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Political Sciences and Public Law Department School of Law Universitat Autònoma de Barcelona 08193 Bellaterra, Spain Front page image by Bernard Rose. The image is licensed under the terms of the Creative Commons Attribution-No Derivative Works 2.0 (cc-by-nd-2.0.). The 6th International Workshop on Online Dispute Resolution (ODR Workshop 2010) was held in conjunction with the 23rd International Conference on Legal Knowledge and Information Systems (Jurix Conference 2010) on December 15th, 2010. The workshop follows previous International Workshops on Online Dispute Resolution held in Edinburgh (2003), Bologna (2005), Brussels (2006), Palo Alto (2007), and Firenze (2008).
Online Dispute Resolution (ODR) continues to be a fertile domain breeding new approaches on how to manage disputes online. As in the previous five editions of the Workshop, the 6th International ODR Workshop aimed at offering a forum for the exchange of ideas and projects between people with different backgrounds, such as researchers in the fields of ADR/ODR, law, argumentation, negotiation and AI & Law as well as providers of ODR-services, practitioners, justice experts and others.
This year eight papers—six full papers and two short papers—have been accepted coming from Australia, Germany, Portugal, Switzerland, England, and Spain. We thank the authors for choosing the ODR 2010 Workshop to disseminate their latest research activities and for their timely work. And we also thank the 2010 Jurix Conference organization committee and the sponsors for their support in making this event possible.
• • •
Program Committee • • • • • • • • • • • • • • •
Jeff Aresty, The Internet Bar Organization Emilia Bellucci, School of Management and Information Systems, Victoria University, Melbourne, Australia Pompeu Casanovas, Institute of Law and Technology, Autonomous University of Barcelona Ethan Katsh, National Center for Technology and Dispute Resolution, University of Massachusetts, Amherst, USA Arno R. Lodder, Centre for Electronic Dispute Resolution, VU University Amsterdam, The Netherlands Orna Rabinovich Einy, Haifa Center of Law & Technology Laurens Mommers, Law School, University of Leiden Pablo Noriega, Artificial Intelligence Research Institute, CSIC, Spain Marta Poblet, Universitat Autònoma de Barcelona, Spain Colin Rule, ODR at eBay, San Jose, USA Uri Schild, Bar Ilan University, Israel Douglas N. Walton - University of Windsor, Canada Barbara Madonik, Unicom Communication Consultants Inc. John Zeleznikow, Victoria University, Australia
Online Dispute Resolution in 2010: a Cyberspace Odyssey? Josep Suquet, Marta Poblet, Pablo Noriega, Sílvia Gabarró……….......1 An OWL Ontology and Bayesian Network to Support Legal Reasoning in the Owners Corporation Domain Peter Condliffe, Brooke Abrahams, John Zeleznikow …………….….. 51 Providing Relevant Knowledge in Disputes: UMCourt Project Davide Carneiro, Ângelo Costa, Paulo Novais, Francisco Andrade, José Neves……………………………….………………………………….. 63
Trust Online: How to Adapt Mediation and Negotiation Techniques to the Virtual Environment Graham Ross………………………………………………………...… 79 Online Arbitration definition and its distinctive features Farzaneh Badiei……………………………………………………..… 87
1 UAB Institute of Law and Technology UAB Campus, B Building, Faculty of Law
08193 Bellaterra, Spain 2 Artificial Intelligence Research Institute (IIIA-CSIC)
UAB Campus 08193 Bellaterra, Spain {Josep.Suquet, Marta.Poblet, Silvia.Gabarro}@uab.cat
{pablo@iiia.csic.es}
Abstract. This paper presents some results of a research on Online Dispute
Resolution (ODR) and mediation online that was undertaken for the White
Book on Mediation in Catalonia. The research shows the state of the art of
ODR today. It presents the technologies, processes and products currently
existing in the global market. A survey of 34 ODR providers is presented with
information on service models, communication types, functionalities, ADR
services and other off-ADR services such as seals of quality or formation
activities. The survey shows that in most ODR services, IT is not fully
employed and web 2.0/web 3.0 tools are barely used at all. Consequently, ODR
systems do not yet benefit from the opportunities these technologies could
provide. Our survey also shows that there are less active ODR services
providers today than only a few years ago.
1 Introduction
This paper aims at presenting some of the results of the research undertaken by the
Technological Group in ODR and online mediation within the framework of the
White Book on Mediation in Catalonia. The research shows, on the one hand, the
technologies, processes and products currently existing in the area of the Online
Dispute Resolution (ODR) and, on the other, it analyses the uses of technology of
mediation services providers in Catalonia as well as their needs. This paper deals only
with the former subject.1
1 The referred chapter of the White Book is titled Technologies for online mediation, State of
the Art, Uses and Proposals .[
The research was carried out through 2009 and finished on May 2010. This
included an ethnographic and online research with interviews and electronic mail
communications with experts on the field. We also took into account former studies
and surveys on the topic such as those of Conley Tyler (2003, 2004) and, more
recently, the European Centre of Standardization. [
Concept of ODR.
A flexible notion of Online Dispute Resolution (ODR) is adopted according to which ODR is considered as any ADR mechanism in which technology plays a considerable part. The “considerable part” element may be fulfilled when there is something more than a mere electronic application form or an email communication. However, this does not imply that all communications must be done online.
We have excluded from the survey the following: i) Internal complain management systems (ICM) that do not include any ADR mechanism. ii) Domain Name dispute resolution systems. iii) Systems used in the area of negotiation (such as Negoisst or Inspire). iv) IT applied to Court systems (Cybercourts).
