Australian Centre for Justice Innovation

Civil Justice Research Online

Access to Justice

2015

Justice and Technological Innovation

Tania Sourdin
Monash University

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Sourdin, Tania, "Justice and Technological Innovation" (2015). Access to Justice. Paper 42.
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 Justice and Technological Innovation

Tania Sourdin1

Introduction

Changing and emerging technologies have considerable relevance to the continuing evolution of judicial
processes and the justice system in general.2 There are three main ways in which technology is
reshaping the justice system. First, and at the most basic level, technology can assist to inform, support
and advise people involved in the justice system (supportive technology). Second, technology can
replace functions and activities that were previously carried out by humans (replacement
technologies). Finally, at a third level, technology can change that way that Judges work and provide for
very different forms of justice (disruptive technology), particularly where processes change
significantly. In this context, technology can also inform justice system reform through the use of big
data sets, relationship data and more complex knowledge generation. This paper considers each of
these differing levels of technological change as well as the current and potential impacts on the court
and justice processes.

At present, most technology-related justice reforms have involved the first and second level of
technological innovation. These reforms have supported and supplemented the operation of many court
based processes. For example, at the first level of innovation, many people now locate justice services
online and obtain information about justice processes, options and alternatives (including legal
alternatives) through web-based information systems. People also increasingly locate and obtain legal
support and services online and the growth of online legal firms who may provide unbundled legal
services has been significant over the past three years.3

Some web-based information (including digital video), video-conferencing (including internet-based

group video calls4), teleconferencing and email can supplement, support and replace many face-to-face
in court and dispute resolution approaches and could be defined as a second level technological
approach. At this second level, justice is supported by technology and in some circumstances technology

1Professor of Law and Dispute Resolution, Monash University. Director of Australian Centre for Justice Innovation (ACJI). Parts of this paper are
drawn from T.Sourdin, Alternative Dispute Resolution, (5th ed, 2016 forthcoming, Thomson Reuters). Thanks to Lisa Wulsohn, senior researcher,
ACJI for her background research and editing inputs.

2 See two papers (2012) used to support deliberations by Australian Attorney Generals, available on
http://webarchive.nla.gov.au/gov/20141215115054/http://www.lccsc.gov.au/sclj/archive/former_sclj/standing_council_publications/2012_pu
blications.html (accessed 5 September 2015).
3 See for example Lawyal, available on https://lawyal.com.au/about-us. Unbundled legal service provision involves assistance with set tasks.

That is a lawyer may be engaged to assist to prepare some documentation.

4 Group video calls are available through subscription services such as SkypeTM. Users require a high-speed broadband connection and must

meet device hardware and software standards. See http://www.skype.com/en/features/group-video-chat/ (accessed 27 April 2015).

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changes the environment in which Alternative Dispute Resolution (ADR) and court hearings take place.5
For example, online court processes are increasingly used in some types of disputes and in relation to
criminal justice matters (particularly bail applications).

Other technologies may merge into the third level and support negotiation as well as judicial processes
by enabling people to access more sophisticated online advice that is supported by Artificial
Intelligence (AI) or to consider options and alternatives or engage in different ways. In contrast to the
traditional rational decision-making approaches, some of these more sophisticated technological
programs are designed to encourage the development and refinement of a number of options (rather
than producing one outcome).6 These areas of technological innovation, at the third level, have the
capacity to be more disruptive than previous innovations that supported a graft and grow approach
and assumed that ADR and judging processes would not change in the context of their basic procedural
stages.

Supportive Technology

Many supportive technologies are directed at supporting an understanding of and engagement in the
justice system. For example, some courts now use Facebook, Twitter, LinkedIn and YouTube to engage
with disputants about court activities and dispute resolution and to support dispute avoidance and self-
managed negotiation strategies.7 In addition most ADR and court services use websites to inform and
support those involved in court activities and may reach out to others via social media. The extent to
which websites and applications or apps are used may vary according to the technological capacity
and maturity of the main users of the services.

A variety of websites support justice services and can be considered as supportive technologies. These
websites enable people to access information about courts and file documents. Some court websites
offer online forms and follow up email and related request support. It is likely that websites will become
more sophisticated in the future and increase in number. In the context of other supportive
technologies, apps have become an increasingly popular way of accessing information and connecting to
services over the past five years. A variety of apps have been created that provide people with free
access to legal information and advice. This is a significant area of development as apps may support
those who are comfortable with smartphones and mobile devices but intimidated by or unable to access
computers.8

5 See for example procedural changes in relation to ODR in the arbitration area, available on http://acica.org.au/resources/draft-procedural-
order-for-use-of-online-technologies (accessed 5 September 2015).
6 See, eg, Smartsettle, available on http://www.smartsettle.com/home/products/smartsettle-one/ (accessed 30 April 2015). It has been said

that collaborative platforms, such as GroupMindExpress.com, are likely to be used more frequently in large multi-party disputes where
information and participants are plentiful: see A Gaitenby, Online Dispute Resolution in The Internet Encyclopedia (John Wiley & Sons Inc, 2004)
Vol 2, p 745, available on http://www.onlinelibrary.wiley.com/doi/10.1002/047148296X.tie129/full (accessed 30 April 2015).
7 http://gov2.net.au/blog/2009/12/31/guest-post-the-victorian-department-of-justice-and-web-2-0/#more-1750 (accessed 13 September

2013).
8 See J Dysart, 20 Apps to Help Provide Easer Access to Legal Help (2015), available on

http://www.abajournal.com/magazine/article/20_apps_providing_easier_access_to_legal_help/ (accessed 11 May 2015).

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A large number of legal information and services apps have emerged in the United States of America.
For example, Ask a Lawyer: Legal Help enables people to message and chat live with lawyers for free.9
Another American app, BernieSez, allows consumers to upload a photograph a ticket or other charge-
related paperwork. Lawyers then compete to win work from the consumer, offering their fees upfront.10

Legal apps have also emerged in Australia. For example, Legal Aid South Australia has created an app
called LegalAidSA. The app is free to download and provides legal information and resources on a wide
range of areas, including family law, wills and motor vehicle accidents. The app facilitates calls to free
legal help telephone lines and provides travel directions to South Australian Legal Aid offices.11 Apps are
an especially useful tool for communicating to young people who commonly use their smartphones to
access information. Victoria Legal Aid, in conjunction with a number of interstate Legal Aid bodies,
created an app named Below the Belt. Below the Belt provides young people with legal information
about sexual offences and cyberbullying.

Legal research apps and websites are also relevant. Some examples include Austlii and HeinOnline. A
variety of more general apps are also available for lawyers. These include apps that convert voice to
text, count days and manage documents. Many apps have the potential to support courts by either
providing resources that assist in understanding justice issues or supporting information about options
and alternatives.

Replacement Technologies

The last decade has seen a significant growth in replacement technologies. These technologies can
replace certain interactive parts of justice processes. As with supportive technologies, replacement
technologies can have an impact on how complex disputes are managed and resolved. For example,
many sophisticated technologies exist that can organise paperwork and files in disputes to simplify and
reduce the time necessary to review and analyse files.12 Within Australia replacement technologies have
continued to develop rapidly in some selected dispute areas. This has occurred as a result of a healthy
justice environment, robust e-environment and the extension of higher bandwidth via new broadband
arrangements. The new broadband arrangements will continue to expand as a result of the NBN
rollout,13 and newer technologies that support Wi-Fi remote operating options. Are likely to increase the
potential for replacement technologies. Over the past decade there has been considerable growth to
support more complex interactive technologies. For example by 2014, 99 per cent of internet

9 See https://play.google.com/store/apps/details?id=com.absmallbusinessmarketing.askalawyer&hl=en (accessed 11 May 2015); J Dysart, 20

Apps to Help Provide Easer Access to Legal Help (2015), available on
http://www.abajournal.com/magazine/article/20_apps_providing_easier_access_to_legal_help/ (accessed 11 May 2015).
10 See http://www.berniesez.com/ (accessed 11 May 2015); J Dysart, 20 Apps to Help Provide Easer Access to Legal Help (2015), available on

http://www.abajournal.com/magazine/article/20_apps_providing_easier_access_to_legal_help/ (accessed 11 May 2015).

11 Legal Services Commission of South Australia, Whats New: LegalAidSA, available on

http://www.lsc.sa.gov.au/cb_pages/news/LegalAidSAdownloadoverview.php (accessed on 11 May 2015).

