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Article

Managing Procedural Expectations in Small Claims ODR

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords fair trial, procedural justice, natural justice, waiver, small claims, consumer disputes, proportionality
Authors Fabien Gélinas
AbstractAuthor's information

    In this article, the author reflects on the appropriate place of traditional procedural guarantees in the resolution of consumer and small claims disputes using online tools. After examining the key aspects of procedural justice that constitute the right to a fair trial and analysing its effects on procedures designed for low-value disputes, the article argues for a flexible approach that takes procedural proportionality seriously.


Fabien Gélinas
Fabien Gélinas is Sir Wiliam C. Macdonald Professor of Law, McGill University, Co-Founder of the Montreal Cyberjustice Laboratory and Head of the Private Justice and the Rule of Law Research Team. The preparation of this article was made possible by grants from the SSHRC and the FQRSC. Thanks go to Dr Giacomo Marchisio and Ms Leyla Bahmany for their kind assistance. This article was originally published in Immaculada Barral (ed.) La resolución de conflictos con consumidores: de la mediation a las ODR (Madrid: Editorial Reus, 2018).
Part II Private Justice

How Online Negotiation Support Systems Empower People to Engage in Mediation

The Provision of Important Trade-off Advice

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR programs, empowerment, online negotiation support systems, technology
Authors Emilia Bellucci and John Zeleznikow
AbstractAuthor's information

    Face-to-face negotiation is the preferred communication style for negotiation, as it is the richest form of communication (Daft & Lengel, 1986), allowing for words, gestures and body language to be clearly communicated. This form of communication also allows for instant feedback, essential in negotiation when it is imperative to check understanding of each other’s views and priorities. Bodtker and Jameson (2001) argue that experiencing emotion is one way we recognize conflict. Invariably, dispute resolution involves emotion, which if allowed to flood the substantive issues, otherwise known as emotional flooding, may result in disputants incapable of acting rationally (Jones & Bodtker, 2001), which may lead to unfair solutions. For example, in high-stress negotiations of family disputes, it may be difficult to think rationally about both the disputants and children’s future needs. This may lead to people having to live with a less-than-ideal financial situation that is not representative of their future needs. Online dispute resolution (ODR) systems involve the use of technology to aid (or in some instances to replace) human communication in the dispute resolution process. This means replacing a very rich form of communication with a lower form of media, with the lowest being text-based forms of communication. ODR using video-conferencing technology benefits disputants located in different areas, hence providing a good medium for those who geographically cannot meet in person. While also a fairly rich mode of communication, this type of technology is heavily dependent on infrastructure variables, such as Internet speed, application support and connectivity issues, which are not always available. In this article, we will introduce the concept of how ODR can support face-to-face negotiations by re-introducing our software AssetDivider as a method to support the face-to-face process in negotiation.


Emilia Bellucci
Emilia Bellucci is senior lecturere in the Department of Information Systems and Business Analytics, Deakin University, Deakin Business School, Geelong, Australia.

John Zeleznikow
John Zeleznikow is a professor in College of Business, Victoria University, Melbourne, Australia.
Part II Private Justice

Using Technology and ADR Methods to Enhance Access to Justice

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, ADR, mediation, online court, e-court, consumer ADR, CADR, CDR, ombudsman
Authors Pablo Cortes
AbstractAuthor's information

    This article discusses how technology and extrajudicial processes can provide a solution to the access-to-justice problem for self-represented litigants. The article first observes the need for efficient dispute resolution processes based on a wider concept of access to justice and argues for greater integration amongst courts and extrajudicial bodies, especially in the consumer sphere where dispute resolution bodies are currently undergoing an institutionalization process as a result of recent EU legislation. Accordingly, it is argued that access to justice for consumers will only be achieved if they have access to either an accountable and effective extrajudicial scheme that offers adjudication or a truly user-friendly and accessible online court that incorporates alternative dispute resolution techniques as the United Kingdom has endeavoured to deliver. To that end, this article examines the policy options for the English Online Court with a particular focus on the challenges faced by litigants in person. Finally, this article submits that dispute system design changes need to be informed by empirical research and a holistic policy strategy on dispute resolution.


