AI For Alternative Dispute Resolution: A Technological Answer to Judicial Congestion in Colombia

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AI For Alternative Dispute Resolution: A Technological Answer to Judicial Congestion in Colombia

By Germán A. López A.*

Introduction

Alternative Dispute Resolution (ADR) has become a daily part of business in Colombia and Latin America, since it allows companies to avoid costly and strenuous litigation in national courts, by giving the businesses more flexibility when it comes to settling confrontations and reaching profitable deals. Moreover, this guarantees that settlements can be reached in a more efficient and cheaply manner by the agents of the market. At the same time, this keeps new cases from being filed before the national courts and judiciary authorities, which in time see the amount of work and congestion of their offices decrease. One of the branches of ADR that has been gaining increasing importance around the world is the Online Dispute Resolution (ODR), which uses technological solutions, including AI, to assist the settlement of disputes between parties. The scope of this article is to shed some light on prospective applications of ODR enhanced with AI as a technological means to respond to judicial congestion in Colombia.


What is ODR about?

Generally speaking, ODR is a branch of dispute resolution that allows parties to establish negotiations and settlements through the use of different ICT, especially Internet. The idea behind ODR is that ADR might be used even when conflicting parties cannot be physically present, thus broadening the possibilities of dealing with disputes beyond traditional ADR. Nowadays, this is especially important, since a relevant number of commercial ties, legal relationships and cross-border transactions take place in different countries, making the physical presence of the conflicting parties either too costly or too inconvenient. Precisely foreseeing the increasing number of conflicts that might arise in the European internal market, the European lawmakers issued a new regulation regarding ODR for consumer-related disputes[1]. The scope of this Regulation is to provide E-Consumers in the European internal market access to ADR through the internet, avoiding more complex and strenuous ADR or litigation, in a “simple, efficient, fast and low-cost way”[2].


In parallel, many other countries have been approaching to ODR to solve not only consumer-related conflicts but other kinds of small-claim disputes. This means that through ODR a broad constellation of small-claims disputes might be solved through the use of different technologies allowing the general population to solve their day-to-day issues in a cheap and convenient matter, while also keeping these small claims out of the scope of national judges. In short, ODR is a technology driven ADR in which, given the small nature of the claims of the parties, disputes might be solved without the parties being physically present at the same time, reducing the costs and the inconvenience usually related to other forms of ADR.

ODR enhanced with AI?

As mentioned before, Online Dispute Resolution (ODR) has been gaining a foothold in Europe and around the world as an important way to reach settlements efficiently using the current ICT. Lately, AI has been proposed as a new technology that might boost the performance of ODR protocols, through algorithms that can lead the parties into reaching settlement formulae easier, and also through predictive reasoning that allows for similar arrangements to be carried out when certain analogous situations are found in different cases. Additionally, the same AI predictive reasoning might give more informed accounts of each party’s possibility to win in a potential litigation according to the current law and jurisprudence. In time, this would make the reaching of fairer settlements easier, since parties could be more in touch with their real possibilities in a full-out judiciary confrontation scenario.


This would mean that ODR-enhanced AI might become a very efficient and cheap manner to solve disputes in a very homogenously and in patterns that reflect the standing of jurisprudence and law regarding different topics. Also, given its online nature, it might be easily accessible through the use of ICT and similar technologies. Thus ODR might begin to reach more users and to become more widely used, while also reducing the amount of litigation before courts and judicial authorities. Hence ODR might substantially reduce the judicial congestion through the capture of disputes that would otherwise end before a court.

Judicial Congestion in Colombia

As a general overview of judicial administration in Colombia, according to the Organization of American States (OAS), Colombia has around 10 judges for every 100,000 inhabitants[3], and the ordinary length of proceedings before the Civil and Administrative jurisdiction might be around 6 to 10 years, making it one of the biggest challenges and inconveniences associated with litigating in Colombia.

Regarding judicial congestion in Colombia, it might be defined around three particular concepts: 1) Delay in the proceedings, that is, proceedings takes longer than they should according to the applicable procedural code, 2) Backlog, that is, proceedings remain unsolved for long periods of time without little or no action taking place, and 3) Work overload, that is, too many cases for too few judges. These three issues lie at the core of judicial congestion and are a longtime concern for the administration of justice in Colombia, which remains to be solved to this day.

ODR and Judicial Congestion

In relation to ODR enhanced with AI, Governments, such as the Colombian, could anticipate this technology and make it available to the public, especially in cases related to consumer protection and small claims, using as an example successful international experiences. This could allow the general population to avoid lengthy litigation and help judges to receive fewer cases.

An issue that has arisen in Colombia is that an important part of the budget of the judicial branch is spent in “decongestion” judges that help the regular judges to speed up their rulings. However, this is only a short-term solution to the issue, and unlikely to tackle the judicial congestion problem definitively. On the other hand, reducing the amount of work of the judges through ODR could eliminate the problem in the long run, as an increasing number of cases would be solved outside the courts through ADR settlements using ICT and AI.

Conclusion

ODR is a cheap and convenient way to solve disputes, especially when they are related to small claims. Through the enhancement of this type of ADR with AI that advises the parties on their real chances in a potential litigation scenario, more informed and accurate settlements might be reached with less effort and in less time. Additionally, these technologies would keep small claims from being filed before national courts, which consequently see their amount of work reduced, allowing judges to catch up with their delayed work and making backlog in proceedings less likely, since the amount of cases in each judge’s office is reduced in the short and mid-term. In countries with issues of judicial congestion, such as Colombia, all of this would in the long run allow judges to rule over less small claim cases, substantially diminishing the amount of work they have to carry out and reducing the judicial congestion, since fewer disputes must be solved by the national courts.


[1] Regulation (EU) No. 524/2013 of the European Parliament and the Council of 21 May 2013.

[2] Idem.

[3] The OAS has information available only for up to 2014. Available at: http://www.oas.org/dsp/observatorio/database/indicatorsdetails.aspx?lang=es&indicator=48


*Germán A. López A. is an associate in the Technology, Media and Telecommunications Practice Group in Bogotá office of Lloreda Camacho & Co. Mr. López can be contacted at glopez@lloredacamacho.com 

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Bogotá,
Thursday, May 31, 2018
Information Technology / Computer Law, Alternative Dispute Resolution