Column written by the Executive Director of the Justice Studies Center of the Americas, Jaime Arellano, and published in the Chilean newspaper La Segunda on Wednesday, November 18, 2020.

When the health emergency was decreed, the region’s judiciaries continued to offer essential services. Priority was given to criminal cases related to individuals’ freedom and other guarantees as well as gender violence, family matters related to children and adolescents, and labor cases. Unfortunately, collaborative measures such as pre-trial mediation were excluded.

At the Justice Studies Center of the Americas, we observed that the systems that had more robust electronic case processing platforms and ICTs -such as those in Chile- were in a better position to handle case submissions and their initial processing, and were able to hold remote hearings.  But in order for the public to have access to justice, the legal assistance provided must include information and guidance, advising on any agreements reached and representation at trial, as well as collaborative processes such as mediation and conciliation.

The opening of judicial services creates an urgent need to redesign responses to the accumulation of disputes pending filing and formalization and the backlog of mediation cases and judicial processes.  Judicial services are not enough. There must be legal assistance and in-person or virtual collaborative solutions using specialized platforms to fulfill the guarantee of access to justice.

Judicial services must break down the in-person/ virtual dichotomy and promote the use of hybrid hearings and trials. For example, the physical presence of the litigants in criminal cases is not necessary during opening and closing arguments or discussions of the sentence and other strictly legal matters. The same is true for initial or preliminary hearings for civil cases, the production of documentary evidence and, in general, simple trials with a minimal number of witnesses and straightforward debates.

The initial advantage of judicial systems with ICTs and electronic case processing is being lost due to the lack of specialized and integrated platforms, and the digital divide continues to have an impact. There is thus a need to invest in the regulation of public use reserves and flat fees for new technologies like 5G, free Wi-Fi in public spaces, legal assistance and virtual justice centers in municipalities and neighborhoods so that people can learn about or participate in virtual mediation sessions and trials, and the design of procedures for new forms of hybrid justice and online dispute resolution (ODR).

The pandemic exacerbated social differences and increased barriers to access to justice in more than a few cases. However, Chile can remedy this situation through a strong policy of Strategic Digital Investment for Access to Justice (SDIAJ).

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