12
Stratify, Stratify Legal Discovery 6.0 Service Expands Discovery Capabilities and Increases Attorney, available on
http://technology.findlaw.com/electronic-discovery/stratify-legal-discovery-6-0-service-expands-discovery.html (accessed 13 September 2015).
13 See T Sourdin and C Liyanage, ODR in Australia (Chapter 7) in MS Abdel Wahab, E Katsh and D Rainey, Online Dispute Resolution: Theory and

Practice A Treatise on Technology and Dispute Resolution (Eleven Publishing, Egypt, 2011). See also Department of Communications, National
Broadband Network, available on http://www.communications.gov.au/broadband/national_broadband_network (accessed 30 April 2015).

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connections were broadband.14 As internet capacity and usage increases, it is likely that the relevance of
replacement technologies will continue to increase.

In the ADR context, these replacement processes are often referred to as Online Dispute Resolution
(ODR). For example, technology may be used to replace face to face conferences with videoconferences.
The increasing engagement of government institutions with systems of ODR is indicative of its promise
as a dispute resolution system.15 However, much of the growth in ODR in Australia has been directed at
first-tier complaint handling mechanisms for e-commerce and consumer-based schemes or mixed
supportive and replacement technologies.16 For example, Consumer Affairs Victoria (CAV) provides a
partial ODR environment with support packages for consumer disputes, online lodgements for
complaints, and dispute resolution mechanisms that are offered using both online and offline
methods.17 There are also some court based schemes that are developing and trialling these
technologies.

Numerous consumer disputes are addressed using only online dispute resolution. Modria is one of the
largest commercial operators in this area and mainly focuses on US business.18 These systems that
mainly deal with consumer disputes and specialise in large-scale operations, such as Modria, have
dealt with more than 400 million disputes. The eBay and PayPal online systems deal with
approximately 60 million matters per year.19

These systems are expanding rapidly, particularly in Europe, following the establishment of the EU ODR
regulation. This extensive system has already been set up in some European countries and deals with
consumer disputes.20 Importantly, both the directive on consumer ADR (Directive 2013/11/EU of 21 May
2013) and a Regulation on Consumer Online Dispute Resolution21 published in July 2013 have led to
additional commentary about ODR.22 EU member states had 24 months to transpose the regulation into
national legislation (that is by mid 2015) and a further 6 months for ODR platforms to become
operational (that is by early 2016). It is unclear how well the operation will work, particularly given the

14 ABS, Internet Activity, Australia, December 2014 (Report, ABS, 2014), available on
http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/8153.0Main%20Features1December%202014?opendocument&tabname=Summary
&prodno=8153.0&issue=December%202014&num=&view= (accessed 7 May 2015).
15 The adoption of ODR by government institutions, or the institutional phase, is recognised as the fourth phase in the adoption of ODR,

taking it beyond the earlier hobbyist, experimental and entrepreneurial phases. See M Conley-Tyler, 115 and Counting: The State of ODR
(Paper presented at the United Nations Third Annual Forum on Online Dispute Resolution, Melbourne, 5-6 July 2004), available on
http://www.ombuds.org/unforum2004/ConleyTyler.htm (accessed 30 April 2015).
16 See M Conley-Tyler, 115 and Counting: The State of ODR (Paper presented at the United Nations Third Annual Forum on Online Dispute

Resolution, Melbourne, 5-6 July 2004) note 24, available on http://www.odr.info/unforum2004/ConleyTyler.htm (accessed 30 April 2015); M
Conley-Tyler and M McPherson, Online Dispute Resolution and Family Disputes (2006) 12(2) Journal of Family Studies 7, note 13, available on
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1032743 (accessed on 30 April 2015).
17 See Consumer Affairs Victoria, available on http://www.consumer.vic.gov.au (accessed 30 April 2015).
18 See https://www.modria.com/ (accessed 12 September 2013).
19 See https://www.modria.com/ (accessed 12 September 2013).
20 See a discussion of these developments at http://www.infolaw.co.uk/newsletter/2013/01/online-dispute-resolution/ (accessed 12

September 2013).
21 Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:165:0001:0012:EN:PDF (accessed 21 September 2015)
22
In the United Kingdom a report Department for Business, Innovation and Skills, Alternative Dispute Resolution for Consumers (Report,
Department of Business Innovation and Skills, 2014) available at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/377522/bis-14-1122-alternative-dispute-resolution-for-
consumers.pdf (accessed 21 September 2015) sets out material relating to the UK response. In March 2015, government regulations were
published which included requirements for traders to provide certain information to consumers regarding ADR by 9 July 2015.