We have considered as ODR mechanisms the following: assisted negotiation, automatic negotiation, mediation, arbitration, adjudication, recommendation and initial neutral evaluation, premediation services and other hybrid services such as those of med-arb procedures, dispute avoidance and early resolution or trial preparation. We have also included off-ADR services that in some occasions are provided by ODR providers. Basically, these include the provision of seals of quality, the setting of standards of conduct, some formation activities, the provision of watch lists, the provision of psychometrics profiles of help to mediators, the provision of lists of mediators, etc. It must be noted that these off-ODR services may give a stronger position to the ODR provider in the globalised “market of conflicts.”2 1.2
Table of ODR providers: considerations.
The research outcome shows a table of 34 ODR services providers that may be consulted below. This reflects the panorama in the international market.
The ODR providers are displayed within the rows. The columns identify several characteristics of them, basically being: ownership, country of activity, web site and the domain of application. Moreover, we include mechanisms of ODR, off-ADR services, communication methods (synchronous and asynchronous), negotiation automation and ODR service models. We have classified the scope of application of these services according to the following categories: electronic commerce (B2C, B2B, C2C), Privacy, Intellectual Property and Generic.
The technological functionalities referred to are: i) Automated flow monitoring: It
monitors the sequence of the process, the times and the participation of parts. ii)
Registry of cases. It makes a transcription in digital format of the case in order to be
usable in a later time. iii) Structured forms: The information inherent of the process
2 This term is used by K.P. Berger.[
As regards negotiation automation processes, we have identified the presence of two types of algorithms. First, the results optimization algorithms mean those algorithms that select the best of among the solutions that are acceptable for each party. Second, according to the offer/counter-offer algorithms, each delivery makes a proposal in a confidential way and if the offers coincide in a determinate threshold, the algorithm chooses the half point as the best solution. If the offers are not compatible new confidential proposals are asked again and the cycle a finite number is repeated.
Finally, and regarding the degree of technology sophistication, we have established
the following models: i) ODR of basic technology: it integrates easily disposable
components into the market (electronic mail, voice over IP, etc). ii) Owner of ODR
technology: the entity uses computer technology that has been developed from this
entity. iii) Licensor of ODR technology: the provider licenses ODR technology to
entities employing it for dispute resolution activities and allowing this licensee to
adapt it to its interests and brand. iv) SAAS provider (software as a Service): it offers
web platform services but the administration of the cases is carried out by another
supplier.
1.3 Research results
The short history of ODR in its fifteen years of existence is far from stable. Conley
Tyler [
Several factors of the research we have undertaken may provide some light as to where ODR is today and more important, where is it heading to. Further to the sharp decline in the number of ODR providers, these may include other aspects such as their location in the globalised world, the different type of services offered and the mechanisms employed, the different IT tools used as well as the lack of interoperability services or the lack of web 2.0, web 3.0 and mobile web tools; even the role of private and public entities in the ODR world.
As it can be seen from the table bellow, the localization of these ODR providers is overall situated in EEEU (17 providers) and Europe (14) with 2 services situated in Asia (ODR India and ODR China, both owned by the generic ODR World) and Oceania (Asset Divider and Family Winner, both being a project from Victoria University and employing negotiation decision support services- NDSS). We have identified one mechanism situated in Argentina, South America even if it is also located in Spain (Mediar Online).3
More than 65% of these have a generic domain of scope whereas only two
deal with privacy (Mediateur du Net and Trustee) and one covers intellectual property
controversies (WIPO Arbitration and Mediation Centre). 26% of these ODR providers
(9 of them) deal with electronic transactions, the majority of which covers B2C
disputes. The latter aspect may be due to lack of trust of companies to ODR systems.
In fact, some ODR providers informed us that in general companies are not as willing
as consumers to enter into these systems and some might even not know of their
existence. [
As regards the mechanisms employed, mediation is the mechanism more
used with 74% of ODR providers using it. This is followed by arbitration with more
than 40%. This may be of importance since former surveys indicated that both
mediation and arbitration were used quite similarly in comparative terms. [
Only 9 institutions offer assisted negotiation and the other mechanisms are less implemented. It may be noted that some of these entitle users to choose the mechanism they prefer. Moreover, we have come across some mechanisms where a three-step process is employed, e.g, ECODIR where it uses a negotiation phase, and if parties are not able to solve their problem, it delivers to a mediation phase and if neither parties succeed a third independent party issues a recommendation that solves the problem (recommendation phase). The use of hybrid mechanisms is of no significance: The Electronic Courthouse is the only one that offers Med-Arb services.
As regards the communication method, the use of asynchronous mechanisms (such
as forums or email communications) is predominant. A 42% of ODR services employ
this method exclusively whereas only a 10% of those only employ synchronous
communication types (such as videoconference or chats). However, almost a 48% of
3 Please note that since some ODR providers have simultaneous locations we have included
both of them in its territorial domain.
cases employ both communication methods. This may combine the benefices of both.
Further than this, ODR providers do not employ tools from the web 2.0. There are no
cases of Twitter, Wikis, Facebook or Flickr to name some of the best well-known
examples of the web 2.0 in those systems. Furthermore, they do not employ tools
from the semantic web or web 3.0. Again, we regret a lack of IT interoperability
among ODR services. This is true since, further to the concerns expressed by the
European Centre of Standardization [
As regards the service models of ODR, it is noteworthy to state that more than half of them own the technology employed. This may be because it better adapts to the mechanism employed as well as to the needs of the parties. The second more widespread model is ODR of basic technology, since the fact that, as it takes tools that already exist, this reduces costs for the institution. On the other hand, this implies that the institution has to adapt to the current available technology. The number of licensors of ODR technology and SAAS suppliers is similar (6 and 5 institutions respectively). The licensor may design ODR software according to the licensee brand and therefore, institutions such as Her Majesty's Court Service HMCS employ these systems apparently as if it was theirs’.4 The latter entitles a third party to use the provider's online facilities on the pay-for-use basis. Yet, it seems that both licensors and SAAS suppliers will continue being minority groups as long as the culture of ODR is not more widespread and more professionals require these services. 4
In this case, The Mediation http://v2.theclaimroom.com/index.lxp?host=294.
