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Cybercourts, ODR and Cyberjustice: What Does It All Mean?

Two years ago, almost to the day, Simon Fodden contacted us to write a bimonthly column on online dispute resolution (ODR). A dozen columns later, and after going through the most important current developments on the topic, we realized that we might have skimmed over the core question that should have preceded all of our previous entries: what is ODR?

Obviously, definitions of ODR are plentiful. However, as is often the case when everyone has his or her own idea of a word’s meaning, definitions are sometimes incompatible. That being said, as explained in a recent paper published by Julio César Betancourt and Elina Zlatanska, many of these definitions boil down to “the use of Alternative Dispute Resolution (ADR) mechanisms over the internet”. Unfortunately, behind this shared premise resides a series of presuppositions and presumptions that, when observed closely, tend to fall apart rather easily. This is not to say that we would argue that ODR is completely separate from online ADR (or “oADR”), but rather that equating ODR to oADR seems overly simplistic. Of course, being overly simplistic is the downside of most definitions, as it becomes difficult to incorporate all of the intricacies of a complex concept into one or two easily accessible sentences, but we believe that the ODR = oADR equation has been somewhat detrimental to the development and emergence of ODR in the last decade, making this overly simplistic definition problematic.

One issue we have with the equation is that it creates a rift between online and offline ADR, making it seem as if the two methods are detached and in opposition. Of course, this idea is nonsensical. Online dispute resolution isn’t a case of “either or”. “Classic” ADR providers can use online environments in certain cases and, in others, pick up the phone to set up a face-to-face meeting. In other words, there is no “all or nothing” scenario when it comes to the use of technology to help settle disputes.

Another negative impact of the ODR = oADR equation is that it implies that ODR cannot function within a courtroom setting. By associating ODR so closely to ADR, it is seen as an alternative to courtroom procedures, not as a tool that could be useful to move things along. This begs the questions: Would ODR have made bigger strides in the last decade, and would it be better perceived by the courts (some of which are still reticent to accept the use of ODR mechanisms to settle disputes), had it simply been labeled as “technologically aided dispute resolution”? Of course, there is no way of ever finding out the answer to this question, but this doesn’t mean we shouldn’t re-evaluate our use of and definition for the ODR acronym.

So how should one define ODR? Some could argue that we shouldn’t, but that we should rather retire the acronym all together and replace it with the term cyberjustice, a word that is somewhat more encompassing and less threatening to the non-initiated. To our knowledge, one of the very first uses of “cyberjustice” in print was in a 2003 book co-written by one of the undersigned (the book is in French, but was translated in English in 2005) where it was largely associated with ODR. We later refocused our definition to have a broader meaning: “the integration of information and communication technologies into judicial or extrajudicial dispute resolution processes”. In 2005, the term was also used as the title of a book written by Lucille M. Ponte and Thomas D. Cavenagh, where the authors seem to have limited its scope to ODR for e-commerce (as the book’s subtitle suggests, and as is confirmed by its content).

From these early and somewhat obscure references a decade ago, the use of the term “cyberjustice” has now become commonplace because, most notably, of the Cyberjustice Laboratory. For this reason, and because “cyberjustice” has the advantage of being more encompassing than the three letter acronym we’ve become accustomed to, it could be seen a better way of qualifying all “non-oADR” ODR solutions. Unfortunately, as with most neologisms, its definition has now escaped the control of earlier adopters. At a conference back in May, we argued with a presenter who claimed that cyberjustice would never work. When we pointed out all of the current cyberjustice projects being put forth around the world, he simply retorted: that’s not cyberjustice. According to said lecturer, cyberjustice was limited to dispute resolution within a virtual environment… Of course, even using this very narrow definition of cyberjustice, his claim could be proven false since, over the years, numerous mock trials have been conducted within online environments such as Second Life, but that is a discussion best kept for another column. Our main point is that he was using “cyberjustice” in a manner that was much narrower than the definition we had become accustomed to.

What this gentleman was referring to when using the term “cyberjustice” was actually a subcategory of the concept that some would qualify as “cybercourts”, i.e. virtual courtrooms. Of course, others would claim this use of the word to be ill-advised since cybercourts can also be defined as “national courts that provide dispute resolution services, both litigation and court-based ADR, using electronic communications“[1], while others, still, equate the term “cybercourt” to the mere use of e-filing[2].

What should be retained from these examples is that, like ODR, “cyberjustice”, and “cybercourt” have come to represent different concepts for different people, and that unifying definitions are difficult to come by or tend to overly-simplify a concept to the point of robbing it of its core principles and values.

So to answer the question once and for all, what is ODR? Simply put, we can’t say. Out of all the definitions we have come by, the one offered by Julia Hörlne, i.e. “the use of online environments to facilitate communications and dispute resolution”[3], seems to be most in line with our beliefs. That being said, it appears somewhat disjointed from the ODR = oADR equation that remains prevalent in legal literature. In other words, ODR – like cyberjustice and cybercourts – is (and can be) whatever we wish it to be, which, in a way, is very exciting. Of course, at the same time, this remains problematic if we wish it to represent something else than whoever is standing right before us…



[1] Thomas SCHULTZ, “Does Online Dispute Resolution Need Governmental Intervention? The Case for Architectures of Control and Trust”, (2004) 6-1 N.C.J.L. & Tech. 71, 102.

[2] Bjorn JOHANSSON, “Cybercourts, the future of governmental online dispute resolution? Part 1”, (2006) 8(7) ADR Bulletin 137, 139.

[3] Julia HÖRLNE, “Online Dispute resolution”, in R. Bernstein, J.A. Tackaberry&A.L. Marriott, Bernstein’s Handbook of Arbitration and Dispute Resolution Practice, Volume 1 (4th edn.), London, Sweet & Maxwell 2003, p. 782, paragraph 12-004.

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Comments

  1. It seems to me that one of the most useful ways of categorizing ODR is between systems that just put the usual communications of ADR/DR online – a video mediation, for example – and systems that lead parties through the steps intended to facilitate resolution, a ‘smart system’ or ‘expert system’ approach. The latter is what the much-disussed eBay/Paypal system offers, so 90% or so of the disputes are resolved without human intervention by a neutral person, and what BC’s Civil Resolution Tribunal is aiming for, as I understand it. (Someone more familiar with technology than I am tod me that ‘expert system’ is not the right term; it is really just a workflow management system.)

    ODR currently refers to both kinds of system, but their advantages and limits are quite different. The experience of Mediate BC with online family dispute resolution was based on the former methods, but seemed to be promising for remote parties in particular. The systems being discussed, or assumed, at the UNICTRAL Working Group on ODR seem mainly to be in the latter category (smart/expert systems).

    Either method has to deal with questions of how to get parties to participate seriously, how to enforce an agreed resolution (though if there is agreement, enforcement should be less difficult than if a resolution is imposed), how to deal with failure to agree, how to legitimize an imposed resolution, and how to ensure that the whole system gives access to ‘justice’.

    No doubt we can look to your future columns (and some of those you have written already) for answers to these questions. You will just have to describe which kind of ODR system you are talking about as you do answer them.

    Good luck!