judge (verb)
– to form an opinion of value about somebody/something after careful consideration: j. the contestants; j. the exam papers; j. (positively, negatively) a book, a film
– (in court) to pass a sentence: j. a cause
How will you judge?
‘To form an opinion of value’ has strictly personal implications, which means that only the person asked “how will you judge?” in the song The Third Paradise by Subsonica and Michelangelo Pistoletto can answer it.
‘To pass a sentence’ is a more technical and impersonal expression, which can lead to a series of reflections on how the jurisdictional function is being carried out in times of Coronavirus.
One of the first provisions adopted by the Italian government* was a series of “extraordinary and urgent measures to fight the epidemiologic emergency caused by Covid-19 and contain its negative effects on the practice of the judiciary activity”, a decree that ordered the closure of courthouses for over two months, with the suspension of all the trials. Similar regulations have been applied in countries all over the world with the gradual spreading of the virus.
Does this mean that every ‘judging’ activity was, even if temporarily, interrupted?
The answer is no, it doesn’t: the world of arbitration, a form of dispute resolution more and more used at national and international levels as an alternative to the ordinary legislation of the single countries, has never stopped.
On 9th April 2020, the International Court of Arbitration of the International Chamber of Commerce published an informative note with a series of measures aimed at limiting the effects of the pandemic on arbitration proceedings, like possible interruptions or delays in the activities and difficulties in starting new arbitrations, because of the restrictions imposed by national authorities to contain the spreading of the virus*. Let’s just think about travel, an integral part of the lives of the various protagonists of the arbitration world (i.e. lawyers, arbitrators and experts); about the preparation and management of hearings, in regard to which the above-mentioned note gives practical indications as to how to organise them in virtual form; but above all about the sociability that has always characterised this private form of ‘judgement’, a sociability often turning into a true sense of belonging to what many call “a club” or “the little world of arbitration”. Meeting at the airport on Sunday night to catch different flights, some to Buenos Aires, some to Singapore, making a surprise apparition at a cocktail party in Paris for the tenth anniversary of an arbitration association, having breakfast in a hotel early in the morning to coordinate the different speeches of a conference.
This element is the one that has allowed us to adapt immediately and without many difficulties to a different way of operating, not completely new in the world of arbitration: online working, with the same results of working in person, if not even better.
It is the same phenomenon occurred in many multinational companies in which smart working, adopted from the very beginning of the pandemic, has revealed itself to be more efficient than working in the office.
“We have learned how technology can offer the opportunity to exercise on a large scale functions that until now were practicable only through the physical movement of our person and huge quantities of means and tools”, says Paolo Naldini talking about ‘the present’ in his article “Pandemopraxy” from 12th April 2020*.
And what about the future?
#How will you judge?
Will the Online Dispute Resolution (‘ODR’) totally replace ordinary courts of law and the ‘Alternative Dispute Resolution’, i.e. arbitration and mediation, better known as ‘ADR’?
The platforms for the resolution of disputes, in particular those dealing with small or serial claims, are more and more used, so much so that the European Union has created the European Small Claims Procedure, a common frame available on the internet*, and the main arbitration institutions have help desks dedicated to ‘ODR’: artificial intelligence automatically analyses the dispute and proposes a solution to the parties, if this is accepted you only need to press ‘Enter’ for it to be formalised, with proceedings dealt with in 7 to 10 minutes, algorithms elaborating information relying on an infinite number of data (like laws, regulations, jurisprudence, tenets) no judge or arbitrator could keep in mind, without of course considering the saving of lawyer’s fees and legal expenses. A machine that judges with certainty and respecting the requisites of transparency, neutrality and loyalty to the judiciary system, at the same time guaranteeing those independence and impartiality that arbitrators must declare to have the moment they are nominated and they accept the assignment.
In regard to this matter, I want to mention the Arbitrator Intelligence (‘AI’), an aggregator that – through the Arbitrator Intelligence Questionnaire (‘AIQ’) – collects data from the main users of the arbitration about the duration of the proceedings, the management of the cases, the modality of issue of the documents, the decisions on the jurisdiction and other elements that might provide the parties and their lawyers with indications as to the selection of the arbitrator and their defence strategy*.
Ordinary courts, arbitration and online dispute resolution are the three elements that could represent the three circles of the symbol of the Third Paradise, hence the answer to the question #how will you judge?: “With the right balance between the competences of the judge, of the arbitrator or mediator on one side, and the data of artificial intelligence on the other”.
The ‘ODR’ can definitely become a valid instrument at the service of justice, constituting for example a ‘first-degree judgement’ or an ‘attempt to conciliate’ in view of reaching an amicable resolution of the controversy through digital means, with the consequent saving of time and costs, so that a judge or arbitrator or mediator can be involved only when an agreement cannot be reached, trying to base the proceeding on the data already elaborated by the various platforms.
I hope I have answered the question #how will you judge without giving an opinion of value.
