ODR and the Courts

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

Ever since online dispute resolution (ODR) processes first arose in the mid-1990s,
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.

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Karim Benyekhlef

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,… MORE >


Nicolas 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… MORE >

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