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					           VUW SIM
          13 May 2005




Recent Developments in
Online Dispute Resolution

    Melissa Conley Tyler
   Senior Fellow, Faculty of Law
     University of Melbourne
             Objectives
 To give an overview of the current state of
  online dispute resolution (ODR) worldwide
 To give examples of ODR systems,
  particularly recent Asia Pacific sites
 To assess the adoption of ODR to date
 To consider the implications of ODR for IT
  and dispute resolution practitioners
           What is ODR?
• Dispute resolution processes:
  – facilitative processes such as conciliation,
    mediation and facilitated negotiation
  – advisory processes such as case appraisal, mock
    trial and neutral evaluation
  – determinative process such as arbitration and
    adjudication
• Assisted by technology, especially the internet
• Can be used for online or offline disputes
State of ODR

“115 and counting”
          State of the Art
 Total of 115 ODR sites or services
  launched to July 2004
 82 are still operational
 28 new sites or services launched
  between 2003 to 2004
               Date of Launch
                    Year of Launch

30

20

10

0
     1996 1997 1998 1999 2000 2001 2002 2003 2004 Unk
      4    4    3   21   22   14     14   18   10   5
Types of Online ADR Offered

60                  Mediation
                    Arbitration
50
                    Complaints Handling
40                  Automated Negotiation
30                  Case Appraisal
                    Adjudication
20
                    Negotiation Support
10                  Mediation Support
 0                  Information Exchange
Types of Issues Dealt With

        Issues Dealt With By Sites


   42                                39
                                          Online Disputes

                                          Offline Disputes

                                          All Disputes


                   34
            Case Statistics
Cases Settled
   Square Trade: over 1.5 million cases handled
   Cybersettle: over 90,000 cases settled
   iCourthouse: over 11,000 cases filed
   Domain name disputes: over 6,000 determined
   clickNsettle and SettleOnline: over 2,000 settled
Settlement Rates: 50% to 100%
              Site Location
          Geographic Distribution

                4
     16
                                         NorthAmerica
                                    57
                                         Europe
                                         AsiaPacific
38                                       Other
 Examples of ODR

“Many tools, many countries,
  many types of dispute”
       ODR Areas of Focus
1.   Internet domain name disputes
2.   Consumer disputes
3.   Commercial and “real world” disputes
4.   Courts and Justice
5.   ADR practitioners
6.   Peace and conflict
1. Internet Disputes
           ICANN UDRP
           • Asian Domain Name
             Dispute Resolution
             Centre
           National Systems
           • CIETAC Domain Name
             Dispute Resolution
             Centre
           • Hong Kong International
             Arbitration Centre
2. Consumer Disputes
         Square Trade
         • Private US company
           launched March 2000
         • Handled >1.5m cases
         • Partnering with eBay,
           Californian Realtors, etc
         • Offers facilitated
           negotiation, mediation
           and case appraisal
China ODR
• Launched June 2004
• Mainly online disputes,
  especially e-commerce
• Offers negotiation,
  mediation and
  arbitration
• Chinese and English
3. Commercial Disputes
            The Mediation Room
            • Private UK company
              launched in Australia
              in 2003
            • Resolution of mainly
              offline disputes
            • Offers automated
              negotiation, mediation
              and facilitation
ODR Malaysia
• Launched late 2004
• Provides facilitated
  negotiation, mediation,
  arbitration and blind
  bidding
• Online or offline
  disputes
• English language
4. Courts and Justice
            e@dr
            • Launched in 2000
            • Part of Singapore’s
              Small Claims Tribunal
            • Provides mediation
              and arbitration by
              Court Mediators and
              Judge Mediators
            • English language
eCourt
• Part of Federal Court
  of Australia
• Electronic filing and
  payments
• Virtual courtroom
• Case and document
  management
• Videoconferencing
5. ADR Providers
        Philippine ODR
        • Launched late 2004 by
          the Philippine Dispute
          Resolution Center
        • Provides blind bidding,
          mediation, arbitration
          and case appraisal
        • Via web and SMS
        • English language
NSW Retail Tenancies
• Australian state
  government service
• Launched around 2002
• Lodge, pay fees and
  track progress online
• Online discussion with
  advice officer/mediator
• Mediations face-to-face
6. Peace and Conflict
           Info-Share
           • Sri Lankan site
           • Brings the parties to the
             peace process together
           • Uses Groove meeting
             room technology
           • Aims for conflict
             transformation through
             information exchange
CPNN
• Global network of sites
  created by UNESCO
• Chinese, Japanese and
  Australian sites
• Aim is to build a culture
  of peace through
  information exchange
  among citizens
• Online magazine format
     An Assessment

