3. Unlocking ODR potential for effective dispute resolution in Latvia
This chapter explores approaches to unlock the potential of online dispute resolution (ODR) in Latvia by applying digital technologies and data. The chapter examines the use of digital tools such as e-case platform and portal and one-stop-shops to enhance users’ experiences with ODR, dispute prevention, automation of diagnosis and dispute triage mechanisms, and improving pathways and the seamless transfer of cases. The chapter examines the current situation in mediation and arbitration and outlines current challenges and opportunities for improving dispute resolution. Additionally, it highlights the importance of enforcing ADR agreements and analyses alternatives for improvement.
There is great potential for the digital transformation of dispute resolution in Latvia (see Chapter 2, Transforming dispute resolution in Latvia: Towards a people-centred justice approach). The integration of digital technologies in dispute resolution processes and services currently follows a “digital-by-default” approach (i.e. focusing on replicating analogue services by digitising information and procedures without rethinking the strategic use of digital technologies and data to transform processes and services to the online environment).
The next sections assess the use of digital tools in the Latvian justice system. A particular focus is given to the e-case portal (“Elieta.lv”) and e-case platform (“e-lietas platforma”), e-ID and one-stop shop. The sections identify challenges with the current state of these digital tools and highlight recommendations to address these issues.
3.1.1. Digital tools in the Latvian justice system
E-case portal and platform
Latvia has set in place an e-case portal and platform to digitalise certain elements of court proceedings allowing parties to access case materials remotely in digital format. The platform makes it possible to process administrative, civil, criminal and administrative offence proceedings faster, less expensively, more effectively, and in a way that is more transparent and safer for all those involved in court proceedings (see Box 3.1).
The Latvian Court Administration has worked in the past years to develop the e-case portal (“E-lieta.lv”). The new product is an improved version of the website manas.tiesas.lv. The portal provides access to online justice services to citizens and case information for parties, allowing them to consult their files and receive decisions and notifications. The portal also provides a centralised, safe and more effective way to submit documents, for example, to prosecutors’ office, courts or probation services. Furthermore, the transparency and efficiency of court proceedings are enhanced by a legal fees calculator and the possibility to pay on line.
Apart from judicial proceedings, the portal offers an extra-judicial guide on ADR. The guide directs users to the appropriate ADR mechanism according to the amount and the type of dispute.
Source: Government of Latvia (2023[1]), E-lieta, https://elieta.lv/web/#/sakums; Labs of Latvia (2021[2]), E-services development significantly accelerated by COVID-19 pandemic, https://labsoflatvia.com/en/news/e-services-development-significantly-accelerated-by-covid-19-pandemic.
While e-case portal (“Elieta.lv”) and e-case platform (“e-lietas platforma”) have been key steps to trigger the introduction digital technologies and data in court proceedings, there is scope for leveraging on the e-case platform to reflect the entire front and back end of court processes. Further developing the platform’s functionality has great potential for increasing the user-friendliness and efficiency of court services.
As part of the continuous improvements of e-case and other platforms, enabling users to access their files and notifications in a single place would be beneficial. At present, the multiplication of channels (e.g. manas.tiesas.lv, elieta.lv and tiesas.lv) to follow cases can lead to friction. Centralising access to all files and notifications would raise efficiency (e.g. by reducing risks of missed court notifications and enabling parties to oversee all their relevant processes) and improve the overall user-friendliness of the platform. In this regard, Latvia could consider ensuring interoperability among various justice systems, notably the TIS (“Tiesu informatīvā sistēma”), e-case and ADR platforms, to enable end-to-end services.
Continuous improvements to e-case and other platforms would require consolidation, whenever possible, of channels of separate organisations and pathways; a review of the TIS and its interoperability with other systems to ensure that users can provide the data only once; the involvement of stakeholders from courts, mediation centres, arbitration, private service providers on an ongoing basis throughout the lifecycle of service design and delivery; and further development of the e-case platform (“e-lietas platforma”). Additional improvements could include reflecting on the entire front and back end of court processes and enhancements in user-friendliness (e.g. centralising access to all files and notifications, enabling interoperability between court and ADR platforms and public registers, unifying videoconference tools to replace current use of various platforms).
One-stop-shop platform: Latvija.lv
Latvia’s one-stop-shop platform (“Latvija.lv”) has been progressively expanding since 2015. Managed by the State Regional Development Agency, the platform is the visible part of a developed national shared services platform (Government of Latvia, 2023[3]). The one-stop-shop comprises a range of service categories for citizens and businesses, including education, health, housing, transport, social and consular services. The platform provides a space for information and refers users to websites or offices where they can access services. Latvija.lv also allows users to authenticate and access online services.
Despite advancements in Latvija.lv, e-case portal (“Elieta.lv”) and e-case platforma “e-lietas platforma” in the past years (OECD, 2018[4]), there is strong potential to make dispute resolution and other justice services available in a single platform. As in the case of health, education and social services, citizens and businesses would greatly benefit from a separate section for justice on the front page of Latvija.lv or have them gathered in the e-caseportal. This would help leverage ODR services in Latvia and empower users by enhancing access to legal and justice information (see Box 3.2). Another untapped opportunity would be to link Latvija.lv to other platforms, such as e-case portal, favouring a “no wrong door” approach.
United Kingdom: Accessing services in a simpler, clearer and faster fashion
The UK government has developed a one-stop-shop platform (GOV.UK) to help people and businesses find information and government services. Content design and user journey are core elements that help the platform maximise user experience. GOV.UK also centralises government activity, including official papers such as guidance, reports, statistics and policy papers. By offering efficient and transparent information, the platform also contributes to reinforcing trust in public institutions.
The platform is a central government portal that replaces multiple departmental websites, breaking down government silos. Services are classified into 17 categories, assembling 23 departments and organisations, and over 400 agencies and public bodies. GOV.UK contains a dedicated section on “Crime, justice and the law”, which concentrates all necessary information on rights and legal support; compensation and victim support; courts, tribunals and appeals; reporting crimes; penalties, sentences and police; prisons and probation; and youth. For example, people can find legal advice, check eligibility for legal aid, or file a claim on line.
To help people get effective access to justice, GOV.UK contains interesting features. For example, the one-stop-shop provides a simplified step-by-step form that helps people understand their eligibility for legal aid. Likewise, the platform provides an extensive guide to civil mediation, including information on suitable disputes, associated fees and a list of registered mediators and mediation providers. The platform provides a list of institutions where people can find legal advice and information and also enables users to find a legal adviser through postcode search.
France: A platform at the service of litigants
Justice.fr is a one-stop-shop platform that aims to provide accessible and comprehensive information about legal services, procedures and resources for citizens and businesses in France. The platform is designed to facilitate easy access to various legal and judicial services, thereby enhancing transparency, efficiency and access to justice in France. Users can create a secure personal space to follow their cases on line and take direct legal action in legal procedures. Justice.fr is available both as a website and mobile application.
The platform offers several features. Information on rights, procedures and referral options are displayed in an amicable and interactive manner that privileges user experience and accessible language, including explanations of legal terms, in both text and videos. It also offers an interactive and dynamic tree of topics that branches out as the user interacts with it in search of a specific question or topic. The platform allows users to find courts or justice points near them and find information on fact sheets on family law, labour, and consumer rights, among others. Every section contains referral options for related online services, and forms, when available, clearly state all the procedures in which a lawyer is not needed and incentivise conciliation and mediation. The service also grants access to directories of legal professionals, such as lawyers, court commissioners, notaries, conciliators and mediators. Finally, Justice.fr provides a simulator of legal aid and alimony.
