From Openness to Participation
The traditional meaning of open justice is based on the common law concept concerned with public access to trials where transparency plays an essential role. The best picture is related to the ‘open court principle’ (Harris, 1995), which implies trials materially open to public scrutiny that are able to maintain public confidence in the justice system (Dyson, 2013). This first approach to open justice implies that both public and media can attend the trials, thus guaranteeing transparency in justice. This concept has been broadly developed and limited by other valued concepts, namely privacy and security –two limitations that are currently being rethought given the impact they can have on the principle of openness (McLachlin, 2012).
Following this, Jiménez (2014) makes a difference between the traditional, limited concept of open justice based on transparency and a new and broader approach through which cooperation and participation have a place next to transparency in the so called “open judiciary”. In that sense, open justice needs to be understood in this much broader sense, and recent developments in the field of e-government should be employed to achieve this goal. Jiménez’s position on the coordination between these three principles is supported by relevant studies on open government. Without this combination, if only transparency is taken into account but not participation, justice will keep being alien to citizens.
Harris (1995) distinguishes between material access to trial (traditional and basic concept of open justice) and participatory access. The latter allows citizens to access the justice system, that is, not only the courtroom but also the whole system of administration of justice. As a consequence, open judiciary does not only imply transparency but also participation.
Participation has grounds to become an elemental dimension of the justice system together with the much needed transparency. The access to the justice system upon which participation is based means the possibility for citizens to find effective ways to resolve their conflicts in accordance with due process of law. Participation entails the development of access to justice. Access to justice is the expression of fundamental rights in the field of conflict resolution. This dimension is recognized by the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948, as well as by the Convention for the Protection of Human Rights and Fundamental Freedoms (or European Convention on Human Rights, Art. 6) drafted by the Council of Europe in 1950 and which entered into force in 1953.
This Chapter, however, does not aim to set the conceptual basis for the inclusion of the concept of participation within that of open judiciary. The aim of this Chapter is instead to analyze a specific kind of conflict in which participatory access to justice is especially not guaranteed: consumer conflicts. But as these conflicts do not usually reach the judicial stage, the problem is not solved through the increase of transparency in the judicial process. What needs to be conceived is a way for citizens to participate in the resolution of these conflicts.
For the purpose of this Chapter the characteristics of consumer conflicts established in the results of the White Book on Mediation in Catalonia (Barral-Suquet, 2010, p. 157 ff.) will be taken as a reference. Such disputes are typically low-value and high-volume (Cortés-Esteban de la Rosa, 2013, p. 408 ff), which means that a great amount of small, almost identical claims need to be resolved. Many of the cases do not go to court, for consumers are usually reluctant to get involved in a judicial process for such claims, as many studies carried out in the EU confirm (Barral, 2014, p. 50). The first consequence is that, unless there exists a swift, cheap resolution mechanism, these claims are unlikely to reach court for reasons of cost effectiveness. The second consequence is even worse: although the redress sought by each consumer might be of little value, if all consumers are considered as a unity the total amount claimed becomes a very large sum, reason for which not solving the dispute is far from being fair.
This problem illustrates the limits of open justice when understood following its traditional sense: if no means of access are provided, justice cannot be participative, nor can it be open. One solution that has been applied in the recent years, especially in the EU, is the use of Alternative Dispute Resolution (ADR) mechanisms as they constitute a clear example of participative justice. For this reason, this work aims to analyze the improvements in consumer access to justice through tools that promote participation, mainly, ADR. In that sense, ADR allow consumers to play an active role in the resolution of their conflicts through participative justice. Then, in specific situations technology eases their access to justice, so we turn to Online dispute resolution (ODR).
The methodology applied is based on studies of the Canadian doctrine of consumer access to justice, the obstacles that arise and the proposed solutions based on empirical research studies (Section 2). These studies clearly demonstrate that the main positive results in this field are achieved through ADR mechanisms which, despite presenting some disadvantages as well, are strongly connected with participatory justice (Section 3). Section 4 analyzes a specific case: the treatment of customer complaints in the EU, where ADR and Online Dispute Resolution (ODR) mechanisms have been used for some years. Indeed, the EU has fostered the use of technology and developed ODR mechanisms especially designed for consumer complaints. Section 4 studies their main achievements, in particular with respect to the interactive platform for the management of consumer conflicts set forth by EU Regulation 524/2013 (hereinafter, the RODR) which will become accessible to consumers and traders in February 2016. This work aims to maximize the dynamics of ADR through the use of ODR. In these kinds of processes, technology can improve citizen access to, and thus participation in, justice even more.