The growth of online shopping, online financial trading, online banking to online tuition, emphasises our growing dependence on technology and online communication. Technology has changed almost all areas of human existence, and dispute resolution is no exception. The internet and the use of computers are now an integral part of our lives.
We live in an inescapable world of technology; this extends to law practice in the form of online dispute resolution (ODR). ODR is the use of information and communication technologies to assist parties to manage, transform and resolve their differences/conflicts. ODR is, of course, a broad field with many facets, based on technology supported third party intervention efforts aimed at dispute resolution, peace-building or conflict management.
Cyberspace as a platform for providers
There is an inevitability in the rise of the settlement of disputes online given our technological world. According to the father of ODR, and Director of the National Center for Technology and Dispute Technology at the University of Massachusetts, Professor Ethan Katsh “Cyberspace is, increasingly, a place where there are processes available to users as well as information“. Katsh states the Center seeks to understand the nature of the online environment and how this environment affects disputes and conflict resolution. It encourages the development of information technology applications and works to understand how individuals separated by great physical, cultural or technological distances can utilise virtual legal resources and expertise in the conduct of their commercial and personal relationships.
There is debate among ODR experts as to whether there is the need for a separate legal jurisdiction of cyberspace or whether laws of states can be adapted to cover issues that arise online. However, the undeniable fact is that online cultures, with their legal doctrines and legal processes, are springing up daily. Successful platforms actively utilising ODR include eBay, Paypal, and Amazon. eBay, for instance, reports that over 35 million disputes using eBay’s free ODR services get resolved annually. Its preferred dispute resolution provider Square Trade offers two services: Complaints are either settled by a free web-based forum, or, if necessary, with the assistance of a professional mediator.
ODR for small claims
The benefits of eBay’s ODR system include the resolution of genuine misunderstandings quickly and equitably. As well as, the provision of a neutral go-between to assist buyers and sellers resolve their differences, reduction of premature negative feedback and generation of trust in and amongst eBay community. The benefits ensure a conducive environment for businesses and most importantly avoids the cost of traditional court-based dispute resolution . Users have commented on how appropriate and accessible the ODR service is. Overall, eBay’s ODR platform has been proven to be effective and efficient. All these benefits are equally applicable to commercial relationships in the wider online world .
In a February 2015 BBC 4 interview, Professor Richard Susskind of the Civil Justice Council (CJC) stated the need for the establishment of eBay-style online courts for the resolution of smaller claims of up to £25,000.00. An online court which is expected to commence operations in 2017 is under negotiations.
Such an online judicial process will administer procedure by online facilitators who will assist the parties in a dispute to reach an agreement. If that failed, online judges would then decide cases without the need for physical court facilities, or the parties involved to appear in person to give evidence. The establishment of a proposed ‘online court’ would offer several types of services depending on the completion and value of the dispute and the wishes of the parties regarding costs, time and the type of facilitators who might act either as a mediator, arbitrator, judge or ombudsman.
A new era for dispute resolution?
Susskind stated that the creation of an online court would be “remarkable”. In a keystone speech in New York at the annual ODR conference held in 2015, he explained that the current state of law and access to justice in the 21st Century is “too slow, too complicated and too costly”. An eBay-style online court resolving smaller claims would result in a sharp reduction in costs, thereby, making justice more inexpensive, timely and accessible.
As legal practitioners, are reminded that 20 years ago the notion that lawyers would use email to correspond with clients was inconceivable. Nevertheless, today virtually all firms communicate globally with customers via email. Even service by electronic mail is in use. Here, there is an inevitability of change in dispute resolution, one that is a technologically driven change which is inescapable, and the earlier legal practitioners and the wider world embrace ODR, the better.
To ODR experts and the converted, it is evident that the field of ODR is wide open for expansion and innovation. Dispute resolution professionals are aware that ODR is the platform well suited to address some of the present challenges of high costs, time delay and lack of accessibility which are evident in traditional dispute resolution processes. For the cautious, at the rate of technological change and the availability of information, together with the workforce, the future of ODR is upon us, as seen on eBay. ODR has significant potential to have a worldwide appeal.
Article by Ijeoma Ononogbu.
Ijeoma Ononogbu is a solicitor of England & Wales and a Fellow of the Chartered Institute of Arbitrators. She obtained her LLM in Comparative and international Dispute Resolution from Queen Mary, University of London.