Online Dispute Resolution: An Amorphous Concept, Yet An Effective Tool Part V

 Online Dispute Resolution: An Amorphous Concept, Yet An Effective Tool

Part V

 Part I | Part II | Part III | Part IV

By: Burkley Wombwell

V. Pros and Cons of ODR; Current Issues and Perspectives

The rise of Online Dispute Resolution has lead to some debate over its effectiveness and the benefits of its use. According to some scholars, computer-mediated communication (CMC), which is inextricably linked with ODR, facilitates the interaction process through the use of computers; however, with e-negotiation, for example, it is also believed that [CMC] can undercut the effectiveness of negotiation and lead to “misunderstandings, sinister attributions, and ultimately, negotiation impasse.”[1] Research has shown that email negotiations increased contentiousness, diminished information sharing, diminished process cooperation, diminished trust, and increased effects of negative attribution.[2] Certainly, face-to-face communication has its benefits, but just how concerning are the downsides to online dispute resolution?

Electronic communication cannot allow for the inclusion of tone or expression, which is a pivotal part of human communication, as written language does not always convey the complete meaning of what an individual is trying to communicate.[3] It has been argued that this can be compensated for with further clarifications,[4] but does it still leave something to be desired? In some situations it may not be appropriate to mediate face to face, for example when both parties are emotionally charged, when it would not be cost effective to bring both parties together, or when there is a huge power imbalance between the parties.[5]

One of the most compelling objectives of any type of dispute resolution service is justice. To ensure justice, ODR providers must aspire to certain goals, including transparency, independence, impartiality, effectiveness, fairness and integrity, accessibility, flexibility and affordability.[6] Most providers ensure their services are easily accessible, flexible, and affordable, but guaranteeing independence, impartiality, and fairness can be more difficult to demonstrate. The attempted use of ODR along with recommendations by prior users should ameliorate these fears, as trust in the system grows. Another concern is the integrity of communications and documents; however many ODR service providers offer virtual secure environments, for example AAA’s WebFile system.[7]

Currently, a universally accepted set of rules governing online arbitration proceedings does not exist[8] (although as mentioned above CPR is working on a set of International ODR rules and procedures). Despite the lack of structure and formality, online arbitration is most certainly taking place through the use of various systems and mechanisms supplied by various providers. Such systems have been criticized because they can only deal with “very restricted classes of disputes, a simplified or basic arbitration process, the start of the process before variations become necessary [and] the process used by a single arbitration provider.”[9] Furthermore, it has been said that online arbitration is particularly appropriate for simple fact patterns and small claims,[10] but as providers gain experience with ODR and the systems’ technology advances, more complicated disputes should be accommodated. Several ODR providers discussed above also provide services for “complicated” or “complex” dispute resolution.

A recent article by the AAA considers the benefits of the ICDR ODR program (discussed above) for resolving domestic and international disputes between manufacturers and suppliers. Conflicts between manufacturers and suppliers can be recurring, are often relatively small, and turn on a few essential questions of fact.[11] Because of their unique nature, these disputes are ideal candidates for ODR, which can quickly and efficiently resolve disagreements so that the business relationship can continue. Although manufacturer-supplier relationships have unique qualities, other areas of practice and industries with similarities could benefit greatly from utilizing ODR. Also, as ODR is adopted with increasing recurrence, it will likely develop to handle more complex matters for current users and expand into other industries that witness its success.

According to Juripax, the use of online mediation can provide a savings in time and costs of 30% and parties can experience greater satisfaction than with traditional “face to face” mediation.[12] Other benefits include enhanced effectiveness through better preparation and reflection, creation of a more equal and level playing field, enhanced party autonomy, and greater focus on conflict prevention (de-escalation, mitigation of damages, customer retention, etc.).[13]

Undoubtedly, ODR offers a new way to resolve disputes, providing those in need of ADR with different opportunities and processes. The Internet allows for flexible scheduling and asynchronous communication as well as real-time dialogue.[14] Like other forms of ADR, ODR allows for greater privacy by keeping claims out of courts. Anyone with access to the Internet can appreciate the convenience and speed of ODR, and the lower costs and travel and paper savings are yet another draw for the process.[15] Another more unique feature of the process is the empowerment found in the comfort of anonymity.[16] Face to face confrontation can be stressful and intimidating, but resolving a dispute online eliminates that concern.

Perhaps one of the more overlooked benefits to ODR is its role in providing technology as a vehicle to improve consumer access to justice.[17] Regardless of where the dispute occurs, ODR allows access to its settlement. ODR literally transcends geographical borders. The ease of knowing online dispute resolution is available and used by a business can be an added benefit to its consumers and other entities involved in its dealings. While some critics attack ODR as undermining trust due to the lack of face-to-face communication, others argue that incorporating ODR into systems like e-commerce can raise the consumer’s level of trust.[18]

Ultimately, the parties in need of ADR will have to weigh their concerns and decide whether ODR suits their particular needs. However, with more individuals and businesses relying on the Internet every day, the benefits of ODR will likely lead to its increased expansion and adoption in the near future.

VI. Conclusion

A great deal more attention could be devoted to ODR and its relatives in the field. Greater focus could be given to how e-negotiation, e-mediation, and e-arbitration are put into practice differently. As with many forms of new technology, ODR has (and continues to) spark new innovation that builds off itself, for example the use of mock online jury trials and Artificial Intelligence to handle online disputes has really taken off of late. Also, the use of ODR beyond North America was only given brief consideration, although the spread of online dispute resolution around the world is tangible. However, as mentioned, the goals of this report were to consider what ODR entails, how it can be implemented, who are the providers, and what are the benefits and drawbacks of the process. Undoubtedly ODR will continue to grow, and more people in need of ADR are likely to acknowledge its advantages and utilize its process.