The Promise and Reality of Online Dispute Resolution in Australia


by Tania Sourdin, Chinthaka Liyanage

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


It is clear that Online Dispute Resolution (ODR) has grown significantly in response to local and international factors within Australia over the past decade. This growth is partly attributable to a healthy Alternative Dispute Resolution (ADR) environment within Australia. The use of ADR in Australia is widespread and all Courts and Tribunals now have the power to mandatorily refer disputes to ADR processes. In addition, many disputants are required to use ADR processes before commencing Court or Tribunal proceedings so there is also a healthy pre court ADR environment. A robust e-environment has also assisted to expand the reach of ODR and this will expand further as the national broadband plan becomes fully operational. As with other jurisdictions, at times the growth in ODR has been in response to non domestic factors such as a growth in cross border transactions and general borderless online consumer activity.

One of the most significant domestic changes in Australia is linked to the Web 2.0 approach where government and others are adapting policy and processes on an unprecedented scale to take advantage of new technologies and better connectivity. Although these processes may not support full stand alone ODR environments (at least initially), they do enable supportive environments to be constructed. In addition, many Australian ADR environments now use Facebook, Twitter and YouTube to engage with business, consumers and stakeholders about dispute resolution and to support dispute avoidance and self managed negotiation strategies.

However, the rate of growth of ODR has not been as fast as some may have predicted in the early 2000s in Australia. At that time, it was predicted that ODR would be taken up and used by a significant proportion of the Australian population by the end of the decade. After conducting a survey in 2003, Conley Tyler and Bretherton concluded that: “There is demand for online ADR among more than 70% of potential users” and it did not seem unrealistic to assume that this would translate into significant growth in ODR.

Despite this early optimism, it is fair to say that exponential growth rates have not been achieved in the ODR field and that only gradual, although significant, ODR initiatives have been undertaken within Australia. It is also clear that as broadband speed and internet infiltration has increased so have the options and processes available within the ODR environment within Australia.

Some of the early opportunities for ODR were discussed by NADRAC (a leading government ADR agency in 2002) and this chapter charts not only the growth in actual ODR but also the growth in ODR research and evaluation within Australia: Information technology provides opportunities to facilitate communication and so assisting prevention and management of disputes … to provide information to parties and to complement, or substitute for, traditional face to face interventions.

Within Australia and in this chapter, ODR has been used to refer to dispute resolution processes conducted with the assistance of communications and information technology, particularly the internet. ODR can include facilitative processes such as online mediation, advisory processes such as online case appraisal and determinative processes such as online arbitration or adjudication. Using the NADRAC definition, it also includes processes conducted through a computer program or other artificial intelligence that do not involve a “human” practitioner.

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Biography





Professor Tania Sourdin (B.A., LL.B., Grad. Dip. Leg. Prac., LL.M., Ph.D.) is the Foundation Chair and Director of the Australian Centre for Court and Justice System Innovation (ACCJSI) at Monash University in Australia. Tania has previously been the Director of Conflict Resolution Centres a tLa Trobe University and the University of Queensland. She wrote the National Mediator Accreditation Standards, has led numerous national research projects and produced important recommendations for court and non adversarial justice reform. She has worked extensively in the Asian Pacific region, the Middle East and North America. She has worked specifically in the area of AI and ODR since 2002 and has a number of major research projects in this area.

Chinthaka Liyanage has been a law lecturer at the Faculty of Law University of Colombo, Sri Lanka since 2000. He holds LL.B Degree from the University of Colombo and LL.M. Degree in Commercial Law from the University of Melbourne. Chinthaka is currently enrolled as a Ph.D. student, focusing on Online Consumer Arbitration, in the School of Law, La Trobe University, Australia. His research interests arein Online Dispute Resolution, International Commercial Arbitration and International Commercial 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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