Online dispute resolution (“ODR”) can occur either in whole or in part online and includes two forms of disputes: those occurring in cyberspace and those arising offline. While Internet usage continues to expand, creating effective methods to settle Internet conflicts has become increasingly important because conventional processes, such as lawsuits, can be time-consuming, costly, and raise legal issues (Goodman, 2012)
On the other hand, offline conflicts can be dealt with using conventional dispute resolution methods augmented by online technology. Although ODR’s available approaches range from negotiation and mediation to modified arbitration to changed jury trials, this iBrief focuses on on online environment negotiation and mediation. In particular, websites that use mediation techniques to help resolve disputes are reviewed and evaluated (Goodman, 2012)
Online mediation, as with traditional mediation, allows the mediator to adapt the process to meet the particular needs of the contestants. In addition to improving some of the benefits of conventional mediation, there are also advantages to resolving disputes over the Internet: “The mechanism would allow for greater flexibility, more creative solutions and faster decision making.” In particular, the benefits of cyber mediation mentioned below include cost savings, accessibility and avoiding complex jurisdictional issues (Kaufmann-Kohler & Schultz, 2004)
In terms of cost savings and convenience, As with traditional mediation, an advantage of Internet mediation is that it can provide substantial savings compared to traditional litigation, which can be extremely expensive. Cyber mediation can potentially be the only feasible option for those who are not able to afford long distances or for those involved in low-dollar e-commerce disputes (Rule, 2003)
With lawyer fees may be the largest expense in traditional law enforcement, or even traditional mediation at times, parties can save a lot in cyber mediation, where hiring a lawyer often is unnecessary. For instance, if the parties are liable and dispute only about the amount of a monetary solution, then all the websites mentioned above may provide appropriate automated cyber mediation for the settlement of their dispute. Furthermore, considerable cost savings can be made because online mediation does not require parties to pay for long distance telephone or teleconferences (Rule, 2003)
The most acknowledged advantage of online mediation is that contestants do not have to travel long distances to negotiate. During a conventional dispute resolution process, at least one of the parties may be forced to travel a lot because online conflicts can occur between persons from far distances, including different countries. As parties may be able to participate from their respective location or residence in cyber mediation, this can lead to lower costs and lower expenses. Neutral mediation facilities are not needed for rent, and relevant documents and materials are readily available and do not require large distances to be transported (Goodman, 2012)
The asynchronous existence of email communications also has several advantages. Messages are not broadcast live but can be recorded and eventually distributed. As it is possible to write, post and respond to mails, servers and web post at any time, it is much more convenient to participate in cyber mediation. In conventional mediation there are few scheduling problems where time and place for meetings are required (Goodman, 2012)
Parties can participate in the negotiations at convenient times when they are ready. Without affecting the flow of the mediation, the mediator can caucus with either or both parties privately. In contrast to the traditional mediation, the mediator is able to spend time in one party without wasting the time of the other party, who traditionally would sit waiting for the next stage of mediation (Goodman, 2012)
Jim Melamed once said that the advantages of asynchrony are well known to experienced mediators. That’s a big part of why many mediators ‘ caucus’ with participants (meet separately). Mediators want to slow down the process and help participants to make their contribution more capable. It is at the heart of the conference to slow down the process and allow participants to securely formulate their contributions. Certainly, the Internet works like a single party caucus extension and is extremely convenient and affordable. It takes less time to view Internet communications and customers do not hear the fee meter click. The ‘ non-caucus ‘ participant does not have to wait for him or her in the library to read or be reluctant to be ignored in the caucus. When the internet is used to caucus (Goodman, 2012)
More reflective and informed comments can also be argued from the parties ‘ ability to edit messages before submitting them: “Asynchronous Internet communication has the advantage that’ measure ‘ communications are edited in comparison to’ only’ (often impulsive) responses that can take place in face-to-face real-time mediation discussions.” Therefore, disputants should proceed directly to discuss dispute settlement instead of waiting for long periods to go to court (Rule, 2003)
The main advantage of resolving conflicts by using cyber-mediation is that it avoids whether the dispute has jurisdiction in a particular court. Since disputants can be bound by a settlement, legal questions can be avoided entirely (Rule, 2003)
What benefits does online dispute resolution offer a business/organization?
ODR offers disputants the opportunity to use both synchronous and asynchronous media. For example, the disputants can use online messaging or video lecturing devices in a synchronous environment that bring geographically distant contentious parties into cyberspace, so that the contact can be kept alive and in real time. Disputants use the delayed method of communication in an asynchronous model, for instance protected email systems. ODR’s ability to provide asynchronous contact is the most distinctive attribute of ADR.
Conley Tyler and Bretherton (2003) point out that most agencies like newsletters prefer tools that are asynchronous. Instead of face-to-face sessions, the asynchronous nature of ODR prevents the dispute resolution process from taking place in real time through communication methods such as emails and online discussion mechanisms. Solovay, and Reed (2003) suggest that the outcomes are more efficient and the material more reflectorily, more hostilely, and even more egalitarian, of such asynchronous contact.
Rule (2002) claims that ODR provides numerous advantages that boost ADR. Although the online arbitration system is useful, it is particularly useful when negotiating and mediating. The reframing of Pre-communications is one such example. It is an essential element of a dispute to be resolved to enable parties to structure their communications in a way that enables them to explain their views more effectively to their opponents. As part of the simultaneous caucusing process Rule (2002) states that some mediators refuse to engage in caucus-based sessions with individual parties, but others rely heavily on it.
When pushing parties towards resolution, the ability to discuss conflicts with one side confidentially can be extremely valuable. In addition, Rule (2002) argues that caucusing can be a tool for face-to-face mediation but usually the mediator needs to stop the joint debate then deciding which of the parties should be the caucus first. Rule (2002) The other party is then sent out to wait for the mediator’s first caucus. Online resolution of disputes allows the mediator, even in progress, to caucus through the entire conciliation (Rule 2002).
Cost, speed and convenience issues will most likely affect the choice of ODRs as a dispute resolution process. ODR is also useful for emotional contendients. Asynchronous communication helps them to refresh and remove physical confrontation.
Disputers can reach a resolution even if they are located on different continents. Online dispute resolution is not geographically linked. ODR can resolve issues before they escalate, allowing contendients to settle the matter quickly and return to business. ODR is not tied to specific legal bodies, so that the legal structure of the other side of the country is not sufficient to maintain costly legal counsel on both sides.
Such incentives are available to all kinds of conflicts. The ODR’s power is in keeping with intellectual property disputes, insurance claims, and eCommerce B2B and B2C. Many conflicts involve more abstract money-free problems, such as privacy or the conflict on the workplace. For starters, when the ICANN decided to build a globalized mechanism to deal with domain name disputes, it faced monumental problems.
A main purpose of the statute is to ensure that the conflict is avoided (Zeleznikow, 2002). Katsh et al (2000) indicate that many corporations and individuals prefer alternative legal settlements to litigation. As a method and procedure, the use of ICT is still in its early stages of development in the sense of dispute resolution, (Clark & Hoyle, 2002), though some mechanisms for commercial dispute settlement have been used over recent years. In 2003 over 200 000 disputes were settled over the majority of successful commercial ODR services in the field of Business to Consumer (B2C) or Consumers to Consumers (C2C) relationships such as the aforementioned ODR service SquareTrade, which manages C2C disputes primarily originating from the eBay online auction platform. ADR support was used to provide expert systems and artificial intelligence. New negotiation support systems with powerful optimization algorithms and enhanced by maturing cyberspace now offer a real alternative. It reduces the time and expense of negotiation through the process of bringing decision makers in charge, easily clarifying trade offs, understanding the satisfaction of stakeholders with all types of problems in negotiations and finding the best possible options (Thiessen & McMahon, 2000). Zeleznikow (2003) argues that most successful business systems of legal support for decisions have used regulatory systems.
Since computer systems can evaluate and compare much more options than the human brain can manage, they can help disputers optimize the outcomes for both sides, not only finding a win – win solution, but an optimal solution. Another major innovation online is blind bidding, a computer-aided process that usually involves submitted secret offers by the parties. Where the offers come within a predefined dollar or percentage value, the median sum shall be agreed and the parties shall be told. The parties have lost nothing if the case does not settle because their proposals are not shown on the other side.
Zeleznikow (2002) addresses the prospect of enhancing access to justice through the provision of web-based legal decision support. Issues such as communication safety, confidentiality, impartiality, conflict of interest, ODR policy, educational and education requirements, linguistic and cultural abilities, and proper representation on ODR service providers need to be fully addressed and applied before ODR use is widely used.
What obstacles may be encountered when utilising online dispute resolution? How might various parties overcome these?
The opportunity of face-to-face meetings to encourage critical mediation process principles is no substitute for electronic communication. Despite the above-mentioned benefits, cyber-mediation has also several disadvantages over traditional mediation. As Joel Eiser points out, mediation activity in the online environment can not be easily replicated because cyberspace is not a’ mirror image’ of the physical world (Eisen, 1998)
In terms of limited range of disputes the chosen method of cyber mediation has some drawbacks. Of example, fully automated cyber mediation can be used only to address some forms of disputes and may even be used in disputes only where the only unresolved issue is the amount of settlement. In fact, in order to ensure that full automated cyber mediation works correctly, the parties appear to have to enter into initial discussions, agree on the fundamental facts of the dispute and determine that one of the parties is responsible for damages (Solovay & Reed, 2003)
It would then seem that the parties had decided to restrict all debates to the single question of an appropriate amount of monetary compensation. Limitation of the final negotiation stage in order to decide the dollar payout figure appears to leave the possibility of creative, out – of-the-box negotiations which are a hallmark of many successful negotiations (Goodman, 2012)
In terms of impersonality the mediation is almost universally accepted when the parties to the conflict are physical before the mediator. As Joel Eisen maintains, the main paradox of online mediation is that it imposes an electronic distance on the parties, while mediation usually involve participants in direct interpersonal contacts in an oral form of conflict resolution. Mediation usually involves an open, face-to-face exchange of participants ‘ questions (Goodman, 2012)
Many mediators find it important if not necessary to create an atmosphere in which the parties trust the mediator to assist them in resolving their dispute. For example, it is considered important to assist parties in listening and understanding, empathizing, accessing and addressing emotions. Mediating is the’ remembrance’ of feelings and emotions for many people, which they can not convey in a more formal setting, like a court room. To mediator participants, it can be cathartic to inform the opposing party specifically and to convey corresponding emotions. Cyber-mediation, however, does not take place with face-to-face communication at a distance and in front of computer screens, but loses the dynamics of traditional mediation. For instance, replacing email with dialog makes it difficult for mediation to give any weight to emotion (Solovay & Reed, 2003)
In Internet disputes, there is a considerable distance between the parties psychologically and major obstacles to the development of an open dialogue: typically there is no previous connection or personal contact between the parties, they usually do not have an ongoing relation or hope of any future relationship (most frequently, cyber-contentious arguments invoke) (Goodman, 2012)
Hence, a lack of established relationships or personal connections directly challenges the efficiency of Internet mediation. Moreover, online communications do not express the participants ‘ variable tone, size and volume and do not convey personalities or physical evidence. Oral expressions of feelings have a rich and meaningful environment in a face-to-face environment than written e-mail exchange expressions. In this way, the flexibility or strength of the feelings of the party or the trust of a particular issue can be more difficult to evaluate (Goodman, 2012)
Some authors argue that the failure to maintain personal control of negotiating parties in cyber mediation may make it harder for the mediator. The online environment, at least the e-mail environment, makes it difficult for the mediator, without sounding control and judgment, to manage or temper the tone of interaction. At least at the beginning, the mediator is an incarnate voice and can not use his own physical’ personality’ to facilitate the parties and create an environment for a sustainable problem resolution. In addition, the mediation officer is struggling to use implicit signs of body-language, facial expression and verbal tonality which are part of the face-to-face mediation phase without the physical presence of the disputants (Goodman, 2012)
Eisen concludes that the mediators, given the profession’s current orientation towards listening and the processing of oral information, find it largely impossible to translate their skills into the online set up. Beal explained that it restricts the mediator’s ability to express “serious behaviour, professional presentation, occasional humour, and simple charisma.”
