ONLINE DISPUTE RESOLUTION ODR By Mrs. Catherine Cotsaki Mediator – MCiArb Trainer of Mediators...
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ONLINE DISPUTE RESOLUTION
By Mrs. Catherine CotsakiMediator – MCiArb
Trainer of MediatorsPresident of the Board of Directors of the
HELLENIC UNION OF MEDIATORS
ONLINE DISPUTE RESOLUTION
Solving disputes out – of – Court began to be considered seriously in the USA more than 30 years ago, when a strong movement started and grew regarding the «ALTERNATIVE DISPUTE RESOLUTION - ADR» methods.
Since then, ADR have developed very quickly also in Europe.
THE FIRST ADR PROGRAMS
The first ADR programs are those called «Community and Neighborhood Justice Centers». Their main goal is to keep and possibly enhance the relations between disputing members of the same Community or neighbors.
THE FIRST ATTEMPTS TO ORGANIZE ONLINE ALTERNATIVE DISPUTE RESO-LUTION METHODS
The first attempts to organize Online Alternative Dispute Resolution methods took place in the United States of America before 10 years approximately.
THE PROJECTS DEVELOPED DURING THE TRIAL PHASE OF ODR METHODS
During the trial period of ODR methods, two very important programs were developed : the «Virtual Magistrate Project» and the «Online Ombuds Office».
The Virtual Magistrate Project was applying arbitration, exclusively to disputes regarding offense of the dignity and the personality by means of online publications and cases of theft of business secrets, of frauds connected to e – transactions, abuse of personal data, sending of spams etc..
The Online Ombuds Office offered initially for free to Internet users services of online mediation. Since 1999, grants very successfully its services to various sites against a fee.
OTHER IMPORTANT APPLICATIONS OF O.D.R.
the online arbitration processes of the Organization under the name «Internet Corporation for Assigned Names and Numbers - ICANN » and
the program called «European Consumer Dispute Resolution – ECODIR».
ICANN manages most of the top – level domains all over the world. Since 1999, it has set up the «UNIFORM DISPUTE RESOLUTION POLICY - UDRP», which is a Regulation providing the mandatory submission to arbitration of the disputes regarding the registration of top - level domains.
The arbitration processes are conducted according to the «ICANN Rules for Uniform Domain Name Dispute Resolution Policy (RUDNDRP)».
The arbitration processes are not conducted by ICANN, but by four other Organizations, which have been certified to this end. Among them, the Organization called «e – Resolution» and the Organization called «Asian Domain Name Dispute Resolution Center (ADNDRC)».
DISPUTES RANKING FOR ONLINE RESO-LUTION
Until twenty years ago all parties being involved in an ADR process had to be physically present or represented at it.
As of the 90s, the online process of dispute resolution (ODR) methods was developed.
ODR may be applied to a large range of disputes, including consumer to consumer (C2C) disputes, family disputes and even Interstate conflicts.
However the disputes mainly ranking for online resolution are those accruing out of e – commerce and electronic transactions in general, since it makes more sense to use for their solution the same medium (the Internet) which was used to conclude the transaction(s) having generated them.
In addition the majority of the Judges do not have sufficient technology knowledge needed to fully understand such kind of disputes.
ADVANTAGES AND DISADVANTAGES OF ONLINE DISPUTE RESOLUTION
Likewise, Offline Dispute Resolution (ODR) processes are quicker, less expensive, less complicated, less formal and more flexible than legal proceedings.
The main disadvantages of ODR are (a) that the parties involved and the persons involved in the resolution process are not in presence of each other and (b) the impossibility to use means any material connected to the dispute unless it is in an electronic form.
THE MAIN DEFINITIONS OF «ONLINE DISPUTE RESOLUTION – O.D.R.»
The main definitions existing for ODR are the following : Online Dispute Resolution is a dispute resolution process which
operates mainly online. This encompasses both online versions of «Alternative Dispute Resolution – ADR» and CyberCourts, the former being dominant. In other words, ODR relates to negotiation, mediation, arbitration and Court proceedings, whose proceedings are conducted online (see Schultz in «Does Online Dispute Resolution Need Governmental Intervention? The case of Architectures of Control and Trust», in North Carolina Journal of Law and Technology, Volume 6 (1), pages 71 and 72).
«ODR grows its main themes and concepts from Alternative Dispute Resolution (ADR) processes such as negotiation, mediation and arbitration. ODR uses the opportunities provided by the Internet not only to employ these processes in the online environment, but also to enhance these processes when they are used to resolve conflicts in the offline environment (see Katsh/Rifkin in «Online Dispute Resolution – Resolving conflicts in Cyberspace», San Francisco 2001, page 2).