Pablo Cortes
Pablo Cortes is Professor of Civil Justice, Leicester Law School, University of Leicester.
Part II Private Justice

Standards, Qualifications, and Certification for e-Mediators

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords Online Dispute Resolution, e-Mediation, ethics, standards of practice, qualifications, certification, International Mediation Institute, Association for Conflict Resolution, American Bar Association, American Arbitration Association, National Center for Technology and Dispute Resolution, International Council for Online Dispute Resolution, National Center for State Courts
Authors Ana Maria Gonçalves and Daniel Rainey
AbstractAuthor's information

    This article explores the question ‘how does one judge whether a mediator working online is competent?’ The authors compare the basic standards used to certify mediators working offline to a set of e-mediation standards developed by the International Mediation Institute, and suggest that training modules addressing the specific skills and competencies needed to be a successful online mediator be incorporated into basic mediator training.


Ana Maria Gonçalves
Ana Maria Gonçalves is the co-chair of the IMI ODR Taskforce, the founder and president of ICFML and a member of the Portuguese Mediation Federation (FMC). She is a graduate from UAL Lisbon and has a master of law degree. She is an IMI-certified mediator and is listed in the major international panels of mediators. She is a lecturer in major Portuguese and Brazilian Universities and is a regular speaker in International Conferences on the topics of ADR, mediation, negotiation and ODR. As a mediator, she works with a wide range of international clients, particularly on cross-border disputes, often online, and has mediated a wide variety of disputes in Europe, Australia and USA. She also designs and facilitates collaboration management training programs and, as an ICF-accredited PCC coach, she supports senior executives and professionals to develop their conflict management and negotiation skills.

Daniel Rainey
Daniel Rainey is a principle in Holistic Solutions, Inc., and he served as the co-chair of the IMI ODR Task Force. He is an adjunct professor at multiple universities in the United States, and he serves as a Board Member for the InternetBar.Org (IBO) and the Northern Virginia Mediation Service (NVMS). He is a member of the Virginia State Supreme Court’s Access to Justice Commission Self-Represented Litigants Committee, a Fellow of the National Center for Technology and Dispute Resolution (NCTDR) and a founding Board Member of the International Council for Online Dispute Resolution (ICODR).
Part I Courts and ODR

Court-Connected Online Dispute Resolution

Outcomes from Family, Civil, and Traffic Cases in the United States

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords court-connected ODR, domestic relations ODR, small claims ODR, traffic ODR, Texas ODR, Michigan ODR, Ohio ODR
Authors MJ Cartwright and Dunrie Greiling
AbstractAuthor's information

    Online dispute resolution (ODR) has been used in US courts for several case types. We highlight outcomes from select ODR programmes for domestic relations cases (child support compliance) in Michigan, for small claims and city tax cases in Ohio, for traffic cases in Michigan and Texas. ODR delivers key benefits to courts such as fewer hearings, faster case resolution, fewer warrants, faster fine collection, and high customer satisfaction ratings.


MJ Cartwright
MJ Cartwright is the CEO of Court Innovations Inc, maker of Matterhorn ODR.

Dunrie Greiling
Dunrie Greiling is the Chief Product and Marketing Officer of Court Innovations.
Part I Courts and ODR

Ethical Concerns in Court-Connected Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords court ODR, fourth party, ethics, access to justice, confidentiality, transparency, informed participation, accessibility, accountability, empowerment, trust
Authors Dorcas Quek Anderson
AbstractAuthor's information

    This article examines the burgeoning trend of creating court ODR systems, focusing on the design aspects that are likely to raise ethical challenges. It discusses four salient questions to be considered when designing a court ODR system, and the resulting ethical tensions that are brought to the fore. As a fourth party, the ODR system not only replaces existing court functions, but enlarges the scope of the courts’ intervention in disputes and increases the courts’ interface with the user. Furthermore, certain ethical principles such as transparency, accountability, impartiality and fairness take on greater significance in the court context than in private ODR, because of the association of the courts with substantive and procedural justice. As in any dispute resolution system, a coherent and effective court ODR system should be guided by dispute system design principles, which includes having clarity of the system’s underlying values and purposes. It is therefore pertinent for each court to resolve the key ethical tensions in order to articulate the foundational values that will undergird the design of its ODR system.


Dorcas Quek Anderson
Dorcas Quek Anderson is an Assistant Professor in the Singapore Management University School of Law. This research is supported by the National Research Foundation, Prime Minister’s Office, Singapore (NRF), and the Infocomm Media Development Authority (IMDA) under a grant to the Singapore Management University School of Law to helm a 5-year Research Program on the Governance of Artificial Intelligence and Data Use.
Part II Private Justice

The Case for Reframing ODR in Emerging Economies

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR in emerging economies, regtech, India stack
Authors David Porteous
AbstractAuthor's information

    Reports of ODR implementations in emerging economies are still rare, at least outside of China, which in many ways has already emerged digitally at least. But the lack of reports does not mean that there is not increasing ODR activity there. Underlying forces – the usage of smart phones and the rising volume of digital payments outside of the dispute frameworks created by traditional payment card schemes – point to increasing potential access to digital justice, as well as the need for it. This article argues for reframing the case for ODR in two ways that may make it more relevant for policy makers in developing countries. The first is to position ODR in the rapidly growing field of ‘regtech’ (regulatory technology). The second is to show ODR as a layer in the emerging ‘stacks’ of the technology enabling digital government, such as the ‘India stack.’


