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Article

e-Court – Dutch Alternative Online Resolution of Debt Collection Claims

A Violation of the Law or Blessing in Disguise?

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords fair trial, money claims, judiciary, ECHR, arbitration
Authors Willemien Netjes and Arno R. Lodder
AbstractAuthor's information

    In 2017, the Dutch alternative dispute resolution (ADR) initiative e-Court handled 20,000 debt collection claims via an online arbitration procedure, and this number was expected to double in 2018. In September of that same year, the Chairman for the Council of the Judiciary, Frits Bakker, argued on the Day for the Judiciary that in the future most lawsuits can be handled automatically and that a robot judge could work fast, efficiently and cheaply. However, in January 2018, Frits Bakker seemed to have changed his mind and criticized e-Court for its lack of impartiality, lack of transparency, unlawfully denying people the right to a state Court, and for being a ‘robot judge’. Ultimately, all criticism boiled down to one issue: that the defendant’s right to a fair trial was not sufficiently protected in e-Court’s procedure. This accusation led to a huge media outcry, and as a result Courts were no longer willing to grant an exequatur to e-Court’s arbitral awards until the Supreme Court had given its approval. This forced e-Court to temporarily halt its services. Questions such as ‘is arbitration desirable in the case of bulk debt collection procedures?’ and ‘are arbitration agreements in standard terms of consumer contracts desirable?’ are relevant and important, but inherently political. In this article, we argue that the conclusion of the judiciary and media that e-Court’s procedure is in breach of the right to a fair trial is not substantiated by convincing legal arguments. Our aim is not to evaluate whether online arbitration is the best solution to the debt collection claim congestion of Courts in the Netherlands, but instead to assess e-Court’s procedure in the light of Article 6 of the European Convention of Human Rights. The conclusion is that e-Court’s procedure sufficiently guarantees the right to a fair trial and thus that the criticism expressed was of a political rather than legal nature.


Willemien Netjes
Faculty of Law, Vrije Universiteit Amsterdam.

Arno R. Lodder
Article

Digital Identity for Refugees and Disenfranchised Populations

The ‘Invisibles’ and Standards for Sovereign Identity

Journal International Journal of Online Dispute Resolution, Issue 1 2019
Keywords digital identity, sovereign identity, standards, online dispute resolution, refugees, access to justice
Authors Daniel Rainey, Scott Cooper, Donald Rawlins e.a.
AbstractAuthor's information

    This white paper reviews the history of identity problems for refugees and disenfranchised persons, assesses the current state of digital identity programmes based in nation-states, offers examples of non-state digital ID programmes that can be models to create strong standards for digital ID programmes, and presents a call to action for organizations like International Organization for Standardization (ISO) and the United Nations High Commissioner for Refugees (UNHCR).


Daniel Rainey
Daniel Rainey is a Board Member, InternetBar.Org (IBO), and Board Member, International Council for Online Dispute Resolution (ICODR)

Scott Cooper
Scott Cooper is a Vice President, American National Standards Institute (retired).

Donald Rawlins
Donald Rawlins is a Candidate (May 2019), Master of Arts in Dispute Resolution, Southern Methodist University.

Kristina Yasuda
Kristina Yasuda is a Director of Digital Identities for the InternetBar.org and a consultant with Accenture Strategy advising large Japanese corporations on their digital identity and blockchain strategy.

Tey Al-Rjula
Tey Al-Rjula is CEO and Founder of Tykn.tech.

