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Journal International Journal of Online Dispute Resolution x Year 2015 x

    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.

    This article captures current trends in online dispute resolution (ODR) and its potential use in Ireland by analysing Irish practitioners’ current attitudes to and awareness of ODR. Ultimately, this work provides the groundwork for future research into Ireland’s use of ODR. This exploratory research will hopefully guide researchers in understanding ODR’s users and consumption.
    Data collection came from an online questionnaire sent to conflict intervention practitioners in Ireland who reported their experiences and perspectives of ODR. One hundred and twenty-four surveys were used in this analysis. These questionnaires produced both quantitative and qualitative data. Approximately 900 people were asked to complete the survey.
    The author found that surveyed participants were sceptical regarding ODR, with very few actually using online technologies to aid in resolving disputes. A popular sentiment among participating practitioners was that ODR was not better than face-to-face meetings, but that it was worth exploring further. Finally, the author found that those who had heard of ODR are more likely to believe they could assist parties in reaching a final settlement by using video technology.


Simon J. Boehme
Conflict Resolution Specialist for Martin F. Scheinman, Esq., Mitchell Scholar at Maynooth University in Ireland, Truman Scholar and Merrill Presidential Scholar at Cornell University’s ILR School in Ithaca, NY. <www.simonboehme.com>.
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

A Hungarian E-Learning Initiative and Its Implications

Journal International Journal of Online Dispute Resolution, Issue 2 2015
Keywords e-learning, pedagogical skills, educational reforms, Hungary, online dispute resolution
Authors Peter Mezei and Benjamin G. Davis
AbstractAuthor's information

    The present article aims to introduce an innovative educational reform launched by the University of Szeged Faculty of Law. The e-learning initiative of the Szeged Law School offers a chance for both students and lecturers to set aside the traditional Prussian method of education used by the Hungarian professors. Such initiative might, however, have broader implications as well. As such, it can clearly help internationalizing legal education in Hungary and in its neighbouring countries, as well as serve as a great example for other international projects, like online dispute resolution programmes.


Peter Mezei
Dr. Peter Mezei is Associate Dean for Strategic Affairs and Associate Professor of Law at the University of Szeged Law School, Szeged, Hungary.

Benjamin G. Davis
Benjamin G. Davis is Professor of Law at the University of Toledo College of Law, Toledo, Ohio, USA, and Vice-Chair of the American Bar Association Section of Dispute Resolution.

Vikki Rogers
Assistant Dean for Online Programs, Pace Law School.
Article

‘Join the Conversation’: Why Twitter Should Market Itself as a Technology Mediated Dispute Resolution Tool

Journal International Journal of Online Dispute Resolution, Issue 2 2015
Keywords Twitter, technology mediated dispute resolution (TMDR), conflict avoidance and prevention, online reputation system, convenience, trust and expertise triangle
Authors Benjamin Lowndes
AbstractAuthor's information

    For almost a decade, the social medium of Twitter has provided a platform for individuals to instantly connect with others, businesses to build their brands and movements to attract new followers. Yet, although Twitter, Inc. has promoted its product as a customer service application, it has not actively marketed itself as a technology mediated dispute resolution tool (TMDR). This article explores ways in which organizations have utilized Twitter’s power as a conflict avoidance mechanism and as a reputation system, leveraging its ability to provide convenience, trust, and expertise to their followers. It then argues for Twitter, Inc. to actively ‘join the conversation’ of TMDR or risk being left out altogether.


Benjamin Lowndes
Deputy Ombudsman, Minnesota Department of Transportation.
Article

Transformation of Dispute Resolution in Africa

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords Lagos Court of Arbitration, Mauritius International Arbitration Court, ODR in Africa, Commonwealth States, UNCITRAL Working Group on ODR
Authors Ijeoma Ononogbu
AbstractAuthor's information

    Online Dispute Resolution ODR) is the new frontier in dispute resolution process. There has been an overwhelming positive expectation on the way ODR will work globally and Africa is likely to join the evolving dispute resolution concept.
    In recent years, technology has taken over virtually all aspects of our lives. This is from online shopping, online banking, online education, to online games, the list goes on and on.
    Online dispute resolution has been used in e-mediation and turned out a great success for e-commerce. The emergence of ODR and its successes are notable in eBay, which boasts of resolving over 35 million disputes using its ODR services. Africa as a continent is a goldmine of technological exploration. The success of M-Pesa in East Africa, which uses technology in mobile money transfer is a testament to the advantages and great advancements the continent has made in its use of the vast population of youngsters. With a recommendation, for African legal practitioners to join the global movement.


Ijeoma Ononogbu
Barrister & Solicitor, Nigeria, and Solicitor in International Dispute Resolution, England & Wales.
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

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.
News

The Online Court

Misunderstandings and Misconceptions when Delivering a Vision for the Future of Justice

Journal International Journal of Online Dispute Resolution, Issue 1 2015
Keywords online courts, online judges, civil justice, Alternative Dispute Resolution, mediation
Authors Graham Ross
AbstractAuthor's information

    An ODR Advisory Group set up in 2014 by the Civil Justice Council of England and Wales to research and advise on the opportunities for introducing ODR into the justice system has produced a Report (<https://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf>) that recommends an extensive online dimension to the court system in England and Wales. The Report raises the novel perspective of a court being seen more as a service rather than as a physical venue, seeking to place its primary focus on informing and assisting the public in containing and resolving, if not avoiding in the first place, disputes and to do so with less intervention by a judge. When judges do become involved they also will be encouraged to work more online than in a courtroom. The Report, therefore, does not look simply at ODR as aiding ADR (Alternative Dispute Resolution), as may have been the case hitherto for most applications of ODR, but as its being integral to the court process itself. The twin benefits the Group sees as being achieved are to both significantly widen access to the courts while, at the same time, reducing the burden of public cost incurred in operating and maintaining the court system.
    It is becoming clear from comments on the Report published online that there is a significant level of misunderstanding over certain aspects of the Report. This is to be expected to a degree, especially given the wide publicity for the Report. Indeed, the early comments are welcomed as they give the opportunity to all proponents of the Report to advance the debate by minimizing such misunderstandings.
    The website (<https://www.judiciary.gov.uk/reviews/online-dispute-resolution/>) accompanying the Report provides a suitable venue to continue the debate.


Graham Ross
Head of the European Advisory Board to Modria.com Inc and, Member of the Civil Justice Council’s ODR Advisory Group.
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