Virtual Hearings, Mediations and the COVID-19 Pandemic;  Blog on: Online Courts and the Future of Justice, Richard Susskind

Virtual Hearings, Mediations and the COVID-19 Pandemic; Blog on: Online Courts and the Future of Justice, Richard Susskind

Several months have now passed since mediations, discoveries and some hearings have been conducted by videoconferencing. Richard Susskind’s book, Online Courts and the Future of Justice¹ came out months before the pandemic, but what he has to say is all the more current given the current restrictions and limitations on having litigants assemble physically in one location to deal with their cases.

The book is an academic treatise on Mr. Susskind’s research and views regarding how Online Courts can be the solution to expanding access to justice throughout the world. Susskind has a well-earned reputation for studying the state of the legal profession and has advanced the case for fundamental change in how justice is administered in his past publications and certainly advocates that in this latest book.

Prior to COVID-19, the entire business world has been in the throes of disruption in numerous sectors with the most obvious example being UBER’s impact on the taxi industry. The impact of advances in technology through society is undisputed and while the legal world is generally much slower to adopt changes born out of technological advances, such advances have been and are being embraced in the legal world as well. Go along for the ride or be left behind.

As a result of the pandemic, the world of civil litigation in Canada has been thrust into adopting videoconferencing and all in the know are suggesting that many of the changes that have been forced upon us by the pandemic are here to stay, certainly for the near future and will likely lead to long-term systemic changes to keep everyone safer and more efficient.

The book is a thoughtful review of the historic underpinnings to the court systems of the western world, but for those that want to get a clue of how our justice system may develop, Susskind’s book is fascinating reading. While many will decry the conclusions reached, and it is submitted here that there are other potential roadmaps for the future of our courts, there can be little doubt that some form of technology will play a significant role in the future of courts’ role in society.

What has been learned thus far from the pandemic, is that we are all far more adaptable than we may have thought. It is possible to use technology to conduct discoveries. Using Zoom and other platforms has proven to work well in holding mediations with the lawyers, mediators, and clients all in separate locations. We have found most clients to be very engaged in the process and focused on active participation. By testing client capabilities with technology and providing support to enhance their comfort with the process, cases can be successfully concluded.

With respect to discoveries and video hearings, the manner in which witnesses testify may be somewhat challenging, however, recent Canadian court decisions have acknowledged that potential for abuse exists both in online hearings and also in physical courtrooms. Susskind discusses the most common criticisms to online courts in Part III of his book, which he names “The Case Against”. Many will not be satisfied that we can reproduce the tried and true experience of attending a court, discovery, or mediation in-person, however, given the pandemic we must certainly do our best to try to make this work. In the coming months and years, the public will likely demand that legal services be provided in a similar manner to other things in the marketplace, like online delivery, online shopping, and dare I say, online medicine.

COVID-19 has forced us all to think about all of this in an accelerated fashion, and although we all can agree a pandemic is not something anyone ever wants, it has created an opportunity and an urgency for the legal world to embrace technology sooner rather than later.

Susskind’s book is a terrific jumping-off place for a discussion and a particular approach to moving forward. As an example of such a discussion, Susskind recently participated in an online launch of his book through the Harvard Law School Center on the Legal Profession. Also on the book talk were renowned Harvard Professor, David B. Wilkins, and Massachusetts SJC Chief Justice Ralph Gants. This discussion demonstrated the necessity for stakeholders to be engaged and involved in this discussion where the practical realities of the day-to-day management of the courts and legal practice meet the academic arguments.²

The world as we know it is changing and the legal world in which we operate must come along with these changes to remain relevant and functional in addressing the needs of our clients and society at large.

i.  Oxford University Press, 2019, ISBN 978-0-19-88386-4


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