RECENT PROPOSALS to reform current practice for small-claims disputes in Massachusetts might have been written in the last century - or at least in the decade after 1990. That was when creditors began using the small-claims process as a primary way to repossess automobiles purchased through loan agreements.
Outdated procedures - along with the rampant exploitation of small claims by unscrupulous loan companies - show the need for reforms to the process that reflect the utility of current technology, notably the computer and Internet. The proposed changes would make it harder for debt collectors to abuse the small-claims process, but they don't bring the system as a whole up to date.
What might a high-tech small claims court more in tune with the times look like? In such a court one can "travel to the courthouse" with the click of a mouse and gain access to filing forms via the Web. One need not take time off from work to have one's case heard, engage in endless dialogue with court clerks or wait for the return of self-addressed envelopes to obtain a complaint form.
Nor need one wait, sometimes for an extended period of time, to have a case resolved, as often occurs in Massachusetts.
Around the world, there are far better models of systems to resolve disputes. Thousands of domain name disputes have been resolved without the parties traveling anywhere. New York City recently announced that it is implementing a program to resolve sidewalk, school, roadway, city property, and other personal injury cases using the Internet. Disputes with insurance companies in Great Britain are resolved this way. Israel is planning a "paperless court system."
In contrast, the Globe recently reported on Peter Damon, an Iraq war veteran who was at risk of losing a case because he couldn't appear in court. At the time he was in Walter Reed Army Medical Center in Washington, recovering from the loss of both arms in combat. (The case against him was eventually dismissed.)
If Damon's case had been the result of dissatisfaction with something he had purchased online he might have filed an online claim. (Readily accessible voice-assisted technologies are available for the disabled.)
With some dispute resolution systems currently available at online auctions, the other party would have been notified, a secure website would list all exchanges of information, clearly defined opportunities for online negotiation would be presented, and a human mediator would be offered if the negotiation failed.
At the heart of efficient dispute resolution processes are capabilities for exchanging information, allowing parties to clarify their grievances and identify solutions. Justice is inevitably both delayed and denied when communication is restricted.
As an example, those calling Massachusetts district courts seeking small-claims resolution encounter voice recordings announcing hours of operation. This is a signal that justice is accessible exclusively from 8:30 a.m. to 4:30 p.m., standing in marked contrast to the Internet. There barriers of time and location are mooted by direct, continuous 24/7 access to regular, widely accepted conventions of exchange and dispute resolution validated by millions of consumers.
Many people, of course, do not own computers or have access to the Internet, and in some instances old practices may need to be preserved. Yet public libraries are open at night and can readily become access points for small-claims actions. We go to the library to get tax forms and do online research: why not to participate in small-claims actions?
Notably, municipal court systems in England and other European nations are actively promoting online small-claims processing with positive results. The National Mediation Board, a US federal agency, is experimenting widely with online systems for resolving labor disputes in the airline and railroad industries.
What constrains courts in Massachusetts from pursuing a similar course?
Mark Mason, president of the Massachusetts Bar Association, has stated that "Massachusetts has a proud history of leadership in technological innovation." He has also urged the use of technology to make courts more convenient and efficient.
Unfortunately, at present, we will have to continue to wait for signs in the state's small-claims process that confirm our local reputation for innovation in the delivery of justice. Initiatives that might lead to a more fair and efficient small-claims system are only just beginning to develop in the Commonwealth.
Ethan Katsh is a professor of legal studies and director of the National Center for Dispute Resolution at the University of Massachusetts at Amherst. He occasionally acts as a consultant for online dispute resolution systems. Jeff Aresty is president of InternetBar.org.
Correction: A Sept. 29 column by Ethan Katsh and Jeff Aresty incorrectly identified the Massachusetts Bar Association president. It is David W. White Jr.