Room is the licensor.
The world of ODR is a changing and uncertain world. According to the survey undertook within the framework of the White Book in Mediation in Catalonia, the technological chapter of this has showed that today there are less than 30% of those ODR service providers existing only five or six years ago. The survey has been coherent with the ODR concept employed and therefore it has excluded systems which fall outside this and which have been taken into account in former surveys (e.g., internal complaint systems).
The fall of the number of bodies providing ODR services may also be understood
as for other factors, external to the scope of study. After ODR pilot projects burst
around the turn of the millennium, the private sector has been unable to meet new
entrepreneurial gains from ODR. It seems clear that many initiatives collapsed
because of financial problems. Only a few pilot projects developed into private, for
profit organizations and again, only a few of them remained into the market of
conflicts. In 2010, financing ODR bodies remains one of the key issues in ODR,
particularly for its neutrality and impartiality requirements. [
What it may be intuited is that ODR initiatives should gain strength in order to position themselves in the globalised market of conflicts. Perhaps, this could be accomplished with the provision of ODR mechanisms used in conjunction with other off-ODR systems. Again, this is particularly important in the consumer domain where ODR services may be an item to add to seals of quality, codes of conduct, formation activities, or publicizing activities. In a way, it recalls some of the notions promoted within the e-commerce Directive as regards self-regulation entities. From our survey, it can be noted that those entities providing these kind of off-ODR services enjoy a certain stable position in their territorial market of reference. This is the case with Confianza Online in Spain but also with Better Business Bureau in the EEUU and Canada providing seals of quality to B2C activities or Trustee, also in the EEUU, providing a seal of quality regarding privacy activities.
B2C disputes seem to be some of the most employed controversies in ODR systems as we have seen in our research. It may be noted that consumers take the most of these systems since they are far better off with inexpensive services as compared with businesses. Yet, it seems that companies are not fully devoted to ODR and they may even be opposite to such systems. Bodies are mostly located in the United States as well as in Europe whereas other continents lay far behind. Furthermore, mediation is the service most commonly used (70%) followed by arbitration (40%).
According to our survey, the use of IT in ODR systems is not fully exploited. Basically, most of the bodies employ owned IT software although some of them use what we have referred to as basic ODR technology. The communication type preferably used is asynchronous such as emails, or forums. Videoconference and other synchronous communication types are less used. However, almost 50% of these systems rely on both communication types. Well known examples of entities using both types of communicate encompass The Mediation Room, National Arbitration Forum, National Arbitration and Mediation or Smartsettle.
However, ODR platforms do not take into account the different tools that the web
2.0 enables. ODR providers do not base their services in cutting-edge technology and
it appears that ODR entrepreneurs may not see the need for losing time and resources
to adapt platforms to the standards of web 2.0. [
The research presented in this paper has been developed within the framework of three different projects: (i) the White Book on Mediation in Catalonia (Government of Catalonia, Department of Justice); (ii) ONTOMEDIA: Platform of Web Services for Online Mediation, Spanish Ministry of Industry, Tourism and Commerce (Plan AVANZA I+D, TSI-020501-2008, 2008-2010); (iii) ONTOMEDIA: Semantic Web, Ontologies and ODR: Platform of Web Services for Online Mediation (2009-2011), Spanish Ministry of Science and Innovation (CSO-2008-05536-SOCI).
Sílvia Gabarró
UAB Institute of Law and Technology UAB Campus, B Building, Faculty of Law 08193 Bellaterra, Spain
Silvia.Gabarro@uab.cat Abstract. This paper aims at monitoring the evolution of three European ODR providers that were studied in our previous paper “Mediation for B2C Disputes: Results of a Study of Three European ODR Providers”. We focus on quantitative data such as the number of disputes managed, their type and their nature for 2007, 2008 and 2009 to see if any development has taken place. The question of whether the world financial crisis has affected these institutions and some facts in this respect are presented, as well as other issues such as the specialization of the organisation for the success of the service. Finally, future European and worldwide challenges are mentioned with regard to online dispute resolution (ODR) evolution.
Online dispute resolution (ODR) is a branch of dispute resolution which uses
technology to facilitate the resolution of disputes between parties. It provides a faster
and cheaper way to get disputes solved than ordinary litigation, as well as it relieves
courts and administrations. ODR may be used in different fields where technology
helps the parties to reach an agreement, for instance e-commerce. This method was
born in North America around twenty years ago and, during its history, several
projects, commercial initiatives and others have taken place. As Conley Tyler stated
in [
Taking these four stages as starting point, this paper aims at monitoring the
evolution of three European ODR providers which appeared at the end of the
entrepreneurial phase and during the institutional phase. RisolviOnline (2002),
1 Further information on the different phases can be found in [
The paper is organized as follows: section 2 briefly describes the three providers; section 3 gathers all the data found in the institutions’ websites focusing the attention on the number of cases per year, the type of cases and the nature of the disputes; and section 4 presents a set of conclusions and issues for further research. 2
This section explains shortly the main features of the three ODR providers which will
be analyzed. The three institutions were chosen because (i) they only offer online
mediation and no other ODR mechanism is used; (ii) they are owners of ODR
technology [
At this point, the worker has all the main information that he/she may need in order to make rational decisions throughout the dispute resolution process. It is possible to use a visual tool to represent all this information in a single and intuitive graphic that the party can consult. In Figure 2 a graphic for a fictitious case is presented. Each dot represents a case, with an associated value of similarity and an utility value, which represents the indemnity that the worker will receive. The case with the highest value of similarity is the MLATNA and tells the worker the most likely outcome if he decides to go into a court. The positions of the BATNA and WATNA are also represented, depicting the best and worst possible scenarios. The dashed line is given by a 3rd degree polynomial function and represents an overall view of similarity versus utility. Looking at this line, the worker can conclude that, if he goes into a litigation process, according to the known cases, the indemnity will most likely be between a value of 500 and 650. Fig. 2. Graphical representation of all the information compiled by UMCourt.