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very different legal system parameters in various European countries.23 The UK has already begun the
implementation process.24

It is likely that ongoing developments in this area will be informed by both local and international
developments. At the local level, developments supporting ongoing reforms have been supported by the
recent Productivity Commission Report25 as well as work by the Australian Centre for Justice Innovation
(ACJI) work on Timeliness.26 Many Australian courts have also embraced replacement technologies.
Those within the litigation system have noted that technological changes are dramatically transforming
the way in which dispute related work is carried out partly because much of the preparation work
before a hearing will be carried out online.27

Within the court system, e-callovers,28 e-filing,29 video conferencing and applications30 are now
commonplace in many jurisdictions. Technology courts, virtual courts or cyber courts now exist in many
jurisdictions,31 and the presence of such initiatives may produce more participatory court processes as
well as better communication and document management. The Federal Court of Australia, for example,
developed the eCourt forum as early as 2001.32 This forum is a virtual courtroom that assists in
interlocutory matters and allows for directions and other orders to be made online. It may also be used
in mediations, where these are directed by the court and conducted by one of the registrars.33 The
eCourt enables updated online conversations to take place and protocols have been developed to assist
users and the court. Other changes have occurred in the handling, collation and storage of information
and in the way that research occurs. The information available online increases access to court systems
and can assist parties to observe and understand what takes place within the court system.

Internationally, recent work in the United Kingdom by the Civil Justice Council (CJC) 34 is likely to
influence future developments in the justice sector. This will in turn impact on both the courts and the
ADR sectors. The CJC Online Dispute Resolution for Low Value Civil Claims report addresses concerns
that the current court system of England and Wales is too costly, too slow, and too complex, especially

23 See P Cortes, The impact of EU law in the ADR landscape in Italy, Spain and the UK: time for change or missed opportunity? (2015) 16(2) ERA
Forum 125.
24 The UK government has transposed the core provisions of the ADR Directive through the Alternative Dispute Resolution for Consumer

Disputes (Competent Authorities and Information) Regulations 2015 and the (Amendment) Regulations 2015.
25 Productivity Commission, Access to Justice Arrangements (Report No 72, Productivity Commission, Australia, 2014).
26 See Australian Centre for Justice Innovation, The Timeliness Project: Background Report (Report, ACJI, 2013) and Australian Centre for Justice

Innovation, Innovation Paper on Timeliness (Report, ACJI, 2015).

27 Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation. Technology What it Means for Federal Dispute

Resolution (Issues Paper No. 23, ALRC, 1998).

28 For example, New South Wales Land and Environment Court.
29 For example, Federal Court of Australia.
30 Bail applications are commonly carried out by video in the Supreme Court of New South Wales.
31 See Hong Kong Judiciary, Technology Court, available on http://www.judiciary.gov.hk/en/crt_services/tech_crt.htm (accessed 17 September

2015).
32 See Federal Court of Australia's eCourt, available on http://www.fedcourt.gov.au/online-services/ecourtroom (accessed 30 April 2015); the

legal basis for the operation of the Federal Court's eCourt is provided by the Federal Court of Australia Act 1976 (Cth). See P Kellow, The
Federal Court of Australia: Electronic Filing and the eCourt Online Forum (2002) 4 University of Technology Sydney Law Review 123, available
on http://www.austlii.edu.au/au/journals/UTSLRev/2002/8.html (accessed 30 April 2015).
33 B Tamberlin, Online Dispute Resolution and the Courts (Paper presented at the United Nations Third Annual Forum on Online Dispute

Resolution, Melbourne, 5-6 July 2004), note 14, available on http://www.ombuds.org/unforum2004/tamberlin.htm (accessed 30 April 2015).
34
CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 3.

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for litigants in person.35 The CJCs central recommendation relates to replacement technologies with
the establishment of a new internet-based court service for civil disputes with a value of less than
25,000.36 The CJC estimates that the new court, the HM Online Court (HMOC), could be launched in
2017.37 The CJCs recommendations are similar to those of the European Unions Regulation on
Consumer ODR.38

