Online Dispute Resolution (ODR) is Still Alternative Dispute Resolution (ADR)
On Line Dispute Resolution
Where We Have Been and Where We Are Going
By
Judge Arthur M Monty Ahalt (ret.)
David Glynn
Online Dispute Resolution (ODR) is Still Alternative Dispute Resolution (ADR)
Less than 15 years ago the legal community struggled to implement alternative dispute resolution (ADR) into the case management programs of federal and state trial courts. This effort was largely motivated by overcrowded trial dockets which allowed cases to remain pending 4 and 5 years before a trial date. Now ADR is an accepted component of most case management programs of any trial court and reaches into almost every segment of our lives. