1. ECC Luxembourg 5 th Conference on Aspects of European Consumer Law Luxembourg 10 October 2013 Online Dispute Resolution: The Story so far and Predictions for the Future G Brian Hutchinson BCL LLM DAL FCIArb BL Accredited Mediator Senior Lecturer, School of Law, University College Dublin Principal, GBH Dispute Resolution, Dublin

2. Opening Thought “ If I’d asked my customers what they wanted, they’d have said ‘a faster horse’ “ Henry Ford(1863-1947), Founder of the Ford Motor Company Cambridge Consultants

3. ODR as “Disruptive Technology” Changing the way we do things, not just making it easier to do them. Richard Susskind, “Tomorrow’s Lawyers: An Introduction to your Future”

4. Context Directive on Consumer ADR 2013/11/EU, 21 May 2013, Regulation on ODR, 524/2013, 21 May 2013

5. ADR

6. The Chain of Conflict Disputes are part of a chain There are opportunities or choices at each stage to deal with the escalation A dispute process can learn from “why” the parties escalated

7. Causes of Conflict Moore

8. Conflict is Dynamic - Cycles of Conflict Rummell / ADR Group

9. The Correct focus?

10. Some Dispute Resolution Approaches Contrasted Adjudicative (decision)Non-Adjudicative (agreement) LitigationMediation ArbitrationConciliation Expert AdjudicationNegotiation Ombudsman Evidence, Due ProcessGood Faith, Safety & Confidentiality Contrasts Adjudicative vs. Non-Adjudicative (Facilitative, Evaluative,..) Rights vs. Interests (or needs) Consensual vs. Mandatory

11. ADR & ODR - What’s out there? – ADR: Diversity & Variety E.g. over 750 consumer ADR schemes across Europe (DG Sanco ADR Study, 2009). – Current Issues: – Awareness – Engagement – Coverage – Funding – Consumer ADR Directive will assist substantially in addressing these concerns

12. ODR Range of Providers – www.odr.info Range of Disputes Covered Range of Resolution Models Range of Business Models

13. Disputes Resolved Online (2005) UNIGE

14. Existing Models and Providers Differences in: – Scope of Application – Type of Service – Cost of Service – Types of Claim Automated Negotiation, Assisted Negotiation, Mediation, Case Appraisal, Crowd-Sourced Dispute Resolution and Arbitration

15. ODR Models 1.Automated Negotiation – No offline analogue – Eg. Cybersettle (“Double Blind Bidding”) 2.Facilitated negotiation – Online space for direct communication – May be structured (“fourth-party”) / Negotiation Support – Eg. ECODIR, Squaretrade, Online Confidence, Online Resolution, The Mediation Room 3.Online Mediation – Assisting parties to settle – identifying common ground, alternatives, etc – Eg. ECODIR, (Squaretrade), JAMS, MARS, Online Resolution, Web Mediate 4.Case Appraisal and Crowdsourced Dispute Resoluton – Online Jury / panel of experts – Eg. i-Courthouse, EbayCourt, 5.Online Arbitration – Binding determination by neutral third-party – Eg. Squaretrade, Nova Forum, MARS, JAMS, eNeutral, e@dr Square Trade, Resolution Forum, Online Resolution, Private Judge, Online Confidence, Web Assured, Web Mediate and Word&Bond 6.Non-Binding Arbitration – ICANN UDRP

16. The Technology

17. Automated Negotiation

20. Facilitated Negotiation

22. Online Mediation (Text Based)

23. Online Mediation (Video Based) MARS Mediation

24. Crowdsourced Dispute Resolution

25. eBayCourt.com 25 Trier, 22 June 2012 G Brian Hutchison, UCD School of Law, Dublin

26. PayPal-Court.com 26 Trier, 22 June 2012 G Brian Hutchison, UCD School of Law, Dublin

27. Marktplaats Gebruikersjury 27 Trier, 22 June 2012 G Brian Hutchison, UCD School of Law, Dublin

28. ReviewRef.com 28 Trier, 22 June 2012 G Brian Hutchison, UCD School of Law, Dublin

29. Online Arbitration

31. T Schultz, UNIGE

32. A la Carte Dispute Resolution www.modria.com Built on the Experience of 400,000,000 cases

33. Technology as “Fourth Party”

34. Assisting (or occasionally replacing) the third party in the process Examples: Organise InformationSchedule Events Send Automatic ResponsesClarify Interests Shape communicationAssist Choices Monitor Performance

35. Fourth Party Tools – Clarifying Interests

36. Fourth Party Tools – Balancing Settlement Options

37. Apportionment Tools Fairandsquare.ie

38. Fourth Party Effect - – Eg. Asynchronous text based communication – “Reducing the stress of interaction” Van Veenen, Tilburg University, (2010) – “shape communications into a constructive and polite negotiation” Rabinobich Einy (2006)

39. Fourth Party support - Feedback

40. Fourth Party Tools – Emoticons ( !)

41. Regulation of ODR

42. Regulatory Initiatives No ODR Specific Regulatory Legislation Legislative Instruments and initiatives from ADR: Commission Initiatives – European Code of Conduct on Mediation – EC Recommendations 98/257 and 2001/310 98/257 – Active (puts solution to parties) – independence, transparency, the adversarial principle, effectiveness, legality, liberty and representation. 2001/310 – Passive (assists parties to their own solution) – impartiality, transparency, effectiveness and fairness Other major regulatory requirements include Data Protection legislation Self –Regulation – Many ODR Specific Self Regulatory initiatives – Common Principles : Transparency, Accessibility, Neutrality, Efficiency, Fairness

