A Tale of Two Pilots: A comparison of civil justice innovation in New York State and England & Wales

Two recent announcements of pilot programs on either side of the Atlantic bring in to sharp focus steps being taken to bust the Backlog of civil cases in two jurisdictions.

In New York State the Unified Court Service has recently launched an Online Dispute Resolution service supported by Michigan based Court Innovations Inc.’s Matterhorn solution.  The Press Release of January 27, 2021 says:

“…the new initiative is among the Court System’s state-wide efforts to expand the use both of alternative dispute resolution and online technology to better meet the justice needs of New Yorkers amid the pandemic and beyond.” (here)

The Manhattan Pilot provides a Cloud-based platform for the commencement, management and settlement of claims brought by unrepresented parties involving disputes related to contracts for goods or services, with a monetary limit up to $10,000.

Cases may be commenced online via the platform or in person.  Either way each claim is subject to human review to determine whether the case is eligible for the online tiered settlement process.  If so each case will be “automatically” referred to the platform with limited opt-outs for:

• The parties’ comfort level with technology; and/or,
• English comprehension challenges; and/or,
• Disability challenges.

Assuming none of those opt-outs apply then a three stage tiered conflict resolution process starts with a “control date” being set for the conclusion of the process.  These are the 3 stages of the tiered resolution process in the order in which they are presented to parties on the platform:

1. Automated Negotiation

An automated double-blind bidding settlement process which leads to resolution if the parties’ offers/counter-offers eventually match.

If this is unsuccessful then the parties progress to tier 2;

2. Direct Negotiation

The parties are put in direct touch with each other to solve their dispute by reaching a settlement agreement.  

If this does not settle the claim, then:

3. Mediation

By what is called an ODR Mediator which I suspect means mediation via a video platform with access to the case statements and documents already uploaded to the Court’s ODR platform.

Those who argue ADR restricts the citizen’s right to a fair trial should note this Pilot does nothing of the sort.  This is because if none of those three stages of conflict resolution solves the dispute the case proceeds to the traditional binary solution in Court: i.e. win/lose – a fair trial.

However, if settlement can be achieved then the platform has an algorithm to guide parties through the drafting of their settlement agreement which presumably will include prompts about parties, payment sum, period for payment, confidentiality, jurisdiction and dispute resolution.

Finally there is an electronic signature facility to complete the exercise.

The agreement is then made available to the Court so that Court staff can make the case as settled and remove it from the trial docket.

The role of data collection is vital to assess how far this system has enabled swifter conflict resolution and by how much the Backlog reduces as a result.  Whether data collection forms part of the platform is unclear.  However, hopefully data collection is taking place.  In due course the data should be made available (in anonymised form) so we may understand better how this Pilot reduces the Backlog and accelerates conflict resolution.

There is also a central repository of resources including multi-media content to enable Litigants in Person(LiPs)/Self-Represented Litigants(SRLs) to understand and work through the process.

It is understood the platform went live on January 29, 2021.

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Meanwhile, on the other side of the Atlantic, a few days after the Manhattan Pilot went live, another pilot involving mediation started.  This pilot is in England and Wales (E&W) and represents an attempt to resolve the Tsunami of housing possession cases that is expected as a result of the Pandemic that led to renters and mortgage payers defaulting with their rent/mortgage payments.

At the beginning of Summer 2020 the second highest Judicial officer in E&W, the Master of the Rolls (MR), convened a Working Party to devise a new process to manage these cases.  The members of that Working Party were drawn from across all concerned with possession claims.  This Group’s work led the MR to issue a document entitled “The Overall Arrangements” for the management of these cases.  Its aims are described in plain terms in paras 1and 2:

“The legal system faces a combination of: 

(a) accrued demand from the stay [of possession claims], 

(b) the possible increase in demand caused by economic consequences of the pandemic and 

(c) reduced physical court capacity because of social distancing. 

The challenge, and its scale, does not have a precedent.”

The process, insofar as material to this article, begins with timetabling a Review Day (the R-Day) which takes place 21 days before the Substantive Hearing Day (the S-Day).  

The Overall Arrangements document explains that the R-Day is:

“…an important new opportunity for the defendant to obtain free of charge duty scheme advice, and for the claimant and the defendant to reach agreement (with the assistance of the duty adviser).”

The Ministry of Justice of E&W, working with the Legal Aid Agency, has supported R-Days by expanding the Housing Possession Court Duty Scheme (HPCDS) to cover those areas of E&W where it was missing.  This involves a solicitor being appointed for the Defendant (the Duty Solicitor) who is paid by the State to negotiate a resolution with the Landlord, for example, payment of rent arrears by instalments.  The role of the Duty Solicitor also goes a long way to redress any perceived power imbalances that may arise given the Landlord is often represented by a lawyer.

The next stage is an echo of the kind of tiered conflict resolution process we see in the Manhattan Pilot – if the Duty Solicitor and the Landlord and/or the Landlord’s solicitor cannot resolve matters by direct negotiation the State pays an ADR Service Provider to provide specialist housing law mediators to try to achieve an agreed solution rather than proceeding to the inevitable binary outcome in most possession claims: an eviction order. 

It is understand that data collection is provided for within the ADR Service Provider’s contract to enable empirically based evaluation to take place and inform any future development of the Overall Arrangements in this important respect.

This is an imaginative and well-supported attempt to mitigate one of the worst effects of the Pandemic namely mass evictions and homelessness.  

The one trick that has been missed is that, unlike the Manhattan Pilot, none of the E&W Pilot takes place online.  The technology that is used are those stalwarts of the 20th century: email and the telephone.  This is a serious oversight.  The opportunity for the Overall Arrangements to integrate with such online platforms that already exists in E&W i.e. Possession Claims Online and for that platform to be available to Court staff and Judiciary is a missed opportunity. Contrast this approach with the approach to same challenge in the USA where numerous city authorities have built platforms to enable the resolution of the evictions crisis.

This is a 6-9 month Pilot which began on February 1, 2021.  
 

                       

Tony Guise

For thirty years, Tony Guise practised as a solicitor specialising in commercial litigation.  For 22 of those years he was involved in the major civil justice reforms in the civil justice system of England and Wales as President of the London Solicitors Litigation Association, the founder of the Commercial Litigation… MORE >