David Porteous
David Porteous is chair and founder of consulting firm BFA and co-founder of Digital Frontiers Institute, a Cape Town–based non-profit edtech initiative.
Article

ODR4Refugees through a Smartphone App

Journal International Journal of Online Dispute Resolution, Issue 1 2017
Keywords refugees, ODR, mediation, smartphone, disputes
Authors Petros Zourdoumis
AbstractAuthor's information

    For the past two years we have been monitoring in Greece several refugee related disputes such as disputes between refugees, intercultural disputes, disputes between refugees and the local community and disputes between refugees and the camp administration. We have also noticed that almost all refugees had smartphones as they were easy to carry with them and allow them to stay connected with those left behind or been relocated. Therefore in order to offer dispute resolution services we had to address two main issues: mobility & speed. We thought that technology could fit perfectly in this context. So, we decided, to develop a smartphone application for refugees that could create the environment for ODR. The App will not only resolve disputes online but try to prevent disputes or their escalation. Some of its innovative features will be personalized texts, language selection, disputes menu, automatic appointment of mediator, case filing, video, audio and text communication. It will have a friendly interface and be very easy to use even for those who have limited knowledge of technology and its download and use will be free for all refugees. The process will be conducted online by specially trained mediators and will be informal & flexible.


Petros Zourdoumis
Petros Zourdoumis is Founder of ODReurope, General Director of ADR point, a Fellow of the National Center for Technology and Dispute Resolution (USA) and project leader for ODR4Refugees (http://odr.info/petros-zourdoumis/).
Article

Equal Access to Information & Justice: A Report on the Online Dispute Resolution (ODR) Forum 2017

The Huge Potential of ODR, Greatly Underexplored (Paris, France, 12 and 13 June 2017)

Journal International Journal of Online Dispute Resolution, Issue 1 2017
Keywords ODR, equal access, justice online, information online, ICC
Authors Mirèze Philippe
AbstractAuthor's information

    This article is a brief report on the two-day conference on ‘Equal Access to Information & Justice, Online Dispute Resolution’, organized by the ICC in Paris on 12-13 June. Over 160 lawyers, magistrates, academics, researchers, dispute resolution organizations and online dispute resolution providers, from over 30 countries and representing each continent debated about the use of technology for the resolution of all types of disputes. The 60 speakers explored the future of dispute resolution and the role of technology in all legal fields, from mediation in conflict zones, to commercial and civil disputes. The huge potentials greatly underexplored were discussed. It was noted that much remains to be done to educate users and convince state courts, dispute resolution organizations, merchants and other services’ providers to offer access to justice online. Efforts must be undertaken to allow users seek remedy in an affordable way. The solution for an equal access to justice is to make such access available online. The issues of ethics and standards were also discussed, as well as the increase concern of data protection and cybersecurity. The recording of the discussions on the panels are available on the ICC Digital Library (ICCDRL).


Mirèze Philippe
Mirèze Philippe is a special counsel at the Secretariat of the ICC International Court of Arbitration. She is the founding co-president of ArbitralWomen and member of the Board, member of the Steering Committee of the Equal Representation in Arbitration Pledge, member of the Board of Advisors of Arbitrator Intelligence, member of the Advisory Board of Association Arbitri, and fellow of the National Center for Technology and Dispute Resolution.

Daniel Rainey
Daniel Rainey is a Fellow of the National Center for Technology and Dispute Resolution, and a Member of the Self-Represented Litigants Committee of the Virginia State Supreme Court’s Access to Justice Commission.
Article

Ethical Principles for Online Dispute Resolution

A GPS Device for the Field

Journal International Journal of Online Dispute Resolution, Issue 1 2016
Keywords ODR, ethics, alternative dispute resolution, technology
Authors Leah Wing
AbstractAuthor's information

    The disruptive force of technology has led to innovative dispute resolution practices that increase access to justice and also raise new ethical considerations. In response, there have been assertions about the importance of applying to online dispute resolution (ODR) the shared values already enshrined within alternative dispute resolution (ADR) as well as calls to more carefully assess ways they may be insufficient or need refining to adequately address the new ethical challenges emerging in ODR. As ODR is increasingly incorporated into legislation, regulation and a wide variety of sectors in society, it is timely to explore the importance of ethical principles specifically for ODR. In the hope of contributing to these efforts, this article examines the benefits and challenges of articulating a set of ethical principles to guide the development and implementation of ODR systems, technology and processes.


