Online dispute resolution (ODR) is a form of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of alternative dispute resolution (ADR).Arthur M. Monty Ahalt, What You Should Know About Online Dispute Resolution . However, ODR can also augment these traditional means of resolving disputes by applying innovative techniques and online technologies to the process.
ODR is a wide field, which may be applied to a range of disputes; from interpersonal disputes including consumer to consumer disputes (C2C) or marital separation; to court disputes and interstate conflicts.National Centre for Technology and Dispute Resolution, Standards of Practice. See <www.odr.info>. It is believed that efficient mechanisms to resolve online disputes will impact in the development of e-commerce. While the application of ODR is not limited to disputes arising out of business to consumer (B2C) online transactions, it seems to be particularly apt for these disputes, since it is logical to use the same medium (the internet) for the resolution of e-commerce disputes when parties are frequently located far from one another.L. Bygrave, "Online Dispute Resolution- What it Means for Consumers". Paper presented at a conference entitled 'Domain Name Systems and Internet Governance' Grace Hotel, Sydney, (7 May 2002) p. 2. Designing an appropriate ODR system requires attention to the interests of both consumers and companies as well as a deep understanding of the requirements of procedural justice.
Definition Dispute resolution techniques range from methods where parties have full control of the procedure, to methods where a third party is in control of both the process and the outcome.C. Rule, Online Dispute Resolution for Businesses. B2B, E-Commerce, Consumer, Employment, Insurance, and Other Commercial Conflicts (San Francisco, Jossey Bass, 2002) p. 37. These primary methods of resolving disputes may be complemented with Information and Communication Technology (ICT).P. Cortes, "A European Legal Perspective on Consumer Online Dispute Resolution" (2009) 15(4)Computer Telecommunications Law Review pp. 90–100. When the process is conducted mainly online it is referred to as ODR, i.e. to carry out most of the dispute resolution procedure online, including the initial filing, the neutral appointment, evidentiary processes, oral hearings if needed, online discussions, and even the rendering of binding settlements. Thus, ODR is a different medium to resolve disputes, from beginning to end, respecting due process principles.J. A. García Álvaro, "Online Dispute Resolution Uncharted Territory" (2003) 7 The Vindobona Journal of International Commercial Law and Arbitration P. 180.
ODR was born from the synergy between ADR and ICT, as a method for resolving disputes that were arising online, and for which traditional means of dispute resolution were inefficient or unavailable.E. Katsh, and J. Rifkin, J. Online Dispute Resolution: Resolving Conflicts in Cyberspace (San Francisco, Jossey-Bass, 2001). The introduction of ICT in dispute resolution is currently growing to the extent that the difference between off-line dispute resolution and ODR is blurry. It has been observed that it is only possible to distinguish between proceedings that rely heavily on online technology and proceedings that do not.J. Hörnle, "Online Dispute Resolution: the Emperor's New Clothes" (2003) 17(1) International Review of Law, Computers & Technology 27. See Cf. J. Hörnle, Cross-Border Internet Dispute Resolution (Cambridge, Cambridge University Press, 2009). Some commentators have defined ODR exclusively as the use of ADR assisted principally with ICT tools. Although part of the doctrine incorporates a broader approach including online litigation and other sui generis forms of dispute resolution when they are assisted largely by ICT tools designed ad hoc.A. Lodder, "The Third Party and Beyond. An Analysis of the Different Parties, in Particular The Fifth, Involved in Online Dispute Resolution" (2006) 15 (2) Information and Communications Technology Law p. 144. G. Kaufmann-Kohler and T. Schultz, Online Dispute Resolution: Challenges for Contemporary Justice (2004) p. 5. The latter definition seems more appropriate since it incorporates all methods used to resolve disputes that are conducted mainly through the use of ICT.P. Cortes, Online Dispute Resolution for Consumers in the European Union (Routledge, 2010) Moreover, this concept is more consistent with the fact that ODR was born from the distinction with off-line dispute resolution processes.T. Schultz, "An Essay on the Role of Government for ODR. Theoretical Considerations about the Future of ODR" (2003) August ADROnline Monthly p. 6.