Source : Government of the United Kingdom (2023[5]), Welcome to GOV.UK, https ://www.gov.uk; Government of France (2023[6]), Justice.fr, https ://www.justice.fr/; Government of France (2023[7]), La transformation numérique du Ministère de la Justice, https ://www.cours-appel.justice.fr/nancy/la-transformation-numerique-du-ministere-de-la-justice.
More broadly, chatbots are other tools that could help improve access to information on legal and justice services. Such a tool could easily help address people’s questions such as eligibility for legal aid, options available to address legal and justice needs, justice pathways, eligibility for certain procedures (e.g. simplified and warning procedures) and ADR centres available, among other useful information. In practice, this is feasible by having clear standards and simplifying processes that lead to one or more pieces of information to the maximum extent. Chatbots have been widely used in ODR solutions, such as those in Portugal (see Box 3.3) and developed by the Cyberjustice Laboratory and Tyler Technologies (see Box 2.4 in Chapter 2).
The Portuguese Ministry of Justice developed the Practical Guide to Justice (GPJ), an innovative chatbot that aims to help users find relevant information to their legal and justice needs. GPJ is part of the recently launched GovTech Justice Strategy to improve the accessibility, inclusiveness and responsiveness of the justice system. Based on a natural language processing tool driven by AI technology – ChatGPT, GPJ is responsive to different formulations of questions and provides answers in an easy and accessible manner.
Currently in its Beta version, the initial focus of the platform is on marriage, divorce and starting a business. Users can choose among frequently asked questions or write their own questions freely. The tool provides answers in natural language, referring the user to the relevant service. The Ministry of Justice aims to gradually expand the topics covered in the platform and eventually encompass other services, such as ADR and registers, in order to provide a seamless end-to-end experience for users.
Source: Government of Portugal (2023[8]), Guia Prático de Justice Versão Beta, https://justica.gov.pt/Servicos/Guia-pratico-da-Justica-Versao-Beta.
One specific area within justice that would greatly benefit from being available on line on Latvija.lv or e-case portal is legal aid services (see Box 3.4). Fact-finding interviews revealed that citizens mainly learn about legal aid via social services in municipalities. Applications for legal aid can be submitted in person and on line. Yet, fact-finding interviews suggested that Latvija.lv and e-mail channels represent only up to 20% of total applications for legal aid. Despite alleged gradual progress of users learning how to fill in templates and using e-signatures for legal aid requests, the small number of people applying on line for legal aid suggests that at least a portion of justice clients in Latvia continue to rely on analogue services.
In Ukraine, digital transformation has allowed citizens to access a wide range of administrative services. Strengthening access to free legal aid by digitalising corresponding services is one of the objectives identified in the Cabinet of Ministers’ Action Plan. Digital solutions are already implemented in the area of legal aid services. This includes filing requests on line and reaching services through different channels such as hotlines, online chat services or applications.
Digital transformation in the area of legal aid has allowed citizens to better access legal information and services, enhancing their capacity to protect their rights and access justice. These services are designed to simplify access to practical information and aid, avoiding people turning away from the system. Online services also strengthen the possibility for vulnerable groups such as those with low mobility, with disabilities or wishing to remain anonymous to reach legal services. Enabling access to legal aid services through online channels is also detrimental to the continuity of access to justice during crises, such as pandemics or wars.
Source: Government of Ukraine (2020[9]), Program Activity Cabinet, https://www.kmu.gov.ua/storage/app/sites/1/Program/diyalnosti-kmu-20.pdf; United Nations (2021[10]), Digital Transformation for Legal Aid: Challenges and Solutions, https://www.undp.org/ukraine/blog/digital-transformation-legal-aid-challenges-and-solutions.
The Legal Aid Administration has been taking active steps regarding sharing information on legal aid by preparing seminars for municipalities to explain legal aid; sending information to courts; visiting retirement homes; and communicating with people via X (Twitter). Looking ahead, Latvia could consider offering chatbots or a legal aid simulator. Providing online information on legal aid in an accessible way would also free up resources in the Legal Aid Administration to concentrate on justice clients who do not have the resources or capabilities to use online services.
3.1.2. Absence of key infrastructure in Latvia’s justice system
Beyond sound justice, and digital and data governance approaches, infrastructure remains a barrier to the widespread implementation and use of digital tools (see Managing technological advances in Chapter 2). Low bandwidth, inconsistent Internet connectivity and lack of base registries and equipment (e.g. hardware and software) were identified as obstacles to implementing ODR in Latvia. While the Court Administration provides the necessary infrastructure to the court, a range of gaps remain both on the end of courts and justice institutions and users. This has important implications. For example, gaps in infrastructure might lead to interruption in the flow of a hearing or force a delay. This can also hamper users’ access to communication tools (e.g. e-mail, computers, printers, software), access and online submission of documents. Lack of a sound digital and data infrastructure can also hamper interoperability and, thus, smoothness of justice services (e.g. linkages between pre-court ADR and court platforms).
In light of these challenges, Latvia would benefit from continuing to invest in digital technologies, shared services and tools for the long term (e.g. hosting and infrastructure, digital identity and signature) to enable the sustainable digital transformation of its justice system. This would require strengthening the co-ordination responsibilities of the Ministry of Justice; developing shared services and tools; continuing to invest in capacity building to support the implementation and use of shared tools and services of all relevant actors; and considering piloting projects on the use of artificial intelligence (AI) in pre-court and court dispute resolution mechanisms, notably in procedural and non-analytical cases.
On top of missing infrastructure, specific challenges have been emphasised as important to tackle for developing ODR in Latvia. They encompass identification systems for parties during hearings; accessibility of online hearings for people with disabilities; and assessment of witness credibility without a complete view of the witness’ body language and surroundings. Notably, the right to a fair, accessible justice system was highlighted as a priority by all stakeholders, and functionality must be at the heart of any innovation. Concerns around challenges to the validity of virtual hearings, or mandating electronic forms, have been raised, particularly if this impedes access to justice due to users’ lack of understanding or access to infrastructure.
These issues are not limited to Latvia. In fact, they are experienced by many counterparts using online tools. It would be useful to explore good practices for remote hearings, following the example of the UK Judicial College (Judicial College, 2020[11]) or the US National Center for State Courts (see Box 3.5. The United States: Providing guidelines for online hearings), to help Latvia adapt online hearings in light of users’ needs. It may also be worth exploring how other sectors, for example, health or finance, verify identities and build consumer trust. Ideally, guidelines would provide clarity to judges and parties and help them understand when – or not – online hearings can be considered an option, also in light of procedural fairness.
The California Commission on Access to Justice has developed guidelines to help courts decide when and how to use online hearings. The guidelines provide good practices to help identify and overcome barriers to access to justice during online hearings. When determining whether, when or how to use online hearings, the following points should be considered:
1. Which hearings to conduct on line: Courts should prioritise proceedings where a litigant can be self-represented (e.g. domestic violence), proceedings that are easily suitable to remote hearing technology and procedures (e.g. avoid those involving substantial documentary evidence) and disputes that are likely to reduce courts’ backlogs, hence better serving citizens and enhancing access to justice.
