A recent New York Times article described a floating courthouse operating in rural Brazil, traversing the Amazon River in an attempt to bring the rule of law to the far ends of the country and overcome the many barriers in approaching Brazilian courts. Other countries, such as Pakistan, have relied on mobile court-buses, while others still have proposed “pop-up courts”as a solution to over-crowded, inaccessible, and costly court proceedings. The problem of access to justice is not new. Over-crowded, slow-paced, and costly court proceedings have made courts the target of fierce critiques and the object of ongoing reform attempts for decades. The Pound Conference of 1976 was an important turning point in the thinking about courts and access to justice, as various sources of discontent merged into a call for the adoption of alternatives to litigation as a means for improving the pace of proceedings and the quality of justice. With the institutionalization of alternative dispute resolution (“ADR”) processes into the formal court system, a new approach to accessing justice was adopted, one that recognized that justice could be delivered “in many rooms,” extending beyond the courtroom. In the 1990s, digital technology and internet communication spread, giving rise to new challenges to access to justice, as well as creating new opportunities for lowering barriers to justice. As communication and commerce between distant parties became widespread, a growing number of disputes emerged for which courts and ADR processes provided no feasible avenue of redress. At the same time, new technologies and online communication also became a means for making existing dispute resolution avenues more accessible and for designing novel online processes and institutions for delivering justice. Just recently, the Briggs Report in the U.K. laid the foundation for a major reform of the courts, a principal component of which will be the establishment of a civil online court. While in the 20th century “justice from below” replaced “justice from above,” the 21st century is moving in the direction of “digital justice” in lieu of “traditional justice.” In Part I, we examine the rise of ADR in the last quarter of the 20th century and the hopes that the adoption of alternatives would improve access to justice, expectations that were only partially realized. Part II analyzes the new challenges to access to justice that have accompanied the spread of digital technology and internet communication as of the 1990s, making both court proceedings and ADR processes inaccessible for a wide range of online disputes. In those instances, online dispute resolution (“ODR”) emerged as a possible avenue of redress. In Part III, we demonstrate the growing need for ODR as online interaction has become the dominant means for communicating and transacting with close and distant individuals and entities alike. Given the scope and nature of disputes that are linked to online communication, traditional face-to-face processes are very often inappropriate. These trends are reinforced by growing expectations that courts become more “user friendly” and allow for convenient access from afar. Alongside the growing need for ODR, the paper cautions that ODR processes sometimes fail to deliver digital justice. As these processes come to occupy a growing portion of our justice system, we must ensure that they deliver efficiency and fairness, that they be accessible and just.
|Number of pages||21|
|Journal||Cardozo Journal of Conflict Resolution|
|State||Published - 2017|