The Alternative Dispute Resolution Revolution: When ADR meets IT
di Maria Laura Izzo
The use of On-line dispute resolution (ODR) has today the connotation of robotized justice. However, the reality of facts is very different. This article explains how ODR maximises the human intervention and the global access to justice thanks to the use of Information Technology.
1. What is Alternative Dispute Resolution?
Alternative dispute resolution (ADR) refers to a set of practices and techniques aimed at permitting the resolution of legal disputes outside public courts in a fast, effective and efficient way. It encompasses mediation, arbitration and other “hybrid” processes which facilitate the resolution of conflicts without a formal judicial adjudication.
ADR is today commonly used in several fields such as commercial law, employment, domestic relations, labour law, international private law, public disputes and many other areas.
The success of such alternative methods depends on the fact that they offer many advantages over litigations; they are usually cheaper, faster, more flexible and confidential. While going to court can be very expensive, with cases that can stretch on for months or even years, ADR instead is meant to be a tool to help to expedite the process and lower the costs.
However, ADR, and specially arbitration, is not matching the initial expectations. Cases became longer and more expensive due to the increased value of the disputes, the participation of prominent law firms and of arbitrators with very busy schedules. Costs increased also because of the transnational character of the disputes which requires a large amount of money to be spent to translate documentation, to travel to multiple locations, to hire local counsels and so on. These factors made ADR losing some of the advantages it seemed to have on court litigation. Information Technology (IT) however, has the capacity to improve the efficiency of ADR and to respond to a need for a more instantaneous and accessible justice.
2. On-Line Dispute Resolution
On-line dispute resolution mechanism (ODR) is a procedure characterised by the use of IT to solve legal disputes between parties. ODR has come to light as an adaptation of the ADR process, with the emergence of the virtual society, for disputes arose from online commerce. ODR is today successful in small claims disputes (examples are given by the Ebay and Paypal’s resolution portals) and is gaining acceptance from governments and institutions.
As confirmation of this universal trend, lately the EU Commission created an ODR platform to allow consumers and traders in EU, or Norway, Iceland and Liechtenstein to resolve disputes relating to online purchases of goods and services. The platform is not linked to any trader, is an impartial organisation of individuals which helps consumers and traders to reach an out-of-court settlement.
The use of ODR brings consistent and undeniable advantages. Through the transfer of the proceeding to an online platform, ODR has the potential to streamline the dispute resolution process, saving time and costs and ultimately improving the quality of the process.
- Access to Justice
The adoption of ODR can guarantee the access to justice to disadvantaged groups of people which face barriers such as “geographical isolation; mobility impairment; confinement or imprisonment; sight or hearing impairment; language difficulties; lack of confidence or competence in face to face communication; and physical violence or intimidation”. Thus, ODR becomes more affordable for citizens regardless their means and more accessible especially for citizens with physical disabilities, for whom attendance in court is difficult or impossible.
ODR minimizes the period of uncertainty of unresolved problem and makes the legal proceeding more intelligible to the non-lawyers. In this way parties as “users” become more confident and feel comfortable in representing themselves in small claims without feeling disadvantaged in doing so.
- Speed, flexibility and costs saving
An electronic hearing (e-hearing) is up to 25 percent quicker than a traditional one. Documents are managed in a smoother way; everyone is presented with the same material simultaneously, concentration level is kept higher, delays and disruptions caused by the circulation of documents contained in hard copy bundles, are eliminated.
ODR gives the possibility to attend hearings from anywhere, guaranteeing flexibility; thus parties, counsels, witnesses, experts and/or the tribunal could be located in multiple locations. This represents a huge advantage considering that today commercial disputes are frequently cross-border. In these situation ODR can reduce or eliminate the additional cost and inconvenience of unnecessary travel. Another advantage for lawyers, arbitrators and experts is that they would not be forced to carry big bundles or risk not having to hand the right document when needed. Documents uploaded on-line platforms can be accessed by anywhere.
With the advances in virtual reality technology, it is foreseeable that in the near future participants could all come together in a virtual hearing room.
Momentum for ODR is now. Technology became more user-friendly while lawyers and arbitrators are themselves increasingly technologically-savvy. There is less fear for the involvement of technology in dispute resolution. Most modern arbitral institutions or venues offer technologically sophisticated hearing rooms.
However, the path for a definitive acceptance of ODR as a valid alternative dispute resolution mechanism, is still long and impervious. There are questions which still do not find definitive answers such as the buying and selling of platforms and their ownership (by courts or independent contractors). Other problems are caused by lack of preparation of the legal framework. For instance, civil procedures talk about documents and assume oral or mail communications. Thus, there is a need for redesign court procedures from a user-perspective.
On the basis of the above consideration, ODR represents a very efficient tool to guarantee a major access to justice in a globalized and technological era.
Even if ODR has the connotation of robotised justice, in which human intervention is minimized, the reality of online legal services is the opposite. ODR is not much online judge or lawyer but it represents a sophisticated version of legal proceedings which is more appropriate for the internet generation and an increasingly online society in which so much activity is conducted electronically. ODR instead brings the human intervention into its processes to a higher level.
http://www.nortonrosefulbright.com/knowledge/publications/157157/online-dispute-resolution-and-electronic-hearings http://www.kluwerlawonline.com/abstract.php?id=JOIA2008025 https://resolutioncentre.ebay.co.uk/ https://www.paypal.com/uk/webapps/mpp/first-dispute https://ec.europa.eu/consumers/odr/main/?event=main.home.howitworks#heading-1 http://www.hiil.org/insight/odr-and-the-courts NADRAC, Dispute Resolution and Information Technology Principles for Good Practice (Draft) (March 2002). See also Christine Coumarelos et al., Legal Australia-Wide Survey: Legal Need in Australia (Law and Justice Foundation of NSW, 2012) 37-38 (discussing barriers to accessing legal advice). http://www.hiil.org/insight/odr-and-the-courts