Online Dispute Resolution: The Story so far and
Predictions for the Future
G Brian Hutchinson BCL LLM DAL FCIArb BL Accredited Mediator
Senior Lecturer, School of Law, University College Dublin
Principal, GBH Dispute Resolution, Dublin
ECC Luxembourg 5th Conference on Aspects of European Consumer Law
Luxembourg
10 October 2013
Opening Thought
Cambridge Consultants
“ If I’d asked my customers what they wanted, they’d have said ‘a faster
horse’ “
Henry Ford(1863-1947), Founder of the Ford Motor Company
ODR as “Disruptive Technology”
• Changing the way we do things, not just
making it easier to do them.
• Richard Susskind, “Tomorrow’s Lawyers: An
Introduction to your Future”
Context
• Directive on Consumer ADR 2013/11/EU, 21
May 2013,
• Regulation on ODR , 524/2013, 21 May 2013
ADR
The Chain of Conflict
• Disputes are part of a chain
• There are opportunities or choices at each stage to deal with the
escalation
•A dispute process can learn from “why” the parties escalated
Causes of Conflict
Moore
Conflict is Dynamic - Cycles of Conflict
Rummell / ADR Group
The Correct focus?
Some Dispute Resolution Approaches
Contrasted
Contrasts
Adjudicative vs. Non-Adjudicative (Facilitative, Evaluative, ..)
Rights vs. Interests (or needs)
Consensual vs. Mandatory
Adjudicative (decision)
Non-Adjudicative (agreement)
Litigation
Mediation
Arbitration
Conciliation
Expert Adjudication
Negotiation
Ombudsman
Evidence, Due Process
Good Faith, Safety & Confidentiality
ADR & ODR - What’s out there?
– ADR: Diversity & Variety
• E.g. over 750 consumer ADR schemes across Europe (DG Sanco
ADR Study, 2009).
– Current Issues:
–
–
–
–
Awareness
Engagement
Coverage
Funding
– Consumer ADR Directive will assist substantially in
addressing these concerns
ODR
• Range of Providers
– www.odr.info
25
20
15
10
5
0
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
4
4
3
21
22
14
17
20
15
7
• Range of Disputes Covered
• Range of Resolution Models
• Range of Business Models
Disputes Resolved Online (2005)
1' 200' 000
1' 000' 000
800' 000
600' 000
400' 000
200' 000
0
2000
2001
2002
2003
2004
2005
10' 000
40' 000
200' 000
400' 000
800' 000
1' 200' 000
UNIGE
Existing Models and Providers
• Differences in:
–
–
–
–
Scope of Application
Type of Service
Cost of Service
Types of Claim
• Automated Negotiation, Assisted Negotiation,
Mediation, Case Appraisal, Crowd-Sourced Dispute
Resolution and Arbitration
ODR Models
1.
–
–
2.
–
–
–
3.
–
–
4.
5.
–
–
–
–
6.
–
Automated Negotiation
No offline analogue
Eg. Cybersettle (“Double Blind Bidding”)
Facilitated negotiation
Online space for direct communication
May be structured (“fourth-party”) / Negotiation Support
Eg. ECODIR, Squaretrade, Online Confidence, Online Resolution, The Mediation Room
Online Mediation
Assisting parties to settle – identifying common ground, alternatives, etc
Eg. ECODIR, (Squaretrade), JAMS, MARS, Online Resolution, Web Mediate
Case Appraisal and Crowdsourced Dispute Resoluton
Online Jury / panel of experts
Eg. i-Courthouse, EbayCourt,
Online Arbitration
Binding determination by neutral third-party
Eg. Squaretrade, Nova Forum, MARS, JAMS, eNeutral, e@dr Square Trade, Resolution Forum, Online Resolution, Private Judge,
Online Confidence, Web Assured, Web Mediate and Word&Bond
Non-Binding Arbitration
ICANN UDRP
The Technology
Automated Negotiation
Automated Negotiation
Automated Negotiation
Facilitated Negotiation
Facilitated Negotiation
Online Mediation (Text Based)
Online Mediation (Video Based)
MARS Mediation
Crowdsourced Dispute Resolution
eBayCourt.com
Trier, 22 June 2012
G Brian Hutchison, UCD School of Law,
Dublin
25
PayPal-Court.com
Trier, 22 June 2012
G Brian Hutchison, UCD School of Law,
Dublin
26
Marktplaats Gebruikersjury
Trier, 22 June 2012
G Brian Hutchison, UCD School of Law,
Dublin
27
ReviewRef.com
Trier, 22 June 2012
G Brian Hutchison, UCD School of Law,
Dublin
28
Online Arbitration
Online Arbitration
Online Arbitration
T Schultz,
UNIGE
A la Carte Dispute Resolution
Built on the
Experience of
400,000,000
cases
www.modria.com
Technology as “Fourth Party”
Technology as “Fourth Party”
Assisting (or occasionally replacing) the third party in the process
Examples:
Organise Information
Schedule Events
Send Automatic Responses
Clarify Interests
Shape communication
Assist Choices
Monitor Performance
Fourth Party Tools – Clarifying
Interests
Fourth Party Tools – Balancing
Settlement Options
Apportionment Tools
Fairandsquare.ie
Fourth Party Effect – Eg. Asynchronous text based communication
– “Reducing the stress of interaction”
• Van Veenen, Tilburg University, (2010)
– “shape communications into a constructive and
polite negotiation”
• Rabinobich Einy (2006)
Fourth Party support - Feedback
Fourth Party Tools – Emoticons (
!)
Regulation of ODR
Regulatory Initiatives
• No ODR Specific Regulatory Legislation
• Legislative Instruments and initiatives from ADR:
Commission Initiatives
– European Code of Conduct on Mediation
– EC Recommendations 98/257 and 2001/310
• 98/257 – Active (puts solution to parties)
– independence, transparency, the adversarial principle, effectiveness, legality, liberty and representation.