43. Self - Regulatory Initiatives ICC “Best Practices for Resolving Disputes Online” (2003) American Bar Association “Addressing Disputes in Electronic Commerce” (2002) UNCITRAL Working Group on ODR (2011 – ongoing)

44. What is UNCITRAL Doing? Working Group III http://www.uncitral.org/uncitral/commission/wo rking_groups/3Online_Dispute_Resolution.html http://www.uncitral.org/uncitral/commission/wo rking_groups/3Online_Dispute_Resolution.html Three-Tiered Process: – Negotiation – Facilitated Settlement – Arbitration Challenges, Timeline

45. Other Initiatives ISO 10003 - Guidelines for dispute resolution external to organizations – Taxonomy – e.g. “Facilitative, Advisory, Determinative” CEN /ISS Workshop on Standardization of Online Dispute Resolution Tools

46. Standardization?

47. Modes of Standardization Minimum Standards “One Size Fits All”

48. Modes of Standardization Common Understanding - Taxonomies

49. Modes of Standardization Common Understanding - including Taxonomies

50. The Stand-ODR Workshop Agreement 16026 (2009) Workshop Agreement – Survey of Existing ODR models and Providers – Analysis of the ODR Processes – Study of the Technical and Regulatory Backgrounds – Identification of the Interoperability Aspects – Development of an ODR Taxonomy and Onthology – Conclusion and Recommendations

51. Elements of the CWA Survey of Existing ODR models and Providers Analysis of the ODR Processes Study of the Technical and Regulatory Backgrounds Identification of the Interoperability Aspects Development of an ODR Taxonomy and Onthology Conclusion and Recommentations

52. ODR Ontology Design

53. Challenges for ODR

54. Fair Procedures – Challenges for ODR (Remember – the requirements vary according to the form of dispute resolution process )

55. Right to be heard effectively – Complexity of Technology? – Right to be heard Orally? (Video/Teleconferencing?) – But: Adjudicative v.s Facilitative Divide Strengths of asynchronous text based communicatons – More significant is ACCESS to technology – And ease of access / use

56. Right to be Heard Effectively Language Barriers – technology can help

57. Access to and Reply to Communication Well managed systems must ensure. Right to Adversarial Hearing?

58. Equal Treatment No Substantial Disadvantage The guaranteeing of trust. – Internet can be a useful tool in vetting neutrals – But may itself be untrustworthy

59. Confidentiality Exacerbated concerns E-mail is not ideal!

60. Electronic ADR Agreements The need for a “permanent medium”? Note significance as enforceability of Agreements to refer to ADR increases….

61. Electronic Evidence Alterability issues – mostly affect arbitration – Both as regards agreement to arbitrate – and communications during arbitration IBA Rules of Evidence UNCITRAL Model Law on Electronic Commerce EU Directives on E-Commerce and Electronic Signatures

62. Electronic Signatures

63. Electronic Awards New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Art IV(1)

64. Bringing Parties to ODR

65. The Barriers to ODR are mostly the same barriers that exist to ADR Information and Awareness – By ODRs as well as others Clauses, Involving Lawyers and Judges, Funding

66. Bringing Parties to ODR – Legal Hurdles Case C-168/05 – Mostaza Claro v. Centro Movil [2007] 1 CMLR 22 – Pre-dispute consumer arbitration clauses must be annulled if found to be unfair by a national court – whether the consumer has complained of the unfairness or not. Contrast mandatory mediation clauses – – Rosaalba Alassini Case C 317-08

67. Possibilities for Government / Official Involvement Promoting awareness of ADR and ODR – including using ADR & ODR Cybercourts using online processes? Cyber Appeals from ODR? Accreditation of ODR providers? Establishing clearing houses networks? Funding and Co-Funding? Requiring mandatory use of ODR in some licensing processes? Supporting initiatives such as EMCOD..

68. Issues and Perspectives How to sustain ODR services?   Case generated revenue unlikely to sustain in short term.  Licence right to display “brand” (trustmark) and use process to businesses.  Necessitates a trust mark business model  Proliferation of trustmarks  Co-funding between State, Business and Consumer bodies?  Specialised focus particular markets / customers  Narrows access  Combination of the above

69. Conclusions

71. Thank You! G Brian Hutchinson BCL LLM DAL FCIArb Barrister-at-Law Arbitrator and Accredited Mediator Senior Lecturer, School of Law, University College Dublin Programme Director, Diploma in Arbitration, UCD Roebuck Castle, UCD, Belfield, Dublin 4, Ireland Tel: +353 1 716 8756 E-mail: Brian.Hutchinson@ucd.ie

72. Contact Details G Brian Hutchinson BCL LLM DAL FCIArb BL Accredited Mediator Senior Lecturer, School of Law, University College Dublin, Ireland Principal, GBH Dispute Resolution Consultancy, Dublin Ireland Tel. +353 1 443 4360 Fax:+353 1 526 1060 Email: brian.hutchinson@ucd.ie or brian@gbh.iebrian.hutchinson@ucd.ie Web:www.ucd.ie/law and www.gbh.ie