“A glass half empty or half full?”
ADR Practitioners
        • 115 sites
        • Over 1.5 million
          disputes handled
        • High settlement rates
        • Given new field of
          ADR, these are
          substantial (and
          surprising) successes
e-Commerce Perspective
          • Tiny percentage of e-
            commerce disputes
            dealt with by ODR
          • Small compared to
            overall disputes
          • Not the primary
            dispute resolution
            method online
Dispute Resolution Pyramid

             Litigation

               ADR

              Advice

            Negotiation

        Avoidance, Endurance
American Bar Association 2002
•   ODR is still in its infancy
•   Consumers have low awareness of ODR
•   ODR providers find it difficult to generate
    profit on low-value transactions
•   No standards for ODR have yet emerged
•   No ODR trade association has formed
     Reasons for Non-Adoption
1.   ODR doesn’t work
2.   Disputants don’t want ODR
3.   Providers don’t want ODR
4.   Problems with marketing/awareness
5.   Problems with enforcement
       1. ODR Doesn’t Work
Argument:
• Disputes are best settled face to face
• Online communication worsens disputes
• Text can’t convey emotion
Assessment - Not True:
• High settlement rates and user satisfaction
• Lab tests endorse online communication
         Tan, Bretherton & Kennedy (2003)
Distribution of negotiation outcomes across three
             media of communication
                                                   Distributive
  70%
                                                   Integrative
  60%                                              Undecided/Other

  50%

  40%

  30%

  20%

  10%

   0%
        Face-to-Face (N=34)   Online chat (N=34)    E-mail (N=30)
 2. Disputants Don’t Want ODR
Argument:
• Disputants prefer other types of dispute
  resolution
Assessment - Not True:
• Needs assessment reveals high demand
• Studies of user experiences show satisfaction
  with ODR when offered
      Conley Tyler, Bretherton & Bastian (2003)
 Needs Assessment: Department of Justice Victoria

• Extraordinary level of      Wiling to Consider Online
  public interest              ADR - General Dispute

• Consistent in surveys          No
                                28%          Yes
  and focus groups                           72%
• Frequent users and
  banking/auction users
  most likely to consider
• A small group dislike
  online communication
  3. Providers Don’t Want ODR
Argument:
• Resistance to online communication
• Resistance to changes to practices
• Concerns about accreditation and quality
Assessment – Elements of Truth:
• Definite resistance in many quarters
4. Lack of Marketing/Awareness
Argument:
• Disputants don’t have high levels of
  awareness of ODR
• Lack of co-ordinated promotion of ODR
Assessment - True:
• Needs assessment shows low awareness
      5. Lack of Enforceability
Argument:
• Concerns about enforceability make ODR
  unattractive to disputants
Assessment - True:
• Most ODR is either non-binding or
  enforceable as a contract (not as a judgment)
   Potential of ODR

Implications for IT and Dispute
   Resolution Practitioners
       ODR has Implications
• The growth of ODR has implications for
  information management and dispute
  resolution
• IT specialists should be aware of ODR as an
  option for dispute resolution
• ADR practitioners will have to change their:
  – Knowledge
  – Skills
  – Attitudes
            To Learn More
• Participate in www.odr.info discussions
• View the online Cyberweek conference at
  www.odr.info
• Attend the Fourth United Nations Forum on
  ODR held by UNESCAP
• Visit the ODR Library at www.odr.info
  (refer publications on ODR to editors Liz
  Allen or Melissa Conley Tyler)
 Melissa Conley Tyler
Senior Fellow, Faculty of Law
   University of Melbourne
m.conleytyler@unimelb.edu.au

				
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