2. Digital divide: Online hearings should use digital technologies that are easily accessible to users. Courts should provide options to mitigate the incompatibility with certain devices (e.g. voice-only participation, toll-free telephone number).
3. Compliance with accessibility requirements for persons with disabilities: Courts should guarantee accessibility for persons with disabilities. Ensuring accessibility for persons with disabilities is essential for creating an inclusive justice system operating remotely. Besides being technically inaccessible, remote technology can cause dizziness, nausea and other feelings of illness. Online hearing proceedings should comply with appropriate standards, such as the Web Content Accessibility Guidelines 2.1.11 and the 21st Century Communications and Video Accessibility Act (CVAA). This means adapting online hearings to ensure inclusiveness, for instance, by providing closed captioning, automatic transcripts and screen reader support.
4. Usability of the software: Courts should provide guides to help users understand how the software works and resolve common problems related to the use of the platform without the intervention of court staff.
5. Cases involving self-represented parties: Courts should adapt online hearings to the needs of those who are not fluent in the country’s language. Remote translation should be provided. Courts must be aware that access to justice might be limited for non-fluent speakers who cannot access online hearings software.
6. Cases involving illiterate parties: Courts must be aware that online hearings can limit access to justice for illiterate parties or self-represented litigants unfamiliar with judicial vocabulary. Measures must be taken to mitigate this risk (e.g. provide simplified instructions in plain language or visuals).
7. Cases requiring documentary evidence: Online hearings are not recommended when documentary evidence must be presented. However, if remote technology is to be used for hearings involving documents, and especially for submission of documentary evidence, online hearings technology must provide the possibility to submit and record online documentary evidence. Courts must be aware that providing evidence through an online platform may limit equal opportunity in case of inequalities in access to technology. Measures can be taken to ensure equality between the litigants, such as distributing copies of documentary evidence before hearings.
8. Tools for the court in exercising control over hearings: Courts should use platforms that allow them to control online hearings to ensure a fair and efficient process (e.g. participant identification and management, confidentiality).
9. Generation of useable official records: When deciding which platform to use, courts should consider whether they provide tools for generating official records and transcripts and the option for the parties to contest them.
Source: National Center for State Courts (2020[12]), Remote Hearings and Access to Justice: During COVID-19 Pandemic and Beyond, https://www.ncsc.org/__data/assets/pdf_file/0018/40365/RRT-Technology-ATJ-Remote-Hearings-Guide.pdf.
Since May 2023, most individuals in Latvia have an obligation to have an electronic identification (“e-ID"), ensuring the possibility of communicating with public dispute resolution institutions. Likewise, since January 2023 all businesses have an obligation to have an activated official electronic address. State entities, reserve solders and certain individuals (bailiffs, insolvency administrators, soldiers etc.) had this requirement even before January 2023. This is a firm step towards using e-ID for remote identification with public sector institutions, including the judicial system (e.g. identifying individuals and companies remotely before court hearings without the involvement of the court administrative staff). The use of e-ID to enable remote identification would help reduce the workload of justice officials and make it possible to automatically register parties’ data in the e-case portal and platform.
3.1.3. Looking ahead: towards a digitally mature justice system in Latvia
There is scope to reconsider the approach Latvia has adopted so far in modernising justice and dispute resolution mechanisms. This may require adopting sound justice, digital and data governance, as well as to rethink and re-engineer public processes and simplify procedures.
Privileging the “digital-by-default” approach over “digital-by-design” has several consequences in the design and delivery of dispute resolution. Service mapping and interviews with stakeholders revealed lack of interoperability and linkage between different systems, usually entailing fragmentation and multiplication of tools and channels of communication. Reported issues (e.g. multiplication of tools, friction in navigating across platforms and information being requested several times) on user experience with online hearings, platforms and communication tools also suggest Latvia has been focusing on digitising the existing processes and procedures without considering user needs.
As part of potential reforms, Latvia would benefit from continuing to improve the electronic signature and court information system (TIS) and the e-case portal (Elieta.lv), especially to ensure the usability of justice services. This encompasses setting centralised guidelines and standards to ensure sharing of documents and the reuse of documents already submitted, enabling access to case histories of both court and out-of-court claims (alternative dispute resolution, ADR), and making efforts to better understand the users’ needs to improve the functions of the system in back-office and front-service dimensions (e.g. increase size for attachments, pre-filling of information). This would help solve reported disparities between paper and electronic records for a same-file claim, for instance. This means continuously seeking out and engaging a diverse group of users (e.g. lawyers, citizens, businesses) to understand and prioritise their needs over the convenience of decision makers. Likewise, it is vital to interact with citizens, users and all stakeholders in the initial and ongoing phases of service design and delivery. Concretely, this means introducing methods of co creation and co-designing services, continually looking for opportunities to involve users in testing, iterating and using feedback loops to inform user segmentation, and a more targeted and customised service experience (see Agile approach in designing and delivering ODR in Chapter 2).
The modernisation of dispute resolution and implementation of ODR in Latvia has focused chiefly on addressing disputes after they emerge. While ODR can continue benefiting justice users by allowing them to access court proceedings on line, there is an untapped potential to transform the entire spectrum of dispute prevention and resolution settings, including ADR and processes (e.g. automation, triage, pathways).
ODR can significantly contribute to holding back disputes and prevent their escalation. To enhance dispute prevention, Latvia could consider enhancing the e-case portal (Elieta.lv) to help citizens and businesses understand their conflicts and explore options beyond court. Beyond ODR mechanisms, digital technologies and data can greatly benefit from legal services that enable parties to assess the suitability of non-contentious out-of-court ODR mechanisms for their cases. This could be developed as part of online self-evaluation tools and would help parties consider ADR mechanisms before deciding to bring their cases to court. Merely offering a wide range of options for sourcing legal advice and assistance is not always the most effective strategy. Too many choices may hinder individuals from accessing the service most suitable for their needs. Adopting a “no wrong door” approach would help ensure that people with legal issues are directed to the appropriate services and channels (OECD, 2022[13]).
Providing clear guidance and transparent information about various dispute resolution options, their appropriateness, cost, duration, and likelihood of success, would facilitate informed choices. Concretely, the e-case portal could include tools for self-evaluation and provide information to help parties realistically understand their issues and possibilities beyond court (see Box 3.6). Likewise, Latvia could extend its efforts to other elements, such as offering information on available legal support or dispute resolution options, along with time frames for judicial or other decision-making processes (see Box 3.6). Following this approach would encourage parties to embrace amicable ways of resolving disputes and support them in finding consensual out-of-court solutions to their disputes.
The Dutch “He Jurisdisch Loket” provides interactive step-by-step legal advice to help people solve their legal issues out of court. The platform follows a “no wrong door” approach, providing a universal gateway to justice services. For some subjects, a decision tree is displayed to help citizens find a step-by-step solution to address their needs. The platform also provides free legal counselling and assistance. This contributes to attenuating disputes and preventing their escalation.
The platform provides legal information and sample letters to assist users in resolving a wide range of legal and justice issues (e.g. work, family, debts). The platform informs people of their rights and current legislation related to their problems. He Jurisdisch Loket also refers citizens to lawyers or mediators in case the question requires specific legal expertise or if the services provided are not sufficient to resolve the situation. The platform is also adapted to low-income individuals and foresees lower fees for these groups to enable access to legal and mediation services. In-person access points are also spread around the country, and a hotline is also available.
