Last week saw the publication of a Report to the Committee on Legal Affairs and Human Rights
of the Council of Europe on the question of whether ODR and the increasing use of technology and communications over the Internet for the resolution of disputes may conflict with the public's right to access to justice as enshrined in Article 6 of the European Convention on Human Rights.
The Council of Europe is the body responsible for enforcement of the ECHR through the European Court of Human Rights. This Report, written by Mr Jordi Xucla, is the culmination of much research carried out by him and following two hearings of the Committee, at which evidence was taken from three experts in ODR being Professor Arno Lodder of Vrije University, Amsterdam, Ms Iveta Havlova of Youstice.com and myself.
Mr Xucla's conclusions, now adopted by the Committee, are stated as :-
"both ODR and ICT, though not by any means panaceas, can help provide greater access to the judicial system by offering solutions to the problems of judicial inefficiency, the high cost of litigation, and geographical barriers. ODR and ICT nevertheless have some drawbacks, and member States should continue to invest in the development of safer, more effective, and more accessible ODR and ICT."
The Report recommends a draft Resolution to be adopted by the Parliamentary Assembly, the key messages from which are:-
* that the 47 member States be encouraged to promote awareness of ,and further develop, mechanisms for ODR;
* that the extrajudicial enforcement of ODR decisions be promoted;
* that there be recognition of various challenges including inequalities in access to online resources, privacy and enforcement;
* that ODR procedures should contain safeguards compliant with Articles 6 and 13 (right to an effective remedy, particularly against authority) of the ECHR;
* that parties engaging in ODR procedures should, afterwards, retain the right to access a judicial appeals procedure satisfying the requirements of a fair trial pursuant to Article 6 of the Convention;
* that standards be developed for ODR , including ensuring that the process does not unfairly favour repeat players over one-time users, and establish a system of accreditation for ODR providers. (Some potential for duplication here with the system of accreditation already now in place under the EU Directive on Alternative Dispute Resolution in Consumer Disputes 2013/11/EU)
* that technological developments be monitored in order to promote the use of ICT within courts.
The Report addresses the Article 6 issue and the above challenges:-
* the Court has consistently stated that no violation of this provision will be found if the proceedings before bodies which do not satisfy the requirements of Article 6(1) of the Convention are “subject to subsequent control by a judicial body that has full jurisdiction”;
* There is case law for the principle that a waiver of the right to have access to a court does not in principle violate Article 6. However this requires safeguards in order to comply with Article 6;
* ADR procedures are being used with increasing frequency, with some Member States even requiring parties to first try ADR before resorting to the courts.;
* The growth of the Internet in society has affected how individuals purchase goods, receive information, and communicate, leading to a rise in e-commerce, e-governance, and e-justice;
* ODR may increase the availability of speedy resolution of disputes.;
In a reference to non-adjudicative processes, such as mediation, Mr Xucla stresses the value of procedures that encourage consensual outcomes as being more beneficial in preserving relationships between the parties. Acknowledging the growth in adverse consumer reviews and concern for the resulting threats to commercial reputation, he argues that consensual processes can help avoid the damage inherent in the typically adversarial approach of the courts.
There is potential benefit in the fact that ODR processes may be tailored to particular types of disputes and thereby improve the 'user experience' of 'justice' for the parties.
Mr Xucla regards it as critical to bear in mind that dispute resolution often entails questions of law beyond the understanding of the public. ODR procedures should therefore not exclude the possibility for individuals to take legal advice. While that principle is recognised, it is worth mentioning that part of the future vision of the Civil Justice Council's ODR Expert Group is to encourage a system in which the technology itself plays a significant role in providing legal information and guidance. See also my blog on developments in Artificial Intelligence and the law.
The Report suggests there is a lack of empirical studies on the benefits of ODR. In fact there have been some studies based on huge samples of eBay ODR data and which conclusively prove, from actual behaviourrather than user comment, that when sellers participate in speedy ODR with their customers, they enjoy increased customer loyalty. One to look at is that by Colin Rule, Founder and COO of the leading ODR provider, Modria.com, entitled “Quantifying The Economic Benefits of Effective Redress: Large e-Commerce Data Sets and the Cost Benefit Case for Investing in Dispute Resolution" - University of Arkansas, Little Rock, Law Review 34 U. Ark. Little Rock L. Rev. 767.
The Report recognises that ODR systems may favour repeat players, who, through familiarity, may gain advantage over one time users, for example when a large retail company refers all its disputes to one particular ODR provider. This would be particularly of relevance in systems in which game theory and heuristics are being employed (of which some have been developed. See the paper entitled "Integrating artificial intelligence, argumentation and game theory to develop an online dispute resolution environment" by Bellucci, Lodder and Zeleznikow.)
The problem also applies to regular users of a system who establish a relationship with mediators. The Report suggests that this risk of inequality may be mitigated through providing a preselected list of ODR providers from which the one time user can choose. Governments can and should play a crucial role in assessing and certifying providers for their neutrality.
The Report recognises the view of some commentators that diverting disputes away from a public forum and into private ODR may curtail the development of the law. Mr Xucla argues that ODR processes can in fact
"go beyond an individualistic resolution of isolated disputes. As mentioned above, ODR providers use their experience from earlier settlement agreements in similar cases to give recommendations on possible remedies, by using technology to identify recurring patterns of disputes and categorising complaints [...] Seen from this angle, ODR may not only be a means for resolving disputes, but possibly also an opportunity for preventing them, including by way of changing the behaviour of traders."
The Report also covers issues of privacy and translation. As to the latter Mr Xucla notes that, whilst the European Commission's ODR platform to signpost consumers to ADR providers, and to be launched in January 2016, a hyperlink to which all EU based businesses selling products or services online must have placed on their websites, will have translation facilities in all EU languages, the actual ADR process is not required to be translated and will be selected by the particular ADR provider chosen by the parties.
Mr Xucla urges member States to 'reinforce their efforts' in the development of multilingual mediation.
As to whether the processes should be mandatory, Mr Xucla says:-
" I agree with the view expressed by the three experts who testified before the Committee that engaging in ODR should not be mandatory. ODR processes should be voluntary in nature and employed in situations where their advantages best come to bear"
Frequently, over the last 10 or more years, when speaking on ODR I have faced questions as to whether such sets a challenge to the Article 6 rights. This Report by Mr Jordi Xucla provides an extemely usueful guide to the issues and his enthusiasm for the overall benefits that ODR can bring to society as a whole are very welcome.
The Report is available here.