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.

How jurisdiction can affect a divorce

Since moving to the B P Collins LLP family practice group over three months ago, I have become very familiar with the procedure for divorce in the courts of England and Wales. 

Divorcing a spouse involves at least two simultaneous aspects: the financial settlement and the actual dissolution of the marriage, which is the divorce itself.  It is generally agreed amongst responsible practitioners that the dissolution of the marriage should be an uncontroversial process.  One spouse making unnecessarily critical allegations about the other in a divorce petition is not only unnecessary for a divorce to be processed, but could also be counterproductive when negotiating over finances, which is usually the pressing issue of the case.

It is often my job as a trainee to draft the initial divorce petition as, in the vast majority of cases, this is both straightforward and uncontested. However, while divorce proceedings are considered simple once they have begun, it can be trickier to determine where they should be started. 

Many of the firm's family clients have international connections, this may be because their spouse has a different nationality or some or all of their assets are based abroad. This may mean that more than one country could have jurisdiction to hear the divorce. Where a divorce is heard is significant because that country will usually also be where the finances are decided. There are very different approaches to finances on divorce even in jurisdictions that are geographically close (for example, England and Scotland). Therefore where to start the divorce takes on a wider significance as it is part of securing the most advantageous financial outcome for our clients.

The courts of England and Wales will either accept or refuse jurisdiction of a divorce petition and the way they decide this depends on whether the parties are habitually resident in the European Union (EU) or a non-EU jurisdiction. 

EU law governs where cases should be heard. Divorce cases are governed by the Brussels II bis Regulation.  The Regulation is binding in all EU states except Denmark and it says that, for most of the EU, jurisdiction will lie with the state of the couple’s habitual residence or of their nationality. However, if the English court is making the decision, nationality is not a relevant factor, jurisdiction will be decided by the state the couple is habitually resident or domiciled in.

Everyone is born with a domicile of origin. This is retained unless one acquires a domicile of choice in a different country.  To do this a person must sever all personal, social and economic links with their domicile of origin and demonstrate a definite and permanent intention to regard their new country of residence as their permanent home.

For non-EU divorce cases, again, the state in which the couple is habitually resident will have jurisdiction.  However, if either the petitioner or the respondent is domiciled here, the court of England and Wales will accept jurisdiction.

In both regimes a “first past the post” system is in place, meaning that the country in which divorce proceedings are first issued will have jurisdiction of the proceedings. Sometimes this can lead to a “race” between lawyers in different countries who are rushing to lodge their papers with their court first.

This in particular can be problematic for English wives who are living abroad or are married to a person of foreign nationality because perhaps they could be subject to less favourable proceedings in other countries if their husband issues his petition in a foreign territory first.

I have learnt that this complicated area makes it all the more important for separating individuals with foreign connections to take legal advice at the earliest possible stage and for lawyers to act quickly where the circumstances dictate.  

Posted by Matthew Crockford, trainee in the family practice.

Matthew started his training contract with B P Collins LLP in January 2012. He graduated in 2010 from The University of East Anglia with a 2:1 (Hons) in Law before moving on to the Oxford Institute of Legal Practice to study the LPC, achieving a Distinction. In his spare time Matthew enjoys playing football (mostly 5-a-side) and watching Tottenham Hotspur FC whenever possible.  Interestingly he used to be in a heavy metal band, but grew out of the idea!