Online Dispute Resolution: a Powerful Tool in the Digitalized Era Part 1/2

By Charlotte Tran

Online dispute resolution (ODR) is known for incorporating technology in facilitating the resolution of disputes between parties and it is often regarded as the online equivalent of the traditional alternative dispute resolution (ADR). It thus primarily involves negotiation, mediation or arbitration, or a combination of all three, with the complementation of Information and Communication Technology (ICT). With ODR, the process is conducted mainly online, including initial filing, neutral appointment, evidentiary processes, and even oral hearings if necessary. The synergy of ICT and tradition ADR, which leads to the introduction and existence of ODR, brings dispute resolution closer to the fast-paced development of digitalisation. ODR has already been implemented in practice and the footprints can be seen in various aspects of our daily lives. For instance, automated negotiation has proven to be particularly successful with insurance compensation and other commercial activities.

E-Negotiation

Negotiation kind of is one of the most widespread forms of dispute resolution.[1] Negotiations can be defined as any type of communication between two or much more people for the purpose of agreement in a very big way. This form of interaction particularly has gradually shifted its platform from courtrooms or law firms to online channels.[2] With respect to e-negotiation, the technology plays a key role in assisting the negotiation process between the parties.[3] In details, e-negotiation firstly provides a platform which is accessible by all parties regardless of their geographical restriction and thus, provides more flexibility, convenience and time-efficiency to the process.[4] Furthermore, e-negotiation is designed to improve parties communication, through the assistance of a third-party or software, by rephrasing and summarize the arguments/ wishes. For these reasons, e-negotiation, in particular, becomes the most popular option when it comes to B2C disputes arisen in businesses, insurance matters and municipalities.[5] The major of such procedure is its informality, simplicity, accessibility and efficiency. Nowadays, negotiations are increasingly taking place via email or video conference.[6]

Studies have shown that email negotiations have the tendency to increase controversy and decrease information exchange. It also plays a role in reducing process interaction, diminishing trust and especially, increasing effects of negative attribution.[7] It is also believed that better rapport can only be produced in face-to-face conversation, which enables the parties to reach a consensus.[8] In general, email communication leads to higher likelihood of misinterpretation and misunderstanding. Thus, many expert cast doubts on it real advantages on the form of negotiation.

On the other hand, videoconference-based negotiations can bring the negotiators closer to a face-to-face conversation and therefore, they continue to spread in the recent years.[9] There are indeed still many concerns mainly related to information and data security with the type of communication.[10]

E-Mediation

At the present, online mediation is no longer an unfamiliar topic as its traces can be found in many dispute areas, especially in settling online business and other transactional disputes.[11] We also see an increasingly high rates of successful use of online family mediation and workplace mediation.[12] Many family mediation projects were conducted by Juripax and receive high settlement rates as well as high rates of parties’ satisfaction. Similarly, online mediation in workplace dispute shows high effectiveness due to the fact that the workplace hierarchy element is eliminated during the process.[13]

Online mediation offers a great number of advantages such as the preservation of records, which allows the parties and mediators to review with less time pressure.[14] Furthermore, external experts can be consulted with regardless of their geographical location and disrupting the process’ dynamics.[15]

Beside many advantages, online mediation sometimes faces certain obstacles as a result of distance, of low-dispute-value, or of parties lack of internet resources.[16] Parties can engage in a better steered face-to-face conversation with communication techniques and body languages. Many experts still believe that technology should only be considered as a “communication medium” rather than a dispute resolution tool on its own.[17] A human intervention is still very much need to produce an adequate and accurate outcome.

Conclusion

In conclusion, the virtues of technological advances in the area of dispute resolution are highly appreciated for its smart implementation in the field of dispute  resolution. In the meantime, human intervention still plays quite an important role in producing an adequate solution. This can be reflected through the practical examples of e-mediation and e-negation. Dispute resolution mechanisms, in general, are a means of maintaining social order and are intended to deal with conflicts and disputes—on the basis of the rule of law. Therefore, additional research needs to be conducted in specific form of ODR and there is a need for monitoring its implementation in practices. In the next blog post, we will further explore online arbitration, its current status and impact.

[1] P.H. Gulliver, ‘Disputes and Negotiations: A Cross-Cultural Perspective’ (New York: Academic Press 1979).

[2] 5 Cf. Kathleen Valley, ‘Conversation: The Electronic Negotiator’ (Harvard Business Review 2000).

[3] Julio César & Betancourt Elina Zlatanska, ‘Online Dispute Resolution (ODR): What Is It, and Is It the Way Forward?’ (79 International Journal of Arbitration, Mediation and Dispute Management, Issue 3, 2013).

[4] Ibid.

[5] Ibid.

[6] Ebner, N., ‘The Negotiator's Desk Reference: Negotiation via email’ (St Paul: DRI Press 2017).

[7] Ibid.

[8] Ibid.

[9] Ebner, N., ‘The Negotiator's Desk Reference: Negotiation via Videoconferencing’ (St Paul: DRI Press 2017).

[10] Ibid.

[11] Julio César & Betancourt Elina Zlatanska (n 3).

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.