Combining cases with rules, it was possible to develop a methodology that
compiles all the important information at the outset of the dispute resolution process.
This will, in a first moment, help the disputant party decide if he/she should advance
into litigation or if it would be better to continue with this process. At this point, the
disputant party is able to weight the consequences of his possible decisions, assess its
chances of success, determine its consequences and thus achieve more satisfactory
outcomes.
Let us now depict three case studies in which the techniques depicted in this paper are
being applied, all focusing on the Portuguese legal domain.
4.1 UMCourt Divorce and Heritage’s Share
UMCourt Divorce and Heritage’s Share [
However, the parties may not be completely honest when assigning the points. As an example, if one of the parties makes the allocation of points considering the monetary value of the items, and the other party doesn’t have a notion about the prices or simply assigns the points according to the preferences (unaware of the bad intention of the other party), the second party is in disadvantage. In order to address this fair division problem, considering the monetary perspective, this work introduces some changes in the AW algorithm: the Adjusted Winner by Value. Therefore, a component depicting the monetary value of each item, in which the arithmetic manipulation is performed, was added.
Although the division presented by AW by Value may be considered fair according to the preferences and the values of the items, the parties may choose not to accept it as it was proposed. In order to address this issue, a negotiation mechanism that can mediate the process and present other alternatives was developed. This mechanism is supported by the techniques presented in this paper. In that sense, parties can access other similar cases, know their best and worst scenarios, know the most likely scenario and thus cooperate in a more rational and realistic way in the negotiation process. 4.2 UMCourt Commerce The legal domain of this case study is the Portuguese consumer law. Because this domain is a quite wide one, we restricted it to the problematic of buy and sell of consumer goods and respective warranty contracts. Thus, concrete solutions for the conflicts arising from the supply of defective goods (embodied mobiles or real estate) were modeled. Financial services are also considered, as well as the cases in which there are damages arising out of defective products. Regarding the legal boundaries established, solutions for conflicts are being modeled as they are depicted in Decree of Law (DL) 67/2003, as published by DL 84/2008 (Portuguese laws).
Using this system, an unsatisfied buyer can use a web site1 or a mobile application (Figure 3) in two different ways: for simulating a defect of a product that he intends to buy of for asking for a solution for a dispute arising out of a defective product already bought [22]. For deciding on an outcome, the system relies on rules that model the necessary legal norms. Thus, in this case, given the clear and relatively simple nature of these norms, the MLATNA is given by the rules, as well as the BATNA and the WATNA. However, the buyer has also access to similar cases, provided as mentioned above, concerning disputes with similar characteristics. Given the current global crisis, labor disputes are more and more frequent. This case study deals with the issue of an employer being dismissed or wanting to end a work contract. Under legal systems such as that of Portugal, a huge deal of legal parameters need to be considered: (1) the antiquity of the worker in the company, (2) supplementary work, (3) night work, (4) justified or unjustified absence to work, (5) the possibility of a “just cause for dismissal” being declared by Court, (6) the existence (or not) of a valid and legal procedure of dismissal, (7) the possibility of dismissal being accepted without indemnities or (8) of it being accepted but accompanied by indemnities that could range from a very low to a very high amount of money. This, together with a relatively complex legislation on this subject, may make it difficult for workers to take rational decisions. 1 The UMCourt Commerce site is available at http://tiaracserver.di.uminho.pt/odr
In that sense, the information mentioned above can help workers throughout such processes. Specifically, a worker can consult past similar cases and know the likeliness of their solutions in his dispute, know his BATNA and WATNA and know his MLATNA. Moreover, a multi-party negotiation tool supported by the CBR mechanism is also available (Figures 4 and 5). The main purpose of this tool is to support effective negotiation between two or more parties involved in a labor law dispute. The tool starts by proposing the solution of the MLATNA and the parties engage in a sequence of turns in which, in each turn, all parties can accept, change, ignore or refuse the current proposal for solution. In each round, if there is no consensus, the system will build a solution from the suggestions of the parties (if possible) or will suggest a solution from a similar case. The process goes on until a consensus is achieved or the system runs out of suggestions for solutions. In this case study, not only the party has access to the information described above but can also use a negotiation tool that will improve the efficacy of the alternative dispute resolution process. Fig. 5. The interface that depicts a message from a participant of the negotiation. The main idea that is present throughout this paper is that informed parties are in a better position to take weighted and rational decisions. Concretely, a party should consider, in a first moment, the usefulness of entering into an alternative dispute resolution process. In order to take this decision, concepts like the BATNA, WATNA and MLATNA are of utter importance. Moreover, the party should also be aware of all the possible outcomes and their likeliness, in order to have a clear picture of all the possibilities. In this paper we identified the relevant knowledge for taking rational decisions and pointed out to domain-dependent methods for creating that knowledge. In a parallel work, we are developing an abstract architecture that implements these concepts in several legal fields by using ontologies. In this approach, agents are abstract entities that provide services useful for all the domains addressed. However, a service is implemented differently in each domain, according to the specificities of the legislation. In order to implement the services for each specific domain the agents use domain ontologies, which define how each action should be implemented. This approach results in simpler architectures in which functionality reuse is maximized. Acknowledgments. The work described in this paper is included in TIARAC Telematics and Artificial Intelligence in Alternative Conflict Resolution Project (PTDC/JUR/71354/2006), which is a research project supported by FCT (Science & Technology Foundation), Portugal. horizons of ODR”, Proceedings of the 5th International Workshop on Online Dispute Resolution (ODR Workshop’08), Firenze, Italy pp. 84--94. (2004) 12.Goldberg, S.B., Sander, F.E., Rogers, N., Cole, S.R.: Dispute Resolution: negotiation, mediation and other processes, Aspen Publishers, New York. (2003) 13. De Vries BR., Leenes, R., Zeleznikow, J.: Fundamentals of providing negotiation support online: the need for developing BATNAs. Proceedings of the Second International ODR Workshop, Tilburg, Wolf Legal Publishers, pp. 59--67. (2005) 14.Fisher, R., Ury, W.: Getting To Yes: Negotiating Agreement Without Giving In. Boston:
