Welcome to the video on the benefits of human-centered legal technology design and the challenges of delivering justice online. This MOOC is offered to you by the Joan Monnet Center of Excellence on Digital Governance. Today we're joined by Dr. Ayelet Sela from the Faculty of Law at Bar-Ilan University in the Ramat-Gan. In this video, Dr. Sela explains what are online courts and uses two online court case studies in order to demonstrate both the promise and the challenges that online courts entail. After watching this video, you'll be able to analyze online court platforms through the prism of human-centered civil justice design, explain the rationale for the classic procedural structure of online court processes, and identify some key challenges and risks that are associated with it. Dr. Sela, welcome back. We're very happy to have you here. Dr. Sela in the video on the promise of online courts, you explained that online courts are publicly administered online dispute resolution systems that supplement or replace traditional in-person proceedings in brick-and-mortar courthouses. In the video about ODR technologies, you revealed different models of ODR systems. My question to you is now, what is so unique about their design? The majority of online courts combine transposition. Taking the dispute resolution process from a physical space and just translating it into an online space and some restructuring. Reshuffling and reconceiving of the process in ways that simplified for users. Then some of them we cooperate already or plan to incorporating in the future. Some are automation, especially in the early phases of the process. In combining this combination of technological means, the aim is not just to increase the efficiency of court, but rather if you remember that the key motivation for the institution of the online courts, that is to help self-represented litigants that have little or no legal knowledge about the process to help them to access courts. Say, successfully navigate the proceeding and effectively participate in the proceeding if they indeed complete it all the way through. This motivation requires online court designers to depart from the traditional approach of court process design. Because as you recall, this traditional approach was generally created, crafted by legal professionals who designed for legal professionals, for lawyers who would represent parties in these processes. Instead, online courts are typically the product of a human-centered design approach that puts at the center of the courts procedural model and technological design, the needs, the values, the aspirations, the abilities of lay self-represented litigants. The goal is to design online court as platforms that support those self-represented litigants in accessing the court that empower them to explain their justiciable dispute clearly, to be accurately explaining it, and eventually to enable them to resolve it, whether it's through settlement or through a traditional determination of the outcome. I'll note here that you can now observe this relationship between these design goals of the online courts and that ODR model that was developed as we described in another video by key online marketplaces, such as the model that I described of the eBay Resolution Center. I think that now this relationship comes into play. I think the relationship is quite clear to me, but what I was wondering is then, how are these goals that you just mentioned translated into online court design? Are lawyers suppose to be designers as well next to legal experts? Well, that's actually probably the topic for another video and even another course about what the future of legal practice is going to look like. I'm actually quite confident that it will involve some procedural legal architecture and not just representation in the proceedings, but that's probably beyond the scope of this video. But going back to your question about how these goals are translated into the online court design. Well, they're translated by creating a process and a user interface, and a user experience that are focused on hand-holding users throughout the process. They do that by offering a streamlined, simplified, and what is hopefully a fairly, easily, navigable court journey. In current online courts and online tribunals, this journey entails a similar tiered process design to the one we've described on private ODR platform, which involves essentially five phases. There could be problem diagnosis early on, then claim initiation if one decides that they do want to file a claim, and then response by the other party and a negotiation that can ensue between the two parties. If that doesn't work out, then facilitation by a third party who's appointed by the court. That would be court personnel. If all of that fails, and that essentially is expected to happen in a smaller subset of the cases, then adjudication. It all makes sense when you say this, but could you offer us an example so we can actually learn more about this? Sure. A good example for this classic tier, the design in court is the Civil Resolution Tribunal in British Columbia in Canada. It's commonly abbreviated as the CRT, Civil Resolution Tribunal. It was one of the first online tribunals to launch. It was launched in 2016 after a fairly lengthy design process. It currently handles different types of cases: small claims, straight and property dispute, which are kind of condominium disputes, motor vehicle accident claims up to a certain jurisdictional limit, and then other case types. In this set CRT process, they're potential litigants, they're not yet litigants, begin the process by using an automated solution explorer, which is essentially