Source: Het Jurisdisch Locket (2023[14]), How we work, https://www.juridischloket.nl/hoe-we-werken/.
3.2.1. ADR in the Latvian justice system
Fact-finding interviews suggested that there is an untapped potential for adopting a comprehensive approach to ODR beyond courts in Latvia. Currently, initiatives concentrate on the digitisation of typical court functions such as the submission of documents, the storing of data in an e-file and the conduction of proceedings and hearings online. In line with best practices such as the institutional introduction of conciliation in German court proceedings (Güterichterverfahren), court dispute resolution in Latvia could embrace alternative ways of solving disputes in addition to litigation (see Ombud schemes in consumer-trader disputes and Box 4.9 in Chapter 4).
Integrating alternative dispute resolution mechanisms, such as mediation and arbitration, to the Latvian broader efforts can help the country improve access to justice and advance in modernisation efforts of its justice system.
Mediation in Latvia
Mediation can be defined as “the non-binding intervention by an impartial third party who helps the disputants negotiate an agreement” (Carroll, 1997[15]). Mediation can resolve disputes cost-effectively through processes tailored to the parties' needs. The Mediation Law and the EU Directive on Certain Aspects of Mediation in Civil and Commercial Matters serve as the legal basis for mediation in Latvia. The Mediation Law does not make any distinctions or provide any specific regime for simplified and warning procedures or consumer cases. Mediation applies to all types of disputes that parties desire to resolve amicably, as set in Section 8 (Government of Latvia, 2014[16]).
In Latvia, a voluntary agreement on mediation, whether included as a clause in the contract or concluded as a separate agreement, prevents the use of litigation, except if:
1. One party has informed the other party in writing regarding withdrawal from the mediation agreement included in the contract concluded between them.
2. One party has rejected the proposal of the other party to settle disputes by using mediation.
3. A mediation has been terminated without agreement (i.e. settlement), and the mediator has issued a certification regarding the outcome of mediation.
The exceptions listed above shed light on the voluntary and consensual nature of mediation, perceived as an option for the parties that want to reach a settlement amicably. Not only are parties not required to mediate unless they have agreed to do so, but such an agreement does not necessarily prevent litigation if one or both parties do not want to mediate or cannot reach a settlement.
Interviews suggested an overall consensus that mediation is rarely used outside family disputes. This has been partially related to the voluntary nature of mediation and the lack of confidence as an effective method for dispute settlement, also due to the limited enforcement options for mediation agreements. Indeed, the lack of enforceability of mediation settlements was reported to drive people and businesses out of mediation in Latvia (see Enforcement of decisions). Section 14(3) of the Mediation Law provides that the agreement reached during mediation must be voluntarily performed by the parties (Government of Latvia, 2014[16]). However, such an agreement is not an enforceable document. Hence, if one of the parties does not comply with the agreement, the other needs to initiate litigation requesting compliance with the settlement or payment of compensation for non-compliance. At the same time, if a settlement is reached during the litigation and confirmed by the court, it can be enforceable as a court judgment (Section 228 of the Civil Procedure Law) (Government of Latvia, 1998[17]).
Another reported barrier to the use of mediation is the perceived mismatch between the level of technicalities certain cases require and the lack of specialised mediators to fulfil this demand (OECD, 2018[4]). Businesses have particularly emphasised this concern and confirm previous findings in the OECD report Access to Justice for Business and Inclusive Growth in Latvia. Mediators often specialise in human sciences (e.g. psychology, sociology, philosophy), while stakeholders considered that a more diversified pool of mediators with expertise in other fields (e.g. engineering, finance) would enhance the attractiveness of such services. In this context, Latvia could consider enhancing the attractiveness of mediation by increasing the diversification of profiles, training and creating incentives to attract future mediators. This could also encompass creating incentives and programmes to retrain retired judges as mediators. Expanding capacity-building programmes for mediators could also help address the issue. This could be complemented by stronger co-operation between the state and mediation associations to improve support and implement reskilling initiatives for career reconversion.
Currently, in Latvia, legal aid does not apply to ADR (Government of Latvia, 2019[18]). To favour the uptake of ADR in the country, Latvia could consider enlarging legal aid to ADR by amending Article 9 of the State Ensured Legal Aid Law (Government of Latvia, 2019[18]). This would also greatly benefit a share of the population with no financial means to afford ADR-related expenses and help expand access to justice. Enlarging legal aid to ADR could also help promote a shift in the “culture of litigation” by allowing people to choose an alternative method to settle their private disputes. Another positive outcome of encompassing ADR in the State Ensured Legal Aid Law is the potential decrease in court workload. Mediation could be a good candidate for state financial support for legal assistance in view of lower fees compared to other ADR mechanisms, such as arbitration.
Arbitration in Latvia
Arbitration is an ADR mechanism that relies on parties' consent to arbitrate. Without an arbitration agreement, there is no duty to arbitrate. However, if parties have validly agreed on arbitration, they cannot litigate in court. Arbitration does not apply to all types of disputes, even if parties desire to arbitrate. Section 5 of the Latvian Arbitration Law contains a catalogue of legal relationships ineligible for arbitration (Government of Latvia, 2014[19]). This encompasses disputes between employees and employers on employment contracts (i.e. payment matters). Similarly, disputes involving a state or local entity or those where an arbitration award might infringe upon them cannot undergo arbitration (Government of Latvia, 2014[19]).
During focus group discussions conducted with businesses, some invoked damaged reputations as one of the reasons preventing parties from choosing arbitration in Latvia. For very large disputes, some stakeholders preferred to look for arbitration options abroad.
Scholars have also identified the perception of mistrust of arbitration. The arbitration landscape in Latvia is often viewed as “so distorted that arbitration institutions do not operate with the purpose for which they are intended, but to carry out various [illegal] schemes” (Kačevska, 2014[20]; Krumins, 2017[21]). Another author has characterised those words as “a remarkably strong statement that succinctly unveils the gloomy reality of arbitration in Latvia” (Torgāns, 2012[22]). Fact-finding interviews and the views supported by scholars point to a much deeper problem of mistrust of arbitration in Latvia. This can serve as a hurdle to further implementation of ODR in arbitration.
In this context, Latvia could benefit from further improvements in arbitration as a fair and efficient way to resolve disputes. On a technical level, there is scope to strengthen the legal basis for the setting aside procedure for arbitration awards. At the same time, awards by ad hoc tribunals should also rely on robust enforcement procedures. Similarly, there is scope to increase the possibility for witnesses to be heard during arbitration proceedings to ensure disputes are resolved thoroughly and fairly.
In light of alleged reputation issues, improvements in arbitration could also include ensuring the necessary safeguards to eliminate any real or potential conflicts of interest in arbitration and developing ethical requirements for arbitrators, which should be transformed into the cornerstone of the arbitration procedure and compliance with those requirements. As part of improvements, Latvia could consider collaborating with arbitration institutions to develop a training programme for arbiters. A strategic document or programme would be an option to help back these reforms and revamp arbitration in Latvia.
Likewise, setting periodic evaluations could help assess the relevance, efficiency, effectiveness, sustainability and impact of arbitration reforms against new strategic approaches and targets. Evaluation offers a deeper understanding of the underlying policy problems and helps policy makers make informed decisions about the feasibility of continuing or initiating a new policy. Such reforms could help improve the functioning of the arbitration and hence encourage its more widespread use, helping increase the responsiveness of the justice system in Latvia.
