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A Plea for Court-Sanctioned ODR

[Sean Dwyer assisted in the preparation of this column.]

Like many others, we have, on this blog and elsewhere, claimed that online dispute resolution (ODR) platforms and processes constitute an extremely useful tool for conflict resolution. This being said, it is unfortunately possible to assert that a majority of attempts to create a system for ODR have fallen short of expectations, making our assertions seem somewhat difficult to defend. However, we remain convinced that the fault doesn’t lie with the technology or the concept, but rather that ODR’s failure is in large part due to the absence of obligation or incentive for the parties, most notably in B2C contexts, to participate in the process. This is particularly true of those ODR systems that extend themselves beyond the realm of the Internet or of isolated communities with limited interests.

ODR practices such as negotiation and mediation, in their most fundamental sense, are processes that function only as long as the parties have expressed their willingness to participate. Unfortunately, ODR systems do not seem to be able to stimulate this willingness. The legal system, however, is entirely the opposite since it is taken to be an authority and its decisions require obedience. The subjects of the system feel that it is the only option and that they are obligated to follow its commandments. This somewhat explains why citizens would lean away from current ODR systems and mediation practices.

From a consumer’s perspective, it can seem a waste of time to initiate an ODR process, especially since businesses often don’t see any advantage in submitting to such an exercise since failure to do so has no real consequence. This system is thus seen as an poor substitute for the ‘’real’’ process, which is why consumers will either pursue a judicial solution despite excessive costs and lengthy delays or simply cut their losses and abandon their claims (which is what businesses often count on).

eBay seems to be the closest thing to a functional ODR system, but it is somewhat limited in terms of its current application. The eBay model works because members in its closed system of buying and selling must submit to in house conflict resolution processes if they want to participate in the site at all. However, this means that it cannot be exported or adapted outside the eBay community since non-members would not have this same incentive to take part in the ODR process. This just exemplifies how difficult it remains to find a realistic method of encouraging the use of ODR in a larger, more complicated environment. It further demonstrates the importance of placing the obligation in the rule-based heart of the system itself. This is what we learned from the ECODIR project we worked on for the European Commission. This has also been the finding of other researchers who worked on ODR projects and pilots across the country and around the World.

As we mentioned in our last post, British Colombia has possibly found a way of making ODR successful: integrate it as a necessary step in court proceedings. As specified in section 25 of BC’s Civil Resolution Tribunal Act, the case manager would have authority not only to decide which dispute resolution methods are to be used, but also to require the parties to participate in proceedings using said methods. This seems like quite a positive solution for a variety of reasons. For one thing, it makes ODR an integral part of the judicial process, and so the parties (most notably the consumer) will feel like justice is at work and their case is moving forward. For another, parties now have the possibility to be much more involved in the process of resolving their conflict. This will therefore contribute to a heightened sense of implication in the creation of one’s own justice. Finally, there is the all-important question of incentive. In this system, the case manager can, with or without the parties’ input, impose the utilisation of a certain dispute resolution model, including ODR (according to section 25 (2) electronic communication tools can be used). It is to be hoped that this solution will be applied, otherwise the BC project is threatened by the same fate as that of other systems: abandonment by disuse.

Therefore, if ODR is to thrive, it will be necessary to link it intimately with the appearance of legal constraint. The current dominant holder of this appearance is clearly the state apparatus, which has gained this authority through time across the evolution of institutions such as the Church and the Empire. Despite this evolution, the State remains as human, as permeable and as modifiable an institution as any that have ever existed. However, while it is possible to develop the nature of the State, it is equally possible for the State to absorb and modify other institutions according to its own standards and ends. This possibility is noted by Julie McFarlane who,

cautions that the institutionalizing of ADR without attempting to change underlying culture will likely lead to a corruption of ADR mechanisms and the wider civil justice system as there remains the possibility that good settlement process will be marred by over zealous advocacy or over zealous desire to close cases.

Indeed, these tendencies will not be the only ones, from among the array of dominantly developed power structures, that will constitute threats to the original nature of ODR. There will thus be a clash between State structures and the practice of ODR as they come more and more together, but it is a necessary clash that will be as varied as its practitioners and will very possibly give way to a more positive system in the end. When two disparate elements clash, they create a new entity that unites their various aspects in an original formation. The flexibility and the efficiency of mediation can be preserved while, in the very same system, the wisdom and legal knowledge of an experienced judge can continue to be applied when necessary. It is for theorists, jurists, and all other participants in the legal process to decide which qualities of these elements will be preserved and which will be discarded.

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