kind of an online wizard that is designed to help them through a series of multiple-choice questions to diagnose their now grievance and consider different relevant legal information and potential courses of action including courses of action that don't involve filing the claim in court. The idea is to find a way to solve the problem, not necessarily to find a way to file a case in court. But users that do decide to file a claim in the tribunal, do so by filling out an online structured web form that helps them formulate the claim. They also have assistive information and texts throughout the process to support them in that. The respondent then receives a notice of the claim. They can similarly respond to that set of questions to describe their side of the story and how they respond to the claims. Then the parties are encouraged to attempt to resolve the case in an online negotiation module on the platform. Again this approach of attempting to reach a consensual resolution of the dispute. If they can't do it on their own, they can have a tribunal facilitator join them and help them reach that agreement. That can happen textually or in video conference or even in a telephone call. There could be an in-person meeting if that is necessary. In some online courts, not the CRT, this process can also happen externally. So there could be some sort of external alternative dispute resolution process, like mediation that would come in this phase. But eventually, if the litigants were unable to reach a mutual agreement, then they would proceed to adjudication by a tribunal member. That tribunal member will eventually issue a final judgment which could be based on just their electronic submissions in the preceding stages, or it could be after there was some hearing that took place. The hearing, as well as that facilitation that I've mentioned earlier, can involve a video or audio communication or an in-person hearing. That's at the discretion of the tribunal adjudicator, or it could happen at the request of the parties as well. This sounds all very exciting, but the CRT appears focused on fairly limited set of disputes. Can you give us another example of an online court with a broader jurisdiction? A good prominent example for this would be the Online Solution Courts in England and Wales. This court was launched in 2018 as part of a much broader, larger civil justice reform. It's a good example because essentially the process design follows quite a similar structure of data that I describe in the CRT, but the scope is larger. Currently, the Online Solution Courts can handle all civil money claims under £10,000. There is the intention to later increase that jurisdiction to all money claims valued up to £25,000. So that's well above and beyond small claims as what we've discussed before. That same Online Solution Court platform is intended and in fact already implemented for use in other courts and tribunals procedures. Since this is a much broader civil justice reform, that same concept is now implemented also in other tribunal cases across the tribunal system in England and Wales. In addition to that broader scope, we can see in the examples on the screen that the Online Solution Court also has a user interface design and a claim formulation process. It is slightly more formalistic than that of the Civil Resolution Tribunal. Well, I should note also that while we're recording this at least, that the Online Solution Court hasn't yet launched this initial automated triage phase like the Solution Explorer, so that is still missing. They also have a more aspirational plan there in terms of what type of AI insights could be presented to party at that phase. Currently, litigants begin the process on the Online Solution Court in a web wizard that helps them formulate and file the claim, and their defenses, of course. They can upload evidence to the system, they can exchange settlement offers, and they can go through a negotiation process in this structured technology-facilitated process. Much like the Civil Resolution Tribunal, is they can have case officers join the process and they can provide both case management assistance and conciliation through that online interface, or in telephone hearings, or even in in-person communication. Again, only if the case is not resolved in these early consensual phases, it would go to a judge who will determine the merit either based on the submitted documents or following a telephone, or a video hearing, or an in-person hearing. I'm still puzzled with the human-centered design approach. How does the human-centered design approach come into play in the Civil Resolution Tribunal and the Online Solutions Court? These examples of the CRT and the Online Solution Court illustrate what could be the result of a human-centered design approach when it's applied to an online court procedure. We can see that these processes restructure all litigation-related activities as a series of legal mini steps that are delivered through a fairly user-friendly interface that includes web forums and interactive wizards. There's document-generating software that helps formulate legal documents. There are file repositories, messaging tools, there's audio and video conferencing application. All of these are intended to create a fairly user-friendly process through both user-friendly interface design and a user experience that is geared toward those self-represented litigants. It is intended to help them independently and effectively self-diagnose their legal issues, formulate and file their claim in a supported fashion with evidence, exchanging formation between one another, negotiate a settlement, communicate with the facilitator