The CJC recommended that the HMOC consist of three tiers.39 The first tier, Online Evaluation, is
primarily informative. It provides an online assessment of a grievance to classify and categorise the
problem. This online evaluation also educates users about their rights, obligations, options and available
remedies.40 This stage is free of charge. If problems are not resolved through Online Evaluation, users
can proceed to the second tier, Online Facilitation.41 Online Facilitation provides parties with access to
professional online facilitators who can mediate, advise and encourage negotiation. This involves a mix
of ADR and advisory techniques, with telephone conferencing facilities available where necessary. The
outcomes are not binding. Users will pay a court fee that is significantly lower than the fee charged at
the third tier.42 The third tier, Online Judges, involves online judicial determination of cases. Decisions
made by the online judges are binding and enforceable, as though they were made in a traditional court.
Decisions will be largely based on electronically submitted papers and where necessary, telephone
conferences. A fee will be imposed; however it will be significantly lower than the fee imposed by a
traditional court.43

The three-tiered online dispute resolution system is intended to provide a more cost efficient approach
to justice. The CJC explains that:

Cases are handled by lower cost facilitators rather [than] judges and those cases that
do reach judges will be handled at less expense because they will not involve court
buildings with their associated operating costs.44

Disruptive Technologies

The third level of technological change consists of technologies that may significantly change ADR and
judicial processes. Newer technologies may enable options for resolution to be developed via
technology and use artificial intelligence to develop alternatives and run processes. In this regard, some
disruptive technologies are linked to Artificial Legal Intelligence (ALI) which can be viewed as a form of
dispute resolution or a system that has the capacity to render expert advice or decision-making. Artificial

35 CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 3.
36 CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 3.
37 CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 29.
38 CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 27.
39 CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 6.
40
CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 19.
41 CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 19.
42 CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 20.
43 CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 20.
44
CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 20.

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Intelligence (AI) refers to computer systems that perform tasks and/or solve problems that usually
require human intelligence.45 These processes have emerged over the past 50 years46 and have been
directed at technical as well as legal analysis.47 They have the capacity to be blended with existing
adjudicatory or non-adjudicatory processes. However, it is most probable that their impact will be most
significant where determinative and advisory processes are used.

Legal information and AI systems can use sophisticated branching and data searching technology to
create elaborate decision trees that can suggest outcomes to disputes. This is done by a system which
emulates human intelligence (neural networks). 48 Essentially, what takes place is that the system asks
the user a number of questions, or uses existing data about the user and questions about the dispute to
enable an accurate description of the dispute to be built. The computer then forms a conclusion by
applying the law to the dispute description. It does this by applying rules for specific sets of facts. Finally,
the computer can perform tasks based on the description given.49 This process may enable indicative
decisions to be expressed.

Branching technology that is not rule-based was used in a project of the Intelligent Computing Systems
Research conducted by La Trobe University and Victoria University (called Split-Up). The project, led by
Prof Zeleznikow, determined that there are 94 factors relevant for a percentage split decision, was
directed at applying AI to assist in calculating the division of property in family law proceedings.50 Split-
Up, a hybrid rule-based neutral network system that grew out of this research, offers advice on how a
property is likely to be distributed if the matter was to be determined by a court. It has been trialled by
some judges, judicial registrars and registrars of the Family Court of Australia as well as legal
practitioners, mediators and counsellors. A more advanced approach, which is oriented at supporting
negotiation, is called FamilyWinner.51

A 2004 paper, Supporting Discretionary Decision Making with Information Technology: A Case Study in
the Criminal Sentencing Jurisdiction, highlights some of the benefits, risks and disadvantages of the
model that require acknowledgment and management. The model's benefits are its ability to support
consistency in interpretation of the law, boosting public confidence in the legal system, allowing
decision transparency, promoting better community understanding of the law, and providing accessible
and cost-effective advice as to potential outcomes. Further benefits are the model's usefulness in
training judges, magistrates, legal counsel and law students.52 Potential limitations of the model are:

45 R Susskind, The Future of Law: Facing the Challenges of Information Technology (Clarendon Press, Oxford, 1996) p 120.
46 For a history of the development of ALI, see P Gray, Artificial Legal Intelligence (Brookfield, Dartmouth, United Kingdom, 1997) Ch 2.
47
P Savasdisara, Computer-assisted Legal Analysis Systems: Part 1: The Origins of Computer-aided Support Systems (1994) 5(2) Computers and
Law 28.
48 See for example NB Chaphalkar, KC Iyer, SK Patil, Prediction of outcome of construction dispute claims using multilayer perceptron neural

network model (2015) International Journal of Project Management (in press).

