Online Dispute Resolution (ODR) is a network based dispute resolution process which utilises the Information Communication Technology (ICT) to resolve disputes. It was created with an intention of providing an online substitute for the traditional face to face dispute resolution processes like negotiation, mediation and arbitration.
Initially, the ODR process only concentrated on providing us with a network based platform for conduction of dispute resolution but where the actual settlement of the dispute was done with the help of the human mediators and thus, the initial model of ODR was though new in concept and idea, its application however was as same as that of the traditional ADR.
However, the system of ODR outgrew its initial stage and transformed into a system which not only solved the disputes arising within the online community but also, where the function of such system was to combine the process of resolution of dispute with the prevention of the dispute.
Growth of ODR
In order to make the ODR process become more attractive to the general people in the society, it needs to make a connection with the people, which can be done by making them aware about the changes in the online sector and the information communication technology and how such changes are helping ODR to overcome the shortcomings of the ADR processes and litigation.
Professor Galves suggested that ODR has all the cost saving and efficiencies of the traditional ADR because it is basically ADR on the internet[1], which when equipped with online communication and the data driven tools it can perform the tasks like brain storming, identifying options and interests in a faster and in a more cost efficient and convenient manner.
ODR processes are capable of resolving real disputes and cannot be restricted only to those which are arising online by providing automated program which provide ancillary support to the mediators and the arbitrators. Such automated mechanisms include:
Double blinded bidding
This mechanism is used when there is payment of damages in involved in the dispute. The parties in this process have to submit the estimated amount online which is kept confidential. If the estimate of damages of the both parties come at an agreed range then, a deal is confirmed at a midpoint figure but if the figure lies beyond the agreed range then the parties are again given more chances for giving their bids, until an agreement is reached by them.
This system of bidding is provided by Cyber settle which allows three rounds to the parties to negotiate. It also provides for the facility of confidential telephone service for the disputes which do not settle online.
Visual Bidding
In this type of bidding, the parties reveal their propositions to each other at the very beginning but do not disclose the levels at which they would settle. The system provides suggestions which include the suggestions not disclosed by the parties as well as those which are openly given by the given by them. The dispute is settled when the parties agree on a set of propositions.
Other forms of ODR technology include online intake forms, online discussion rooms, conference facilities, digital document, and case management systems which assist the mediators and the arbitrators in the traditional ADR process, especially in large volumes of cases.
Further, the WIPO Arbitration and Mediation center provides ODR facilities in relation with dispute settlement processes. It has employed an online based dispute settlement service to resolve disputes arising out of the registration and domain name, this done by enabling them to submit their documents through on online secure channels and databases which support logging and archiving of the documents and secure fee payment facilities.
Modes of online development of ODR
Assisted Negotiation
In this the parties submit their blind bids to the ODR platform, as being submitted blindly it is considered to be a fair settlement to reach to an agreement. In this case, if one figures coincide with the amounts introduced by the other party, the ODR platform informs the other party that an agreement can be reached on such an amount. In this case, the software provides the technical assistance.[2]
Online Mediation
In this the third person act as a mediator, in this the parties submit to their dispute and the mediator communicates with them through emails, or through private chats or through cyber conferencing. The mediator provides them with a solution. Their services also offer phone support. However, if the dispute affects a large number of people then the third party is referred to as facilitator. The role of facilitator is to make sure that all the parties have the chance to keep their views and arguments and then a solution is decided upon which is agreeable by all the parties.[3]
The ODR has grown up drastically and is providing all the ADR facilities online, so that a person can resolve his dispute by sitting at their home. It is helping the consumers to trust the e-commerce business and indulge into it and the disputes which are being created through e-commerce system are also being resolved online. This is the new phase of legal framework in the world where the disputes are being resolved online and through and alternative means not through litigation.
Challenges in Implementation of ODR
The first challenge is the usage of language in the ODR platform. Currently most existing ODR services use only the English language, which can be another difficulty in expressing accurate information and avoiding miscommunications. This can be a barrier not just for those parties who do not speak the language but also for those parties who use it as a second or third language. But English language has expanded to almost the whole globe. Removing this language as a barrier for effective communication is a real challenge. For example, a country like India where there are more than 2000 languages spoken, it will be almost impossible to find a common ground language. The cultural differences varies between society to society and individual to individual. Establishing a language as a medium of communication is a task for maker of ODR platform.
The second barrier is the communication barriers which exist between the neutral third party and the parties to the dispute. ODR can offer certain advantages compared with offline ADR. Lets take online mediation for example. Online mediation is by and large considered as an expansive idea, which incorporates everything from mechanized visually impaired offering systems and e-mediators to online mediation stages with a human facilitator and case administration programs. In online mediation the part of the middle person continues as before yet the determination of systems contrasts. ODR stages are intended to encourage transaction among their clients by empowering the disclosure of positive regular focuses that may bring about understandings. Truth be told, the adaptability managed by the mediation technique makes it especially fitting for being led essentially on the web. In this way, online mediation is any conflict resolution prepare that is coordinated by a nonpartisan outsider (by and large a human middle person), which does not force the type of determination but rather helps the parties in determining their question by conveying generally through the web. (Cortes, Online Dispute Resolution for Consumers in the European Union, 2011). Online mediation is regularly brought out through composed trades, which do not have the principle components of disconnected from the net mediation, i.e. the eye to eye correspondences. Be that as it may, as disconnected from the net mediation, the proficiency of online mediation depends to a vast degree on the aptitude of the middle person and the parties’ will to determine their conflict. What’s more, an imperative segment is included online mediation, the ODR programming or fourth party, which may help with conveying a smooth mediation or, if severely outlined, may ruin the mediation procedure.
