The following is an article reprinted from the November 2013 Newsletter of the National Alternative Dispute Resolution Section of the Canadian Bar Association. A French language abbreviated version of this post is available with the CBA Newsletter:
The Future is Now with Online Dispute Resolution
Since the internet became popular in the late 1990s there has been talk of Online Dispute Resolution (ODR) as a future trend. ODR has worked well for several years in resolving internet disputes over website domain name rights and also over other internet related things like EBay online auction disputes. People involved in these disputes are comfortable with an online process. Those disputes tend not to be complicated and can effectively be resolved online. Most people who suggest that they use ODR for complex disputes, really just email material for a paper review of evidence for a summary arbitration or ahead of a mediation that can be done by telephone or in person.
Video conferences have been used for years for examinations for discovery in court cases where parties cannot conveniently be in the same city for in-person discoveries. This is usually done by satellite with expensive conference facilities in two cities. This can work with mediation because it allows people to see each other with large screens so it seems like they are just across the table. Body language can be assessed, which is a critical element of in-person mediation. Internet technology has advanced, so that the video conference can be via internet with people in multiple cities engaging from their own homes and offices using desktop, laptop and tablet computers. Smart phones can be used, and Samsung has just released a smart wrist watch with video display, but those devices have screens too small for multi-party display.
Internet applications are used by courts. Judges now receive computer training and are encouraged to use technology in court rooms. New technology can reduce costs and add accessibility to mediation and arbitration. Alternative Dispute Resolution (ADR) has, in the past two decades, become the preferred way to deal with disputes. Moving a logical step further and adopting new technologies we come to what can now be done in Online Dispute Resolution. ODR provides the opportunity for access to justice both for people who may be physically isolated from urban centers, people with disabilities and mobility issues and for those who could not otherwise afford to pursue legal remedies. Businesses seek to create efficiencies and reduce the cost of services, and ODR offers potential large cost and time savings. Key business decision makers who cannot afford the time to attend proceedings can participate directly in an online process and make it more effective.
The quicker and more cheaply a dispute can be resolved fairly the better. Parties should try to directly negotiate a settlement. If direct negotiation fails mediation is the preferred process, because a settlement is something that immediately ends the process and it does so with a result that all parties can accept. Settlement is not always possible even with the best mediator and process, so Arbitration is a necessary alternative to court. Arbitration is especially preferred with international disputes, where courts local to a party are not trusted and the costs of travel for proceedings are prohibitive. International arbitration awards are more easily enforced in different countries than court judgements.
Let us consider online options for the mediation process. A skilled mediator has excellent interpersonal skills and the ability to bring parties in a dispute closer together. This works well when everybody is in the same place but there is a cost to bringing them together. Usually it is worth the price. The cost of mediation makes people take the process more seriously as the parties involved have more invested in it and generally do want it to succeed or they would not have gone to the effort. Telephone mediation is used frequently for some types of disputes and has both a much lower cost and success rate. That is mainly because the traditional telephone lacks a video component. Online video mediation has greater potential as body language can be assessed. It is still not the same to look a monitor in the eye instead of a person. Although technology has improved, with the added video component additional to voice, it is still far from the personal process that makes mediation most effective.
Arbitration is more perfectly suited to an online process. The ability to challenge evidence by cross examination is a fundamental right in arbitration and it makes for more accurate fact finding. In a simple case where facts are agreed or a contract is to be interpreted, email or other document review may be adequate but most disputes turn on facts which are in dispute and credibility issues. An arbitrator is required to decide a dispute based on the evidence and not on impressions and other personal factors. Credibility can be assessed properly with an online visual hearing. An arbitrator can consider body language in assessing demeanour of a witness but should be focussed on the actual evidence given by a party or witness. To the extent that personal observation is needed by an arbitrator to assess evidence, current technology readily available across the world is sufficient. By using low cost or free existing internet methods including processes such as Skype, Google Plus Hangouts or Facetime you are not only saving money but you are potentially creating a more objective process for the arbitrator or tribunal to receive the evidence. Witnesses can be examined and cross examined from their home or office with an audio and video feed to everyone involved. Non-professional witnesses are more comfortable in their own environment and you do not have to deal with problems caused by nervousness in a formal and sometimes foreign environment, or jet lag if they had to travel far to give evidence. Documents can easily be reviewed without in person attendance and questions can be answered and submissions made by legal counsel with just a phone call. A tribunal of arbitrators does not have to meet in person to confer when they use new technology including online document management and editing.
Cost and speed of the process are the most important factors giving an advantage to online arbitration. Speed is obtained by making it easier to set a hearing date as it is not necessary to have everyone in the same place at the same time. The cost savings are enormous with experts not charging for their travel time and expense. The arbitrators, witnesses, parties and counsel do not have to travel and have added costs of travel, meals and accommodation. A court reporter can record proceedings more cheaply if they can work from home and with real time reporting instant transcripts can be available. Privacy can be a concern but the technology exists to keep confidential proceedings from being intercepted.
As an example of how this is actually working we can turn to British Columbia consumer disputes where the provincial government consumer protection branch offers an online process at no charge to businesses and consumers at resolveyourdisputes.ca
Parties submit documents online and participate in negotiations which can be turned into mediation. The mediation is a fairly simple one that may not be adequate for many disputes but this is a step in the right direction. A new Civil Resolution Tribunal is being established in BC to deal with condominium and small claims disputes and the process will evolve. Now is the time for lawyers, mediators and arbitrators across Canada and internationally to take a fresh look at new internet technology and how it can simplify the dispute resolution process and make it more cost effective.