James C. Melamed Presentation Center

ODR Readings - Themes

Asia: The New Frontier for Online Dispute Resolution
By Colin Rule

Global Development - Each country with own interests and contributions

Ecommerce surely a driving force for ODR

Note ODR relationship to Trustmarks (commercial confidence):

BBB
SquareTrade
ABA eCommerce Task Force
ICC
Global Business Dialogue

ICANN

Singapore Model:

DisputeManager.com (Singapore)

automated offers and counter offers (Patent Issues?)
online mediation
neutral evaluation

For any New Service:

How introduce?
How charge fees?
How advocate and promote?
What technology?
What human services?
How ensure quality?
How ensure improvement?

Patience: Comment by Malaysian: "It will take time for public attitudes to warm to ODR . . . As for now, it is just a patient waiting game." Chittu Nagarajan

Language issues
Cultural issues
Choice of law issues
Jurisdictional issues
Enforcement issues

Always ask: "Compared to what?" Better system or nothing?

Building Large-Scale Online Dispute Resolution & Trustmark Systems
By Steve Abernethy

Is ODR ADR? Or something different, new and more

Infrastructure of dispute resolution changing - expanding

eBay
California Association of Realtors
Pre-commitment to ADR / ODR Processes
The "scalability" of automated systems and mediation compared to due process and arbitration
Traditional access to ADR - Compare access to ODR

What are roles of Administrator of ODR Program?

education of users
pre-emption of conflicts
training of mediators
mediator support
quality control
customer support
case management

What are additional Principles or Values of ODR System?

accessibility
affordibility
scalability

Arguments for ODR - Accomplishments

Extending the reach of dispute resolution - many meaningful processes across jurisdictional lines
Self-service direct negotiation functionality
Shared knowledge base - transparent precedent
Ease of access
Builds trust in transactions
Centralized management and system improvement opportunities
Augmentation of face to face

Accreditation of Online Dispute Resolution Practitioners
By Melissa Conley Tyler and Jackie Bornstein

Considering Qualification Issues for ODR (how compare to ADR qualifications?)

Accreditation and Standards of Conduct

Accreditation (hurdles)

education
training
references
interview
experience (general and specific)
skills performance
disclosure

Maintenance

supervision
ongoing education
user evaluations
complaint procedures

What about Technical Competence? Online Communication Competence?

What are Criteria for Successful ODR Program?

Trust
Being Heard
Access to Justice
Efficient Opportunity to Improve Outcome
Plan "B"

Making Peace on eBay
By Colin Rule

Volume of Disputes Unprecedented - 2 billion transactions in 2008 - 40 Million Annual Disputes

In 16 Different Languages

Seller - Purchaser Disputes - Predictable Issues

payment
item quality disputes
feedback disputes
owner right disputes
average value $100

Needs to be As Automated As Possible - Technology as the 4th Party

Moving Beyond "Dispute Language"

"non-recipt"
"not-as-described"
Ebay as ultimate decision-maker

Goal: "Amicably resolve as many as possible and then decide the remainder as quickly and fairly as possible. Each stage a filter . . . goal to minimize cases that make it to the end."

What Do Users Want?

communication
transparency
efficiency
a fair outcome

Ebay covers all costs - part of doing business.

ODR and ADR Continuing to Blur

The Virtual Courtroom and Online Dispute Resolution
By Jeremy Barnett

From UK

Notes that consumer disputes relatively simple . . . can ODR be expanded to resolve most complex civil litigation?

How much do we care about technology in the courtroom?

How important is security?

Who should pay for courtroom tech?

SETTLED! The Revolution in Online Dispute Resolution
By Charles Brofman

Cybersettle

97.66% of claims settle before they ever get to court . . . "Sooner or later everyone becomes reasonable . . ."

Good?

Scope of application: whereever dispute can be turned into dollars and cents

Cybersettle as "equalizer"

No limit to size of dispute

Now Joined forces with AAA

Timing of Cybersettle process? When offered?

"Emotion costs money" -- Can one really pull emotion out of disputes?

p 0-6 3 step bidding process

"Avg insurance claim case settles for $8-10K . . . what say about resources that can be committed?

"As long as the disputes come down to money, we can help settle them"

Initial powerful focus on insurance industry

Reduced City of New York's costs by $27 mil in 2006 for settlements and judgments.

