the 20th century.
Change begets change and innovation continues apace in the freight industry. Now there are Electronic Data Interchanges (EDIs) facilitating Freight/Shipping Exchanges and distributed ledger technology for connecting freighters with shippers.
In another aspect of the freight journey EDI manages the passage of freight to and transit through ports onward to final destination. Take a look at TradeLens: https://www.tradelens.com/ which is tracking and enabling the faster movement of global freight. Tradelens is moving that industry from a linear model to a Platform based business model.
I believe there is much in the innovation of containerisation that can be applied to ADR with great benefit to justice systems and citizens around the world. The delivery of ADR today is in many countries akin to the bespoke loading operations of Longshoremen – skilled but slow, thorough but expensive.
At present in so many countries ADR is a Cottage industry with low case numbers and processes reliant upon 20th century technology such as the telephone, email and lever arches stuffed with paper. I believe we are now on the cusp of change much as global freight shipping was in 1955.
20th century methods create a Grand Bottleneck that inhibits rapid deployment of ADR. DEF is developing the ADR Exchange to remove the Grand Bottleneck and deliver rapid access to resolution which is sorely needed in civil courts across the world.
Professor Sue Prince at Exeter University recently told me in conversation that she considered the virus was inhibiting the Backlog as all sides to a dispute recognised the problems caused in supply chains by the virus and parties were accommodating, rather than arguing, disputes. That will change as patience, and cashflow, wears thin.
Driving change toward the Next Normal
The Climate Emergency
In all the long history of world crises this time is truly historic for experiencing not one but two world crises: COVID-19 and the Climate Emergency.
One of the greatest contributors to climate change in ADR has been air travel. Following the onset of the Pandemic air travel stopped overnight.
For the same reason Arbitral and other ADR institutions rapidly began to embrace Cloud based Platforms for the management of cases from commencement to conclusion. Paper is both a spreader of the virus AND a source of carbon emissions but with Cloud based ADR management Platforms air travel and paper use are both dramatically reduced.
The Greener Arbitrations Campaign was founded by Lucy Greenwood, C.Arb in 2019. A broad-based movement promoting awareness of contributors to carbon emissions in ADR. I am proud to say I am a member of the Steering Committee along with others from across the world and across the arbitration community.
In the space of a few short months much has been achieved:
- A website has been developed (https://www.greenerarbitrations.com/) as a hub of resources and information about the Campaign.
- Protocols have been developed and will shortly be launched to guide practitioners, arbitrators, Institutions and conference organisers in best practice to minimise their carbon emissions and change procedures.
- A survey was undertaken by the law firm Decherts based on their arbitration practice. This is being taken further and a bigger survey is in development the results of which will inform future initiatives. The survey is here: https://docs.google.com/forms/d/e/1FAIpQLScX_xPTgsOeXFfJhR-nbjSe5hP1XjZIvP0Fx8Shey7RzWabAg/viewform?vc=0&c=0&w=1&flr=0
Please take a few minutes to complete it and contribute to this important study.
Change begets change.
Backlogs and the Tsunami of Litigation
Some jurisdictions are well used to Backlogs and are attempting to address those through specific measures. Typically they involve structural change integrating ADR into the justice system to divert cases away from the Courts.
Large volumes of ADR managed via 20th century technology and video conferencing do nothing to increase Court capacity and Bust Backlogs. How have other jurisdictions approached this dilemma?
Lessons from other jurisdictions
Amongst the first nations to introduce compulsory mediation information sessions to explore whether mediation would succeed. This has been spectacularly successful; reducing their Backlog and that was before the Pandemic struck so hard in Italy.
Turkey first started with compulsory mediation for Labour disputes. This has since been expanded to Commercial disputes. All managed via an online Platform and regional Mediation Bureaux.
After a number of attempts to introduce mandatory mediation information meetings Greece enacted Law 4640 of 2019 requiring these. This was implemented for Family Law cases on 15 January 2020. 4640 was due to be implemented for contract and tort cases (up to €30,000 in claim value) on 15 March but implementation was postponed due to Greece’s Lockdown. This is now anticipated for early 2021.
Faced with an ever increasing Backlog that includes cases almost as long-running as Dickens’ Jarndyce v Jarndyce there have been calls for greater integration of IT and ADR with data capturing capabilities so as to inform future reforms and mandatory so as to clear their Backlog.
In the State of Lagos this led to the introduction, in 2019, of a Practice Direction entitled “Backlog Elimination”.
New York State
A system called Presumptive Mediation was introduced in 2019 which has been successful. So much so that the pro bono mediators running the scheme cannot handle any more volume. Consequently there is a call to create a professional cadre of mediators paid by the State to manage the huge volume of cases via an online platform.
England & Wales
On 17 September 2020 the Judiciary and Government issued the now famous Guidance in Possession cases urging citizens to: “Avoid Court”!
Part of this Guidance includes an explanation of a new procedure integrated in the Court process for possession claims known as the Review Day. At this event the parties are encouraged to settle the issues either by themselves or by using mediation. Judges have been told that it is in order to dismiss cases where such attempts have not been made.
The first review Day takes place on 19 October and every day thereafter. If successful I expect the concept will be rolled-out across all civil claims.
Like containerisation innovation does not happen in vacuum. Innovation and ADR involves legislative, regulatory and technological change but most of all – a willingness to change by neutrals, practitioners and parties alike.