The case for and against an online dispute revolution

The internet, the modern means for doing almost anything, but what about solving disputes?

Online Dispute Resolution (‘ODR’) already exists (in relation to starting a claim only) in some forms e.g. money claim online. However, this year, an advisory group set up by the Civil Justice Council are going to explore the possibility of expanding ODR for disputes under £25,000.

Canada and the Netherlands currently offer systems of ODR and many have been using the popular auction website eBay's ODR system successfully for a number of years, resulting in over 60 million resolved disputes. So, is it time for us to jump on the bandwagon too?

It is easy to see the benefits of ODR, which aims to make the civil justice system more accessible, cost-effective and quick through e-negotiation and e-mediation.

Convenience is a substantial benefit of ODR, as disputes can be resolved from the comfort of one’s home where communication between both sides and mediators can occur at a flexible pace. This gives parties time to think carefully about what they want to say, eliminating the risk of things being said in the heat of the moment.

A further benefit from the extension of ODR will be to the courts that continually struggle with an increasing caseload. ODR will remove minor disputes and free up valuable Court resources.

Despite the benefits, ODR will also have disadvantages. One of the main benefits of mediation is face to face communication, allowing parties to show emotions connected with disputes and gauge each other's reactions. This element of human interaction often helps bring disputes to an end, which may mean that ODR may become harder to resolve.

Opponents of ODR argue that it creates a two tier system for solving disputes: one cheap and cheerful and the other expensive and exclusive. But this may not be a bad thing?

For substantial matters solicitor involvement and traditional court services are vital. However, for smaller disputes, solicitors’ involvement and court fees can often become disproportionate. Some argue that ODR is a technique to edge out lawyers but already many people with smaller disputes represent themselves as litigants in person. The expansion of ODR could implement a simple system to help those in these circumstances, not taking work away from solicitors but improving the system for those who would have never paid solicitors fees anyway.

ODR’s most substantial problem is that it assumes all parties will have internet access. An Office for National Statistics report in 2013 stated that 73% of adults in Great Britain accessed the internet every day, but what about the rest?  How many adults never have any access to the internet?  In addition, access to the internet is very different to having the ability to utilise any online system set up by the Civil Justice Council.   

As use of the internet expands, it seems logical to create efficient mechanisms of dispute resolution through this entity. Certainly for substantial or complex disputes, the traditional systems are required but an alternative ODR system for minor disputes will undoubtedly extend access to justice for parties involved in smaller disputes.

The litigation and dispute resolution practice group at B P Collins LLP is well equipped to deal with a dispute of any size. For further information and advice please contact a member of the team by calling 01753 279039 or emailing disputes@bpcollins.co.uk. 

Posted by Lucy Newman, trainee in the litigation and dispute resolution practice group.

Lucy graduated from the University of Nottingham in 2011 with a degree in Politics and American Studies (International Study). She went on to complete the Graduate Diploma in Law and Legal Practice Course at the University of Law (Bloomsbury).

After working as a paralegal in the Real Estate team for a large city law firm, Lucy joined B P Collins LLP in September 2014.

Have you planned ahead?

Having recently moved into the firms Private Client practice group, I was asked to network at a seminar hosted by the team. While listening to senior associate Christine Moore discuss the probate process, I was surprised to hear that by 2035 the number of people aged 85 and over is projected to be almost 2.5 times larger than in 2010, reaching 3.5 million. This means that by 2035,  5%of the total population will be over 85 and the number of people aged 65 will also have risen to an astounding 23 % of the total population.

This prompted me to consider what assistance may be required for this escalating rise in population and, more immediately, what sort of work I may be involved with during my seat.

It seems logical that an increase in the number of elderly people will be reflected in the number of people who may need assistance with managing their affairs.  However, making provisions for someone else to act on your behalf should not be seen as something that applies only to the elderly.  Sadly, people can become incapacitated at any age either through illness or accident. The only way to effectively protect your wishes in these circumstances is to apply for a Lasting Power of Attorney("LPA") which enables someone to deal with your affairs on your behalf. 

There are two types of LPAs available; one for property and financial affairs, and another for decisions relating to health and welfare which can include provisions for decisions regarding life sustaining treatment.  A LPA can be made by anyone over 18 with sufficient mental capacity and  A LPA can be registered straight away, rather than waiting until it is needed.  This gives peace of mind knowing it is there if needed.  As registration takes approximately 3 months, it could be extremely stressful and frustrating to have to wait for registration at a time when you really need to be able to use the LPA.  

It is often assumed that if the person who loses capacity owns property as a joint tenant and/or has a joint bank account, there is no need for an attorney.  However, this is not necessarily correct.  If one joint tenant wishes to sell a property after the other joint tenant has lost capacity, they would need permission from the Court.

The British Banking Association provides guidance for the operation of joint bank accounts where one party loses capacity and there is no LPA.  The guidance is that banks and building societies can decide whether or not to temporarily restrict the use of the account to essential transactions only, but it has been known for banks to freeze joint accounts when one party has lost capacity. 

So what can be done if someone loses capacity and has not made a LPA? 

An application can be made to the Court of Protection to be appointed as a Deputy; this could be in respect of property and financial affairs, health and welfare, or both. The current application fee is £400, although there are some exemptions.  The application process can be long; the Court aims to respond with a decision within 16 weeks of receiving the application, though it is possible to make an emergency application.  If the Court decides a hearing is necessary, this will incur a further £500 fee and will prolong the process.

A Deputy will have ongoing obligations to the Court including regular financial reports (usually one per year) to the Office of the Public Guardian.  These reports include a record of decisions made on behalf of the person who has lost capacity, as well as copies of all relevant documents (bank statements, receipts, correspondence and professional reports).  In return, the Office of the Public Guardian is responsible for providing support and supervision to a Court appointed Deputy, but there is a fee for this of up to £320 per year.

I have already been involved in drafting LPAs and can see the sense of security this provides for the donor.  Just knowing that something will be in place, if required, can give peace of mind and minimises risks.  This has made me consider my own needs and those of family and friends, not just for the future, but to provide that security now. 

It is vital that anybody looking to create a LPA, in either form, seek expert legal advice before doing so. While many people might consider the task of creating an LPA too time consuming and expensive, it would be wise to think seriously about the security the power might provide you with. Our private client solicitors can assist with the application to ensure it is executed efficiently and correctly.

Posted by Tina Jeffery, trainee in the private client practice group.



Tina Jeffery started her training contract with B P Collins in August 2012 following a long career in the RAF. She holds a BSc and an LLB from the Open University and completed her Legal Practice Course at City Law School.