ONLINE DISPUTE RESOLUTION AND ADR
16 September 2016
This paper was prepared and settled jointly by the members of ADRAC.
At the outset, ADRAC acknowledges the extraordinary complexity of this issue, its capacity for swift, dynamic development and the regular changes in its defining characteristics. ODR providers that might have been well-known in the immediate past can quickly disappear. For these reasons, ADRAC cannot provide comprehensive coverage of the issues relevant to online dispute resolution.
What is Online Dispute Resolution (ODR)?
ODR utilises online, or internet and web-based technologies to assist in the resolution of disputes. Like off-line ADR, ODR can range from two party negotiation to processes that include a third party whose role is to assist resolution through facilitative, advisory, or determinative approaches; however, the third party role is often assumed by online computer-based software or other artificial intelligence (AI) that do not involve a ‘human’ practitioner. In the early 2000s, it was proposed that the online technologies be termed 4th parties to the dispute resolution process because of their capacity to influence the behaviours, choices, and decisions of other participants.
Disputes referred to ODR can occur in an online context (e.g. online purchases through entities such as Amazon or eBay, or online interpersonal disputes such as through Facebook posts), or in an offline context.
There are three aspects to ODR:
Technology, and information and communications technology (ICT) that support participants’ involvement in dispute resolution processes; these can take the form of internet searchers for and access to ADR providers, email exchanges, information exchanges, texted meeting appointments and video conferencing)
Technology and ICT that resolve disputes by replacing human interventions, such as facilitating online negotiations that use mechanised blind bidding (examples include: https://www.smartsettle.com; https://www.settlementiq.com)
Technology and ICT that have the capacity to change how offline ADR works (also called ‘disruptive’ capacities).
Online purchase portals, eBay, PayPal and Amazon include dispute resolution processes that are fully online accessible.1 eBay and PayPal each use a discrete online ‘Resolution Centre’, while Amazon uses an online complaint submission process. eBay also offers a choice between a fully automated process or one that involves human intervention – though it assures customers that neither option is quicker than the other.
Despite remarkable developments in ODR overall, it continues to be mistakenly perceived as a selection of electronic processes reliant on web-based tools and software to enhance existing ADR processes.
How Does ODR Work?
At a basic level, mechanised negotiation with blind bidding relies on simple algorithms to create an acceptable bidding range for disputants who are seeking a basic exchange of money. The bidding range progressively narrows through an automated process until no further options are possible, and the disputants accept or reject the proposed outcome.
More complex processes apply artificial intelligence (AI) and neural networks to generate a complex technological version of the dispute, intended to eventually develop a range of resolution options that go beyond the basic exchange of money and from which the disputants can choose a mutually agreeable outcome. In these cases, the range of resolution options is based on the applicant’s previous dispute resolution experience with the ODR provider, or is based on the applicant’s responses to a series of targeted questions. Obviously, with these AI capacities, the more a disputant uses a particular ODR provider, and the more dispute records that are created, the more individually and personally relevant/appropriate the options will become.
International Developments in ODR
Below are examples of international innovations in ODR.
United Nations Commission on International Trade Law (UNCITRAL)
Jurisdictional issues emerged early in the development of Ecommerce and its associated consumer/trader complaints. UNCITRAL Working Group III, Online Dispute Resolution, concentrates on ODR for cross-border electronic commerce, and the development of elements and principles, as well as procedural rules, for ODR processes.
The EU has led notable developments in ODR, driven by a need to deal with cross-border and online purchasing disputes. In February 2016, the EU’s ODR platform became accessible to all consumers and traders in the EU; the platform includes underlying regulations that were published in July 2015. The regulations cover: how a dispute is to be lodged and notified; the associated ADR entities in each member state; the reporting obligations of those ADR entities; and the circumstances under which a dispute is considered to be concluded without resolution and the subsequent mandatory deletion of disputants’ personal data. Consumers and traders can access the ODR platform in relation to any online and cross-border purchases; the platform is multilingual with the capacity to conduct an entire dispute resolution procedure online.
In its 2015 report, the ODR Advisory Group of the Civil Justice Council recommended that ODR be made available for the resolution of low value civil claims. Their report proposed the establishment of Her Majesty’s Online Court (HMOC) and included a recommendation that cases be decided online by judges, including electronic interaction with parties to a matter, and augmented by early intervention from online facilitators. The report included the observations that, by being cheaper and more user-friendly than traditional courts, such an approach would increase access to justice and that HMOC would lead to substantial costs savings in the legal system.
