ODR in Europe

by Graham Ross, Marta Poblet
May 2013

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.

A decade has passed since the first online dispute resolution initiatives were launched in Europe. Undoubtedly, the European contribution to the initial phase of ODR deployments has been significant: of the forty-six ODR sites reported by Conley Tyler in 2003, twenty were based in European countries.

As with any new technology, the boom of ODR services in Europe over the past decade has nevertheless been accompanied by some delay in achieving its full potential, possibly as a result of an of underestimation by its original pioneers of the marketing effort and investment required to attract adequate numbers of early adopters. While ODR services rose to thirty-eight sites in 2004, some of them were no longer, even at that time, providing services. In addition, it has to be borne in mind that a review of the list shows that many were well established, and still continuing, ADR organizations or business associations who were at that time simply engaged initiatives to examine the future that technology could offer rather than launching a committed and specific ODR service.

Since 2004, Europe has, notwithstanding, continued to be not only at the forefront of ODR development and usage but also a leading centre for ODR research and discussion. At present, the current state of the art of ODR in Europe constitutes an opportunity to instill realism into the enthusiastic forecasts whilst still making significant progress with making ODR services the default systems to resolve online disputes as well as colonizing off-line domains.

This paper offers an overview of the present situation of ODR in Europe and discusses effective development of ODR deployments to handle online, offline, national and cross-border disputes in Europe. To do so, we proceed by first defining the scope of ODR and reviewing existing services. We then continue by analyzing the major challenges faced by ODR in Europe and finally conclude by suggesting some future scenarios.

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poblet_ross.pdf ADR in Europe  (poblet_ross.pdf)


Graham Ross
I am a UK lawyer/mediator with a wealth of experience in Online Dispute Resolution. I was trained in commercial mediation by the ADR Group and am a member of the UK Civil Mediation Council and the Ombudsman's Association. I am a Fellow of the National Center of Technology and Dispute Resolution (NCTDR) at the University of Massachusetts. I am also a member of the 12 strong ODR Advisory Group appointed by the Civil Justice Council (CJC) to advise the UK's Ministry of Justice on the role of ODR in a modernised civil justice system. Our initial Report was published in February 2015 and a call for its recommendations to be acted upon has been made by Michael Gove, MP, the Secretary of State for Justice. The Interim Report by Lord Justice Briggs into the future structure of the court system published in December 2015 recommended the proposal in the CJC Report for an online court. I am an expert advisor to The All Party Parliamentary Group on Alternative Dispute Resolution. In 2014, I was invited to advise in meeting the Committee of Legal Affairs and Human Rights of the Council of Europe on the impact of ODR on access to justice and human rights. The Committee produced a draft Resolution, since adopted by the Council, which calls on all 47 member States to promote the development and use of Online Dispute Resolution. In February 2016, I was invited to be an advisor to an EU funded research project led by the Faculty of Law at Salamanca University in Spain to consider the role of online mediation in cross-border disputes. ? As well as my private practice as a business mediator and negotiator, I am Head of the European Advisory Board for a Silicon Valley spin-off from eBay and PayPal called Modria Inc (www.modria.com) the global leader in applying online technology to all forms of resolving complaints and disputes. I have been an innovator in the field of mediation, developing two areas of novel specialism being disputes between shareholders in private companies leading to stalemate situations (see www.BoardroomResolve.com). ? The significance of ODR in the field of Alternative Dispute Resolution (ADR), which includes arbitration and mediation, has been reinforced by the European Commission which has recently passed a Regulation on ODR, and a Directive on Alternative Dispute Resolution (ADR) requiring ADR companies throughout Europe to provide ODR facilities for consumer claims. ? I co-founded the UK's first ODR service, a blind bidding service called We Can Settle in 2000, and two years later the online mediation service The Mediation Room, on which platform trials have been conducted for PayPal, the UK Small Claims Court, the Law Council of Australia and other organisations. ?I was a member of the Working Party of the European Committee on Standardisation (CEN) which developed a Workshop Agreement on standards for Online Dispute Resolution and am currently a member of the EU funded EMCOD project (www.emcod.net) led by the University of Tilburg and which has developed an online tool for the measurement of justice through ODR. ? I was the co-author of the European chapter in “Online Dispute Resolution: Theory and Practice” and which was published in 2010 (Eleven Publishing - ISB 9490947253), which described as "a state-of-the-art overview and assessment of the status quo and future of the Online Dispute Resolution (ODR) field." I speak regularly at international conferences on the impact of the law on the Internet and e-commerce and on technology in the judiciary and Alternative Dispute Resolution. I have been presenting regularly at conferences on ODR since 2002 when the now annual International Forum on Online Dispute Resolution was first launched at the Palais Des Nations in Geneva by the United Nations Economic Commission for Europe. The Forum, which has traveled around five continents, was hosted by myself in 2007 at the University of Liverpool. I have presented most recently at events in 2012 in the Czech Republic, Bulgaria , Poland and Azerbaijan, where he chaired the workshop on ODR at the Internet Governance Forum . In 2012 I was invited by the European Commission to attend an expert group round table in Brussels on introducing a new European Law on Alternative Dispute Resolution and ODR for Business to Business disputes across Europe. In 2012 I was invited to join a working party set up by the UK Ministry of Justice to create a Business Dispute Resolution Commitment to encourage less recourse to the courts. ? I developed the leading training course in applying technology to ADR and, as such, has trained mediators from over 20 countries as well as developing and delivering a course for the Milan Chamber of Arbitration and for the UK Ministry of Justice. I have been invited to advise court services in the UK , Canada and Bulgaria on applying technology tools to improve ADR. I was the founder of LAWTEL the online legal information update service now owned and operated by ThomsonReuters. ? As a mediator I have developed novel techniques within the field of Interest-Based Mediation which operates beyond the traditional areas of compromise by helping each party to the dispute to consider interests they may have that, whilst peripheral to the main issue, can be affected adversely as a consequence of the dispute not being resolved, no matter what the outcome of the litigation. By focusing on identifying all interests, including those not obviously linked, that may be impacted by the continuation of the dispute and examining in detail the potential damage each side may suffer on the absence of agreement, the parties themselves then begin to express their own desire to resolve the matter between themselves. In other words, he works to bring the parties to the point where it is they, the parties in dispute, who begin to press for settlement, not the mediator seeking to coax them into it. ?? My casework experience as a mediator includes:- Shareholder disputes, business acquisition disputes, IT development disputes, book copywriting disputes, consumer disputes and franchising disputes.

Marta Poblet is the director of the UAB Institute of Law and Technology, where she coordinates a number of research projects dealing with law and technology, judicial systems, legal professions, and alternative dispute resolution systems. She holds a J.D. from the Stanford University (Stanford Law School,2002) and a M.A. in International Legal Studies (Stanford Law School, 2000). She is also a past Fellow of the Stanford Center on International Conflict and Negotiation (2001). Her research interests cover technology-oriented developments in legal organizations, judicial systems, mediation systems, online dispute resolution (ODR) and, more recently, mobile dispute resolution (an emerging field that focuses on the use of mobile phones and cell networks to facilitate the management and resolution of conflicts).