Manreet Nijjar
Manreet Nijjar is CEO and Co-founder of truu.id, Member of the Royal College Of Physicians (UK), IEEE Blockchain Healthcare Subcommittee on Digital Identity, UK All Party Parliamentary Group on Blockchain and Sovrin Guardianship task force committee.
Part II Private Justice

Reputational Feedback Systems and Consumer Rights

Improving the European Online Redress System

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords reputational feedback systems, consumer’s protection, dispute resolution, ADR, ODR, enforceability, ecommerce, European redress system small claims
Authors Aura Esther Vilalta Nicuesa
AbstractAuthor's information

    The European Union single market needs to tackle an outstanding issue to boost competitiveness and growth: a trust-based redress framework that ensures the effectiveness of consumers’ rights. The current disparities among dispute resolution mechanisms, added to the fact that in practice many do not guarantee participation and enforceability, are serious obstacles to this goal. Trust and the integration of certain dispute avoidance tools added to the regulation of some common enforcement mechanisms are key issues in the field of consumer protection. The goal of this article is to offer some insights within the context of the European Union legislative proposals aimed at improving the current redress system.


Aura Esther Vilalta Nicuesa
Aura Esther Vilalta Nicuesa is Professor of Law, Universitat Oberta de Catalunya (UOC) and member of the National Center or Technology and Dispute Resolution, Massachusetts, Amherst.
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).

    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

Members Only?

Online Dispute Resolution in the Kibbutz Society

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords community ODR, Kibbutz, online mediation, online arbitration, dispute system design
Authors Rachel Ran
AbstractAuthor's information

    The rise and fall of the kibbutz society in Israel provides an unique opportunity to examine the application of technology to dispute resolution in a non-traditional setting. The internal dynamics of a small, closed community in an ideological crisis reflect technology’s role not only in undermining existing social order, but also in developing new norms, building consensus and resolving disputes.
    The article describes the nature of disputes in kibbutz communities, which is influenced greatly by the ongoing relationships between the parties, as the lines between co-workers, neighbors, friends and authority figures are blurred. It examines the existing dispute resolutions mechanisms, their formation, their advantages in relation to existing the social norms and their shortcomings, and introduces the concept of online dispute resolution (ODR) in this context.
    Finally, this article applies the advantages of ODR in the traditional, closed-community setting, and suggests additional opportunities for meeting the unique challenges of disputes in the kibbutz society. This merger plays a double role, as it challenges common perception of community disputes, while introducing new and unexpected avenues for the development of ODR.


Rachel Ran
University of Haifa Faculty of Law.
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

Disintegration of the State Monopoly on Dispute Resolution

How Should We Perceive State Sovereignty in the ODR Era?

Journal International Journal of Online Dispute Resolution, Issue 2 2014
Keywords online dispute resolution, sovereignty, justification
Authors Riikka Koulu LLM
AbstractAuthor's information

    The interests of state sovereignty are preserved in conflict management through adoption of a state monopoly for dispute resolution as the descriptive and constitutive concept of the resolution system. State monopoly refers to the state’s exclusive right to decide on the resolution of legal conflicts on its own soil, in other words, in the state’s territorial jurisdiction. This also forms the basis of international procedural law. This conceptual fiction is derived from the social contract theories of Hobbes and Locke, and it preserves the state’s agenda. However, such a monopoly is disintegrating in the Internet era because it fails to provide an effective resolution method for Internet disputes in cross-border cases, and, consequently, online dispute resolution has gained ground in the dispute resolution market. It raises the question of whether we should discard the state monopoly as the focal concept of dispute resolution and whether we should open a wider discussion on possible justificatory constructions of dispute resolution, i.e. sovereignty, contract and quality standards, as a whole, re-evaluating the underlying structure of procedural law.


Riikka Koulu LLM
Riikka Koulu, LLM, trained on the bench, is currently a doctoral candidate in procedural law at the University of Helsinki, Finland.
Article

@ Face Value?