3.2.2. Integrating ADR in modernisation efforts in the Latvian justice system
The next step to support the use of ADR mechanisms could be the introduction of online mediation and arbitration. Developing a strategic approach that enlarges the scope of ODR policy to support ADR's development and digital transformation (e.g. mediation, ombuds, arbitration) would be a first step towards further advancing ODR settings in the country (see Strategic approach to dispute resolution in Chapter 2). This approach could also encompass clear principles and goals of ODR in Latvia, adopting a whole-of-government approach, clarifying institutional roles, responsibilities and procedures, specifying resources, reflecting various user groups, and developing a clear roadmap for implementation, with targets and key performance indicators.
The mapping of pathways to dispute resolution in Latvia suggested an absence of channels connecting ADR services and court litigation. Instead, people have to initially attempt pre-court ADR, if they are interested in doing so, and, if such an ADR attempt fails, they have to initiate a new court proceeding without the opportunity to swiftly transfer their case from ADR to an in-court procedure. This fragmentation in the pathways between ADR and court services is perceived as quite cumbersome and lengthy and creates obstacles to considering mediation, arbitration and ombud schemes as viable alternatives to court processes. Similarly, there are no easy pathways to shift a case from court to ADR (and vice versa) after having commenced a court proceeding. Addressing the absence of streamlined paths from court proceedings to ADR mechanisms could be explored as another avenue to promote ADR and reduce court caseloads. Admittedly, this is a big step as it requires sound data governance as part of broader public sector reforms on data architecture and infrastructure (see Data governance and its strategic use in Chapter 2).
Reforming ADR in Latvia could also consider cost rules. Carefully designed cost rules in ADR have the potential to enhance its accessibility, attractiveness and effectiveness of ADR, leading to more efficient and satisfactory outcomes for all stakeholders involved. Interviews suggested that mediation and arbitration are rarely used for simplified procedures due to the high associated costs (see Pathways to simplified procedure in Chapter 4). Cost rules should consider the principles of fairness (e.g. is it possible to have cost-sharing arrangements, where both parties contribute to the fees, encouraging more collaborative problem solving?); predictability (e.g. are there clear and transparent ADR fee structures?); and accessibility (e.g. do cost rules favour ADR by offering lower fees or reduced financial burden compared to traditional court litigation?; and do cost rules in place allow ADR to remain accessible to all parties, regardless of their financial capacity?).
Confidentiality rules in ADR mechanisms are equally important for creating a safe and conducive environment for parties to resolve disputes effectively. Key considerations to confidentiality rules include transparent rules on the use of information shared over the ADR mechanism (e.g. information revealed in ADR may or may not be used in court); privacy and data protection; preservation of trade secrets; and reputation (see Pillar 3: Ethics and safeguards in Chapter 2).
One of the improvements that could be potentially promoted when reforming ADR is having a robust framework for court-annexed ADR. This allows court proceedings to be temporarily suspended (ad hoc or by parties’ request) to enable parties to engage in the ADR process. If ADR is successful, the parties can submit their agreement to the court for approval.
Another aspect that could be considered when reforming ADR is the enforcement of decisions. Enforcing ADR outcomes strikes a balance between preserving the voluntary nature of ADR and providing a means to ensure that parties comply with their agreed-upon solutions. While parties are often happy not to have an enforceable instrument following ADR decisions, being able to enforce them can also improve effectiveness and efficiency in dispute resolution. In this regard, when promoting reforms in ADR, Latvia could consider providing easy access to enforceable instruments or explore the possibility of making various ADR/ODR settlements enforceable (see Enforcement of decisions).
A policy offering a more comprehensive approach to ODR could also consider supporting a collaborative ecosystem between the public sector, non-governmental and private service providers to ADR services. The public sector can contribute with an updated legal framework, providing opportunities and certainty for ODR settings. For example, Latvia could consider introducing laws that help remove barriers to ODR and encourage ODR practices (e.g. by way of cost rules favouring ODR and promoting ODR among the legal professions). This would need to be complemented by private initiatives, such as arbitration, ombud schemes and mediation providers embracing online practices. In addition, it would be beneficial to strengthen the LegalTech ecosystem by making funds available and providing support to enhance start-ups' digital skills and competitiveness. Promoting events and national competitions (e.g. hackathons) could also help leverage innovative solutions to ADR services.
Diagnosis and dispute triage refers to processes and systems that identify, assess and categorise cases according to their suitability to legal requirements, dispute resolution mechanisms, and the legal needs of justice users. Diagnosis and dispute triage help ensure that cases are managed efficiently, effectively and in a timely fashion. It can help determine the best strategies to address legal and justice problems and to make the appropriate referral to dispute resolution channels (OECD, 2021[23]). Diagnosis and triage are useful tools to channel disputes to the right pathways and help parties identify solutions other than litigation, keeping cases out of court to the extent possible. Automation of diagnosis and dispute triage contributes to reducing justice officials’ workloads, channeling resources to the right cases and phases of the proceeding that may require analytical assessment, and discouraging litigation in bad faith.
Following the Justice Strategy for 2022-2026 (see Strategic approach to dispute resolution in Chapter 2), Latvia could build on implementing an ODR concept to promote reforms in diagnosis and dispute triage. For example, civil procedural laws usually contain general requirements that need to be fulfilled to allow the continuity of the procedure (e.g. payment of fees, generic information about parties). Likewise, legal aid requests also heavily build on procedural law. Fact-finding meetings with lawyers and the Legal Aid Administration confirmed that this is another area where Latvia would greatly benefit from automation. In this regard, Latvia could consider automating the process of assessing, conceiving and providing the full spectrum of legal aid services. This would require identifying areas for automation in legal aid, including but not limited to pre-assessment, calculation of benefits and automated processing of human conversation (chatbots), among other uses of digital technologies and data to leverage legal aid.
In addition, in the case of Latvia, the simplified and warning procedures contain specific requirements (see Simplified procedure and Warning procedure in Chapter 4) to allow a file to advance in court (e.g. monetary caps). Some of these requirements, such as payment of the fees or lump sums of a case, can be easily identifiable by automated systems. In addition, usually, the assessment of whether these requirements are fulfilled does not demand analytical thinking or involve major controversy on their applicability. An automatic order could be issued for cases that do not fulfil procedural requirements. Figure 3.1 illustrates this process.
Source: Author’s own design.
From a user perspective, triage mechanisms could be valuable to help users identify information for their legal and justice issues and available recourses at early stages. This would also encourage parties to try ADR before opting for litigation. Online tools such as forms and chatbots integrated into e-case portal and one-stop-shops (see One-stop-shop platform: Latvija.lv), powered by big data, algorithms and machine learning, can help implement diagnosis and dispute triage for people and businesses.
The Platform to Aid in the Resolution of Litigation electronically (PARLe) is a good example of an ODR platform with a triage mechanism, which helps assess the admissibility of a dispute (see Box 2.4 in Chapter 2 and Box 3.8 further below). Developed by CyberJustice Canada, PARLe has been integrated into several organisations in North America and Europe. The platform enables convenient, affordable and efficient ODR for low-intensity conflicts in the field of civil, administrative and minor infractions. The platform also contains a chatbot where parties can obtain help with identifying information and solving their issues.