The third challenge is the use of language for communication with the parties by the neutral third party. ODR with text based mediation, negotiation and arbitration makes it easy for the mediator to communicate with the parties as the parties can take time and assess what the mediator/arbitrator/negotiator is trying to convey which the offline mode usually lacks. The consultation with experts is also facilitated by ODR for effective communication.
Some practical ODR issues
Confidentiality
Rules regarding confidentiality in Mediation or other ODR processes should be agreed before the process has started. This should cover both the contractual agreement to confidentiality by the parties as well as technological assurances about privacy in ICT system.
Enforcement
The enforceability of the online arbitration awards and ADR outcomes has been discussed since the early days of ODR. Much depends upon the process itself as wheal as the nature of the outcome, whether arbitrated or agreed, and how recorded.
Recognition and enforcement of of Foreign Awards, notwithstanding that they are conducted partly or totally online. Under the New York Convention 1958 arbitration awards can be freely enforced in any other contracting state, subject to certain defenses, with the only enforcement challenge if there is any irregularity in the conduction of the ODR.
Law and Jurisdiction
Until the ODR establishes its own rules and jurisdictions, the parties contracting online should agree on legal system which is applicable to their transaction. However, it has been found that the parties to the dispute already decide and agree on these matters in their contract which acts as a subject matter of the dispute.
Advantages of ODR
1. Online mediation improves a portion of the advantages and troubles of conventional mediation. Similarly as with conventional mediation, online mediation permits the middle person to adjust the procedure so as to address the specific needs of the disputants. The advantages of online mediation incorporate the accompanying: Online mediation is less immoderate, especially when contrasted with the expense of determining a case in a logged off setting. The advantage of sparing voyaging costs opens the utilization of online mediation for e-business and low esteem conflict, which just don’t have an option choice. As needs be, online mediation has the potential for expanding access to equity for some disputants. Web correspondence expands the quantity of middle people accessible for every conflict following inside the web there are no topographical cutoff points. What’s more, it regards the secrecy of the parties, which is a piece of the way of life of the web. (Bygrave)
2. Mediation procedures are adaptable and easy to understand. People are urged to determine question themselves without response to attorneys. Adaptability is expanded when utilizing innovation, on the grounds that there is an incomprehensible exhibit of specialized techniques. Besides, non concurrent interchanges permit parties to take an interest in mediation at more helpful times. Additionally, parties can take a shot at their best correspondence, maintaining a strategic distance from the prompt, and regularly most noticeably awful, reactions that can occur in vis-à-vis mediation.
3. Online mediation is time proficient: mediation more often than not happens promptly after the conflict emerges, while prosecution may occur months or even years after the occasion, when the circumstances of the parties may have changed. On the off chance that online offices are utilized, whether in complete substitution of up close and personal parties or preliminary to such parties, mediation can initiate quickly. This can be exceptionally invaluable if harm is proceeding or if an answer is desperately required. Truly, conflict are much of the time settled upon the arrival of mediation or presently.
4. In online mediation there is less impression of inclination. A mediator from the International Chamber of Commerce (ICC) expressed that amid mediations he doesn’t take notes for three reasons: to begin with, to demonstrate that he is tuning in; besides, to give the feeling that he is not giving careful consideration to one of the parties; and, thirdly, so that the parties would see the mediation as confidential. There is no requirement for doing this in an internet setting. In addition, when managing cross-fringe question just a consensual procedure may offer the parties a genuinely impartial discussion, free of any proposal of predisposition by neighborhood laws.
5. It is a willful procedure, which takes into account extra and more formal conflict resolution instruments. In the event that mediation comes up short, every party will at present have increased some huge ability in how to manage the conflict, on the grounds that ordinarily the quantities of issues to be challenged are limited down. Besides, after mediation parties have a more precise comprehension of the certainties and proof, turning out to be better prepared to participate in an antagonistic procedure.
6. When parties control the determination of the conflict, they are for the most part all the more ready to consent to the concurred result than with a basic choice gave by an adjudicative body. Truth be told, mediation assentions are deliberately authorized in the dominant part of cases, while judgments are definitely not.
7. Mediation encourages settlements without harming connections. It looks for win-win arrangements, where all disputants are fulfilled by the result. There is a more extensive scope of settlement choices, i.e. not simply financial pay, though an ill-disposed system is for the most part limited to arrangements altered by the important law. Mediation does not have these confinements, concentrating more on the practical parts of business life, the fast and ease arrangements that are most alluring to both of the parties. Since arbiters don’t concentrate on lawful qualifications however on genial arrangements, they take to a greater degree a “business” approach instead of a “legitimate” methodology.
Conclusion
Communication is the prime factor contributing towards the amicable settlement between the parties. It is the most required skill by the negotiator, mediator and arbitrator. The main challenge for constructing an ODR platform is to meet the requirements of an effective communication. Effective communication leads to amicable settlement which in turn leads to restoration of relationships.
Edited by Sakshi Raje
Reference:
[1] Professor Fred Galves, “ Virtual Justice as Reality: Making the Resolution of Ecommerce Disputes More Convenient , Legitimate, Efficient and Secure” (2009) (1) Journal of Law, Technology and policy
[2]Aura Esther Vilalta, ‘ODR and E-Commerce’ in Mohamed S Abdel Wahab, Ethan Katsh and Daniel Rainley (eds) (Eleven International Publishing 2013) 125.
[3] Ibid.