Non-Verbal Communication and Trust Development in Online Video-Based Mediation

Journal International Journal of Online Dispute Resolution, Issue 2 2014
Keywords trust, mediation, non-verbal communication, rapport, technology
Authors Noam Ebner and Jeff Thompson
AbstractAuthor's information

    Mediation is a process wherein a third party, or mediator, attempts to assist two conflicting parties in dealing with their dispute. Research has identified party trust in the mediator as a key element required for mediator effectiveness. In online video-based mediation, the addition of technology to the mix poses both challenges and opportunities to the capacity of the mediator to build trust with the parties through non-verbal communication. While authors researching the field of online dispute resolution have often focused on trust, their work has typically targeted text-based processes. As online dispute resolution embraces video-based processes, non-verbal communication becomes more salient. Non-verbal communication research has identified examples of specific actions that can contribute to trust. This article combines that research with current scholarship on trust in mediation and on non-verbal communication in mediation to map out the landscape mediators face while seeking to build trust through non-verbal communication in online video-based mediation. Suggestions for future research and implications for practice are noted, holding relevance to researchers and practitioners in any field in which trust, non-verbal communication and technology converge.


Noam Ebner
Noam Ebner is Associate Professor and Online Program Chair at the Werner Institute, Creighton University School of Law: 2500 California Pl., Omaha, NE 68178, NoamEbner@creighton.edu

Jeff Thompson
Jeff Thompson is PhD candidate at the Griffith University Law School: 170 Kessels Road, Brisbane, Queensland, Australia 4111, Jeff.Thompson@griffithuni.edu.au.
Article

Access_open Digital Justice

Reshaping Boundaries in an Online Dispute Resolution Environment

Journal International Journal of Online Dispute Resolution, Issue 1 2014
Keywords ADR, ODR, DSD, digital technology, boundaries, dispute prevention
Authors Orna Rabinovich-Einy and Ethan Katsh
AbstractAuthor's information

    Digital technology is transforming the landscape of dispute resolution: it is generating an ever growing number of disputes and at the same time is challenging the effectiveness and reach of traditional dispute resolution avenues. While technology has been a disruptive force in the field, it also holds a promise for an improved dispute resolution landscape, one that is based on fewer physical, conceptual, psychological and professional boundaries, while enjoying a higher degree of transparency, participation and change. This promise remains to be realized as the underlying assumptions and logic of the field of dispute resolution have remained as they were since the last quarter of the 20th century, failing to reflect the future direction dispute resolution mechanisms can be expected to follow, as can be learned from the growth of online dispute resolution. This article explores the logic of boundaries that has shaped the traditional dispute resolution landscape, as well as the challenges such logic is facing with the spread of online dispute resolution.


Orna Rabinovich-Einy
Orna Rabinovich-Einy is Senior Lecturer, University of Haifa School of Law. Fellow, National Center for Technology and Dispute Resolution. For advice and suggestions we appreciate the guidance received from participants in the Cardozo Works in Progress conference in November 2013 and the Copenhagen Business School – Haifa Law Faculty Colloquium.

Ethan Katsh
Ethan Katsh is Director, National Center for Technology and Dispute Resolution and Professor Emeritus of Legal Studies, University of Massachusetts at Amherst. This article has benefited from research supported by National Science Foundation award #0968536, ‘The Fourth Party: Improving Computer-Mediated Deliberation through Cognitive, Social and Emotional Support’, <www.nsf.gov/awardsearch/showAward?AWD_ID=0968536>.
Article

Access_open Third-Party Ethics in the Age of the Fourth Party

Journal International Journal of Online Dispute Resolution, Issue 1 2014
Keywords ODR, ethics, fourth party, ADR, standards of practice
Authors Daniel Rainey
AbstractAuthor's information

    ‘Third Party Ethics in the Age of the Fourth Party’ presents and discusses some of the ethical impacts of the use of information and communication technology (ICT) in third party practice (mediation, facilitation, arbitration, etc.). The article argues that all of the ethical requirements related to third party practice have been affected by the use of ICT, that ethical standards of practice must be reviewed in light of the use of ICT, and that changes in ethical requirements based on the use of ICT will be evolutionary, not revolutionary.


Daniel Rainey
Clinical Professor of Dispute Resolution at Southern Methodist University, Chief of Staff for the National Mediation Board, and adjunct faculty in the dispute resolution programmes at Creighton University and Dominican University. <http://danielrainey.us>.
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