Houghton Mifflin. (1981) 15.Steenbergen, W.: Rationalizing Dispute Resolution: From best alternative to the most likely one, in Proceedings 3rd ODR workshop, Brussels. (2005) 16.Raiffa, H.: The art and science of negotiation: how to resolve conflicts and get the best out of bargaining, Cambridge, The Belknap Press of Harvard University Press. (1982) 17.Hayes-Roth, F.: Rule-based systems. Communications of the ACM archive, Vol. 28, Issue 9, pp. 921 - 932. (1985) 18.Aamodt A., Plaza E.: Case-based reasoning: Foundational issues, methodological variations, and system approaches. In: AI Communications, 7(1):39-59. IOS Press. (1994) 19.Watson, I., Marir, F.: Case-based reasoning: A Review. In: Knowledge Engineering Review, vol. 9, pp. 327–354. (1994) 20. Café, A., Carneiro, D., Novais, P., Andrade, F.: Sistema de Resolução Online de Conflitos para Partilhas de bens – Divórcios e Heranças. INFORUM 2010. (2010) (in portuguese) 21.Brams, S.J., Taylor, A.D.: Fair Division: From cake cutting to dispute resolution. Cambridge
University Press. (1996) 22.Costa, N., Carneiro, D., Novais, P., Andrade, F.: An Agent-based Approach to Consumer´s Law Dispute Resolution. Proceedings of the 12th International Conference on Enterprise Information Systems - ICEIS 2010. (2010) 23.Andrade, F., Novais, P., Carneiro, D., Zeleznikow, J., Neves, J.: Using BATNAs and WATNAs in Online Dispute Resolution. In JURISIN 2009 - Third International Workshop on Juris-informatics, Tokyo, Japan, pp. 15-26. (2009)
Graham Ross
The Mediation Room 218 Strand, London, WC2R 1AT
G.Ross@themediationroom.com Abstract. This paper is developed from one section of the course which deals with the problem of how a mediator can develop the necessary level of trust when communicating online and overcome what may at first sight appear as barriers to delivering online the benefits of mediation.
Keywords: Online mediation, trust, online mediator, platform, confidentiality.
Mediation is a 'person-to-person' process. Experienced mediators will claim that it is not possible to mediate in the truest sense except when in the physical presence of the parties. That is fair and understandable comment but misses the point that mediating online may often be the only option, e.g. when the parties are in different countries, when disability prevents attendance by one party or where the value of the dispute does not justify the cost of an in-person mediation. Additionally, online mediation can offer mediation services in urgent situations that need commencing immediately e.g. if a dispute with one contractor in a large building project holds up the work of other contractors, or when a ship is locked out of port due to a dispute. There are also some situations, e.g. in disputes between former spouses, in which the personal relationship between the parties is such as to trigger so many negative reactions when each are in the presence of the other that avoiding an in-person mediation can help the parties focus better on the issues than on the emotion. An online mediation also offers solutions and facilities not available in-person, e.g. blind bidding, anonymous brainstorming and dispute analysis not to me. Most important of all, the lower costs associated with online mediation as well as the facility to run two or more mediations in parallel, can enable a mediator to earn the same net fees for his time as he does for in-person mediations whilst, nevertheless, charging a lower rate per case and thus, in this way, widening economic access to mediation as a whole.
Given that mediation online may be the only, better or preferred, option available to the parties, then what are the challenges that present themselves to the mediator in developing the level of trust in himself as mediator that will enable him to perform to an optimal degree? Trust is the key element in mediation. Without it, the task of the mediator becomes extremely difficult. Associated with that question is one about how the mediator can avoid misunderstandings, and provocative discourse that can be negative to the process. These are the issues to which my six years of experience in this field of online mediation has given me answers for sharing in this paper.
The first step is for the mediator to introduce himself as fully as possible to all the parties and to allow them to do likewise. In traditional mediation, this usually this takes the form of a CV being sent by the mediator to all parties and possibly a telephone conversation. In the case of the introduction of the mediator it covers primarily the professional career, the nature of his practice within his profession and his particular experience in mediation, especially cases similar in nature to the one in question. An introduction in real terms to the mediator as a person is usually not fully carried out until the beginning of the mediation meeting when the previously provided written information is expanded on at a personal level. Without the benefit of any personal meeting, the advice in online is to expand the written introduction to add a little more of the person, e.g. home location, family circumstances, interests and hobbies etc. Uploading a photograph or perhaps even a small video will help the parties get to know the mediator better. How much information to give is up to the mediator but obviously it should not be too much. Just enough, perhaps, to enable the parties to begin to identify a real person in whom they can then begin to trust.
It is equally important for the mediator to take additional steps to begin to 'get to know' the parties. TheMediationRoom.com offers mediators use of a personality profiling module that will help identify relevant traits of the parties e.g. whether submissive or assertive by nature. The profiling is entirely voluntary and the parties receive a copy of the report. The parties are then asked the extent to which they believe the report is accurate. It is this aspect that can be very revealing to the mediator. How far you go to find out about people (searching them on social networking sites and forums etc) really depends on the nature of the case. A straightforward small consumer dispute over a product will not require as much personality enquiry as for a dispute between directors of a company. The more the dispute is affected by personality, such as family or boardroom, the more helpful it is to understand the people you are dealing with and , importantly, what drives them and how they themselves deal with people and emotions relevant to the dispute.
As well as understanding as much as you can about the parties, it is also important to try to find out as much about their experience in using the Internet and technology. Ask how competent and comfortable the parties are with the technology and communicating online. Make a note of the response and ensure you keep that in mind when conducting the mediation. Demonstrating concern that the parties understand the technology will help show concern and, in turn, this will reinforce trust.
