WASHINGTON STATE ACCESS TO JUSTICE TECHNOLOGY PRINCIPLES: A PERSPECTIVE FOR JUSTICE SYSTEM PROFESSIONALS, THE

Justice System Journal, 2006 by Zorza, Richard, Horowitz, Donald J

Conversely, well-thought-out technology increases the potential to build a far more transparent judicial system. The simple fact that the rules by which a tech-driven system operate are enshrined in the computer code means they are written down-which is precisely the goal of consistency and transparency for which the system aims. Whereas in nontechnology systems, in which decisions are made and tracked without technology, the real reasons for results may be buried in individual bias or ignorance. Technology provides opportunities to obtain information on what is really happening in the system, whereas in nontechnology systems such patterns and impacts are often quite difficult to see.

The fourth Principle, "Assuring a Neutral Forum," reads:

The existence of a neutral, accessible, and transparent forum, for dispute resolution is fundamental to the Washington State justice system. Developments in technology may generate alternative dispute resolution systems that do not have these characteristics, but which, nevertheless, attract users who seek the advantages of available technology. Participants and actors in the Washington State justice system shall use all appropriate means to ensure the existence of neutral, accessible, and transparent forums which are compatible with new technologies and to discourage and reduce the demand for the use of forums which do not meet the basic requirements of neutrality, accessibility, and transparency.

As a general matter, technology is changing transaction patterns. The use of technology to manage day-to-day court transactions creates the risk of removing these transactions from effective supervision. For example, many online transactions now require users to "agree" to waive their rights to the open and visible court-based dispute-resolution mechanisms traditionally available to protect their rights. Such actions may threaten the integrity of and trust in the legal system, because absent sufficient transparency, meaningful oversight by courts is difficult.

This Principle establishes the view that the justice system must be proactive, continuing to play its historically important protective role in the new high-tech era, and that the justice system must find ways to respond to the changing patterns of transactions and of relationships between parties.

The Comment to this Principle makes clear that it does not change governing law:

This Principle is not intended in any way to discourage the accessibility and use of mediation, in which the confidentiality of the proceeding and statements and discussions may assist the parties in reaching a settlement; provided that the parties maintain access to a neutral and transparent forum in the event a settlement is not reached.

The justice system might respond in a variety of ways to protect individuals as patterns of transactions change. Among the possible responses are:

* creating online dispute mechanisms that are court based, yet meet the needs of electronic institutions;

* modifying current systems to meet the needs of electronic transaction regulation; or