The complexification of disputes in the digital age

Abstract

ABSTRACT The ‘complexity problem’ is the concern that there is now a growing class of disputes so factually rich and complex that they are virtually impossible to adjudicate fairly and properly. The complexity problem will only intensify with time – as our understanding of the world becomes more complex, so too will our disputes; and advances in information technology have led and will continue to lead to explosions in the quantities of data (and therefore, potential evidence) that adjudicators and advocates may be called on to consider. Complexity can have serious consequences not just for the time and cost of resolving such disputes, but also for our ability to properly resolve them – some disputes are now so massive and complex that they have become extremely difficult for the adjudicator to fully and properly understand, much less decide. Solutions directed at improving the efficiency of legal proceedings are, at best, only part of the answer. The problem is more fundamental and requires that we reconsider our approach to the resolution of complex disputes. We might see a shift away from a narrow conception of justice as always and invariably requiring a full and exhaustive determination of the facts, to a more holistic view of what it means to adjudicate disputes – one that embraces procedures which, whilst not as thorough, are nonetheless capable of producing reasonably accurate and broadly acceptable decisions more quickly and at far lower cost.