Conflict Resolution in the Age of the Internet

By Fazzi, Cindy

Conflict Resolution in the Age of the Internet Online Dispute Resolution: Challenges for Contemporary Justice. By Gabrielle Kaufmann-Kohler and Thomas Schultz. The Hague, The Netherlands: Kluwer Law International (www.kluwerlaw.com), 2004. Hardcover. 384 pages. $165.

The significance of the Internet in our lives cannot be understated. This book, which examines the phenomenon of online dispute resolution (ODR), attests to this. The Internet embodies the importance of technology, its role in resolving disputes, and its impact on the increasing globalization of business, information and culture.

This book looks at the practice of ODR, the driving forces behind it, and current issues of concern. A product of a research project by the law school and the “informatics” center at Geneva University, it has the added bonus of providing an international perspective on the subject. For example, it discusses governments and institutions that constitute the main stakeholders of ODR.

ODR Defined

But first, what is ODR? According to the authors, “ODR has only one overarching feature-it takes place online.” They cite the definition of ODR offered by the American Bar Association Task Force on E-Commerce and ADR. This definition describes ODR as encompassing “many forms of ADR and court proceedings that incorporate the use of the Internet, Web sites, e-mail communications, streaming media and other information technology as part of the dispute resolution process.”

Why the need for ODR? Distance is the overriding factor. “When parties are at a distance, jurisdiction may be unclear and access to courts impractical,” the authors explain.

In some situations, ODR may be the only venue for pursuing justice because any other forum would entail prohibitive costs. Traditional, face-to-face dispute resolution involves expenditures in travel and fees for neutrals, administrative costs and counsel fees. In ODR, however, there are no travel costs and other expenditures may be greatly reduced. Needless to say, low cost is a distinct advantage of ODR.

Three Approaches

The book identifies three current approaches to ODR: cyberspace, non-adjudicative ADR, and arbitration. The first centers on the Internet and information technology. The principle underlying the cyberspace approach is to find better, faster and cheaper ways to resolve disputes with the aid of technology. This has led University of Massachusetts-Amherst Professor Ethan Katsh to call technology the fourth party to the dispute.

The non-adjudicative ADR approach to ODR focuses mainly on negotiation and mediation, and how to improve both communications and relationships between parties. “The common reasoning in this field is to reconstruct an architecture online that resembles offline negotiation and mediation,” the authors write.

The arbitration approach emphasizes rights and the application of law to resolve the dispute with an arbitrator’s decision. The impetus behind this approach is the success of traditional arbitration. If it works so well offline, then it should be adapted online, the reasoning goes.

Stakeholders

The major stakeholders of ODR are governments, business organizations, consumer organizations and ADR institutions. “Governments favor ODR because it can provide a form of access to justice that courts are not yet equipped to provide, decrease court congestion, and further the e-commerce economy,” say the authors.

Businesses, on the other hand, are interested in ODR because it is a private, fast and inexpensive means of resolving disputes. They also see ODR as encouraging consumer trust. Indeed, consumer organizations view ODR as a tool for enforcing consumer rights, while ADR institutions see ODR as an opportunity that could give them a competitive edge.

Where is ODR headed? “The most obvious and fundamental goals are for ODR to meet the demands of globalization, to provide landmarks for e-commerce, and to operate in harmony with the speed required by contemporary society,” Kaufmann-Kohler and Schultz write.

This book is an excellent addition to the literature on ODR. Two other books on the subject were previously reviewed in the Journal: Online Dispute Resolution by Ethan Katsh and Janet Rifkin (Nov. 2001- Jan. 2002 issue) and Online Dispute Resolution for Business by Colin Rule (Feb.-April 2003 issue).

ODR Methods

In Online Dispute Resolution, authors Gabrielle Kaufmann-Kohler and Thomas Schultz describe a number of ODR methods, among them:

* Assisted Negotiation. Also called “enhanced negotiation” or “technologically facilitated negotiation,” this approach helps parties achieve an agreement through direct bilateral communications with the aid of threaded message board systems, storage methods, online meeting management devices, and other information technology tools beyond e-mail.

* Automated Negotiation. Also known as “blind-bidding negotiation,” this approach involves having the parties define a settlement range and then submit offers and demands in the form of settlement bids to a computer through a secure, password-protected, Web-based platform.

* Online mediation. This is mediation conducted over the Internet.

* Online arbitration. Currently, most forms of online arbitration are not binding on the parties.

* Cybercourts. Court proceedings that mainly take place online.

Copyright American Arbitration Association Aug-Oct 2005