Online Alternative Dispute Resolution
By Cem Hamal
One of the most insightful writers on ODR has commented; in essence, legal disputes resolution is a complex and highly sophisticated form of information management and processing. For this reason, it lends itself to the use of sophisticated information technology. ODR has developed and is still rapidly developing as it provides technology to meet the needs for dispute resolution in cyberspace.[1] Online alternative dispute resolution, otherwise referred to as ODR, is a type of dispute resolution which uses the ADR process to resolve a claim or dispute, however, it takes advantage of the internet, which extends what we can do, where we can do it, and when we can do it. So, what is the difference? Well, ODR isn’t just an online version of ADR, rather, the former compromises many unique aspects, from both the technological and process perspectives. ODR is relatively new, the first article on the topic only appeared in law journals 1996. ODR can also be used for offline transactions.[2] For example, “blind-binding”[3] is an ODR used by CyberSettle in the US. The ODR provider in this case provides an automated system of accepting confidential offers from parties and generates settlements in case these offers are matched. If there is no such settlement, the dispute gets moved into an online mediation where a facilitator tries to work out a compromise without revealing the other party’s offers. In other words, ODR is faster, costs lesser, is more accessible and by extension, is more efficient.[4]Online mediation begins with an email sent to the parties involved, providing fundamental information about online meditation. The meeting takes place on a virtual platform, where the parties and the mediator can communicate through chat rooms. The mediator can reach each participant individually or simultaneously. Besides, there is a chat room for joint sessions, the assembly room, and another room to file and store documents. Moreover, the meetings can also be held through emails.[5]On the other hand, the downside to online mediation is that it may not be able to capture the numerous needs, interests, motivations, and emotions of all the parties. The use of email instead of face to face contact results in communication errors as well. Online arbitrations have hearings through a video conference, but mostly they only require parties to upload their evidential documents. Online arbitration shares many similar advantages as online mediation, such as lower costs and greater flexibility.[6] How binding it depends on the type of ODR used, but in most forms of ODR (mediation, arbitration, etc.) an agreement is binding and therefore enforceable. Yet, jurisdiction plays an important role.[7]In 2013 the EU enacted the ADR Directive and the ODR Regulation. This allowed complaints to be made electronically and free, and available in all languages of the EU. When a complaint is made, the trader is notified and the situation is settled with the help of a competent ADR entity capable of using the ODR platform established by the regulation. All of this can be done in approximately 90 days.[8]
1. UMLR, “Online ADR – An Avenue for Resolving Disputes in Cyberspace” (2018) <http://www.austlii.edu.au/au/journals/DTLJ/2004/2.html> accessed 2 July 2020.
2. Ibid
3. Ibid
4. Ibid
5. The IMW Post, “ODR for Dummies: The ‘What, How, Whyy’ of it all” (2016) <https://imwpost.com/odr-for-dummies/> accessed 2 July 2020
6. Ibid
7. Derric Yeoh, “Is Online Dispute Resolution The Future of Alternative Dispute Resolution?” (2018) Kluwer Arbitration Blog <http://arbitrationblog.kluwerarbitration.com/2018/03/29/online-dispute-resolution-future-alternative-dispute-resolution/?doing_wp_cron=1593756639.2472000122070312500000> accessed 2 July 2020
8. Ibid