«ODR is a broad term which encompasses many forms of Alternative Dispute Resolution incorporating the use of the Internet, websites, e – mail, communications, streaming media and other information technology as part of the dispute resolution process». This definition is given by the American Bar Association Task Force on Electronic Commerce and Alternative Dispute Resolution.
«Online Dispute Resolution is Information Communi-cation Technologies (ICT) or Online Technology applied to Alternative Dispute Resolution».
«Online Dispute Resolution is ADR services offered entirely by electronic means, without the need for the disputing parties to leave their homes / offices». This definition is given by the International Organization «Consumers’ International (CI)».
Online Dispute Resolution is considered to be the out – of – Court methods of resolution of disputes accruing out of electronic transactions, which are achieved exclusively or at least regarding their most important part through the Internet, by using any kind of contemporary electronic and digital means of communication (see Spyros Ch. Makris LLM, DL University of Konstanz, Lawyer, in European Court of Justice Review 2, 2009 (15th year), page 160).
Besides the above definitions, there are some alternative terms and acronyms which can be used, such as :
Internet Dispute Resolution (IDR) Electronic Dispute Resolution (EDR) Electronic ADR (e - ADR) Online ADR (o - ADR)
ODR has emerged as the most used term in recent years.
CHARACTERISTICS OF AN ALTERNATIVE DISPUTE RESOLUTION METHOD CONSIDERED AS AN ONLINE ONE
An Alternative Dispute Resolution method is considered as an online one when it is conducted in total or at least in its largest part by using Internet and electronic means in general.
ODR includes all methods used to resolve disputes, which are conducted mainly through the use of Information and Communication Technology (ICT).
The assistance of ICT has been named by Katsh and Rifkin as the «fourth party» since, in addition to the two disputing parties and the third neutral party (arbitrator, mediator, negotiator etc..), there is a «fourth party» in the process, which is technology. As a matter of fact, the «fourth party» is used by the third party as a tool for assisting the process (Katsh and Wing. «Ten years of Online Dispute Resolution (ODR) : Looking at the Past and Constructing the Future» 38 (2006) U. Tol. L. Rev. p.35)
Some authors incorporate a broader approach by including in ODR, litigation when assisted largely by ICT tools
ONLINE ARBITRATION AND ONLINE MEDIATION
Online arbitration and online mediation are at present the two Alternative Dispute Resolution methods which are conducted not only offline, but also online. Negotiations are also very often done online, especially if they concern matters connected to e – commerce and e – transactions in general.
Besides the common distinction of arbitration into institutional and ad hoc and its distinction into national and international, there are other distinctions of arbitration applying only to online arbitration, such as the «fast track online arbitration» and the «documents only online arbitration».
The «fast track arbitration» is the process where all the parties agree to have it achieved mandatorily in only one session.
The «documents only arbitration» is the process where only documents forwarded to the arbitrators by e – mail can be used as means of proof.
Online arbitration can be distinguished also into «binding» and «non – binding». «Non – binding» arbitration is the process where the arbitrators formulate merely a kind of proposition for compromise, which the parties are invited, but not obliged, to accept.
Online mediation is conducted electronically for its bigger part, if not exclusively. During the mediation process, the disputing parties and the mediator are in contact only through e – mail, Internet, telefaxes and possibly through conference telephone calls by means of Skype provided such teleconferences are admitted by the Legislation of the State where Online Mediation is conducted.
THE «BLIND BIDDING» ONLINE DISPUTE RESO-LUTION
The «blind bidding» dispute resolution is an Alternative Dispute Resolution method which can be processed exclusively online.
In the «blind bidding» process, the parties, introduce in Internet three offers each one of them. The offers of each party are not disclosed to the other(s). Each party fixes in advance a Zone of Possible Agreements («ZOPA»). The system compares the three offers submitted by each party and, if one of them falls into the ZOPA, the agreement is automatically concluded.
Blind bidding is used mainly by insurance companies.
THE MAIN LEGAL TEXTS REGARDING THE
APPLICATION OF ODR METHODS
Τhe processes of Online Alternative Dispute Resolution Methods are not governed for the moment by formal binding rules.
Arbitration and mediation, are expressly regulated by legal dispositions, when conducted offline. Said dispositions cannot fully and properly apply in case arbitration or mediation are conducted online, all the more that they do not respond to the needs of processes handled by electronic means.
In Greece, arbitration is governed : (a) by articles 867 and following of the Code of Civil Procedure when we are in presence of a domestic arbitration, (b) by the Treaty of New York dated June 10, 1958 re: «Recognition and enforcement of foreign arbitral awards», which was ratified by virtue of Legislative Decree 42/1961 and (c) by Law 2735/1999 re : «International Commercial Arbitration» when the matter in dispute accrues out of International Commerce.
