Creating Technology for Social Change

Liveblogging #ODR2014: International Developments in ODR

I’m here at the ODR2014 conference. ODR2014 is the annual meeting of the Online Dispute Resolution Forum, an international assembly of lawyers, mediators, technologists, and others who care about technology and dispute resolution.

The livestream is here. What follows is a best-efforts summary of the session. 


The first panel on day three of ODR2014 has an internationalist perspective, moderated by Amy Schmitz, a Professor at the University of Colorado Law School. She introduces Julia Salasky, an associate legal officer at the United Nations. She works with UNCITRAL, a core legal body of the UN that formulates and regulates international trade.

Julia frames her discussion (slides) by asking why an organization like UNCITRAL has an interest in ODR. Member states, not staff, set the agenda for UNCITRAL, and many of them have developed an interest in the ODR as a way to help resolve large numbers of low value disputes which are currently not well served by the courts in both developed and developing nations. The key challenge UNCITRAL faces is how to help provide access to justice (and perhaps a lack of trust in the justice system) for these kinds of disputes for their member states, echoing a consistent them from the conference.

ODR seems like a good solution, Julia says, but it is has been hard to move from the general idea to the specific manifestation. For their member states, with very different laws and values, it is difficult for any single system to reconcile different legal and normative standards, provide something like due process, and enforce decisions at a global scale.

The approach that UNCITRAL has thus far taken has been to design “a process that would satisfy the need for a rapid and inexpensive means of resolving disputes in an online environment.” The ODR working group at UNCITRAL has begun drafting rules by which such a system might operate. An ‘expert group’ has advised UNCITRAL that the Internet is borderless (ed: lol), and so rules shouldn’t be organized around countries. Julia contrasts this ‘expert opinion’ with the actual practice of companies like Google, which offer different options for redress depending on the country in which one resides.

Julia hands the mic to Pablo Cortes, a senior lecturer at the University of Leicester. He is here to talk about a set of directives which require ADR/ODR practices to be implemented across the EU by 2016. All businesses in all member states are required to offer ADR services and must inform consumers about any outstanding unresolved complaints by consumers. As a subset, all online businesses must offer ODR services, linked in their terms and conditions.

These directives also set rules for certified ADR providers, who must allow for disputes to be submitted online and offline; interoperate with the European ODR platform; cooperate with relevant law enforcement bodies; provide ADR for free or a nominal fee for consumers; reach an outcome within 90 days. It also requires the EU to setup the aforementioned ODR platform, with forms available in all EU languages, linked to nationally affiliated and certified ADR bodies, with a case management tool that assists users in communicating with those bodies.

These directives will reshape the consume ADR landscape across EU member states, says Pablo, and while there some benefits may obtain from the economies of scale, there is some concern about a race to the bottom for cut-rate providers which meet the bare minimum requirements for businesses without offering a good consumer experience. On the other hand, the costs of outsourcing ADR might incentivize companies to improve in-house customer care to avoid disputes from escalating to the referral in the first place.

Pablo is followed by Graham Ross, a lawyer, mediator, and member of the ODR Advisory Group appointed by the Civil Justice Council in the UK. He mentions that, on the flight to the conference, he complained about his flight on Twitter, and was surprised when the airline responded. He muses that the audience gathered today should think about those types of ongoing social media conversations as disputes which are resolved, again expanding the purview of ODR as such. Graham also quotes Baron Neuberger of Abbotsbury, President of the UK Supreme Court, who said in an interview in 2013 that the UKSC could learn something from the dispute resolution experience of eBay (a nod to Colin’s former employer and a leader in the field of low dollar, high volume dispute resolution).

Graham clarifies the directive discussed by Pablo to note that, while it is mandatory on the seller to lead consumer to an ODR provider, it does not require the seller to actually participate in the dispute resolution process. He’s concerned that, if sellers opt-out of the process, it will undermine the credibility of the directive and the idea of ODR. He’s also concerned that the 90 day requirement of the directives, while short by court standards, is entirely too long for the expectations of contemporary consumers, who might just go to RipoffReport.com anyway.

Next is Lou Del Duca, a Professor at Penn State University and a member of the U.S. Secretary of State’s Committee on International Trade Law.

A consummate legal educator, Lou poses a hypothetical to the audience: you buy a cell phone, take it home, and its battery explodes, causing damage to your house and your physical person. While the conference has focused on low-value high-volume disputes, Lou notes, whether the dispute arising from such a situation would be low-value would depend mostly on the economic context of the country in which it is located. Lou is worried that the comparative differences in economic context will bedevil the international efforts we’ve been discussing today.

eBay, Lou notes, set very specific requirements defining what kinds of disputes there could be (i.e., object delivered, or object delivered but not as described) which allowed for disputes to be fast-tracked and well-understood. He’s concerned that, in the internationalist systems which have been sketched this morning, “it will be very difficult to push into a single framework the entire universe of needs which need to be met by this market.” The difference between UNCITRAL and the EU directive, Lou says, is that the UNCITRAL approach is a ‘soft-law’ which articulates basic principles to guide member states in developing ADR/ODR systems which work in their contexts, which he prefers to the more rigid and universalized system promulgated by the EU across all of its (quite different) members.