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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

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

The Law of Consumer Redress in an Evolving Digital Market

Upgrading from Alternative to Online Dispute Resolution

Journal International Journal of Online Dispute Resolution, Issue 2 2017
Keywords e-Commerce, Online Dispute Resolution, Alternative Dispute Resolution, consumer redress
Authors Pablo Cortés
AbstractAuthor's information

    This article contains the Introduction of a book with the same title recently published by Cambridge University Press, which is reproduced here with its permission. The book offers an updated analysis of the various consumer dispute resolution processes, its laws and best practices, which are collectively referred as the Law of Consumer Redress. The book argues that many consumer redress systems, and in particular publicly certified Alternative Dispute Resolution (ADR) entities, are more than a mere dispute resolution mechanism as they provide a public service for consumers that complements, and often replaces, the role of the courts. In examining the current redress models (i.e., public enforcement, private enforcement and other market options), the book calls for greater integration amongst these various redress options. It also advocates, inter alia, for processes that encourage parties to participate in ADR processes, settle meritorious claims and ensure extrajudicial enforcement of final outcomes. Lastly, the book calls for a more efficient rationalization of certified ADR entities, which should be better coordinated and accessible through technological means.


Pablo Cortés
Pablo Cortés is Professor of Civil Justice, University of Leicester, UK.
Article

European Businesses and the New European Legal Requirements for ODR

Journal International Journal of Online Dispute Resolution, Issue 2 2016
Keywords online dispute resolution (ODR), alternative dispute resolution (ADR), consumer disputes, EU legislation, e-commerce
Authors Graham Ross
AbstractAuthor's information

    In terms of practical use outside of e-commerce platforms such as eBay, ODR has not advanced as speedily as many thought might be the case. Two pieces of legislation by the European Parliament applying to consumer disputes, being the European Directive on Alternative Dispute Resolution For Consumer Dispute and the associated Regulation on Online Dispute Resolution have opened up the opportunity for that to change. For the first time, there now is a law that effectively requires businesses to promote ODR. However, with widespread breach, evidence of which is referred to in this paper, this law has not as yet been implemented or honoured as it should be and is in danger that its impact could thereby become counter-productive to its essential objective, albeit not its whole scope, in increasing public confidence in cross-border buying of products and services online. One problem is that the EU decided in their wisdom to stop short of making participation in online ADR mandatory. So we have the odd situation in which it is an offence for businesses to not inform a dissatisfied customer of the web address of an online ADR provider who has been approved under the legislation by the Chartered Trading Standards Institute, yet when that customer seeks to use that service the business can refuse to participate. If refusal to participate is extensive, the situation could lead to a loss of trust generally in a law designed to improve consumer rights and access to justice. This is especially so if traders carry on their website the mandatory link to an EU portal that will refer dissatisfied consumers to an approved provider of online ADR, and which may have been a deciding factor for that consumer in selecting the particular trader to buy from, yet, when a complaint arises, refuse to participate in the provider selected by the consumer.
    Whilst awareness of ODR will grow as a result of this legislation, albeit as an awareness of ADR that will, in the sense of the medium for discussions and exchange of documents, operate online, I have concerns that broad awareness of the fullest extent of what ODR can offer by way of more advanced forms of ODR will not be fully achieved for some time. Whilst this law does indeed present a significant opportunity to expand the use of ODR, it will not happen without effort by those with interests, commercial or otherwise or both, in promoting the expansion of access to justice that ODR offers. Only in this way will this legislation help ensure that there is a commercial need to explore increasingly innovative technology.
    There is an even greater opportunity currently being lost by this legislation beyond consumer disputes. Given that ODR can enable mediation to take place at much more proportionate cost for disputes below the higher levels of value, ODR offers the opportunity to increase mediation’s share of ADR over arbitration. Further, if the public can begin to experience mediation in the busier field of consumer disputes, it would help more quickly embed mediation into our society’s vision of justice and make engagement in mediation for more complex disputes much more frequent. Instead, by lumping mediation in with ombudsman style adjudication, as does this legislation, a much less satisfactory process with at least one party, and often both, dissatisfied with the outcome, it lowers the satisfaction level of all forms of ADR.


Graham Ross
Head of the European Advisory Board to Modria.com Inc, Member of the Civil Justice Councils’ ODR Advisory Group and of its ADR Working Party, and Fellow of the National Center for Technology and Dispute Resolution.
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.
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