The 'Vanishing Third Party': Access to Justice, Procedural Justice and Substantive Justice in the Age of Dispute Resolution Automation

Introduction

Courts without judges? Informal processes without mediators? We are on the verge of a dramatic paradigm shift in our justice system from human to algorithmic dispute resolution. While most of us perceive the delivery of justice as a human task, courts and informal arenas worldwide are increasingly relying on online processes that employ algorithms in lieu of judges and mediators.

The Role of Artificial Intelligence

Also, artificial intelligence is more commonly used to support and predict judicial outcomes. Together, these developments constitute dispute resolution automation (“DRA”). What is still a nascent phenomenon, accelerated by Covid-19, is certain to expand dramatically within and outside courts, as our backlogged justice system seeks to transform the inefficient resolution and adjudication of cases, and expand access to justice.

Current Theoretical Framework

Despite the growth of DRA, our theories, concepts, and rules remain focused on the role of human third parties in reducing barriers to courts, generating perceptions of procedural fairness, and ensuring just outcomes. The implications of the “vanishing third party” on justice have yet to be recognized, studied, conceptualized, and theorized.

Project Objectives

This project will fill this gap by offering a new theory of access to justice (barriers), procedural justice (perceived fairness), and substantive justice (just outcomes) for DRA. To that end, I will:

1. Develop a normative framework for just DRA.
2. Conduct a comprehensive empirical study of real data in four research sites in different countries (France, the Netherlands, the U.S., and Israel), lab experiments on DRA, and interviews with designers and users of DRA.
3. Generate a typology for the design of just automated processes across settings, and devise model procedural rules for the adoption of DRA in courts.
4. Develop novel methods for the evaluation of DRA.