Correcting Misconceptions about ODR
I read an interesting post this week on Jus Dicere, an Indian legal blog, with the challenging title 'Online Dispute Resolution Is Not Effective- Comment'. So I did and her it is:-
Whilst it is always welcome to read the fast growing number of papers addressing the subject of Online Dispute Resolution, I really must correct some of the errors and misunderstandings in this particular paper.
Firstly the title. Whilst efficacy is not in fact covered in the paper, so the title is puzzling, there is, nevertheless, plenty of evidence that points to the effectiveness of ODR, from the Civil Resolution Tribunal in British Columbia to the vast numbers of consumer disputes being resolved worldwide whether under eBay’s rules or the European Union’s consumer ODR legislation, the family dispute resolution undertaken during a pilot in the Netherlands, motor accident disputes in the State of New York, property tax disputes throughout many states in the US etc together with concrete published evidence that ODR builds consumer trust in traders who participate. (See https://tinyurl.com/y8l4kc5y with the author’s conclusion that :-
“The results of this study demonstrate the clear and quantifiable economic benefit to organizations that invest in the development and promotion of online dispute resolution tools and systems. “)
Maybe the word ‘not’ creeped in unintentionally?
Let me address specific quotes that I feel are incorrect.
“ODR is one of the branches under Alternate Dispute Resolution (ADR) measures. Under ODR technology is used for mediation and negotiation, using internet as a platform for dispute resolution. For this reason, it is often taken as the online equivalent of ADR.”
Whilst indeed the acronym ODR did initially contain a hidden ‘A’ after the ‘O’ for ‘Alternative’, it is now beginning to be adopted by the courts as part of their process rather than be an alternative to them. An online court has now commenced operation in England (following recommendations in a Report which I co-wrote for the Civil Justice Council (see https://tinyurl.com/lztbosj ) . A US Report has recommended adoption in the US courts (see my blog at https://tinyurl.com/ybkvnp7z) . I have been advising USAID who are building a new justice system in Ukraine that will incorporate ODR. There are similar initiatives elsewhere around the globe. The point to make is not that ODR sits outside the court system but that courts are increasingly adopting ODR so the ‘A’ not only becomes absent from the acronym, ODR itself can no longer be seen as something necessarily outside of the court system. If the ‘A’ persists then its changing its meaning to ‘Appropriate’ dispute resolution. ODR simply facilitates such a justice transformation.
“Everything, under ODR, from filing of documents to oral hearing (when needed) and evidentiary processes in done online. “
Not so. ODR tools and platforms do not require a total absence of traditional face to face processes. For example, the Blind Bidding process offered by Smartsettle.com can be used within a traditional mediation or court process. I personally specialize in shareholder mediation and often combine ODR with in –person meetings. It is true that guided pathways with case framing assistance can enable the whole process to be undertaken online but it is wrong to imply ODR as being only available/tilizable if undertaken wholly online.
“There are forums on the internet such as Cyber Settle, etc. that carry out dispute resolution via mediation.”
Firstly Cybersettle has long since closed down its operation (partly, I believe, due to the strange and counter-intuitive (for lawyers) three bids at once system it offered (unlike more practical bidding processes of others such as Smartsettle.com and partly through lawyer gatekeeping to protect current processes). Secondly CyberSettle’s system was just blind bidding ,ie direct negotiation between the parties, and did not include mediation.
“Such an atmosphere of trust is difficult, if not impossible, to create in less than face-to-face discussions. “
Whilst I agree it may be more difficult, it is certainly not impossible. My casework shows that trust can be generated and maintained throughout the process. My training course in ODR (www.odrtraining.com) contains a module on how to achieve this trust.
It is interesting to read the interest being shown in ODR by the judiciary in India and this paper , despite my comments, is a very welcome contribution.