Leah Wing
Leah Wing is Co-Director, National Center for Technology and Dispute Resolution, and Senior Lecturer, Legal Studies Program, Department of Political Science, University of Massachusetts at Amherst (USA).
Article

Is ODR ADR?

Reflections of an ADR Founder from 15th ODR Conference, The Hague, The Netherlands, 22-23 May 2016

Journal International Journal of Online Dispute Resolution, Issue 1 2016
Keywords alternative dispute resolution, justice, process pluralism, dispute system design, history of conflict resolution
Authors Carrie Menkel-Meadow
AbstractAuthor's information

    This essay presents the observations of a founder of the dispute resolution field to new developments in online dispute resolution, expressing both concerns and hopes for greater access to justice.


Carrie Menkel-Meadow
Chancellor’s Professor of Law, University of California, Irvine and Visiting Distinguished Scholar Queen Mary, University of London, School of Arbitration.

Daniel Rainey
Article

From Practice to Profession: The ODR Community’s Next Vital Step

Journal International Journal of Online Dispute Resolution, Issue 2 2016
Keywords global applicability, knowledge, professionalism, Qualifying Assessment Programs (QAPs), skills
Authors Ana Gonçalves and Irena Vanenkova
AbstractAuthor's information

    If ODR practitioners and service providers visibly and enthusiastically support the need for the set of transparent high practice and approval standards for ODR that are now under preparation by the ODR Task Force of the International Mediation Institute, and become certified, disputants will much more easily recognize the additional knowledge and skills needed to use technology to resolve disputes, ODR will be recognized as a professional field, they will be more open to using ODR, and the field will grow throughout the world in changing times.


Ana Gonçalves
Ana Gonçalves is Chair of the ODR Task Force at the International Mediation Institute.

Irena Vanenkova
Irena Vanenkova is Executive Director at the International Mediation Institute.

    Arbitration is an important feature of the American justice system, providing numerous benefits, such as flexible dispute resolution, efficiency, privacy and avoidance of unwarranted punitive damages, while significantly reducing cases on overloaded court dockets. Its success, however, is not without criticism; and in the case of class arbitration waivers, as this article suggests, that criticism is well founded.
    Since the enactment of the Federal Arbitration Act (FAA) in 1925, the United States Supreme Court has pronounced a sweeping policy in favour of arbitration. More recently, the Court has made significant pronouncements in favour of class arbitration waivers, overruling a lower-court trend towards refusing to enforce such waivers.
    The Supreme Court’s endorsement of class arbitration waivers unfortunately results in claim preclusion of consumer claims for relatively small amounts of money. Stuck in this relatively inequitable playing field, there exists an opportunity to design innovative solutions to protect consumers from claim preclusion. Online binding arbitration, OArb, offers numerous benefits that offset its drawbacks, and it provides an accessible forum for some consumers to effectuate small claims. While OArb has failed to gain traction as an alternative dispute resolution process, it seems likely that a private, properly administered OArb programme could succeed and provide benefits to companies and consumers alike. OArb, however, is not a complete substitute for class arbitration, especially because numerous consumers are probably unaware of their claims. OArb, nevertheless, is a step in the right direction, and consumers are sure to benefit if it is implemented on a wider scale.


Andrew M. Malzahn
Andrew M. Malzahn, J.D., summa cum laude, 2015, Hamline University School of Law; Associate, Dady & Gardner, P.A., Minneapolis, Minnesota.
Article

E-Commerce, ICTs and Online Dispute Resolution: Is This the Beginning of a New Professional Profile?

Journal International Journal of Online Dispute Resolution, Issue 2 2015
Keywords Mobile phones, ADR, ODR, mediation, conflict resolution
Authors Aura Esther Vilalta and Rosa Pérez Martell
AbstractAuthor's information

    There is a close link between the growth of Internet usage, the development of mobile technology, the expansion of markets and the increasing number of online dispute resolution mechanisms (ODRs). This article seeks to start a conversation about the need to provide justice by means of effective mechanisms, in particular for e-commerce disputes and transnational litigation. It also provides some information on the recent international initiatives towards the regulation of this new arena, and concludes with an early approach to the future challenges and the impact on training, qualifications and expertise of ODR professionals and service providers.


