♬ Don't cry for me Argentina
The truth is I never left you
All through my wild days
My mad existence
I kept my promise
Don't keep your distance..♬
Music by: Andrew Lloyd Webber and lyrics by Tim Rice.
Report from the ODR Conference in Buenos Aires
South America just held its first conference on Online Dispute Resolution in Buenos Aires, Argentina, organized by Dr Alberto Elisavetsky, Director.
There were at least five major themes arising out of the ODR Conference taking place Wednesday and Thursday June 2nd and 3rd, 2010 in Buenos Aires, Argentina.
First theme: Need for education on ODR.
Many presentations highlighted the need for greater understanding among consumers, industry groups, lawyers and others of how technologies can be applied to resolve disputes (“ODR”). Academics, to a fair degree, have been putting in a great deal of thought into the principles of ODR, the technologies behind ODR as well as the different flavours that ODR can take in assisting the resolution of disputes. However, it was stated on many occasions the lack of understanding of ODR, particular among the ‘digital immigrants’ – i.e. those who did not grow up with technology – is a limiting factor, particularly in the legal system. This was brought home by the explosion of use of mobile phones in the developing world to access web-based services since broadband internet is still in its infancy in these countries. The younger generation are busy using the new technologies, while judges and lawyers have a poor understanding of and appreciation for how technology can be integrated into the systems that they use every day.
Second Theme: Whether ODR will grow up within the legal system or parallel to it.
It is certainly evident that there are a host of organizations, individuals, industries and government entities that are in favour of ODR being a system that grows up outside of, but parallel to, the legal system. The ability to use ODR as a matter of private contract was demonstrated in several systems. In particular in Guatemala, an Insurance Ombudsman has been developed. For those insurance companies that sign on to this program, the Ombudsman becomes in effect, a mediator between the insured and the insurer. The Ombudsman’s office is established by the association of insurance companies. In this way, the Ombudsman is independent of any particular insurance company. The decision of the Ombudsman is binding on the insurance company but not on the insured. There are fixed time periods within which the Ombudsman must render a decision. There is no cost to the insured to use this service. The Ombudsman’s office is looking at technologies to expedite and implement their decision-making process. If the insured is unhappy with the decision, they can have resort to the courts. This was a great example of how an ODR system has grown up in parallel, and largely in substitution to, the judicial system.
The challenge to lawyers and the courts will be to bring in ODR and other technologies for dispute resolution into the court process unless we wish to see more and more disputes migrate to parallel and private, dispute resolution systems.
Third Theme: The Disputes that are using ODR.
Certainly small-value business to consumer (B2C) disputes are a major focus of the development of ODR systems such as the UNICTRAL proposal. However, disputes in the family law area (Australia) were discussed as being dealt with by telephone-based as well as on-line systems. An interesting statistic that was raised was that most family/divorce/access/support issues take place in families where the age of the parties are often under 35. This demographic group is familiar with technology as well as having access to technology. Given the large geographic challenges faced in Australia, this factor alone is driving the use of this system. An ancillary benefit of using these technological systems is that the parties are not brought together in the same room at the same time; in disputes involving family violence, this is a major benefit of this system.
South Korea demonstrated how they are handling B2C, B2B and C2C disputes using new technologies. 88% of these claims were under $500 USD. They use offline ADR as well as ORD technologies in this program together with an online mediation room. They offer a speedy, inexpensive and non-binding arbitration procedure. The Korean courts are employing their ORD system and are expected to develop a variety of new systems in the future.
Fourth Theme: The Potential Benefit to the Third World.
One group who stands to benefit from the UNICTRAL proposal for small-value, transnational business to consumer dispute resolution are the businesses located in the developing world. Their access to world markets and the ability of consumers to do business with such businesses is dampened by the lack of a cost-effective consumer dispute resolution processes. Accordingly, it should not come as any surprise that the Third World views ODR as an important step towards increasing trade and commerce with the developed world.
Fifth Theme: The World Waits for No One
The people working and promoting ODR are, for the most part, under 30. This is a world that is being developed by PHD students, young academics and others. They are on the other side of the ‘digital divide’ from the over 30 crowd. They have always lived with technology. Their view of the world, their embracing of technology and their impatience with the way things are vs. the way that they could be, is terribly apparent. They are busy remaking the world into the form that they think it should be. They are joined in this quest with others who, while they are ‘digital immigrants’, also share the point of view of the younger crowd and are acting as mentors, faculty advisors and colleagues to them.
The next international conference on ODR will take place in Vancouver, BC in the week of Nov. 1, 2010. This will be the latest opportunity for judges, lawyers, academics, arbitrators, mediators, industry groups, governments and others to gain a first-hand appreciation for the people behind ODR and their initiatives. This post has been cross-posted to the ODR blog developed as part of this conference.
While the mad days of ODR may be over as it moves into the mainstream and starts to fulfill its promise, it is important that those of us on the other side of the ‘digital divide’ do not keep their distance but rather look at and embrace ODR to help bring it into the legal system.