Try to find out as much as you can about their working environment. When conducting mediation in-person the mediator knows and controls the environment. He will ensure simple rules are followed, such as mobiles phones and MP3 players being switched off, and that the room contains as little distraction (such as posters on the walls) as possible. This is not as easy to achieve when mediating online. How do you know people are not watching TV whilst responding to your messages? Whilst this may be OK for general email and web surfing, make it clear to the parties that mediation requires total focus and commitment. You cannot prevent such multitasking, but can at least set the ground rules and seek specific promises of compliance with them.
When mediating in-person you will know if one party has been drinking alcohol to such a degree as to affect his judgement and level of communication. How can you tell online that one party has not spent an evening in a bar or enjoying a bottle of wine at home, before logging on to the online mediation? The alcohol may well have raised emotions to such a degree that he responds aggressively and without due thought and consideration? You cannot prevent this, of course, save that you can raise the issue at the outset, set down a clear rule and try to identify any such effect such as from the nature of the response or the lateness of the hour when a message has been posted.
Ensuring the parties fully understand mediation and its objectives and purpose so as to approach it in a positive spirit is a key element in any successful mediation. In an in-person mediation ,if the approach taken by one or more parties is not good at the outset , then not only will this become readily apparent to the mediator, but he will then be able to address it at an early stage. This lack of a positive attitude may not be so apparent when mediating online, until, perhaps, much later on by which time it may be difficult to change the approach.
Care should be taken, therefore, to assess the attitude of the parties in the early stages such as by asking questions focused on approach and attitude. Any negativity should then be addressed. One advantage here is that the exchange and outcome will be 'on the record' at least to the party concerned and the mediator. This gives the mediator opportunity later into the mediation to refer the party to what was said by way of a reminder and so as to reinforce a positive approach.
One of the main problems with mediating online through text is the greater risk of misunderstandings. The Irish playwright, George Bernard Shaw, once famously said of the United States and the UK at “two nations divided by a common language”. Words can often have different meanings in to different people. British solicitors will usually come home from their first visit to the USA proudly showing off photographs of signs outside houses saying 'Solicitors Keep Out'. In the US the term refers to doorto-door salesmen. In negotiation, 'my ultimate offer' may or may not mean 'my final offer' or may or may not mean 'my best offer' depending on the respect for literal interpretation by the person using the phrase. If when asking one party what he feels about a proposal from the other party and he replies with the word “that's wicked” you might be forgiven for thinking that he did not find the offer attractive. However, if he is a follower of hip-hop music, that phrase would mean the offer was very much acceptable. The advice is to check carefully for words that can have a double meaning and then check the precise meaning intended by rephrasing and seeking confirmation.
Another problem to address is the difficulty, in asynchronous online discussion, of identifying any hesitancy by a party in answering a closed question. Should, in an inperson mediation, a person hesitate before answering say 'no' to a question from a mediator as to, for example, whether an element of a proposal presents any difficulty for compliance, the mediator can then question the reasons for the hesitation with a view to a potential modification to the proposal that may lead to a more emphatic answer. However, if a party has this hesitation online, the mediator does not notice it when he reads the typed word 'no' in the response which may lead to problems further ahead. The advise for the mediator is that, whenever a closed question of importance is raised, to ask the part to scale his answer e.g. 1-10. A less than 9 or 10 can then open up discussion as to why that is the case.
You may receive a strange response at some stage from a party to the mediation. Always check back with the party, such as by echoing their remarks, especially when words with double meanings have been used. The message with various exclamation marks and gibberish may not be rejection of a proposal in angry terms but just a child let loose on the keyboard!
You’ll need to assure the parties that the process in which they are engaged is a positive one. The task can be made all the more difficult when a party’s anxiety about both ODR and the possible outcome may even manifest itself in mistrust of you, the mediator. Mediators need, therefore, to be completely transparent both during and before the process, so that there are no surprises. Due process matters online as well as off. If something comes up in the dispute resolution process that is a surprise to one party or the other is can completely undermine the trust they have that the process is fair. Mediators need to make clear commitments and keep them. Under promise and over deliver can be your motto.
It is important to keep to any commitments on time and priority that you have made to the parties and make it clear that you demand the same from the parties
You should clarify in detail how confidentiality is maintained both on the platform you use and in the procedures you adopt. You should never assume that the confidentiality of the system is always trusted by all parties at all times. Constant repetition and confirmation of the privacy of each discussion is important to reassure the parties.
One of the problems of asynchronous online conversation is controlling the number of messages. Its best to encourage a 'speak when you are spoken to' discipline. This will not only speed up the process but ensure people remain, through the disciplines of brevity, focused on the central issues. The mediator should set the rule at the outset that, save in exceptional circumstances where something important has been overlooked, the parties should not post a message unless in direct response from one from the mediator.
The exchange of visual and aural clues in a meeting can transfer 'information' that is not expressed in words. Elements can, therefore, be missed when mediating online. Whilst you will want to control the number of responses they make, encouraging the parties at the outset of the online mediation that, when they do respond, to post messages that give as much background detail and as much expression of their feelings as possible will help ensure as much as possible has been included.
The same should apply to the mediator. When mediating in-person the parties can readily sense when the mediator is fully empathising with, and understanding, their position. It may be by a physical acknowledgement or other visual or aural clue. Awaiting for disjointed messages in response on an online file may not so easily give that sense of understanding. In order, therefore, to ensure the parties sense fully that they have been carefully listened to and understood, the mediator should take care to respond with messages that fully reflect all he has been told.