Digital technologies, in combination with one-stop-shops, could support a user-centric approach in Latvia by helping users better understand the key characteristics of their conflicts and match these characteristics with a suitable type of dispute resolution.
Latvia could be further inspired by the example of the State Courts of Singapore to implement dispute triage (see Box 3.7). Singaporean State courts offer an online assessment tool for small claims to guide parties in decision making. The tool provides a preliminary assessment of whether a dispute falls under the jurisdiction of the Small Claims Tribunal. It also provides support regarding the identification of evidence, how to proceed with a claim, and facilitates the completion of a claim form. The tool is available for computers and mobile devices and takes about ten minutes to complete (Government of Singapore, 2022[24]). Likewise, the Bem-te-Vi system, developed by the Brazilian Superior Labour Court, is a court case-management tool that triages cases by assessing the admissibility of appeals (see Box 3.7).
Singapore: Implementing triage mechanisms in justice through a pre-filing assessment tool
The Singaporean Community Justice and Tribunal System (CJTS) is the online platform for filing claims to Singaporean State Courts. The platform integrates a triage mechanism of cases by providing a unique pre-filing assessment for each of the four types of courts: Small Claims Tribunals, Community Disputes Resolution Tribunals, Employment Claims Tribunals and Protection from Harassment Court. The pre-filing assessment aims at avoiding parties submitting their cases to a court that does not have the competency to judge the dispute. The requirements checklist also helps to keep cases out of court by redirecting parties to ADR mechanisms.
The pre-filing assessment helps identify if the nature of the dispute and conditions concerning the parties are adapted to the competence of the specific court. The online tool also provides advice. For example, an amicable settlement is advised if the user states that this type of resolution has not been sought. The platform also provides contacts of ADR bodies likely to help them (e.g. the Community Mediation Center). Moreover, if there is a preliminary necessary procedure to bring a claim to a certain tribunal, the platform redirects the user to the right body. For instance, trying to reach a settlement through the Tripartite Alliance for Dispute Management (TADM) is a preliminary condition to bring a claim to an Employment Claims Tribunal.
Brazil: AI applied to triage and case management in courts
Bem-te-Vi is a court case-management system developed by the Brazilian Superior Labour Court (TST) to streamline cases in an efficient and timely manner. Developed in partnership with the University of Brasilia (UnB), the system resorts to AI to automate triage by assessing the admissibility of appeals. According to the parameters built upon natural language processing, the system automatically pre-categorises procedures, thus facilitating human supervision by the responsible judge. Bem-te-Vi is interoperable with other digital judiciary systems.
It also performs automatic analysis of the timeliness of the processes. Users can prioritise the management of procedures according to different strategies and combined options among 38 filters in 9 categories: internal indicators; parts; topic; characteristics of the process; special procedures; preferential procedures; time frames; current status of the process; and lawyer acting in the case. One of the features is the possibility of filtering processes according to the productivity goals set by the National Council of Justice, thus having easy access to cases that should expeditiously come to a conclusion.
Spain: Natural language processing-powered document sorter, anonymiser and similarity analysis to speed up triage and end-to-end case management
As part of Spain’s ongoing commitment to improve access justice, the Spanish Ministry of Justice provides natural language processing (NLP) tools to its users. For example, civil servants in the Ministry of Justice can access a similarity analysis tool, which allows to identify the same entity (same person) in different parts of the document and recognise them as the same, despite significant differences in the wording of that entity throughout the document. Likewise, a document sorter, which allows self-cataloguing of the documentation received at the judicial headquarters, based on the standards established by the Council of the Judiciary. Among the most used services is also the anonymisation of documents, a tool that recognises nominal entities that convey information related to specially protected subjects and proceeds to anonymise them.
Justice institutions have also access to tools that allow to speed up case management, including legal and forensic dictation system. The textualisation of hearings’ recordings also allows judges, prosecutors and other legal practitioners to save time in their day-to-day tasks.
Source: Government of Singapore (2023[25]), Community Justice and Tribunals System, https://cjts.judiciary.gov.sg/home; Government of Brazil (2023[26]), Bem-te-vi, https://www.csjt.jus.br/web/csjt/justica-4-0/bem-ti-vi, Government of Spain (2022[27]), Presentation “Digital Transformation within the Administration of Justice”, https://www.mjusticia.gob.es/es/JusticiaEspana/ProyectosTransformacionJusticia/Documents/202209%20Digital%20Transformation%20[ENG].pdf.
Similarly, automated diagnosis and triage could be implemented in other phases of proceedings that represent a substantial amount of work for justice officials; heavily rely on procedural acts that are not contradictory; or involve repetitive tasks requiring little analytical assessment. This is the case, for instance, on decisions following untimely documents or written manifestation from parties, due date extension, reconsideration of hearings or requests for payment of fees.
Enforcement can also greatly benefit from automated diagnosis and triage (see Enforcement of decisions). While the execution phase is composed chiefly of assessing technical requirements and fulfilling procedural steps, in Latvia, this phase is usually the longest, sometimes taking several years to complete a case. This impacts the rule of law, access to justice and economic welfare. Automating certain steps of the enforcement phase is a good compromise between implementing fairly simple systems against the gains by saving resources and decreasing the time to complete cases.
People and businesses experiencing legal and justice issues might need to recur to a range of services and have their legal and justice matters addressed by different institutions or dispute mechanisms. In the context of multiple dispute resolution mechanisms and service providers, a seamless transfer of information and cases can enhance the efficiency and effectiveness of justice systems.
Pathways and the seamless transfer of information and cases have two dimensions – throughout various milestones within the same proceeding and across different types of dispute mechanisms.
Firstly, ODR mechanisms should be designed to allow a seamless case transition, starting from the initiation of the proceeding and progressing through various milestones, such as providing information, to its conclusion and enforcement of the result.
Fact-finding interviews with business representatives shed light on their constant need to access court systems and resubmit the same information and documents several times. The issue seemed to be persistent as most of the stakeholders consulted (e.g. financial institutions, insurance companies) were regular justice clients and usually involved in a large number of ongoing cases. From a user perspective, it would be desirable if court systems, including the e-case portal, could enable the pre-filling of information and reuse of documents when applicable.
A second aspect of seamless ODR pathways is that systems should enable the swift transfer from one dispute resolution mechanism to another (e.g. from mediation to court litigation) (see Figure 3.2). Currently, there is no linkage between pre-court dispute resolution mechanisms and the court system in Latvia. This is often because sector-specific initiatives have mainly driven ODR services. Attempts to improve pathways have occurred within the court system, arbitration and mediation. However, no integrated approach has been considered across these different dispute resolution mechanisms.
Source: Author’s own design.
For example, mediation and arbitration can take place digitally with the online submission of documents, arbitration hearings and mediation sessions, which became relatively widespread, particularly after the COVID-19 pandemic. At the same time, mediators and arbitration institutions are not part of the judiciary or the public sector. Instead, they are private intermediaries to resolve disputes. Therefore, any platforms that mediators and arbitration institutions might use to submit documents or organise online mediation conferences or arbitration proceedings are currently fully independent from judicial online systems. The same applies to specific out-of-court dispute resolution mechanisms for consumers, such as industry ombuds and the Consumer Rights Protection Centre. They both use their own digital solutions, differing from the judiciary's (see Pathways to consumer claims in Chapter 4).