49 P Savasdisara, Computer-assisted Legal Analysis Systems: Part 1: The Origins of Computer-aided Support Systems (1994) 5(2) Computers and

Law 28.
50 See Victoria University, Professor John Zeleznikow, available on http://www.vu.edu.au/contact-us/john-zeleznikow (accessed 30 April 2015).
51 See J Zeleznikow and E Bellucci, Family Winner: Integrating Game Theory and Heuristics to Provide Negotiation Support, available on

http://www.jurix.nl/pdf/j03-03.pdf (accessed 30 April 2015); J Zeleznikow, E Bellucci, UJ Schild and G Mackenzie, Bargaining in the Shadow of
the Law Using Utility Functions to Support Legal Negotiation (Paper presented at International Conference on Artificial Intelligence and Law,
New York, 4-8 June 2007) pp 237246).
52 MJJ Hall, D Calabro, T Sourdin, A Stranieri and J Zeleznikow, Supporting Discretionary Decision Making with Information Technology: A Case

Study in the Criminal Sentencing Jurisdiction (2004) 1(2) University of Ottawa Law and Technology Journal 1.

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the deskilling of human staff,

the threat to the independence of the decision-maker,

the model's ability to support some users better than others,

the potential for users to be misled as to the amount of knowledge contained in the system,

the absence of a human element which may be required in special circumstances,

the risk of replacing ouster clauses in legislation due to automated enforcement and,

the undermining of the judiciary in acting as a check on the legislature.

The project demonstrated that while some AI support can be of benefit to society, some of its models
are unsuitable for total automation and should remain within human control. 53 It is questionable given
the advances in the past five years (in the context of technology) whether such conclusions remain
valid. Whilst Bellucci, Macfarlane and Zeleznikow suggested that, in the Australian context,
computers can help negotiation by providing quick and easily accessible decision support54 and it
seems likely that these technologies can do considerably more. If the technologies support decision
making (by for example enabling BATNA, WATNA identification) they may play an increasing role in
some forms of dispute resolution (particularly in the family area) and support judicial processes and
the making of decisions (or at least in the creation of draft decisions).

These areas of technological innovation, at the third level, have the capacity to be more disruptive than
previous innovations that supported a graft and grow approach and assumed that judging processes
would not change in the context of their basic procedural stages. In this context, there is considerable
opportunity for technological processes to not only support judges but potentially supplant them.
Judges are not unique in this regard and there are numerous predictions that AI together with other
advances will mean that many current employment arrangements will no longer exist in 20 years. 55
However does this mean that judicial work will change or will some judges be completely replaced by
newer technologies? Arguably not. This is because there are many factors that impact on decision-
making. The Australian Law Reform Commission (ALRC) has noted that such factors include induction
and intuition as well as the capacity to assess the social impact of decisions.56 There may however be

53 MJJ Hall, D Calabro, T Sourdin, A Stranieri and J Zeleznikow, Supporting Discretionary Decision Making with Information Technology: A Case
Study in the Criminal Sentencing Jurisdiction (2004) 1(2) University of Ottawa Law and Technology Journal 1.
54 E Bellucci, D Macfarlane and J Zeleznikow, How Information Technology Can Support Family Law and Mediation in W Abramowicz, R

Tolksdorf and K Wcel (eds), Business Information Systems 2010 Workshops (Springer-Verlag, Berlin, 2010) p 243.
55 See T. Dolphin (ed) Technology, Globalisation and the Future of work in Europe (2015,Insitute for public Policy Research, UK) available at

http://www.oxfordmartin.ox.ac.uk/publications/view/1900 (accessed 2 October 2015)

56ALRC, Review of the Adversarial System of Litigation. Technology What it Means for Federal Dispute Resolution (Issues Paper No.23, ALRC,
1998) p 100.

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some significant impacts in relation to smaller civil claims (at least initially) where some discussions57
appear to contemplate that AI processes may replace some judicial functions. In addition if technologies
can support decision making they may play an increasing role in some forms of dispute by for example
producing a draft decision that can then be considered by a human judge). These types of technology
have already been trialled58 and have not been extended in the past because of connectivity, cultural,
technological storage and access issues. Such issues pose considerable obstacles into the future
however courts will face significant competition from the ODR area where these technologies are more
likely to be adopted initially and this competition may promote the take up of some technologies in
some courts and tribunals.

