ODR and the Courts


by Karim Benyekhlef, Nicholas Vermeys

This chapter is from "Online Dispute Resolution Theory and Practice," Mohamed Abdel Wahab, Ethan Katsh & Daniel Rainey ( Eds.), published, sold and distributed by Eleven International Publishing. The Hague, Netherlands at: www.elevenpub.com.

May 2013


Ever since online dispute resolution (ODR) processes first arose in the mid-1990s, their impact on the state’s already eroded monopoly on resolving conflicts has been the subject of much debate. This is not to say that the rise of ODR signified the first instance in which individuals chose to settle matters outside of the courtroom –alternative means of settling disputes have been around for ages – but ODR offers a technological shift to dispute resolution, not merely a procedural one. Online environments have created new and unique ways (notably through the use of the so-called fourth party) of settling disputes in a swift, asynchronous (although synchronous solutions are also available), and cost effective manner. Accordingly, ODR can be seen as both a competing and complementary tool to traditional in-court schemes and state-run judicial systems.

But the true essence and scope of the relationship between ODR processes and the courts hinge on a series of criteria, the most prevalent of these being the definition one chooses to adopt to circumscribe the very notion of online dispute resolution.

If ODR is interpreted broadly as being the use of online environments to facilitate communications and dispute resolution, then it could be argued that ODR has seeped into the Court process through the use of electronic filing and electronic court management systems. However, if we accept the more conventional definition of ODR as being a process that “utilizes the Internet as a more efficient medium for parties to resolve their disputes through a variety of ADR methods”, and that “brings disputing parties together ‘online’ to participate in a dialogue about resolving their dispute”, then ODR has yet to make its way into the court system in any significant manner.

Of course, it could be argued that this goes without saying since, according to some, ODR is merely an online transposition of alternative dispute resolution (ADR) systems and processes, which, as their name clearly states, serve as an alternative to the Court system. Therefore, to talk about Court sanctioned ODR would be akin to stating that the courts could serve as an alternative to themselves, which is somewhat nonsensical. That is not to say that the state cannot incorporate ODR processes and practices in to its arsenal of judicial services, but rather that, according to this approach, the notion of “court-run ODR” seems incongruous.

Other authors, however, prefer to oppose ODR to offline dispute resolution without referring to ADR, in which case the concept of “court-run ODR” becomes completely legitimate:

Cybercourts are simply court proceedings that use exclusively (or almost exclusively) electronic communication means. They should be, and often are, considered to be part of the ODR movement, for two reasons. First, because the ODR movement emerged because of the clash between the ubiquity of the Internet and the territoriality of traditional, offline dispute resolution mechanisms. The term ODR is thus opposed to offline dispute resolution mechanisms, not to courts. Online ADR is only one part of ODR. Second, courts do not only provide litigation. As I said before, there also is court-based mediation and non-binding arbitration.
Nevertheless, as stated by Thomas Schultz,“ if we accept that courts can be part of the ODR movement if they provide dispute resolution online, we can think about the advantages that are specific to courts”.

The legal system can clearly benefit from the incorporation of ODR, and in a way, state-run ODR can serve to eliminate the hurdles private ODR initiatives still face, such as those of confidence and enforcement.

Whilst acknowledging that ODR assumes two roles as a competing and complementing system to state courts, our focus in the following pages shall be exclusively directed to the complementary role of ODR, and to the development of court annexed ODR schemes. Accordingly, we shall commence by providing an overview of how states have started to incorporate ODR into the legal process, and then proceed to shed light on possible future paths for state-run ODR systems.

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Biography





Karim Benyekhlef has been a professor in the Faculty of Law of the Université de Montréal since 1989, and since 1990 he has been seconded to the Centre de recherche en droit public, of which he has been the Director since 2006. A member of the Quebec Bar since 1985, he practiced in the federal Department of Justice from 1986 to 1989. His areas of teaching and research are information technology law, constitutional law (human rights and freedoms),international law, and legal theory and history. In 1995, Prof. Benyekhkef founded the electronic law journal Lex Electronica and is also the originator of one of the first on-line dispute resolution projects (the Cyber Tribunal project, 1996-1999, eResolution, 1999-2001, and ECODIR project, 2000-: He is the director of the Cyberjustice Laboratory.

Nicholas Vermeys

Nicolas W. Vermeys, LL.B. (Université de Montréal), LL.M. (Université de Montréal), LL.D.(Université de Montréal), CISSP, is a professor at the Université de Montréal’s Faculté de droit, the co-director of the e-commerce masters’ program offered by the Faculty of Law at the University of Montréal in collaboration with HEC Montréal and the Département d’informatique et de recherche opérationnelle de l’Université de Montréal. He is also the associate director ofthe Cyberjustice Laboratory, and serves as a legal advisor for the law firm of Legault Joly Thiffault. Mr. Vermeys is a certified information system security professional (CISSP) as recognised by (ISC), and is the author of numerous publications relating to the impact of technology on the law. Mr. Vermeys’ research focuses on legal issues pertaining to information security, developments in the field of cyberjustice, and other questions relating to the impact of technological innovations on the law

The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., Mediate.com or of reviewing editors.




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