Aura Esther Vilalta
Senior Lecturer in Civil Law at the Universitat Oberta de Catalunya (UOC), Barcelona, Spain. Fellow of the National Center of Technology and Dispute Resolution (NCTDR), University of Massachusetts – Amherst; CEO of Iusmediare, mediator and arbitrator. Vilalta has been Spanish national representative at UNCITRAL, WG III (Online Dispute Resolution) and Deputy Magistrate in the Barcelona Court of Appeals.

Rosa Pérez Martell
Senior Lecturer in Procedural Law at Las Palmas de Gran Canaria University, lecturer at the Open University of Catalonia and member of the Mediation Commission at the Gran Canaria Government.
Article

Access_open The Impact of the Economic Downturn in the Spanish Civil Justice System

Journal Erasmus Law Review, Issue 4 2015
Keywords judiciary, judge-made justice, court fees, legal aid, ADR-methods
Authors Laura Carballo Piñeiro and Jordi Nieva Fenoll
AbstractAuthor's information

    The Spanish justice system has been shaken by the economic downturn as many other institutions have. This article addresses in the first place some statistical data that shed light as regards to the number of judges and the costs and length of the procedure in Spain. These figures help to understand, in the second place, the impact of austerity measures on the judiciary, namely, the freeze on the hiring of judges and the establishing of high court fees. While they mainly concern the supply side of justice services, others such cost reductions in legal aid have had, in the third place, an impact on the demand side, driving many citizens to social exclusion and to resorting to self-defence mechanisms. The final part of this article addresses some remedies that may alleviate judiciary’s workload, but that fall short of doing it. All in all, the Spanish justice system seems to require a holistic approach to patch up edges, but one in which the role of judge-made justice in a democratic society has to be central again.


Laura Carballo Piñeiro
Laura Carballo Piñeiro is Associate Professor of Private International Law at the Common Law Department of the University of Santiago de Compostela.

Jordi Nieva Fenoll
Jordi Nieva Fenoll is Professor of Procedure Law at the Administrative and Procedure Law Department of the University of Barcelona.
Article

Creating New Pathways to Justice Using Simple Artificial Intelligence and Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords expert system, online dispute resolution, artificial intelligence, access to justice, legal information technology
Authors Darin Thompson
AbstractAuthor's information

    Access to justice in can be improved significantly through implementation of simple artificial intelligence (AI) based expert systems deployed within a broader online dispute resolution (ODR) framework.
    Simple expert systems can bridge the ‘implementation gap’ that continues to impede the adoption of AI in the justice domain. This gap can be narrowed further through the design of multi-disciplinary expert systems that address user needs through simple, non-legalistic user interfaces.
    This article provides a non-technical conceptual description of an expert system designed to enhance access to justice for non-experts. The system’s knowledge base would be populated with expert knowledge from the justice and dispute resolution domains. A conditional logic rule-based system forms the basis of the inference engine located between the knowledge base and a questionnaire-based user interface.
    The expert system’s functions include problem diagnosis, delivery of customized information, self-help support, triage and streaming into subsequent ODR processes. Its usability is optimized through the engagement of human computer interaction (HCI) and affective computing techniques that engage the social and emotional sides of technology.
    The conceptual descriptions offered in this article draw support from empirical observations of an innovative project aimed at creating an expert system for an ODR-enabled civil justice tribunal.


Darin Thompson
Legal Counsel, BC Ministry of Justice; Adjunct Law Professor, University of Victoria; Adjunct Law Professor, Osgoode Hall Law School. Email: darinmobile@gmail.com.
Article

Using Online Arbitration in E-Commerce Disputes

A Study on B2B, B2C and C2C Disputes

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords online arbitration, e-commerce disputes, electronic market exchange
Authors Farzaneh Badiei
AbstractAuthor's information

    This article provides a thorough analysis of the use of online arbitration in online disputes. It first defines online arbitration and provides a categorization of its different kinds. It then establishes which category of online arbitration is more suitable for e-commerce disputes considering the nature of the disputes, the relation between the parties and the parties’ access to technology. It concludes that using binding or non-binding online arbitration depends on the existence of trust between the parties. It then goes on to analyse the extent to which online arbitration can be held on the Internet without using offline mechanisms, and concludes that this is dependent on the nature of the transaction, the parties’ access to technology and the enforcement mechanisms.


Farzaneh Badiei
Farzaneh Badiei is a PhD candidate at the Institute of Law and Economics, Hamburg University. The program is funded by the German Science Foundation. She holds an LLM from Kingston University, UK and was a visiting scholar at Syracuse University School of Information Studies, USA.

Colin Rule
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