The impacts of disruptive technology are being experienced elsewhere in the litigation
system.Computer-assisted document coding and review, often referred to as predictive coding, 59 for
the analysis of large sets of data is likely to have a game-changing impact. The technology collapses
the time (and costs) needed to review millions of pages of discovered material, to identify relevant
aspects without devoting massively costly person hours. 60 Until recently, as noted by the Australian
Law Reform Commission (ALRC) Report entitled Discovery in Federal Courts, 61 discovery processes
could contribute significantly to problems of delay. Other, less sophisticated technologies exist that
can organise legal discovery files to simplify and reduce the time necessary to review and analyse
files.62
Apart from the impact that disruptive processes may have on courts, perhaps more significantly,
disruptive processes and big data gathering has the potential to change the way we think about and
plan court systems. The quality of business decision-making, government administration, scientific
research and much else can potentially be improved by analysing data in better ways. 63
Researchers at the Hague Institute for the Internationalisation of Law who study the impact of big
data on the justice environment have noted that these benefits are generally not being realised:

For most justice systems, the goal of court information systems is to get accurate
statistics about workloads, disposition times, sentence rates, appeal and reversal
rates, etc. However, our research indicates that existing court IT and organisational

57Significantly, the UK CJC Online Dispute Resolution for Low Value Civil Claims report (see CJC, Online Dispute Resolution for Low Value Civil
Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) explores the potential role of disruptive technology in lower value
civil cases.

59 M Tamburro, The Future of Predictive Coding Rise of the Evidentiary Expert, available on http://technology.findlaw.com/electronic-
discovery/the-future-of-predictive-coding-rise-of-the-evidentiary-expert-.html (accessed 17 September 2015).
60 J Markoff, Armies of Expansive Lawyers, Replaced by Cheaper Software, The New York Times (online), 4 March 2011, available on

http://www.nytimes.com/2011/03/05/science/05legal.html?_r=0 (accessed 17 September 2015).

61 Australian Law Reform Commission, Discovery in Federal Courts (Consultation Paper No.2, ALRC, 2010), available on

http://www.alrc.gov.au/sites/default/files/pdfs/publications/Whole%20Discovery%20CP.pdf (17 September 2015).

62 Stratify, Stratify Legal Discovery 6.0 Service Expands Discovery Capabilities and Increases Attorney, available on

http://technology.findlaw.com/electronic-discovery/stratify-legal-discovery-6-0-service-expands-discovery.html (accessed 17 September 2015).

63 D Bollier, The Promise and Peril of Big Data (Report, The Aspen Institute, 2010) 2, available on http://india.emc.com/collateral/analyst-

reports/10334-ar-promise-peril-of-big-data.pdf (accessed 22 September 2015).

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tools and mechanisms have limited capacity to extract valuable knowledge and
insights from massive data sets. 64
Ingo Keilitz, an expert consulting with justice institutions throughout the world on measuring and
improving their performance, offers the following example of how big data could affect court
administration issues such as court consolidation:

For example, court location data could be compared against a number of public
databases with information from inside and outside the justice system including Zip
codes, populations, demographics of the population (race, age, disability), travel times
between locations, numbers and types of cases heard by different courts, levels of
courts, and availability of public transportation.65
The result of this analysis would support the more targeted delivery of justice and support services. In
addition, it could enable better understandings to emerge about how and what justice interventions
might be more effective. It is also possible that big data will support more sophisticated measuring in
respect of the effectiveness of the justice system.

Conclusions

To date, ODR growth has been primarily directed at e-commerce and consumer-based schemes that
operate as first-tier complaints handling and dispute resolution mechanisms. The growth in these
schemes in recent year has been immense and there are now many examples of processes that
areavailable to resolve disputes relating to online transactions.66 Increasingly ODR is also being blended
with Tribunal and Court systems to provide support, intake and advisory processes that are intended to
assist disputants to negotiate more effectively without having an ADR practitioner involved. This is likely
to increase in the near future as many courts build online systems that support filing, referral and other
activities.67

There is a growing convergence between online systems and court and tribunal systems. For example, in
British Columbia, Canada, a new Civil Dispute Tribunal is intended to operate using an online platform so
that disputants will make initial contact and commence proceedings through an online format.68 It is
intended that processes used by the Tribunal will be mainly online, at least initially.69 Online-supported
negotiation and supported online dispute resolution are features of the system, together with
adjudication, with most cases decided on evidence and arguments submitted through the tribunals

