Modernizing your Practice. ODR Reflections
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| Modernizing your Practice. ODR Online Dispute Resolution |
1. What is ODR?
- Definition: Use of technology to resolve disputes between parties
- History: People have been providing coaching over the phone for years, as well as moderating discussions online (during the reign of chat rooms at the start of the internet). In 1995, Ebay commissioned UMass to conduct a pilot project between buyers and sellers – using email to resolve disputes, with great success.
- Scope: Can be an array of technologies to facilitate communication and dispute resolution, including messaging, moderation, video conferencing, case management and more.
- Types: Can be used in self-resolution,[i] consultations, coaching, facilitation, training, mediation, ombuds and workplace investigations, arbitration, etc.
- Subject Matter: private consumer dispute resolution (Paypal and Modria), public dispute resolution (BC Consumer Protection) settling claims/automated negotiation (SmartSettle – many municipal disputes), Fair Outcomes), arbitration (eQuibbly), self-resolution tools (Mediate2go), etc.
2.
Why ODR?
- Access to Justice: Improve access to justice through easier access to courts, affordable and quick assistance,[ii]
- Immediate Results: Improve access to more immediate dispute resolution,
- Improve Negotiation: Facilitate negotiation with tools using mathematical models,[iii] games theory, etc.,
- Go Green: Reduce environmental footprint, whereby documentation is completely digitized, parties need not drive to meet practitioners, etc.,
- Reduces Costs and Inefficiencies: parties spend less money on conference calls, transport and travel, their issues can be resolved more quickly, (but it might be very expensive when it could be for free in the court system),
- Already happening: Most mediators today communicate over email with clients. However, they are not doing so with encrypted messaging. ODR can improve current processes of practitioners.
- Consumers Demand: People want quick resolution. See our blog on Modernizing your practice.
3.
Concerns with ODR? (Also
see concerns related to the process below)
- Change: Fear and discomfort of change and using technology. Change comes slowly the field of law. Many law firms waste vast amounts of paper; when technology could save money and reduce the environmental impact. The status quo is easier to maintain, even if it would be better. Some might fear the loss of business/work if disputes are being settled privately.
- Resources: Investing in ODR might divert funds from other court needs?[iv] However, this assumes that the current system works well (ignoring the inconveniences and inefficiencies of court administration: rolling briefcases, documents cannot be filed online, judgment often not sent electronically),
- Generation Gap: People might not be comfortable with technology.[v] Not exactly, even older generation is using technology.
- Barriers to Access: People might not have access to technology? At the same time, it might provide more access to a greater amount of people.
- Advocacy: Some ODR systems do not facilitate/ensure legal representation. But, participants may nonetheless consult lawyers…
- Lack of Consultation? In BC, the bar was apparently not consulted,
- Jurisdiction: Concern that settlement decisions might not be enforced.
- Quality and Oversight: It might be better to encourage parties to seek ODR within same jurisdiction, so they may have easier access to complain to the relevant ADR association and eventually court,
- Lack of Training? Mediators might not have sufficient training to ensure effective security protocols, etc.
4.
Current trends in ODR in
Canada and elsewhere
- Virtual Courtroom Environment: eCourtroom of the Australian Federal Court,
- Small Claims ODR: Address disputes within court system that are not expensive to resolve, but cost the system a great deal,
- Empowerment: Tools to empower private practitioners
- ODR Tribunal: BC Government offers independent civil resolution for family and small businesses as created via the Civil Resolution Tribunal Act,[vi]
- Self-Resolution: Self-resolution tools to improve client’s skills in conflict resolution,
- E-Commerce ODR: Cross border e-commerce transactions – see UNCITRAL,
- Internet Domain Name Disputes: - see ICANN
- BC Consumer Protection – see BC ODR
5.
Security implications of
doing DR on the Cloud
- When using multiple platforms, one must determine if the site is encryption (now, AES is standard)
- What’s next? Off the record (OTR) encryption, which uses a combination of AES and other functions to provide “perfect forward secrecy and malleable encryption”, in order to move towards keeping online conversations private, like in real life.
6.
Implications for ODR
processes related to ethics, party satisfaction, etc.
- Informed Consent: Informed consent to enter clients information into online database, newsletter, or use it electronically, as some clients might be more comfortable with you using paper, like therapists,
- Quick Access: Some parties would be happier to get things over with, have quick access, which might lead to satisfaction.
- Electronic Distance? Some suggest that electronic communication leads to “distance”, and that mediation works best when parties are physically with them.[vii]
- It’s a very traditional view, that doesn’t recognize how online is a valid and daily form and medium of communication.
- Online learning has been researched, and has been proven at times to make it easier to participate in activities, and improve “the quality and quantity of interaction.[viii]”
- Also, “the benefits of using technologies in an informed and pedagogically sound way can be felt across sectors”, especially taking into account “Learners needs, motivates, learning styles and prior experience” and more.[ix]
- Less Control? Mediator has less control of the process?[x] Again, this might be an assumption.
7.
Generational
expectations related to technology and DR on the cloud
8.
Resources
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| Modernizing your Practice. ODR Online Dispute Resolution |
[ii] Sizing
up online dispute resolution, Canadian Bar Association, http://www.nationalmagazine.ca/Articles/September-2012-Issue/Sizing-up-online-dispute-resolution.aspx.
[iii] Ibid.
[iv] Ibid.
[v] Ibid.
[vi] Ibid.
[vii] The
Pros And Cons Of Online Dispute Resolution: An Assessment Of Cyber-Mediation
Websites, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr
[viii]
Comparing the Effectiveness of Classroom and Online Learning, Journal of
Public Affairs Education,
http://www.naspaa.org/jpaemessenger/Article/VOL19-2/03_Ni.pdf
[ix] Effective
Practice with e-Learning , JISC Development Group, University of Bristol
http://www.jisc.ac.uk/media/documents/publications/effectivepracticeelearning.pdf
[x] The
Pros And Cons Of Online Dispute Resolution: An Assessment Of Cyber-Mediation
Websites
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr
