Why ODR Now by Daniel Rainey

From the Bold Measures in ODR Blog

The NCSC has established a blog to lead up to the International ODR Forum in Williamsburg in October. They have invited everyone to contribute to the blog with short notes and commentary about ODR, and during the run up to the ODR Forum there will be many blog entries, and many topics explored on a variety of subjects related to online dispute resolution. One thing about which I think most of us who deal with ODR would agree is that the idea of, and the reality of, ODR has been expanding rapidly in the last couple of years. Why now?

For the past two decades ODR has been acknowledged as an approach to disputes, but it seems that ODR has in the past year or two been on the tongues of dispute resolvers in just about every mode and venue. It is the classic example of an “overnight success” that is anything but overnight.

ODR’s first blooming began in the 1990’s in e-commerce, addressing the bounded universe of disputes there with algorithms and online work by “real” mediators. What we are seeing now is the blooming of ODR in the courts, for what I suggest are much the same reasons that we saw ODR being developed in e-commerce. The courts offer huge numbers of cases, many of which are bounded by forms, rules, and processes that lend themselves to assistance by algorithm driven ODR platforms. The payoffs in saved time and saved money are also analogous to the payoffs in e-commerce. The promise of those payoffs in the court systems around the world are, I think, driving the emergence of ODR beyond e-commerce. There are two areas in which I still don’t see a lot of progress in ODR.

First, we are not seeing yet the development of a true justice layer for the Internet. In the “real” world we interact in a social layer and a commercial layer, with a justice layer available to resolve disputes created by our social and commercial interactions. That justice layer is driven by venue, standing, and rules that recognize borders. On the internet we have an active social layer (perhaps too active) and a commercial layer, but no real justice layer that operates in the cyber-world we have created with our online social and commercial interactions. The closest we’ve come to a justice layer of the Internet are the private justice systems created by e-commerce platforms, joined and ruled by the the fine print behind the “I Agree” button that we click almost automatically. The court ODR that is being developed is, at least at this point, not revolutionary. Court ODR has, so far, taken the traditional functions and structures of court systems and converted them or adjusted them to the use of online tools. And, significantly, the court ODR platforms are designed to operate within the same venues, and with the same borders, that control non-ODR court processes. The EU has taken small steps to stretch ODR across borders (although the idea of borders in the EU are not, themselves, traditional). But the major attempt to create an agreement about how to handle cross border disputes not managed as a private justice system, the UNCITRAL ODR Working Group, basically failed.

Second, we are not yet seeing ODR platforms in widespread use for sole practitioner dispute resolvers or for small firms and non-profits without the financial resources or the case loads to support large scale ODR platforms. Even though most dispute resolvers are using technology to some degree, it is probably the case that most do not think of their use of mobile phones, document sharing platforms, and, heaven forbid, e-mail, as ODR. The gap in the market seems to be for ODR platforms with secure document handling and storage, designed for dispute resolution, with the ability to communicate, brainstorm, and create agreements that are user friendly and cheap enough to be used by those who are not operating in large e-commerce or court systems.