In terms of inaccessibility, Some individuals, in particular people involved in disputes arising from off-line transactions, may have difficulty accessing online computers. The length of Internet access it takes to resolve a dispute can, for those who have limited access or who find this uncomfortable and uncomfortable, be problematic as well (which may vary from hours to days or weeks). It could also be disadvantageous for the less well-known or incapable of detailed written communications with computers and their use. However, even if cyber mediation may be one of the cheapest approaches to dispute resolution, many people engaging in e-commerce conflicts may still be beyond reach with a relatively small charge. Because online disputes usually involve small sums of money, the cost of cybermediation is important (Solovay & Reed, 2003)
For example, SettlementOnline involves the payment of $300 ($150 for each reimbursement settled, an additional $150 is owed from the reimbursement amount). Based on the amount of the settlement, the CyberSettle offers flat fees, which vary by $100 for settlement under $5000 (Clark & Hoyle, 2002)
Fees are usually taken out of the settlement sum for CyberSettle services, although insurance carriers are required to pay $150 additional in the filing and committing fees. Therefore, a party may not be prepared to pay a third of a possible mediation service for conflicts of a few hundred dollars to resolve the dispute. Consequently, if there is little or no charge, the effectiveness of such mechanisms for resolving online disputes must be questioned. Because of the current fees paid by those websites, cyber agreements are probably out of reach for many Internet disputes.
In terms of confidentiality concern, information security in the ODR was discussed by Katsch. In the absence of a tangible record, conventional mediation produces an electronic record. It could allow a party to easily print and distribute e-mail communications without the other party’s knowledge. This can hinder open and honest cyber mediation exchanges (Clark & Hoyle, 2002)
Clark, E., & Hoyle, A. (2002). Online Dispute Resolution: Present Realities, Pressing Problems and Future Prospects. International Review of Law, Computers & Technology, 17(1), 7-25. doi:10.1080/1360086032000063084
Eisen, J. B. (1998). Are We Ready for Mediation in Cyberspace?
Goodman, J. W. (2012). THE PROS AND CONS OF ONLINE DISPUTE RESOLUTION: AN ASSESSMENT OF CYBER-MEDIATION WEBSITES. Retrieved from https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr
Kaufmann-Kohler, G., & Schultz, T. (2004). Online Dispute Resolution: Challenges for Contemporary Justice. Kluwer Law International B.V.
Rule, C. (2002). Online Dispute Resolution for Business. San Francisco, CA.
Rule, C. (2003). Online Dispute Resolution For Business: B2B, ECommerce, Consumer, Employment, Insurance, and other Commercial Conflicts. Hoboken, NJ: John Wiley & Sons.
Solovay, N., & Reed, C. K. (2003). The Internet and Dispute Resolution: Untangling the Web. NJ: Law Journal Press.
Thiessen, E. M., & Mcmohan, J. P. (2000). ‘Beyond Win-Win in Cyberspace. OH: One Accord Publication.
Tyler, C., & Bredthoren, M. (2003, March 21). Into Online Alternative Dispute Resolution- Exploration Report Prepared for the Department of JusticeVictoria, 21 March 2003. Retrieved from http://www.psych.unimelb.edu.au/icrc/exploration.pdf
Zeleznikow, J. (2002). Using Web-based Legal Decision Support Systems to Improve Access to Justice. Information & Communications Technology Law, 11(1), 15-33. doi:10.1080/13600830220133530