One issue for mediators generally is the extent of his intervention. Whilst mediation processes may vary, most allow the mediator the opportunity to encourage direct discussion and negotiation between the parties. This is especially useful when there is an underlying relationship between the parties the preservation of which after the mediation has been completed may be a desirable outcome. Consideration is also given to whether this direct negotiation should be undertaken in private and without the presence of the mediator. Given that in an online mediation the mediator does not have control to prevent the parties contacting each other direct in any event, it may be wise to address this directly and set up space for direct contact. In this way the online mediator can then ask the parties to report on the result. Dependent on the platform used the mediator may have the opportunity to watch over these direct discussions and thus gain more out of them than can an in-person mediator outside of the conversation.
It is important for the online mediator to make extra effort to try to heighten the feeling of 'presence' with the parties. Whilst asynchronous discussions may offer the benefit of enabling the mediator to work 'in his own time' , little touches such as trying as best you can to respond at a time when the party to whom you are posting a message is more likely to be online and available will help reduce the sense of dislocation. This will also assist you by ensuring replies to your message come while you also are working on, and more 'in tune with', the case without having to re-read earlier messages. It is recommended, therefore, that you ask the parties at the outset for an indication of what times of the day or evening they are likely to go online to deal with the mediation and keep a note of it. If you are in a different country then try, as best you can, to work within the relevant time zone of the party to whom you are sending a message.
In in-person discourse, any need for clarification of words used is requested at the time - “what do you mean by..?”. In asynchronous messages the disjoinder of the discussion can delay understanding. Be careful, therefore, not to use words that may require explanation or 'beg a question', without including the explanation at the time. If you criticise a party for using inflammatory language then do not wait for him to ask what are the precise words you take exception to but clarify in full when you make your initial comment. This avoids the party beginning to lose trust because he feels you do not empathise with his thinking and emotion simply because he has not fully understood why you used the words in question.
Whilst is may be normally important sometimes to seem to ignore comments made by a party in order, perhaps, to avoid opening a discussion that may inflame the situation, this is a tactic that should be less employed in online mediation as else the party may think the comment was overlooked. When he says, in the presence of the mediator, that the other party has told a lie he knows he has been listened to and he has made his point. But if he includes such a comment within a message and the mediator says nothing, the party may feel it has been overlooked. Its important, therefore, and even when you feel the party is raising an irrelevant or damaging issue (e.g. the alleged false statement relates to an entirely irrelevant matter) to respond in your message to each and every such comment by asking the party to clarify identify each statement he believes is false and why. If the issue is irrelevant then of course this can then be stated. In this way whilst you may disagree with the party as to its relevance, you can ensure at least that he knows he has been heard.
In an in-person mediation all parties are together in the same building over a fixed period of time. No-one goes absent. Their commitment to the process is clear. In online mediation, people may have to go away at times or have appointments that may delay their responses. This may give the wrong impression to the other party of a negative reaction to comments/proposals they may have made or, worse, to the process as a whole. If one party senses the other is not interested in the mediation that can be a strong trigger for him to downgrade his interest. He may question why he should be involved in attempting to resolve the dispute if the other party shows less than full interest. To minimise these effects, you should press the parties to declare advance notification of any absence, however short, so as much as possible everyone can maintain a sense of continuing and mutual involvement. If there seems to be a delay not declared in advance, give the person a telephone call. It is advisable to obtain mobile/cell phone numbers for each party for just this sort of eventuality.
In in-person mediation, the mediator is able to control the level of civility. A recognised threat to civility in online discussion, however, is the dynamic of insulting comments posted to forums and social networking sites ('flaming'). It is very much provoked by the apparent permanence of adverse comments posted by others and driven by self image and 'ego'. If an adverse comment has been posted, it is understandable that the target will wish to post a rebuttal. The very fact that the comment is posted and constantly available leads to the target of the insult brooding over it more than would be the case if delivered verbally. The rebuttal inevitably threatens the credibility of the original poster, so he, in turn is provoked to defend himself by renewing, and possibly extending the original insult. This 'tit for tat' exchange can easily develop into a highly damaging thread. The mediator should both impose a rule against gratuitously insulting comment as well as an additional rule that, should it, in his eyes, be broken by any party, that party has to withdraw, issue an apology and reframe the comment. The mediator can reassure the parties that any adverse comment cannot be read by those outside of the mediation. Clearly parties should be free to express their thoughts to include criticism of the other party where appropriate but should do so in a civil manner. In a case in which the mediator fears difficulty in avoiding such insults, then he should consider the options that may be available in the platform he uses that will enable him to prevent the parties from posting comment seen by the other party save after review by himself. 4 I hope that, whilst recognising that, for many mediators, the problems of generating trust and avoiding misunderstandings when mediating online may seem, at first, to negate the validity of the process, that this paper encourages them to take a broader view and understand that, not only does the online medium have a validity of its own that enables mediation to apply to disputes that otherwise would not have the opportunity for such skills, but that the problems that may at first sight arise can often be overcome with a little care and adjustment to technique.
Faculté de droit, UNI MAIL, 40 Boulevard du Pont d‘Arve 1205 Genève, Switzerland farzaneh.badii@gmail.com Abstract. Online arbitration is different from traditional arbitration not only because the process may be held online, but also because the core elements of its definition may be different. The differences may change online arbitration definition, however, they do not, hamper the validity of online arbitration. Online arbitration can be defined and used in a very flexible approach because of its core advantages such as speed, accessibility and cost-effectiveness. In an attempt to provide a precise and inclusive definition of online arbitration, in this article different elements of traditional arbitration definition have been considered. Mutual consent to arbitration, due process and binding decision are some of the elements that may not exist in online arbitration or may be formed in a different manner.
Keywords: Arbitration, online arbitration, mutual consent, choice of arbitrators, due process, binding decision.
Online arbitration is different from traditional arbitration. The common thought that online arbitration is just the combination of online mechanisms and traditional arbitration is not true. The main thesis of this article is that online arbitration is different from traditional arbitration not only because it is held online or partly online but also because its definition elements may vary from those of traditional arbitration definition. The article aims to provide an inclusive and precise definition of online arbitration and extract different types of online arbitration from the definition accordingly.
