20 Mar 2018

We live in the age of the exponential curve, where Moore's Law has been replaced by Kurzweil's Law of Accelerating Returns. Exponential growth is a feature not just of the use of semiconductor circuits in computers (the actual subject of Moore's Law) but more broadly of technology and society itself. Like it or not, the future is rushing upon us with an ever increasing speed. It can feel like we are all running just to keep up – especially where technology is concerned, but every now and then it's important to stand still and look at the horizon to see what is coming up. 

Technology is driving change in the dispute resolution arena. By way of example, the revisions to the disclosure rules in Court proceedings in England and Wales acknowledges that the majority of disclosure nowadays is electronic rather than paper-based and seeks to address the massive proliferation of electronic information via multiple-addressee emails and endlessly reproducible documents which has all but swamped the disclosure process. Predictive coding, data analytics and keyword searches help filter the mountains of available information, much of it not strictly relevant to the issues in dispute, which threaten to overwhelm the system.  

With cost being a constant pressure, the advent of technologies which seek to reduce this cost, whether by reducing the amount of time spent in carrying out previously labour–intensive exercises or using initiatives such a virtual court rooms to reduce travel and associated expense will obviously help. Legal industry apps and tools play an increasingly important part in mediations and arbitrations and technology allows legal counsel to present their 'argument' in a more engaging and visual way. Information can be shared much more easily and therefore processes can be speeded up dramatically. The caveat to this is that new challenges will be posed by new technological developments. Colossal amounts of data will need to be processed. New ways of storing data will have to be developed and at the same time, processing and using the data in real time will get more difficult simply because there will be so much of it.  

Dispute resolution processes (and the legal system itself) will need to address issues such as the effect that blockchain technology and smart contracts will have on the structuring of legal and contractual relations. The precise meaning attributed by lawyers to the term "contract" with its associated characteristics of offer and acceptance, consideration and certainty of terms does not sit comfortably with the looser definition of a smart contract as an automated or self-executing contract written in software code which is essentially a series of logic statements. Complex contracts do not seem to be reducible to such a structure, and yet it appears likely that at the least we will begin to see hybrid smart contracts comprising both self-executing terms and terms that are outside the software code. How will we resolve disputes that arise in this context? 

More fundamentally are there structural changes that could be made to the dispute resolution process which would make it more user-friendly, more directly applicable to the business community in the twenty-first century? Technology is a means to an end, not an end in itself.  If there is a general trend that can be identified in the development of civil justice in this country, it is perhaps towards a reduction in unnecessary bureaucracy and rules and the embracing of new technologies to assist the dispute resolution process. How can we construct a dispute resolution process that answers what the users of that process want? How do we make that process sufficiently flexible to enable it to adapt to the changing requirements of users over time? Technology and changes to the dispute resolution process will undoubtedly play a part, but what else is required? 

These questions will be considered by a panel of industry experts at our forthcoming Disrupting Disputes interactive panel session to be held at the British Library on 28 March 2018. If you are interested in attending, please view our online invitation.

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