The Theory and Practice of Dispute Resolution in the Digital Age

Abstract

The phenomenon known as online dispute resolution relates, to put it simply, to resolving disputes on the Internet. It is happening in many forms and forums across Canada, the United States, Europe and other countries. Today’s ODR mechanisms are said to be early harbingers of the future global dispute resolution landscape in the Digital Age.[1] The term ODR refers to an array of dispute resolution procedures. Some are fully automated, others, although they take place exclusively online, involve a human neutral. A large group of processes that are included in ODR use digital technologies to lesser degrees. Thus, online dispute resolution is not a monolithic concept – for this reason, some authors argue that it is more accurate not to speak of ODR, but rather of ODR techniques[2], or even of “a plethora of online dispute resolution services”[3] devoted to the expeditious and speedy resolution of disputes. The term ODR is used for mechanisms as different as dispute prevention (education, outreach, rating and feedback programs), ombudsman programs, blind bidding, automated negotiation, early neutral evaluation and assessment, mediation/conciliation, mediation-arbitration (binding and/or non-binding), arbitration, expert determination, “executive tribunals” or “virtual juries”. Based largely on traditional (offline) alternative dispute resolution[4] procedures, such as mediation or arbitration, and various hybrids thereof, ODR is sometimes equivalently labelled as e-ADR.[5] The synergy of alternative dispute resolution and information and communication technology via the Internet is considered a dominant feature of ODR as canvassed in legal literature.

[1] Many authors have suggested that the spectrum of dispute resolution mechanisms will soon encompass a full range of “virtual” options made possible by the current revolution in information technology – see for instance: Thomas J. Stipanowich, “Contract and Conflict Management” (2001) Wis. L. Rev. 831.

[2] Julia Hörnle, “Online Dispute Resolution – The Emperor’s New Clothes? Benefits and Pitfalls of Online Dispute Resolution and its Application to Commercial Arbitration”, online: <http://www.bileta.ac.uk/02papers/Hörnle.html> [Hörnle].

[3] Leon E. Trakman, “From the Medieval Law Merchant to E-Merchant Law” (2003) 53 U. Toronto L.J. 265 at 284.

[4] The main forms of alternative dispute resolution (ADR) are arbitration, mediation and negotiation, processes that are effective in settling disputes out of court and in a manner that is less formal than litigation in court. Some authors exclude arbitration from ADR though, emphasizing amicable (conciliatory) nature of ADR, as opposed to adjudicative procedures, such as litigation or arbitration.

[5] As indicated by Schiavetta, “whilst the terms ODR and e-ADR have been and can be used synonymously it is more accurate to make a distinction” – Susan Schiavetta, “The Relationship Between e-ADR and Article 6 of the European Convention of Human Rights pursuant to the Case Law of the European Court of Human Rights” 2004 (1) The Journal of Information, Law and Technology (JILT) [Schiavetta]. Some other authors have argued that because ADR systems almost always integrate some form of ICT (from using the telephone, fax machine or word processor, to sending information on meeting times via e-mail or posting payment forms online), we face an ADR/ODR continuum rather than a set of distinguishable categories of dispute resolution mechanisms

Whether a distinction should be made between proceedings exclusively conducted online (represented on the right side of the chart) and proceedings “only” supported by different elements of ICT technology is disputable. According to Hörnle, there is no such clear-cut distinction and ODR remains “a matter of degree” – it must be localized on a broad spectrum of dispute resolution mechanisms, with at the one end proceedings using hardly any online technology and at the other end proceedings heavily relying on online technology (Hörnle, supra note 4). Rule has argued that in the future the distinction between ADR and ODR will become even more blurry, as the technological solutions are refined and practitioners become more aware of ODR techniques it will become more integrated – Colin Rule, Online Dispute Resolution for Business: B2B, Ecommerce, Consumer, Employment, Insurance, and Other Commercial Conflicts (Jossey-Bass, San Francisco, September 2002) at 301 [Rule].

Keywords: Advantages, Digital Age, Disavantages, ODR


Article Review Status: Published

Pages: 57-69 (Download PDF)

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