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The idea of a litigator brings to mind images of Daniel Kaffeeand Atticus Finch (or maybe even Elle Woods) dexterously defendingthe interests of their clients.

While some litigation may still reflect such nostalgia, theintroduction of online courts has largely substituted collegialargument before the Honourable court with a series of drop downmenus and 2.00pm cut off times.

Litigants may feel separated from their opponents and decisionmakers, but the OLC (online court) has by no means supplanted thedispute resolution process. In this article, we consider how therise of ODR (online dispute resolution) has affected otherjurisdictions and how it will likely affect practice at home.

ODR has been present on a completely automated level for sometime.

Various online merchants, including eBay and Alibaba, have AI(artificial intelligence) keeping the wheels of justice turning inrelation to minor customer disputes.

As early as March 2015, in Zhejiang, China, the highest localcourt piloted an online court designed to resolve disputes ine-commerce, with a view to facilitating resolutions "asconvenient as online shopping". China is widely implementingdigitalisation to increase case-handling efficacy within itsexpansive court system using both AI and technological outfits,including blockchain and the backing of cloud computing. Thisincludes a mobile based court, housed on prolific social mediaplatform WeChat. The platform has already handled more than threemillion proceedings since its introduction in March 2019.

While technically the alternative dispute resolution system ononline merchant platforms is a modified form of arbitral processagreed by a clickwrap contract entered into on signing up as amember, such systems appear to have been relatively effective atdealing with low level online disputes (much like the medieval lawmerchant developed to resolve disputes quickly and practicallybetween people attending at markets and fairs from different landsspeaking different languages, similar to the informal"legal" systems developed by pirates in the 17th centuryto divide captured loot).

In British Columbia, the CRT (Civil Resolutions Tribunal) hasbeen introduced in an effort to relieve pressure on the highercourts by filtering out a significant volume of the smallerdisputes.

The CRT represents a free dispute resolution tool which requiresthe parties to engage in mediation at first instance, prior toprogressing to commence proceedings. Mediation fails in only areported two percent of cases. Litigated claims are almost entirelydealt with on the papers through the CRT, though the parties mayrequest an oral hearing via telephone or video link.

Other jurisdictions, including the UK, have been encouraged bythe success of the CRT and have pledged resources to developingapplicable ODR platforms to facilitate a much needed alleviation onthe stressed court system.

UK policy advocates have foreshadowed online dispute resolutionclauses in smart contracts, particularly in financial services.

Smart contracts are designed to enable transactions andagreements to be effected between disparate, often anonymousentities, without needing a central authority, or, presently; anexternal enforcement mechanism.

At the other end of the spectrum, a team of academics havedeveloped a bot fluent in AI that is apparently capable ofpredicting judgments made in the European Court of Human Rightswith a (fairly respectable) 79% accuracy rate.

Quite what the utility of this bot in the real world might beremains to be seen, but the benefit of any advanced form of AI isthat it intuits both its successes and failures and adaptsaccordingly via an algorithmic iterative learning process.

Legal AI, the Voldemort for some in the legal world, is likely away off from being implemented in Australian ODR.

However, there are promising applications of AI in certain areasof law, particularly those that involve a tangible prediction taskfor which there is a large volume of data available.

An example of this is the algorithm developed by Kleinberg etal, which was able to predict which bail applicants were likely tocommit a crime upon release. When the AI based application was setto the same release rate as the judges, the algorithm's choicesof applicants to release on bail committed 24.7% fewer crimes thanthose selected by the judges. The computer program only relied onthe defendants' age and charges in making its judgment, whilethe judges engaged with the defendants in open court.

It should be noted that AI based criminal sentencing is thesubject of significant human rights concerns in the UK and the USand it is unlikely that the Australian legal system will adopt it(especially in light of the political issues relating to apparentmistakes in the Australian government's AI based collection ofalleged overpaid welfare), but in commercial law things are likelyto be quite different.

The Federal Court of Australia has produced a machine learningconcept, reliant on AI, designed to aid parties to divide assetsand liabilities following a separation.

Such a division is usually debated at length (and cost) byfamily lawyers, however, the Federal Court is testing with what ithas named the "FCA Consent Order AI Application" toassist parties to determine a more accurate split likely to obtainthe Court's approval. The costs reductions inherent will likelymake this attractive to parties.

The current developments in AI are aimed at removing task-basedfunctions of the court and the judiciary, rather than replacing thejudicial function.

While we do not anticipate that we will be beholden to JudgeDredd any time in the immediate future, the digitisation of thelegal function has started to infiltrate our systems and the way inwhich we conduct dispute resolution. Litigants are not merelyobliged, but incentivised to adapt and engage with the newstructure.

Toby Blyth

Maddison Ives

Alternative dispute resolution

Colin Biggers & Paisley

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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