The lack of swift transfer from one dispute mechanism to another has concrete implications. For example, documents submitted in mediation or arbitration processes cannot be automatically transferred to the court system if parties decide to bring their case to court. If parties agree on arbitration but then voluntarily agree to terminate the arbitration agreement and move the resolution of the dispute to court, they cannot transfer documents to the court system. Similarly, documents submitted to ombuds concerning a consumer dispute are not accessible to courts if one of the parties opts later for litigation. This often entails several challenges, including parties having to submit documents twice, incurring costs associated with the transfer of information, and experiencing delays between closing an ADR dispute and filing a new court proceeding. The lack of interoperability between pre-court dispute resolution mechanisms and court systems, such as the TIS and e-case platform (“e-lietas platforma”), can also discourage parties from seeking ADR mechanisms before or instead of recurring to courts. In this sense, having an integrated system can help promote the use of ADR pre-court mechanisms, potentially helping to keep cases out of court.
Improving the compatibility of ADR and court systems could bring smoothness in the transition of cases from mediation and arbitration centres to courts, save resources and improve overall access to justice. Concretely, compatibility would involve sharing information and documents submitted to the ADR provider directly to court systems as needed (e.g. if the ADR has not resolved the dispute). This could be achieved by designing systems that offer private service providers the possibility of linking systems to the TIS. Enhancements could also involve setting an option (“button”) where any of the parties can request at any time the transfer of the case to a court (see Enforcement of decisions).
A seamless transfer between dispute resolution mechanisms in Latvia would also allow users to correct mistakes in their initial choice of a certain dispute resolution mechanism. In the earlier stages of a conflict, it may be difficult for parties to identify the type of dispute resolution proceeding that best fits their needs. Allowing parties to move to another type of dispute resolution gives them a better chance for a suitable solution. In addition, this would save precious time and resources for both parties and justice officials regarding duplication of information and document requests, for instance.
Adopting an integrated approach and seamless pathways when designing justice services would require interoperability enabled by sound data governance (see Data governance and its strategic use in Chapter 2). Interoperability allows the swift transition from one dispute resolution mechanism to another (see Figure 3.2), ensures that separate entry points are integrated (in terms of data, information, content and design) and favours consistent outcomes regardless of the channel(s) used.
Several initiatives have been developed across OECD countries to improve pathways and the seamless transfer of cases between pre-ODR court and court systems. One of the examples previously mentioned is PARLe, developed by the CyberJustice Laboratory (see Box 3.8). PARLe provides litigants with an online tool to promote the resolution of disputes through personalised support throughout each step of the process. PARLe can be adapted according to different structured negotiation, mediation and, if necessary, adjudication processes. The platform is an example of smooth and seamless integration between pre-court ADR and e-court systems, allowing parties to automatically transfer their case to a court if needed. PARLe contains other important functionalities (e.g. triage, electronic signature, and sample emails, notifications, forms, transaction agreements and decisions) further detailed throughout this report.
Adopting a code in open format and a modular approach is another important aspect that enables solutions to be adapted to other contexts, including types of cases and areas of litigation of institutions. PARLe, for example, has been integrated into several organisations in North America and Europe. This includes the Condominium Authority Tribunal (CAT), the Commission for Standards, Equity, Health and Safety at Work (Commission des normes, de l’équité, de la santé et de la sécurité du travail, CNESST), and the Consumer Protection Office (Office de la protection du consommateur) in Canada (see Box 3.8).
Resolving disputes with a modular platform
The Platform to Aid in the Resolution of Litigation electronically (PARLe) is an ODR platform developed by the Cyberjustice Laboratory. The platform provides litigants with an online service to resolve low-intensity disputes in civil, administrative, criminal or disciplinary areas. The platform was designed on the basis of an open-source code. The platform is flexible according to the type of procedure and the institution's needs, making it a “tailor-made” solution. PARLe facilitates the settlement of disputes through negotiation and mediation and provides access to virtual court.
The platform is an example of seamless integration between pre-court ADR mechanisms and e-court systems. This allows litigants to directly transfer their case to a judicial court if ADR mechanisms fail to resolve the case without requiring any additional procedures that would be costly and time-consuming for parties and the justice system. The highly modular suite of tools offers ease of use by court personnel, citizens, mediators, arbitrators and judges. The platform has been integrated into several jurisdictions around the world. Its highly modular suite of tools allows the platform to be adapted to each jurisdiction's needs and legal framework, type of proceedings and other needs. For example, in certain cases where PARLe has been implemented, a decision issued from mediation has a nature similar to a judgment in its effect. In other jurisdictions, breaching a mediation agreement might lead a judge to consider bad faith the party who breached the agreement if the dispute is brought to court.
Integrating ODR into courts: The Condominium Authority Tribunal (CAT)
PARLe has been integrated into several organisations in North America and Europe. This is the case for the Condominium Authority Tribunal (CAT) in Ontario, Canada. CAT is a fully online tribunal dedicated to resolving and deciding condominium-related disputes. CAT builds on the PARLe platform to offer access to pre-court ADR.
The platform enables convenient, affordable and efficient ODR through its triage, negotiation and mediation services, as well as adjudication, all fully dematerialised. The CAT ODR process commences with the applicant submitting their application on line and delivering the notice to the respondents and intervenors. Once respondents join the case, CAT automatically moves to the first stage of negotiation, where parties work together to resolve their case between themselves. If parties do not reach an agreement, the case is submitted to a CAT mediator joining the platform. Finally, if the mediation phase cannot resolve the dispute, the case enters automatically in the e-court procedure, with a CAT judge rendering a decision directly through the platform within 30 days.
Enforcement occurs through the courts rather than CAT. Parties may need to enforce an order in either the Small Claims Court or the Superior Court of Justice of Canada. As of 1 January 2020, the Small Claims Court has a monetary limit of CAD 35 000 (Canadian dollars). For amounts greater than CAD 35 000, enforcement orders are processed by the Ontario Superior Court of Justice. The Small Claims Court functions as a branch of the Ontario Superior Court of Justice.
Source: CyberJustice (2022[28]), PARLe: Transform the Court Experience with Online Dispute Resolution, https://cyberjustice.openum.ca/files/sites/102/Livret_LABOCJ_PARLe_demilettre_GN-1-Corrige%CC%81-2.pdf; Condominium Authority of Ontario (2022[29]), After your case, https://www.condoauthorityontario.ca/tribunal/the-cat-process/after-your-case/; Condominium Authority of Ontario (2023[30]), The CAT process, https://www.condoauthorityontario.ca/tribunal/the-cat-process/.
Enforcement refers to the implementation of dispute resolution outcomes, whether they are court- or tribunal-ordered outcomes, negotiated outcomes through formal ADR or informal agreements and arrangements that resolve a large number of day-to-day legal issues and disputes (OECD, 2021[23]). Effective enforcement is one of the measures of trust in justice institutions (OECD, 2022[31]) and has important implications for the economy and society. Economic and social welfare requires a well-functioning judiciary that resolves cases and enforces decisions in a reasonable time and with predictable outcomes. Where courts can effectively enforce obligations, economies have better levels of business climate and innovation (World Bank, 2022[32]).