or with the judge, and if necessary, still, much like the traditional model, obtain a final judgment. All of this through the human-centered design approach is intended to help them survive through the process, and not just survive through it but successfully and effectively complete it, even though they're not represented by a lawyer. This ties back, if you recall, into that notion of the justice gap, and the idea that for many people accessing courts with the current barriers that exist on the process is simply an insurmountable task. Well, it sure seems like a very different process and experience from the one we're used to seeing in court. I can totally understand why you brought in the justice gap and the access to justice here. But aren't we losing something? Is this at all an appropriate way to go to court? Many online dispute resolution scholars and policymakers believe that it is when it is appropriately designed, when it is appropriately streamlined, and that this type of asynchronous and interactive nature of online courts actually empowers people to seek redress for their problems, to take legal action, to effectively participate in the procedure, and to take control over how their legal dispute ends to formulate a consensual outcomes. These audio scholars, including myself, also believe that in those cases that are relevant and that warrant it, that these audio or online court systems support the ability of litigants to obtain a judicial determination of their disputes within reasonable time and at a reasonable cost. Having said that, there are, of course, concerns and challenges that are involved in launching these online courts. There are, of course, challenges with respect to the ability to deliver an adequate dispute resolution process online without infringing the right of the parties and without infringing important procedural principles with a key worry being that the limitation that this online environment imposes on human communication, on the privacy of the parties, on confidentiality, on neutrality, can distort the process, can distort its outcomes. There's specifically this concern that moving court processes online will actually negatively affect the ability of litigants to effectively participate in proceedings, and that it may obstruct the ability of judges to conduct their fact-finding process. That it could obstruct the ability to accurately assess the credibility or the demeanor of weaknesses in those relevant cases. That's definitely there. There's also this related concern which I should mention that this user experience or unique UI design of the online court environment can also have some unintended consequences that affect the behavior or the experience of litigants, and this effect could be non-transparent. It could even be manipulative if it's taken advantage of in a bad way. There are certainly these concerns and I should say, as always with any move toward digital transformation that there is that worry that there is still a digital divide such that there are some people who cannot access technology effectively and use it effectively. That will prevent some users from using these online services in an appropriate way or at all use them. Wouldn't you agree that online courts also raise a systemic concern such as that they undermine the important public functions of public hearings, that they may alter the types of cases that people pursue through courts, and potentially, that they could make it too easy to file a claim and could lead to the flooding of courts? How should or could policymakers and online court designers respond to these concerns? Well, first of all, they must be guided by the assumption that technology is not neutral. Technology does shape the process, it shapes the behavior of users and it could affect also outcomes. Yes. Practical challenges such as the digital divide, do have some solutions. They could be resolved through expanding access to portals in, in courts or in other public locations. There could be also these basic recognition that there are some procedures, including some online court procedures that are not suitable for all users and that there will be users who will continue to go to court the traditional way because this online way is not suitable to them. But I do believe that these obstacles should not prevent the overall move towards creating online courts because there are many other users who could enjoy the benefits. Addressing those other concerns about the potential procedural and substantive negative impact of moving courts online is, I think, a building feature in that human-centered design approach that we've discussed. First and foremost, because this approach requires involving all those impacted stakeholders and these stakeholder should be involved already in the design phase. So those needs and preferences and abilities are reflected in the design of these court procedures. Secondly, it requires a commitment on the part of court designers to ethical and evidence-based design so that, they need to incorporate, for example, A/B testing in every online court feature that they introduced so that they can evaluate its impact and if there is some undesirable impact, then this should be rolled back and a different feature should be used. It also means that online court users should continuously collect data to evaluate how their design and how the operation of the court impacts the process and whether they are, at all, achieving their design goals. If we find out through these process that there are some negative effects as ensure we will find out, then we have the opportunity to responsibly correct for them and try a different model. I shouldn't say