Recent Developments in Online Dispute Resolution

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Recent Developments in Online Dispute Resolution
VUW SIM13 May 2005

• Melissa Conley Tyler
• Senior Fellow, Faculty of Law
• University of Melbourne

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Objectives

• To give an overview of the current state of
  online dispute resolution (ODR) worldwide
• To give examples of ODR systems, particularly
  recent Asia Pacific sites
• To assess the adoption of ODR to date
• To consider the implications of ODR for IT and
  dispute resolution practitioners

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What is ODR?

• Dispute resolution processes
• facilitative processes such as conciliation,
  mediation and facilitated negotiation
• advisory processes such as case appraisal, mock
  trial and neutral evaluation
• determinative process such as arbitration and
  adjudication
• Assisted by technology, especially the internet
• Can be used for online or offline disputes

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State of ODR

• 115 and counting

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State of the Art

• Total of 115 ODR sites or services launched to
  July 2004
• 82 are still operational
• 28 new sites or services launched between 2003 to
  2004

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Date of Launch
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Types of Online ADR Offered
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Types of Issues Dealt With
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Case Statistics

• Cases Settled
• Square Trade over 1.5 million cases handled
• Cybersettle over 90,000 cases settled
• iCourthouse over 11,000 cases filed
• Domain name disputes over 6,000 determined
• clickNsettle and SettleOnline over 2,000 settled
• Settlement Rates 50 to 100

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Site Location
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Examples of ODR

• Many tools, many countries, many types of
  dispute

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ODR Areas of Focus

• Internet domain name disputes
• Consumer disputes
• Commercial and real world disputes
• Courts and Justice
• ADR practitioners
• Peace and conflict

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1. Internet Disputes

• ICANN UDRP
• Asian Domain Name Dispute Resolution Centre
• National Systems
• CIETAC Domain Name Dispute Resolution Centre
• Hong Kong International Arbitration Centre

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2. Consumer Disputes

• Square Trade
• Private US company launched March 2000
• Handled gt1.5m cases
• Partnering with eBay, Californian Realtors, etc
• Offers facilitated negotiation, mediation and
  case appraisal

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• China ODR
• Launched June 2004
• Mainly online disputes, especially e-commerce
• Offers negotiation, mediation and arbitration
• Chinese and English

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3. Commercial Disputes

• The Mediation Room
• Private UK company launched in Australia in 2003
• Resolution of mainly offline disputes
• Offers automated negotiation, mediation and
  facilitation

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• ODR Malaysia
• Launched late 2004
• Provides facilitated negotiation, mediation,
  arbitration and blind bidding
• Online or offline disputes
• English language

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4. Courts and Justice

• e_at_dr
• Launched in 2000
• Part of Singapores Small Claims Tribunal
• Provides mediation and arbitration by Court
  Mediators and Judge Mediators
• English language

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• eCourt
• Part of Federal Court of Australia
• Electronic filing and payments
• Virtual courtroom
• Case and document management
• Videoconferencing

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5. ADR Providers

• Philippine ODR
• Launched late 2004 by the Philippine Dispute
  Resolution Center
• Provides blind bidding, mediation, arbitration
  and case appraisal
• Via web and SMS
• English language

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• NSW Retail Tenancies
• Australian state government service
• Launched around 2002
• Lodge, pay fees and track progress online
• Online discussion with advice officer/mediator
• Mediations face-to-face

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6. Peace and Conflict

• Info-Share
• Sri Lankan site
• Brings the parties to the peace process together
• Uses Groove meeting room technology
• Aims for conflict transformation through
  information exchange

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• CPNN
• Global network of sites created by UNESCO
• Chinese, Japanese and Australian sites
• Aim is to build a culture of peace through
  information exchange among citizens
• Online magazine format

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An Assessment

• A glass half empty or half full?

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ADR Practitioners

• 115 sites
• Over 1.5 million disputes handled
• High settlement rates
• Given new field of ADR, these are substantial
  (and surprising) successes

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e-Commerce Perspective

• Tiny percentage of e-commerce disputes dealt with
  by ODR
• Small compared to overall disputes
• Not the primary dispute resolution method online

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Dispute Resolution Pyramid
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American Bar Association 2002

• ODR is still in its infancy
• Consumers have low awareness of ODR
• ODR providers find it difficult to generate
  profit on low-value transactions
• No standards for ODR have yet emerged
• No ODR trade association has formed

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Reasons for Non-Adoption

• ODR doesnt work
• Disputants dont want ODR
• Providers dont want ODR
• Problems with marketing/awareness
• Problems with enforcement

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1. ODR Doesnt Work

• Argument
• Disputes are best settled face to face
• Online communication worsens disputes
• Text cant convey emotion
• Assessment - Not True
• High settlement rates and user satisfaction
• Lab tests endorse online communication

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Tan, Bretherton Kennedy (2003)Distribution of
negotiation outcomes across three media of
communication
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2. Disputants Dont Want ODR

• Argument
• Disputants prefer other types of dispute
  resolution
• Assessment - Not True
• Needs assessment reveals high demand
• Studies of user experiences show satisfaction
  with ODR when offered

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Conley Tyler, Bretherton Bastian (2003)Needs
Assessment Department of Justice Victoria

• Extraordinary level of public interest
• Consistent in surveys and focus groups
• Frequent users and banking/auction users most
  likely to consider
• A small group dislike online communication

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3. Providers Dont Want ODR

• Argument
• Resistance to online communication
• Resistance to changes to practices
• Concerns about accreditation and quality
• Assessment Elements of Truth
• Definite resistance in many quarters

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4. Lack of Marketing/Awareness

• Argument
• Disputants dont have high levels of awareness of
  ODR
• Lack of co-ordinated promotion of ODR
• Assessment - True
• Needs assessment shows low awareness

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5. Lack of Enforceability

• Argument
• Concerns about enforceability make ODR
  unattractive to disputants
• Assessment - True
• Most ODR is either non-binding or enforceable as
  a contract (not as a judgment)

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Potential of ODR

• Implications for IT and Dispute Resolution
  Practitioners

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ODR has Implications

• The growth of ODR has implications for
  information management and dispute resolution
• IT specialists should be aware of ODR as an
  option for dispute resolution
• ADR practitioners will have to change their
• Knowledge
• Skills
• Attitudes

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To Learn More

• Participate in www.odr.info discussions
• View the online Cyberweek conference at
  www.odr.info
• Attend the Fourth United Nations Forum on ODR
  held by UNESCAP
• Visit the ODR Library at www.odr.info (refer
  publications on ODR to editors Liz Allen or
  Melissa Conley Tyler)

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• Melissa Conley Tyler
• Senior Fellow, Faculty of Law
• University of Melbourne
• m.conleytyler_at_unimelb.edu.au