Transcript ONLINE DISPUTE RESOLUTION ODR

ONLINE DISPUTE
RESOLUTION
ODR
By Mrs. Catherine Cotsaki
Mediator – MCiArb
Trainer of Mediators
President 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 RESOLUTION 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 RESOLUTION
 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 Communication 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
APPLICATION OF ODR METHODS
THE
 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.
CONCLUSION
 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