The Promise and Reality of Online Dispute Resolution in Australia

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
.

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.

Read the entire article by clicking on the attachment below.

Attachments to this Article

                        author

Chinthaka Liyanage

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… MORE >

                        author

Tania Sourdin

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… MORE >

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