European Directive number 2008/52 regulates in detail mediation in civil and commercial transborder disputes. Based on the above Directive, the Member States have to introduce Mediation in their Legislation if not already provided by it.
Mediation has been introduced in Greece by virtue of Law number 3898/2010 promulgated in order to comply with European Directive 52/2008, regulating, however, not only transborder civil and commercial disputes, but also domestic ones.
Besides the above Directive, the European Union has issued various texts in respect to Alternative Dispute Resolution Methods regarding civil and commercial disputes in general, disputes accruing out of consumption, of e – commerce and transborder transactions etc.., such as :
- The Green Paper for «Access of Consumers to Justice and the Settlement of Consumer Disputes in the Single Market» (COM/1993/576).
- Recommendation 98/2057/EC dated March 30, 1998 regarding the principles to be applied by the competent Organs for the out – of – Court settlement of disputes accruing out of consumption.
- Recommendation 2001/310/EC re : «Principles for the out – of – Court bodies involved in the consensual resolution of consumers disputes».
The Green Paper concerning Alternative Dispute Resolution Methods regarding civil and commercial disputes (COM/2002/196).
Regulation (EC) 2006/2004 of the European Parliament and the Council of
the European Union re : «Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws (the Regulation on Consumer Protection Cooperation)».
Directive 2009/22 of the European Parliament and the Council of the EU re : «Injunctions for the Protection of Consumers' interests».
Proposal (COM/2011/793) for a Directive re : «The Alternative Resolution of
Consumers’ Disputes and the Modification of Regulation EC/2006/2004 and Directive 2009/22» issued by the European Parliament and the Council of the EU.
Proposal (COM 2011/794) re : «The electronic resolution of consumers’ disputes».
The above Proposal provides that the proposed Directive should be applied under reserve of Directive 2008/52/EC of the European Parliament and the Council dated May 21, 2008 re : Certain Matters of Mediation in Civil and Commercial Matters», of Regulation EC 44/2001 of the Council dated December 22, 2000 re : «International Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters», of Regulation (EC) 864/2007 of the European Parliament and the Council, dated July 11, 2007 re : «The Law applicable to non-contractual obligations (Rome II) » and of Regulation (EC) 593/2008 of the European Parliament and the Council dated June 17, 2008 re : «The applicable Law to contractual obligations (Rome I)».
However, the first text of the European Union to mention expressly ODR methods is Directive 2000/31/EC of the European Parliament and of the Council dated June 8, 2000 re : «Certain Legal Aspects of Information Society Services, in particular Electronic Commerce, in the Internal Market (Directive on electronic commerce)», which provides in paragraph 1 of its article 17 that «Member States shall ensure that, in the event of disagreement between an Information Society Service Provider and the recipient of the service, their Legislation does not hamper the use of out-of-court schemes available under National Law for dispute settlement, including appropriate electronic means».
In the Green Paper of 2002 (COM/2002/196) also, the need to promote new open line services for the resolution of disputes (ODR) is expressly acknowledged considering that said services might also be used for the resolution of disputes non – related to electronic commerce.
Besides the European Union, the Organization for Economic Cooperation and Development (OECD) promotes the out – of – Court alternative dispute resolution methods and especially the methods for the process of which contemporary technologies of informatics are used.
The Organization under the name «Global Business Dialogue on electronic commerce (GBDe)», which is an association of business companies and the International Union of Consumers Organizations (Consumers International (CI)) have issued in 2003 guidelines (http://www.gbd-e.org/pubs/ADR_ Guideline. pdf) for the regulation of matters connected to disputes accruing out of e – transactions between consumers and undertakings setting for the minimum prerequisites to be fulfilled by ODR and recommending online arbitration, online mediation and online negotiation.
As stated above, the Alternative Dispute Resolution methods conducted, at present, online are, mainly, arbitration, mediation and negotiations in the frame of a mediation, of a compromise, of a conciliation etc..
The use of electronic technology as a complementary tool in the frame of online mediation processes is positive, but the entire replacement by technology of the human capacities and skills of the mediator is not, since the process becomes then impersonal and distant.
Regarding arbitration, technology could be used as an additional tool but, if done online, arbitration should never change its profile by becoming, instead of a real Alternative Dispute Resolution method ending to an enforceable award resolving definitely the dispute, just a proposition or a recommendation of the arbitrators which can be freely accepted or rejected by the disputing parties as it is the case of non – binding online arbitration.
As a general conclusion, YES to the use of Information and Communication technology (ICT) as an additional tool, NO to making of it a «fourth party» in a process of Alternative Dispute Resolution and even more no to substitute ICT to the third party, the third impartial facilitator, i.e. the mediator or the negotiator or to the arbitrators as it is the case in the «blinding bidding».
Thank you very much