Regular readers of our column may find it ironic that two individuals who have been writing about online dispute resolution (ODR) for years now would announce the death of ODR. Some would find an extra dose of irony in the fact that, in doing so, we took inspiration from the tittle of one of Richard Susskind’s most famous books, in which he heralds ODR as a saving grace for conflict resolution.
We’re obviously not claiming that using online platforms to aid in the resolution of disputes is already a thing of the past, it would go against everything we’ve worked to accomplish in the last twenty years. Rather, we’re suggesting that we consider retiring the three letter acronym (TLA) that is “ODR”, so that it can be replaced with a more accurate reflection of what online dispute resolution has become: technologically assisted dispute resolution systems or services (although we admit that TADRS doesn’t have the same ring to it).
It should be remembered that ODR, as an expression, was originally conceived as an online transposition of ADR. As Ethan Katsh and Janet Rifkin put it in their 2001 book ‘Online dispute resolution’, “ODR draws 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 offline environments. […] Like ADR […] at its core is the idea of providing dispute resolution in a more flexible and efficient manner than is typical with courts and litigation.”
But “alternative dispute resolution” isn’t really all that alternative anymore. When the law states that parties have to consider ADR, as it now does in Quebec (or rather will when section 1 of the new Code of Civil Procedure comes into force), it’s no longer an alternative to the judicial system; it’s a part of it…
Such is also the case with ODR. As we’ve written in our paper, “ODR and the Courts”, and reinstated in previous blogs, the use of technology to assist in dispute resolution within the legal system is thriving. On the other hand, true ODR, or at least ODR as understood under the definition quoted above, is having trouble to say the least. This summer, the UNCITRAL working group on ODR – which we have discussed extensively in previous blogs – has been given an ultimatum: “the Working Group was given a time limit of one year or no more than two Working Group sessions to undertake this work, after which the work of the Working Group will come to an end, whether or not a result has been achieved”. At the same time, ODR providers such as Modria and Youstice seem to be slowly moving away from the classic nego-med-arb ODR model towards more comprehensive conflict resolution solutions. But the most important piece of evidence that “classic ODR” isn’t as healthy as its state-run counterpart happened almost exactly a year ago: the launch of eBay’s Money back guarantee.
Whenever proponents of ODR, ourselves included, face scepticism with regard to the true capacities of online dispute resolution, we all use the same argument: eBay. And with reason… The original eBay/SquareTrade platform, or even the eBay/Paypal Dispute resolution center that replaced it, helped resolve millions of disputes over the years using “true” ODR methods. But today, even this, the very best example of an effective ODR system, is being pushed to the metaphorical curb and replaced by what is essentially a chargeback system. Now, most experts would probably suggest that chargeback systems are a form of ODR, and we would tend to agree, but we would also agree that we have strayed far from the classic nego-med-arb model associated with ODR, the very same model that the UNCITRAL working group is now trying to preserve against all odds. In other words, the face of ODR has changed drastically since 1996, yet it is still regarded by most as being a simple online transposition of ADR, and nothing more.
Therefore, maybe it’s time to acknowledge that the ODR TLA has lost some of its brand appeal, and, like climate scientists who chose to abandon the term “global warming” for the more encompassing “climate change”, we should consider the use of a better adapted term to current uses of online dispute resolution tools. In other words: ‘ODR is dead, long live TADRS!’ (Although we still admit that TADRS doesn’t roll off the tongue as easily as ODR…) Of course, it would be a lot easier for people to acknowledge that, just as Burger King is allowed to sell salads notwithstanding its kingdom being seemingly only populated with meat patties and buns, online dispute resolution shouldn’t be confined to the 1990’s types of nego-med-arb platforms that it was originally conceived to represent. Words evolve, their meanings change, and ODR is no exception to this rule. As for all of those who refuse to accept this notion, just stop looking at court-mandated online mediation, chargeback systems, UDRP domain name dispute processes and other technologically assisted conflict resolution systems and solutions as ODR, and start practicing to say “TADRS”.