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Technology and the future of dispute resolution

Africa Connected: Issue 5

By Arvin Halkhoree

Technology has transformed our society to a point where we can hardly imagine modern life without it. Technology affects the way we interact with one another, including regarding dispute resolution: it either generates new kinds of disputes which arise out of the new capabilities it offers, or it can help in the resolution of disputes. In this article we focus on how technology can assist in the resolution of disputes and how it can be leveraged in terms of promptness and efficiency.

Trends in dispute resolution

There is a risk of growing disconnect with the people that dispute resolution mechanisms are trying to help if these same mechanisms do not embrace technology. We have noticed a shift from the conventional, court-based dispute resolution to alternative dispute resolution (ADR) mechanisms. For the business community, ADR is no longer an alternative, but rather the norm because maintaining business relationships is critical. On the other hand, the court system has the constraints of an increasing caseload, giving way to delayed decisions and a never-ending appellate mechanism.

Apart from ADR, the trend is also to move to online dispute resolution (ODR), which has been made possible through machine learning and artificial intelligence, which is becoming less artificial and more intelligent. The accelerated pace of technological change has made more people integrate the internet into their daily lives and as such – knowingly or oftentimes unknowingly – people are having recourse to ODR if they file a complaint or dispute on e-commerce or e-payment platforms. These ODR platforms handle hundreds of millions of disputes every year. The range of ODR tools keeps expanding and progressing. They are now able to handle more complex disputes, rather than just the low-value e-commerce disputes they previously handled. ODR enjoys the unique advantage of not being tied to a particular jurisdiction and can be a very effective dispute resolution mechanism for cross-border disputes. But it is accepted that ODR is not a good fit for all kinds of disputes.

Another form of dispute resolution that is becoming increasingly popular is the smart contract, which directly embeds contractual clauses within software. The software executes itself upon the occurrence of certain predefined events. In this way, smart contracts provide for fast and fair redress in cases of disputes.

Another example is when technology is placed at the service of dispute resolution. When disputes arise in international financial centers, the parties are often in different countries. Technology has enabled us to transcend distance and bridge the gap. Parties and witnesses to a dispute can participate in the resolution process from anywhere in the world. The COVID-19 pandemic with its subsequent lockdowns has been a catalyst, unleashing the true potential of technology in dispute resolution. Courts have held sittings via video link to connect geographically separated parties and parties under lockdown.

Case management

Technology can also play a prominent role in case management. Courts have embraced ADR methods and we have seen increased court-mandated mediation. The importance of such a mechanism for the timely dispatch of justice has moved several jurisdictions to set up mediation divisions within the court systems, which are chaired by dedicated judges whose primary role is to act as a mediator and help the parties reach an amicable resolution of their disputes or at least considerably narrow down issues.

Another area where technology will be called on to make a significant contribution is in the presentation of evidence. Online databases and legaltech applications are already an indispensable companion of the law practitioner. Legaltech is a clear example of the confluence between machine learning and the doctrine of stare decisis in the resolution of disputes.

Time for change

It is an opportune time to rethink dispute resolution and unleash the full potential of technological solutions in light of COVID-19, which has called for a fundamental rethinking of every aspect of our lives. For instance, courts and tribunals could not hold physical meetings to hear cases during the lockdown. The important lesson we learned is that this practice of hearing parties and counsel via video conference can continue and will in no way compromise the quality of justice being dispensed. On the contrary, it will save time for all parties, especially for parties who are abroad and who cannot travel because of restrictions.

The legal world, and particularly lawyers, are traditionally very conservative and resistant to change and innovation. However, a rethinking of how our courts operate and how technology can assist in a meaningful way is needed. The courts will not be replaced by computers or robots delivering judgments, but technology can assist the judge in reaching a decision, just like technology helps the judge in all other walks of daily life. The use of technology in dispute resolution has become the new norm.

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