In ODR, the information management is not only carried out by physical persons but also by computers and software. The assistance of ICT has been named by Katsh and Rifkin as the 'fourth party' because ODR is seen as an independent input to the management of the dispute. In addition to the two (or more) disputants and the third neutral party, the labelling of technology as the fourth party is a clear metaphor which stresses how technology can be as powerful as to change the traditional three side model. The fourth party embodies a range of capabilities in the same manner that the third party does. While the fourth party may at times take the place of the third party, i.e. automated negotiation, it will frequently be used by the third party as a tool for assisting the process.E. Katsh and Wing, "Ten Years of Online Dispute Resolution (ODR): Looking at the Past and Constructing the Future" 38 (2006) U. Tol. L. Rev. p. 31A. Gaitenby, "The Fourth Party Rises: Evolving Environments of Online Dispute Resolution, 38 (2006) U. Tol. L. Rev. 372S. H. Bol "An Analysis of the Role of Different Players in E-Mediation: The (Legal) Implications", IAAIL Workshop Series - Second International Workshop pp. 23–25, available at <www.odrworkshoinfo/papers2005/>
The fourth party may do many things such as organize information, send automatic responses, shape writing communications in a more polite and constructive manner e.g. blocking foul language. In addition, it can monitor performance, schedule meetings, clarify interests and priorities, and so on. The assistance of the fourth party will increase the more technology advances, thus reducing the role of the third neutral party. It has been predicted that virtual "fourth party" avatars will be created to judge disputes and could become more skilled and intelligent over time.Ethan Katsh, Bringing Online Dispute Resolution to Virtual Worlds: Creating Processes Through Code, 1 N.Y.L. Sch. L. Rev. 271, 286 (2005) Katsh and Wing argue that ICT advance is occurring exponentially since ICT advance speeds up over the time. As a result, ODR processes are increasing in efficiency providing their disputants with greater advantages in terms of time saving and cost reductions.
Alternative definitions In practice it is difficult to provide a self-contained definition of ODR, and given the pace of change it may not even be possible to do so. The use of technology usually involves the use of Internet-based communications technology at some stage, but ODR does not necessarily involve purely online processes – further, many could be replicated offline using pen and paper, or could be achieved using computers without Internet connections.
The range of terms and acronyms used to describe the field augments the confusion often felt by those unfamiliar with the new field of ODR. These terms include:
Internet Dispute Resolution (iDR) Electronic Dispute Resolution (eDR) Electronic ADR (eADR) Online ADR (oADR) Technology Assisted Dispute Resolution (tADR)
ODR has emerged as the most used term in recent years.
It is uncertain whether these processes form a new discipline of ADR or a tool to aid existing methods of dispute resolution. The most appropriate view would be to view ODR as an interdisciplinary field of dispute resolution.
Methods
Consensual
Automated negotiation
Automated negotiation relates to those methods in which the technology takes over (aspects of) a negotiation. Most of the ODR services in this area are so-called 'blind-bidding' services. This is a negotiation process designed to determine economic settlements for claims in which liability is not challenged. The blind bidding service may be thought of as a type of auction mechanism where some or all information about the players' bids is hidden.
A resolution is declared by the system at the end of a negotiating session if all parties have accepted one or more packages (of one or more proposed decision values) at the end of that session. Which of those packages becomes the agreement may be determined by an algorithm that rewards the party that moves soonest into the Zone of Agreement. This algorithm is thought to encourage concessions and quickly indicate that they are willing to accept a fair outcome. This is in contrast to the chilling effect that occurs with the more common split-the-difference algorithm.D. Larson, "Artificial Intelligence: Robots, Avatars, and the Demise of the Human Mediator", Ohio State Journal on Dispute Resolution [Vol. 25:1 2010], available at https://ssrn.com/abstract=1461712
Automated negotiation has proven to be particularly successful with insurance compensations and commercial activities. It is also a valuable tool for lawyers because they too can use it without revealing what they're willing to accept (unless an agreement is reached) and more importantly, without waiving their right to access the court, in the case that the negotiation is unsuccessful.
Thus, ODR is useful for resolving brick and mortar disputes that arise in businesses, insurance companies and municipalities, who are finding that ODR saves them money and time when dealing with B2C disputes.J. Krause "Settling it on the Web. New Technology, Lower Costs Enable Growth of Online Dispute Resolution" American Bar Association Journal, October 2007
Assisted negotiation
In assisted negotiation the technology assists the negotiation process between the parties. The technology has a similar role as the mediator in a mediation. The role of the technology may be to provide a certain process and/or to provide the parties with specific (evaluative) advice.
Mediators use information management skills encouraging parties to reach an amicable agreement by enabling them to communicate more effectively through the rephrasing of their arguments. Conciliation is similar to mediation, but the conciliator can propose solutions for the parties to consider before an agreement is reached. Also, assisted negotiation procedures are designed to improve parties' communications through the assistance of a third party or software. In fact, it has been argued that assisted negotiation, conciliation, and even facilitation, are just different words for mediation.P. Jacobs "Mediation Now and Then" in M. P. Barbee, Newsletter, Mediation, International Bar Association Legal Practice Division, July 2007, p.14. The major advantages of these processes, when used online, are their informality, simplicity and user friendliness.Motion P. "Article 17 ECD: Encouragement of Alternative Dispute Resolution. On-line Dispute Resolution: A View from Scotland" The New Legal Framework for E-Commerce in Europe (Oregon and Portland, Hart Publishing, 2005) p. 145
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