that in this context that it could be sometimes surprising, but there is research that suggests that also we can have the opposite outcome. Benefits that we didn't imagine online courts would create, but they have created. For example, there is some research that shows that moving to the case online because it produces some face-to-face interaction, actually reduces outcome disparities in judicial decision-making with respect to the race of the litigants or the age of the litigants compared to face-to-face processes. We should always keep in mind that some of these features of the online process can actually have unintended positive consequences as well. I think that there are valid systemic concerns and they do need to be addressed. Oftentimes these concerns are associated with the claim that online courts represent some second grade the justice. A second grade system for those who can't afford going to court the old-fashioned way. In responding to these concerns, I think it's important to remember the starting point for our discussion. The civil justice gap, and the fact that for many years now, and especially in common law countries, CV lawsuits rarely involve that premiums service of a trial process and a judicial determination. Instead, really, the overwhelming majority of cases are now withdrawn and settled or simply not defended at an early phases of the process. Professor Marc Galanter famously term is trend, the vanishing trial phenomenon. We have a vanishing of what we have is an image of what actually happens in courts. So online courts step into that access to justice gap, and they step into that vanishing trial phenomenon, aiming to positively transform the way courts deliver justice and deliver redress to that majority of untried cases, of withdrawn cases, of undefended cases, of settled cases. To lower the barriers in accessing courts so that we actually open wider doors for courts so people that now have valid legal grievances, that cannot access courts, find a way to overcome this difficult task of seeking justice and redress in courts through this innovative procedure. I think that against this backdrop, while we still need to address those systemic concerns and find ways to overcome them, online courts can actually be seen as providing a qualitatively superior court service to those litigants. But couldn't the result be, as you mentioned, the flooding of courts then and what about AI in online courts? As for the flooding of courts, I think that the structured streamline process design and the reliance on technology could and probably should lead to more case filings. They also introduced significant deficiencies into the management of these cases. It is generally assumed and there is some experience that supports that assumption that courts will be able to handle the increased caseload with their existing human resources, and I think over time also with their existing financial resources once the design processes and the infrastructure is in place, then I'm quite confident that over time we will find new ways to ensure the openness of courts, the transparency of procedures, the different proposals as to how we can get there. There's a proposal to introduce transparency with respect to the data about court procedures. There are ideas about how we can stream online court hearings online. I should know that these suggestions also involve considerable challenges in terms of data security and the privacy of litigants, and also control over what's the official court record even. There's certainly still work to be done before we can address these concerns fully and can guarantee and effectively regulate this part of the discussion. It's work in progress. In terms of AI, as you've asked, well, currently, most online courts involve really very limited applications of artificial intelligence. Mostly they do so in the early diagnostic phases or in claim formulation, but there are some online courts that are trying to do more with the AI and as these online courts will begin to experiment with incorporating more tools that rely on AI in the dispute resolution process itself, and maybe even in the formulation of the outcome, who knows, they will certainly need to first address these normative concerns about the acceptability of algorithmic justice interventions, on how to ensure due process with AI. There are really considerable questions there. There are some responses from other domains, from other legal technologies that use AI. There is something different about courts using them as opposed to legal professionals, but this topic is probably beyond the scope of what we can cover in this course today. Thank you so much. Thank you so much, Dr. [inaudible] , this really makes a lot of things clear to me. Thank you so much also for the very practical examples, I think that will make it a bit more illustrative in how these courts work and what they look like. Thank you so much for that. We will see you in the future in some other MOOC. Who knows, maybe a MOOC on AI and law in courts. I will be looking forward to that one. Thank you so much, again. This was the last discussion on online dispute resolution and the human centered approach. It surely will help me to analyze online court platforms through the prism of human centered civil justice design and explain the rationale for the classic procedural structure of online court processes, as well as identifying some key challenges and risks that are associated with it. I surely hope it will help you, as well as our learner in this course. Thank you so much for joining this series on online dispute resolutions and online courts, and we see you in the next module. Thank you again.