The assessment conducted in Latvia on the state of play of enforcement in ADR and court proceedings combined with a previous OECD assessment (OECD, 2018[4]) suggests that the justice system would greatly benefit from reforms in this area. Focus groups with businesses and fact-finding interviews conducted with other stakeholders showed that the lack of enforceability of ADR decisions is among the main reasons that drive people and businesses away from choosing ADR. This is particularly the case of mediation, as currently, settlement agreements issued by mediation entities do not have any legal value before the courts. Therefore, if parties do not manage to solve their issues through informal negotiation, they usually decide to proceed with litigation instead of opting for mediation.
To address the lack of enforceability, Latvia could consider promoting legal reforms to provide legal recognition and make certain ADR agreements enforceable, such as in the case of mediation. An example is the case of the Condominium Authority of Ontario (CAO), which has implemented PARLe (see Box 3.8). Providing legal recognition and enforceability of agreements would require amending ADR civil procedure and ADR-related laws. Likewise, Latvia would also need to consider the circumstances when a party fails to spontaneously comply with a mediation agreement. This might be cost sanctions in court (i.e. the party not attempting ADR in breach of such promise might have to carry more court costs than usual) or execution through compulsory means, for example, by automated request for the writ of execution via court in the case of non-objections from the other party, without the need to go through the pre-trial phase again.
Latvia could be inspired by some country examples regarding the enforcement of settlements resulting from mediation. For example, in France and Greece, mediation settlements are subject to formal review by the court with very limited options for objection by any of the parties (Meidanis, 2020[33]). A similar mechanism could be introduced in Latvia. This could make mediation more attractive. In this case, a party willing to enforce a non-complied mediation settlement would request the court to automatically issue the writ of execution. In this case, the judge would order a public official (e.g. a bailiff) to enforce the obligations that should, otherwise, have been fulfilled by one of the parties as per the enforceable mediation agreement. The court would issue the document provided the other party had not submitted objections to the issuance of the writ. In case of objections, the court would review the settlement, allowing the objecting party to prove its invalidity. All efforts should be made to automate the steps in requesting the writ of execution, in line with good practices and to ensure effective access to justice.
Importantly, fact-finding interviews brought to the surface the need to address enforcement within court proceedings in Latvia. Partially removing certain processes from the control of courts could be one of the alternatives to improve enforcement. Centralising enforcement in only one agency could make cases easier to follow and unburden courts (see Box 3.9).
Revolving around the idea of an “ideal enforcement system” and to inspire the Council of Europe member states to unify their enforcement systems, the Good Practices Guide on Enforcement of Judicial Decisions highlights certain solutions applied in EU member states. The guide highlights some good practices that can have an impact on people-centred enforcement:
1. Partially removing enforcement processes from the control of the courts: As a general rule, division of tasks can help to ease court congestion, speeding up enforcement. Together with centralising enforcement in only one agency, this can make processes easier to follow by litigants, whether they are involved as third parties, debtors or creditors.
2. Promoting awareness of the enforcement process: The guide recommends disseminating fact sheets about national legislation, with concise and practical information – in plain language – about enforcement procedures and agents to the parties. This also involves providing written and oral information for recipients of documents, advice for creditors, standardisation of procedural documents and a clear statement of costs of enforcement procedures, all of which should be disseminated as widely as possible.
3. Promoting “e-enforcement” to help accelerate enforcement and save time in implementing certain protective or enforcement measures. This constitutes a significant trend across the Council of Europe member states. Currently, this transformation has primarily pertained to actions such as freezing bank accounts, handling immovable property and vehicles and conducting public auctions on line.
4. Protecting the privacy of debtors and their families, ensuring their involvement in enforcement procedures (so traumatic experiences, such as being suddenly forced out of the property, can be properly avoided), and adequate protection for the rights of third parties.
5. Using common legal terminology on enforcement across countries.
Source: CEPEJ (2015[34]), Good Practice Guide on Enforcement of Judicial Decisions, European Commission for the Efficiency of Justice, Council of Europe, https://rm.coe.int/europeancommission-for-the-efficiency-of-justice-cepej-good-practice-/16807477bf.
Leveraging digital technologies and data can help transform information sharing between ADR institutions and courts and simplify the completion of enforcement. This could be enabled by ensuring the integration of pre-court and court services, such as ADR and e-case platform (see Pathways and the seamless transfer of information and cases). This is the case of PARLe (see Box 2.4 in Chapter 2 and Box 3.8). Among other functionalities, the platform allows for the direct transfer of files from ADR institutions to courts (Cyberjustice Laboratory, 2019[35]). This is particularly useful as the swift transfer of documents and a non-complied settlement agreement by “pressing a button” helps expedite enforcement (see Figure 3.3).
Source: Author’s own design.
Regarding the broader use of digital tools, fact-finding meetings with stakeholders involved in executing decisions indicated that they are widely used at the enforcement stage, and no complaints were expressed concerning their efficiency. Likewise, if the winning party wants to enforce a decision, bailiffs can do so by accessing data through the TIS, indicating that a judgment is enforceable. However, it would be desirable to further expand the use of digital tools, for example, to widen the potential market for judicial auctions (see Box 3.9 and Box 3.10). It is suggested to expressly provide in the Civil Procedure Law that bailiffs should seek to use international platforms for online auctions in English in order to expand the market for the sold assets.
Estonia has a dedicated online platform for judicial auctions. The Chamber of Bailiffs and Insolvency Practitioners holds the platform. The platform provides a unique portal for services related to judicial auctions. By automating judicial auction proceedings, the portal aims to facilitate access to judicial auctions to attract more participants inside and outside Estonia.
The portal centralises all announcements of movable and immovable assets seized in enforcement proceedings. Auction announcements are also published in the official online publication “Ametlikud Teadaanded” at least ten days before the auction. Potential buyers must log in to the portal using their ID card, mobile ID or username and password. Logging in through EU ID is also available for some EU countries. Once connected to the platform, users can register within a certain period of time to participate in an auction. Users can then submit a bid on line via the auction portal and pay a deposit electronically if it is a required condition to participate in an auction. Interested persons can also follow the auction's progress on the online platform.
Source: European Union (2022[36]), Judicial auctions, https://e-justice.europa.eu/473/EN/judicial_auctions?ESTONIA&member=1; Government of Estonia (2023[37]), Kohtutäiturite ja Pankrotihaldurite [Bailiffs and Bankruptcy Administrators], https://www.oksjonikeskus.ee/.
Importantly, it is often the case that once decisions are issued, parties to the dispute are left to comply with orders. In light of the dispositive principle, courts currently cannot automatically commence actions to enforce a civil debt but rather require people to apply to the court for it to commence such enforcement. However, additional steps might add delays and costs and pose barriers to effectively resolving disputes. As in the case of the early stages of proceedings (see Automating diagnosis and dispute triage), automation could bring efficiency to the enforcement phase and relieve the workload in courts.
Enforcement is, for the most part, a very technical phase composed of assessing technical requirements and fulfilling procedural steps. In Latvia, this phase is usually the longest, often taking several years to complete. Automating certain steps of the enforcement phase is a good compromise between implementing fairly simple systems against the gains by saving resources and decreasing the time completion of cases. Repetitive tasks, procedural acts that are not contradictory representing a substantial workload (e.g. orders requesting payment of fees or resubmission of documents and information already presented in the pre-trial phase of the case; processing requests of due date extension; acts and decisions deriving from time-bound processes) are good candidates for automation.
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