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The United Nations held its Third Annual Forum on Online Dispute Resolution in July 2004. For most of us the United Nations is where governments of the world gather in celebration of the art of disagreement. So who are these people lecturing everybody else on resolving disputes? The fact is that the famous building standing isolated on the East side of Manhattan is probably the smallest and most ineffective aspect of that fine organisation. Far more work is done through economic commissions which operate to help the world of commerce, from single owner businesses to corporate giants, to just 'do business' with each other. With the exception of the arms industry, countries that trade together tend not to go to war with each other.
Having said that, the UN recognises that commerce leads to disputes and that disputes, when taken to court, usually destroy the future trading relationship of the parties involved. Thus, systems that help parties to reach solutions unavailable to the courts are to be encouraged, such as commitments to further orders as part of a reduced payment settlement on a dispute over an earlier order. Online ADR can help deliver such solutions.
Another motivation for the UN is that ODR helps emerging economies advance trade with the developed world at a much faster pace than would otherwise be the case. After all, who would want to do business with any of the ten new EC countries if there was a real prospect of having to litigate through their antiquated judicial systems? The Brussels Regulation on Jurisdiction (which invalidates certain contractual jurisdiction clauses) makes that all the more of an issue for consumer transactions since its impact can otherwise only reduce the access of consumers in such countries to the products of the developed world. Why sell a product whose value is so low as to not justify the cost of defending a claim in the buyer's country?
The message for business is that ODR makes sense, not only in expanding the countries with whom one can safely do business, but in reducing the legal and management costs caused by the sheer drain on executive resources and budgets in dealing with court based resolution.
The message for mediators is that they can readily expand their practice by offering mediation to parties at a geographical distance. Even in disputes where a more traditional mediation meeting is useful, ODR deals with the pre-mediation phase, helping the parties to narrow the issues so they make better progress when mediation starts.
The first two UN Forums were held in Geneva and hosted by the United Nations Economic Commission for Europe. This year, the forum moved to the Asia Pacific region and was held at the University of Melbourne Law School in Australia and jointly run by the University's International Conflict Resolution Centre. The Forum was attended by over 250 people travelling from many countries including the USA, UK, China, Malaysia, Holland, India, Egypt, Canada, Singapore, Philippines, Sri Lanka, Ireland and of course, Australia.
The Forum reported that there had been 1.6 million ODR cases completed to date albeit the vast bulk being eBay consumer disputes, of which over 95% were settled directly between the parties, with the balance using Square Trade panel mediators operating via email. There are 82 operating ODR services. Most of these just use email to communicate and there is overlap between platform application providers and mediation /arbitration service providers.
The major study presented to the Forum by the International Conflict Resolution Centre of Melbourne reported 'more than 70% of respondents (in Victoria, Australia) would be willing to consider ODR' and 'The majority of government agencies saw the benefits of online ADR and were interested in introducing some online ADR techniques as an additional service'.
As well as keynote presentations, there were various hands-on workshops of the various systems. My company used the opportunity to demonstrate live the voice conferencing elements now integrated into the application at www.TheMediationRoom.com.
The general consensus of the Forum was that, whilst the 'whites of the eyes' factor is an effective element of F2F mediation, on-line and off-line dispute resolution should not be seen to be in conflict with each other. Rather, ODR is a new and more flexible communication medium that widens the scope of disputes that can benefit from ADR generally and can extend the application of ADR to disputes between parties who are geographically distant or where the subject value is too low to justify the cost of F2F mediation.
Identifying and promoting the advantages of ODR in the running of a business and developing ODR as an integral element in hybrid systems is the way forward likely to lead most quickly to large scale usage.
Note: The audio of all presentations with powerpoints is available at odrforum2004.TheMediationRoom.com.
Graham Ross is a member of the UN Expert Panel on Online Dispute Resolution. He is a solicitor and founder of TheClaimRoom.com (www.TheClaimRoom.com), the company that developed and operates The Mediation Room (www.TheMediationRoom.com). Graham's company is now the ODR provider to Australia's leading ADR service LEADR, and they are running pilots in China and Australia with others scheduled shortly for Malaysia and Sweden.
Email g.ross@TheClaimRoom.com.
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