64 G Lim, Courts and big data (2013), available on http://www.innovatingjustice.com/blogs/big-data (accessed 22 September 2015).
65 I Keilitz, The Courts Big Data: What If Only? (2013), available on http://made2measure.blogspot.nl/2012/11/big-data-data-analytics-and-
access-to.html (accessed 14 September 2015).
66 See Australian Government, The Treasury, Consumer Affairs Division, Dispute Resolution in Electronic Commerce (Canberra, October 2001).
67 See for example in NSW the new online court website at https://onlineregistry.lawlink.nsw.gov.au/content/nsw-supreme-district-local-

courts-online-registry (accessed 15 September 2015) and http://www.smh.com.au/nsw/nsw-government-trials-online-court-for-civil-cases-in-

sydney-20150807-giuig2.html (accessed 15 September 2015). The Federal Court of Australia has had an e courtroom and expanding online
lodgement services for some years see Federal Court of Australia, eCourtroom, available on http://www.fedcourt.gov.au/online-
services/ecourtroom (accessed 15 September 2015).
68 http://www.ag.gov.bc.ca/legislation/civil-resolution-tribunal-act/ (accessed 17 September 2015).
69 British Columbia Ministry of Justice, Online Civil Dispute Tools to Save Time, Money (2012), available on

http://www2.news.gov.bc.ca/news_releases_2009-2013/2012JAG0068-000600.htm (accessed 17 September 2015).

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online tools. However, when necessary, the adjudicator will have discretion to conduct a telephone or
video hearing.70

In Ireland, the Northern Ireland Courts and Tribunal Service now offers an online process in respect of
small claims. A specialised Civil Processing Centre operates according to time-based and other rules to
make orders, although final adjudication remains a face-to-face option.71 Significantly, and as noted
previously, the CJC Online Dispute Resolution for Low Value Civil Claims report72 recommends building
a new dedicated internet-based court service for civil disputes with a value of less than 25,000.7374
The report distinguishes between two approaches for incorporating ODR into the justice system:

The first involves the application of technology to improve what is already in place
today. In this way, IT is grafted onto existing working practices and so replaces or
perhaps enhances current systems. This approach tends to be costly, difficult, and, in
the end, often delivers mess for less, that is, it replaces todays inefficient, paper-based
processes with IT-based systems. It does not fundamentally change the underlying
processes and procedures.

The second use of IT in the courts is to enable the delivery of services in entirely new
ways. When this is the aim, it encourages new and imaginative thinking and urges
reformers to start afresh, with a blank sheet of paper.75

The CJC recommends the second approach, stating that:

We propose new ways in which justice can be administered through the use of ODR
techniques. This is therefore in contrast with many projects that are currently in
progress in the civil justice system those that fall into our first category and are seeking
to systematize the traditional operation of the courts.76

These comments suggest that in the UK at least, there is a preparedness to consider disruptive
technologies and the impact that they will have on the justice system. In recognising the significant
impacts that technology has already had, there may need to be larger question asked about how and
when these technologies will reshape the judicial and other justice functions and in view of the way in
which disruptive technology is already reshaping the business of litigation.77

70 See http://www.ag.gov.bc.ca/legislation/civil-resolution-tribunal-act/pdfs/CRT-Business-Model.pdf (accessed 17 September 2015).

71
See Northern Ireland Courts and Tribunals Service, Small Claims Online: A Users Guide, available on
http://www.courtsni.gov.uk/SiteCollectionDocuments/Northern%20Ireland%20Courts%20Gallery/Online%20Services%20User%20Guides/Smal
l%20Claims%20Online%20User%20Guide.pdf (accessed 17 September 2015).
72 CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 3.
73
CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 3.
74
CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 29.
75 CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 4.
76 CJC, Online Dispute Resolution for Low Value Civil Claims Online Dispute Resolution Advisory Group (Report, CJC, 2015) p 4.
77 For example, computer-assisted document coding and review, often referred to as predictive coding, M Tamburro, The Future of Predictive

Coding Rise of the Evidentiary Expert, available on http://technology.findlaw.com/electronic-discovery/the-future-of-predictive-coding-rise-

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of-the-evidentiary-expert-.html (accessed 17 September 2015). for the analysis of large sets of data is likely to have a game-changing impact.
The technology collapses the time (and costs) needed to review millions of pages of discovered material, to identify relevant aspects without
devoting massively costly person hours.

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