At start, NYC with 43,000 pending law suits.

"Justice delayed is Justice denied"

If case is going to settle with Cybersettle, will do so within 60 days.

35% of NYC claims settled online . . . generally rate is 15-25%

Total Time 278 days vs 1629 days

Cybersettle settlements $11,252 vis $38,809 without

"Business Week: "one of the top 50 technology companies in the world"

"Big distruptive ideas start small . . ." shaken up insurance and legal industries

Founding of Online Resolution by Colin

Technology must be "neutral"

Cybersettle recognized as "method and system" as patentable

Applied for patent in 1988

p 3-34 "The need to be seen as a "pure play" was one factor that encouraged us to shut down the live facilitation service . . . also the concern by some users that introducing a human element into the process could weaken its guarantee of confidentiality - that a facilitator might expose their bids." (later brought back in 2004)

. . . see if case might settle using human touch . .

Now telephone system is fully integrated . . .part of "patented method and process"

KIS: simpler the system the better

they suggest half of cases settle in insurance pilots . . . create additional 20% efficiency for claims adjusters

NAM "ClickNSettle" knock off

NAF hired to develop system for state of NJ - Sued

"patent covered any automated, online, double-blind settlement system with one or more rounds of bidding."

resistance to change - . . insurance cos, adjusters, attorneys . . .

New deal with AAA - they use as tool - Cyber settle offers facil of AAA if failure to settle

"ODR Solutions"

Government? IRS?, VA? SSA?

Product for consumers: Youdue - way of guaranteeing payment for small claims - checks Paypal, credit card account for funds

Fair Reputations: A Game-Theoretic Mechanism for e-Commerce Disputes
by James F. Ring

for ecommerce and negative online feedback disputes
very offering of such a system said to buttress reputation
www.fairoutcomes.com
Applying principles that have been studied by fame theorists, combines aspects of sealed bid with commitment mechanism to facilitate convergence of parties with option of final offer arbitration if parties fail to settle by fixed deadline.

The Future of ODR: One Brief Glimpse
By Sanjana Hattotuwa

An entire DR System based on SMS.

"moving away fro the resolution of disputes to the transformation of conflict."
Integration of mobile telephony into ODR platforms.
Recognition of access to person rather than place.

Online Dispute Resolution – More ThanThe Emperor's New Clothes
By Julia Hornle

Notice how legalistic all things arbitration are given that you are giving up all of your due process rights, including the rights of appeal
Would people pay for non-binding evaluation?
Notice relatively safe description of online mediation at p 21.
Consider Automated Settlement Systems
Considerations for ODR Providers: Independence and Impartiality; Publicity and transparence; Language Barriers

An Integrated Approach To Improving Online Confidence
By Vincent Tilman

Confidence
Codes of Conduct
Trustmark Alliance

Digital Identity and the Lawyer's Opportunity for Furthering Trusted Online Communities
By Jeffrey Aresty

Creation of online justice system
Based on Trusted Online Communities (TOCs)
Based upon secure digital identities. DIDs
Its all about reputation and trust

Online Dispute Resolution:Technology Takes a Place at the Table
By David A. Larson

good overall review

Online Dispute Resolution: Do You Know Where Your Children Are?
By David A. Larson

"our children have already established effective online relational behaviors and can establish trust and intimacy online."

The Role of Artificial Intelligence in Online Dispute Resolution
By Arno R. Lodder and Ernest M. Thiessen

All based on Fisher and Ury interest based negotiation model
What is role of artificial intelligence in ODR
What about shared knowledge base of solutions that have worked for others?
www.SmartSettle.com

Emergence of distinctive patterns in the mediation of cyberborne disputes: changes, challenges and chances
By May-Britt Kollenhof Bruning

There are principles and values behind every ODR system
Quality Overview
www.juripax.com

Negotiating Online
By Jaime Tan, Diane Bretherton and Gregor Kennedy

"Empirical evidence indicates that online communication appears to aid the negotiation process into achieving higher rates of win-win outcomes than ftf . . . Synchronous communication appears to be more likely to achieve win win results than email and is markedly more effective thena face to face . . . The absense of non-verbal social feedback in online communication is not necessarily a drawback as initially thought . . . since it allows negotiators to focus on what is being said rather than now it is said.

Online Dispute Resolution: Some Context and a Report on Recent Developments
By Daniel Rainey