In order to define online arbitration accurately, it is helpful to look closely at the
component elements of traditional arbitration from which it evolved. Naturally, there
is much commonality across the two forms, but also relevant differences in the detail
of component elements of both. Moreover, some component elements may not be
shared at all, belonging uniquely to just one form of arbitration. A study of the
component elements of both forms is therefore necessary to provide a definition of
online arbitration.
Arbitration elements often vary in different legal systems and thus hamper attempts to
provide an accurate and singular definition which applies everywhere [
By considering the varying definitions of arbitration, the common elements of
arbitration may be revealed. Numerous definitions sexist but perhaps the following
are of most use to us:
“Two or more parties, faced with a dispute which they cannot resolve for
themselves, agreeing that some private individual will resolve it for them and if the
arbitration runs its full course... it will not be settled by a compromise, but by a
decision.” [
From the foregoing definitions it may be concluded that, for a process to be recognized as arbitration, it should compromise the elements below: - Mutual consent to submit to arbitration - Choice of arbitrators - Due process - A binding decision
Mutual Consent to Submit to Arbitration
Mutual consent is considered one of the fundamental principles of traditional
arbitration and is crucial to the legitimisation of the arbitration process [
Nevertheless, entering into an online (or non-traditional) arbitration agreement may
not be always consensual. In some circumstances, the participants may not have truly
consented to the arbitration clause and entering into an arbitration agreement may
have been forced indirectly. Some commentators have gone even further and stated
that in many situations, the freely consenting party is a legal fiction [
For example, lack of genuine choice may lead to non-existence of consent to
arbitrate online or offline. Such lack of choice may be evident where there is a
monopoly of power or where there is a pre-dispute arbitration clause in Business to
Consumers (B2C) agreement. In such cases, the weaker party has to choose between
entering into an arbitration agreement or forgo contracting1 [
The question here is whether non-existence of consent to arbitrate would invalidate the arbitration clause.
Some academics argue that, where there is lack of choice to enter an arbitration
agreement, it is more desirable to accept that consent to arbitrate does not exist, but
that other requirements such as fairness may reasonably have replaced consent [
In conclusion, where there is a power imbalance between parties, the weaker party may not truly have consented to arbitrate, however the non-existence of consent may not invalidate the online arbitration agreement if some other requirements such as inexpensive arbitral procedure and fairness of such procedure have replaced consent. 2.2
Choice of Arbitrators
Arbitrators in traditional arbitration are not government representatives [
In arbitration the arbitrators chosen by, or on behalf of, the parties should be
independent and impartial [
The independence of the arbitrator can be determined prior to holding arbitration and it is an objective test to establish whether or not the arbitrator can arbitrate between the parties independently and with courage to displease4.
Impartiality is a subjective notion referring to the absence of bias in the person of
the arbitrator resulting from a privileged relationship with the matter to be decided
[
Independence and impartiality are pivotal elements of any arbitration definition.
This is due to the fact that arbitration is an adjudicatory process. Arbitrators cannot be
parties’ representatives, and they have to remain impartial and independent, otherwise
they cannot adjudicate between the parties with “full legal authority” [
In a definition of online arbitration, independence and impartiality of the arbitrators
should be considered as two of the main characteristics of such a definition. In any
arbitration process, strict compliance with procedural principles is required5.
Independence and impartiality is so central to the process that online arbitration
cannot be characterized as true arbitration without the independence and impartiality
of arbitrators - and such elements should not be compromised unless agreed to by
both parties [
In online arbitration, however, full compliance with all requirements of due
process may adversely impact upon the cost effectiveness and speed of the online
arbitration process6 [
While due process is an essential element in online arbitration, keeping the process
affordable and speedy are also important factors. Thus, while due process is
considered a vital element for any definition of online arbitration, the degree of
compliance might be variable [
Decisions in online arbitration may not be always binding [
Where an online arbitration award does not bind either of the parties, the process cannot be recognized as true arbitration since the decision is unlike a judgement, and the arbitrator does not have a judicial role7.
Where the binding nature of arbitration depends upon one of the parties’ intention,
the process may be true arbitration if the party admits that the award has a binding
effect after the award’s issuance. Some legal systems explicitly allow the parties to
agree that the arbitration awards have a different effect i.e. be conditionally binding8
[
The Exclusive Feature Online arbitration proceeding is either conducted totally online by online means of communication or partly online by a combination of online and offline means. In totally online arbitration the entire process is conducted online by the use of email, video conferencing and web based communications. Partly online arbitration is conducted using a combination of the above mentioned communication means and offline features such as live in-person hearings and use of fax and post for the submission of evidence, communication between the arbitrators, and deliberation of the award. Having given consideration to the elements as discussed above, online arbitration is defined as:
Online arbitration is a process by which parties may consensually submit a dispute to a non-governmental decision maker, selected by or for the parties, to render a binding, non-binding or unilaterally binding award, issuing a decision resolving a dispute in accordance with neutral procedure which includes due process in accordance with the parties’ agreement or arbitration tribunal decision. The online arbitration process may be conducted entirely online or partly online by the use of internet technology.
Therefore online arbitration may be categorized as: - Totally online binding arbitration - Totally online non-binding arbitration - Unilaterally binding online arbitration - Partly online binding arbitration - Partly online unilaterally binding arbitration - Partly online non-binding arbitration
Online arbitration is not merely the combination of traditional arbitration and online means of communication. There are major differences between the core elements of online arbitration and traditional arbitration. These differences have a direct affect on the definition of online arbitration and as it was seen, the definition of online arbitration is not the same as traditional arbitration.
It is important to emphasise on the existence of some elements in online arbitration such as impartiality and independence of arbitrators whilst it may not be necessary for other elements to exist in online arbitration, or the degree of compliance with such elements may be different.