This workshop followed on from one held at the IGF in Hyderabad in 2008. IGF 2012, outside of this workshop, featured much discussion about the general problem that, whilst the technological barriers are fast coming down leading to increased trade and social interaction across borders, the existing jurisdictional barriers remain fully in place creating significant issues over developing global cultural norms with regard to disputes when they arise. Whilst people who do not wish to resolve their disputes can always hide behind these jurisdictional barriers, ODR at least provides the consensual solutions for the majority of people and organisations who are motivated to resolve their disputes. Since Hyderabad this point has been taken on board by various organisations who have now created their own ODR agendas, including the European Union with its forthcoming Regulation on ODR for consumer disputes (due to be on the statute book by late January 2013) and UNCITRAL (United Nations Commission on International Trade Law), who set up a Working Party on ODR which met for the 5th time in Vienna, in the same week as IGF 2012. The EU had also, since IGF 2008, funded a specific ODR research project (EMCOD) focused on measuring and evaluating the costs and quality of ODR which was published the week after IGF 2012.
This workshop considered numerous issues arising of relevance to ODR, whether as to scope of its application, its forms, standards and challenges and importantly the direction forward and what this means to our more globally connected society.
Graham Ross, commenced the workshop with an update on the above matters for those in the audience unfamiliar with the subject. A timeline was shown covering the first United Nations Economic Commission for Europe's Forum on ODR held in the Palais Des Nations in Geneva in 2002 , and which International Forum has continued to be held every year ever since, most recently in Prague in 2012. It was pointed out that the EU's motivation in encouraging ODR was the fact that the Single Market was not working (people still tended to trade within rather than outside of borders) and ODR was clearly a way to encourage trust in the cross-border marketplace. The EU Regulation on ODR was explained as well as significant last minute amendments, issued in October, to extend the reach of the Regulation to cover domestic transactions as well as claims by traders against consumers. Graham explained the context for the latter extension, which he had argued in support, being the recent growth in consumer reviews of suppliers of products and services. Whilst consumer review was a welcome development, review only sites had sprung up that, together with policies adopted by Google and Amazon to aggregate reviews wherever they find them to use in their assessment metrics for the star rating of vendors, encouraged false and defamatory reviews by competitors or aggrieved persons, that could damage not just individual businesses but the overall reliability of the review industry. Some sites appear to specifically encourage the negative reviews, as the domain name of one of them, www.RipOffReport.com makes clear. The latter effect could lead not to a lowered risk of buying from unreliable traders (the principle objective of reviews) but rather, as less reputable traders would be more likely to exploit the opportunities for false reviews of reputable competing traders, to the opposite effect. Speedy, low cost adjudicated ODR solutions, published alongside reviews, would be one way to balance the justice of the review industry.
By way of continuity with IGF 2008, Hong Xue, Director of Institute for Internet Policy and Law at Beijing Normal University, who had been the Moderator of the ODR Workshop at Hyderabad, spoke about the Chinese Government's Regulations on Internet Retails. Hong chairs the drafting panel. She gave insight into this work and explained that the Regulations are still being reviewed at the State Council and could be issued in 2013.
Colin Rule presented on his work as the Head of ODR at eBay and then PayPal for 10 years, during which time he had helped design, and run processes that handle 60 million disputes a year. One of the most influential people in the development of ODR, Colin explained how he had more recently left eBay/PayPal to form, together with other eBay/PayPal ODR staff, and leading experts in the field, both from academia and the industry, a spin-off called Modria (www.modria.com) which has taken the licence for the eBay ODR software and developed it further on through TFR (Technology Facilitated Resolution). Colin added further to the background of resources that has supported the progression of ODR including the significant work of the National Center for Technology and Dispute Resolution at University of Massachusetts and the annual Cyberweek that was also being held in the same week as IGF 2012. Colin showed the broad range of ODR processes and how they can be adapted to not only reflect traditional ADR processes, whether adjudication arbitration , or mediation, but be made to be more accessible and economic to the varying needs of a global wired society. This can be seen not just in the developed economies but the particular benefits ODR brings to generating trust in traders in developing countries so as to facilitate a more global growth in trade.
Professor John Zeleznikow of the University of Victoria in Melbourne, Australia, spoke about the fact that one of the major concerns raised by people using negotiation processes generally is about the fairness or justice of the process. How would this impact on the design and application of ODR processes? Individuals undertake negotiation to derive better outcomes than would otherwise occur. This requires them to engage in interest-based negotiation. But interest-based negotiation focuses upon the interests of the disputants rather than any objective legal measures of “fairness”. By the notion of fairness we mean “legally just” rather than the more commonly accepted negotiation concept of meeting the interests of all parties equally. One example of the need for focusing upon justices arises in the domain of family law, where parents might focus upon their own desires, rather than the needs of the children. Similarly, in employment law, individual bargaining between employers and employees might lead to basic needs (such as recreation leave and sick leave) being whittled away. It is hence vital to investigate how can we develop measures, or at the very least principles, for the construction of legally just negotiation support systems.?
Professor Zeleznikow then considered and explained a game theory based ODR system he and a colleague had developed, called Asset Divider, which incorporates fairness measures into an integrated bargaining environment.
Dr Alberto Elisavetsky, Professor and Director of the Dispute Resolution Centre Training and Services at the Universidad Tecnologica National-Facultad Regional, Buenos Aires referred to the history of Odr Latinoamerica www.odrlatinoamerica.com , social network that has operated since 2006 ,closing the digital divide by proposing the use of new technologies as a tool to resolve conflicts. Their most recent project is called SIMEDIAR www.simediar.com which provides distance mediation simulations in real time. It is sponsored by 10 Latin America universities, aiming to train conflict operators in the necessary tools and techniques to manage distance mediation rooms in real time. Each university had proposed two students who received 100% scholarships from SIMEDIAR & ODR LATINOAMERICA .Their final essay with their experiences will be compiled into a document to be share with future students.
Irene Sigismondi , Attorney-at-Law and Assistant Professor at the University of Rome spoke about the challenges, as seen from the perspective of the individual, posed by ODR in terms of "law and justice" and the more traditional "landscapes" for civil justice systems. She spoke about the developments in Italy for mandatory court annexed mediation and the court ruling in October declaring it unconstitutional. Irene felt ODR could be looked at , in this context, in an encouraging way in Italy because it allows the parties to set the dispute without the rigid or formal procedures that seemed to encourage the challenge to the court mandated scheme. This underlines the fact that the consensual nature of ODR is possibly its key strength.