• 2001/310 – Passive (assists parties to their own solution)
– impartiality, transparency, effectiveness and fairness
• Other major regulatory requirements include Data Protection legislation
•
Self –Regulation
– Many ODR Specific Self Regulatory initiatives
– Common Principles : Transparency, Accessibility, Neutrality, Efficiency, Fairness
Self - Regulatory Initiatives
• ICC “Best Practices for Resolving Disputes
Online” (2003)
• American Bar Association “Addressing
Disputes in Electronic Commerce” (2002)
• UNCITRAL Working Group on ODR (2011 –
ongoing)
What is UNCITRAL Doing?
• Working Group III
• http://www.uncitral.org/uncitral/commission/wo
rking_groups/3Online_Dispute_Resolution.html
• Three-Tiered Process:
– Negotiation
– Facilitated Settlement
– Arbitration
• Challenges, Timeline
Other Initiatives
• ISO 10003 - Guidelines for dispute resolution
external to organizations
– Taxonomy – e.g. “Facilitative, Advisory,
Determinative”
• CEN /ISS Workshop on Standardization of
Online Dispute Resolution Tools
Standardization?
Modes of Standardization
• Minimum
Standards
“One Size Fits All”
Modes of Standardization
•Common Understanding - Taxonomies
Modes of Standardization
•Common Understanding - including Taxonomies
The Stand-ODR Workshop Agreement
16026 (2009)
• Workshop Agreement
– Survey of Existing ODR models and Providers
– Analysis of the ODR Processes
– Study of the Technical and Regulatory
Backgrounds
– Identification of the Interoperability Aspects
– Development of an ODR Taxonomy and
Onthology
– Conclusion and Recommendations
Elements of the CWA
•
•
•
•
•
•
Survey of Existing ODR models and Providers
Analysis of the ODR Processes
Study of the Technical and Regulatory Backgrounds
Identification of the Interoperability Aspects
Development of an ODR Taxonomy and Onthology
Conclusion and Recommentations
ODR Ontology Design
Challenges for ODR
Fair Procedures – Challenges for ODR
• (Remember – the requirements vary according
to the form of dispute resolution process )
Right to be heard effectively
– Complexity of Technology?
– Right to be heard Orally? (Video/Teleconferencing?)
– But:
• Adjudicative v.s Facilitative Divide
• Strengths of asynchronous text based communicatons
– More significant is ACCESS to technology
– And ease of access / use
Right to be Heard Effectively
• Language Barriers – technology can help
Right to Adversarial Hearing?
• Access to and Reply to Communication
• Well managed systems must ensure.
Equal Treatment
• No Substantial Disadvantage
• The guaranteeing of trust .
– Internet can be a useful tool in vetting neutrals
– But may itself be untrustworthy
Confidentiality
• Exacerbated concerns
• E-mail is not ideal!
Electronic ADR Agreements
• The need for a “permanent medium”?
• Note significance as enforceability of
Agreements to refer to ADR increases….
Electronic Evidence
• Alterability issues – mostly affect arbitration
– Both as regards agreement to arbitrate
– and communications during arbitration
• IBA Rules of Evidence
• UNCITRAL Model Law on Electronic Commerce
• EU Directives on E-Commerce and Electronic
Signatures
Electronic Signatures
Electronic Awards
• New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards , Art
IV(1)
Bringing Parties to ODR
Bringing Parties to ODR
• The Barriers to ODR are mostly the same barriers
that exist to ADR
• Information and Awareness
– By ODRs as well as others
• Clauses, Involving Lawyers and Judges,
• Funding
Bringing Parties to ODR – Legal
Hurdles
• Case C-168/05 – Mostaza Claro v. Centro Movil
[2007] 1 CMLR 22
– Pre-dispute consumer arbitration clauses must be
annulled if found to be unfair by a national court –
whether the consumer has complained of the
unfairness or not.
•
Contrast mandatory mediation clauses –
– Rosaalba Alassini Case C 317-08
Possibilities for Government / Official Involvement
•
•
•
•
•
•
•
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Promoting awareness of ADR and ODR – including using ADR & ODR
Cybercourts using online processes?
Cyber Appeals from ODR?
Accreditation of ODR providers?
Establishing clearing houses networks?
Funding and Co-Funding?
Requiring mandatory use of ODR in some licensing processes?
Supporting initiatives such as EMCOD..
Issues and Perspectives
How to sustain ODR services?
 Case generated revenue unlikely to sustain in short term.
 Licence right to display “brand” (trustmark) and use
process to businesses.
Necessitates a trust mark business model
Proliferation of trustmarks
 Co-funding between State, Business and Consumer
bodies?
 Specialised focus particular markets / customers
 Narrows access
Combination of the above
Conclusions
Thank You!
G Brian Hutchinson BCL LLM DAL FCIArb Barrister-at-Law
Arbitrator and Accredited Mediator
Senior Lecturer, School of Law, University College Dublin
Programme Director, Diploma in Arbitration, UCD
Roebuck Castle, UCD, Belfield, Dublin 4, Ireland
Tel: +353 1 716 8756
E-mail: Brian.Hutchinson@ucd.ie
Contact Details
G Brian Hutchinson BCL LLM DAL FCIArb BL Accredited Mediator
Senior Lecturer, School of Law, University College Dublin, Ireland
Principal, GBH Dispute Resolution Consultancy, Dublin Ireland
Tel. +353 1 443 4360
Fax:+353 1 526 1060
Email: brian.hutchinson@ucd.ie or brian@gbh.ie
Web:www.ucd.ie/law and www.gbh.ie