In July 2016, in his own Civil Courts Structure Review, Lord Justice Briggs endorsed the ODR Advisory Group’s recommendations about HMOC, and, in his acceptance of Lord Justice Briggs’ Report, the Lord Chief Justice noted that HMOC was already listed in the reform program of the Civil Courts of England and Wales.2
World Intellectual Property Organisation (WIPO)
WIPO’s Arbitration and Mediation Centre is developing an ODR service for the registration and use of internet Domain names. The service will include a capacity for all applicants to communicate electronically with each other, generate automated notifications, and secure databases for document storage and for financial transactions.
In British Columbia, the Civil Resolution Tribunal is to become operational during 2017, becoming Canada’s first online tribunal. It will deal with small claims and strata property disputes using the ODR processes of negotiation, facilitation and adjudication. The tribunal will be accessible through mobile devices and will provide secure electronic case management systems.
ODR in Australia
ADRAC notes that ODR has not enjoyed the level of support and development that might have been anticipated from a nation with noteworthy geographic isolation and whose population maintains a reputation for ready up-take of new technologies.
For some years, the Federal Court of Australia has provided a limited range of electronic services, including videoconferencing, eLodgement (for electronic filing), and an eCourt with limited judicial capacity. Most courts and tribunals in Australia now offer electronic lodgement facilities. NSW has an online registry for its courts, enabling online lodgement of matters and, in some courts, online management of procedural aspects of cases.
Relationships Australia offers a national Family Relationship Advice Line and an associated Telephone Dispute Resolution Service. Additional services include a range of technologies that enable families to participate in online dispute resolution, where such services have been assessed as suitable in any particular case. These have arisen as a result of a Relationships Australia report published by AGD in 2011, ‘Development and Evaluation of Online Family Dispute Resolution Capabilities’.
Examples of ODR websites
ADRAC provides the following as examples of ODR websites where it is possible to gain a practical understanding of the range of ODR services that are currently available. ADRAC does not endorse the services of any of the examples that are provided.
JAMSconnect (a video conferencing facility that enables time-limited access to a traditional ADR process such as mediation or arbitration)
Access to a simulated online process is also available.
Unconventional and unexpected online tools and platforms continue to emerge that may influence the future development of ODR, for example, Crowd Justice, which was founded in 2015 by Justice Platform Ltd (operating from the UK). Crowd Justice enables online submissions of a legal case, then facilitates the online aggregation of supporters (from family and friends to larger communities) and of funding for the matter. Funding and support targets are set by the applicant and a small percentage is payable as a fee to Justice Platform Ltd once the target is reached. Once the original applicants have met their intended funding and support goals, they are able to proceed to an offline court application. As noted by Forbes Magazine:
It allows people to find out about a case that’s happening that might affect them – and utilises the power of the crowd to help fund cases that in the past only the very wealthy would have been able to bring.
ADRAC wonders what scope such processes offer for further expansion of the online practice of ADR.
ADRAC is convinced that effective provision of ODR services is reliant on strong technological capacity (i.e. broadband capacity and internet service provision) and on widespread service accessibility. With those significant provisos, ADRAC believes that the potential for future developments in ODR is virtually limitless. Modria is already suggesting that the term ODR has been superseded by the concept of cloud-based dispute resolution in which ICT enables cloud-based secure case management and the application of other existing cloud-base technologies, such as video storage and between-platform linkages. Modria itself now offers assurances that neither the complainant nor the respondent’s internet identities can be hacked. ADRAC wonders if the term ODR should be replaced with DRIC (Dispute Resolution in the Cloud).
ADRAC notes that security concerns continue to be a major problem for ODR whereby the sophistication of online hacking continues to keep pace with, even outstrip, developments in online security. Security is of paramount importance for dispute resolution and includes: the transformation of documents to electronic format and their subsequent transmission and storage; the storage of dispute and resolution information; the storage of personal information; and the transmission of personal information via such methods as email and mobile texting.
ADRAC notes the lack of accountability, regulation and guidelines for the actions, behaviours and roles of 3rd party neutrals in ODR processes in Australia, but notes also that, by its very nature, ODR can incorporate internationally cooperative accountability and regulatory mechanisms. ADRAC notes also the lack of clarity and protections regarding the status of electronic communications conducted in association with ODR processes; these could include communications among aligned participants, between participants, between participants and their advisers, and between participants and the 3rd party neutral.
ADRAC believes that with sufficient safeguards around the processes and their practitioners, ODR can be a very convenient and effective process choice for many disputants and, where conducted well, is likely to provide improved access to justice. While ICT and AI will continue to enable significant and largely unpredictable developments in ODR, one uniquely human capacity that neither can yet replicate is empathy – and empathy is a key attribute of effective dispute resolvers.
ADRAC continues to monitor relevant developments both in Australia and overseas, especially those promulgated from time to time by the UNCITRAL Working Group III, Online Dispute Resolution.
ADRAC encourages increased research and development in the provision of online services for dispute resolution, perhaps even the application of innovative start-up technologies to create as yet unexpected approaches.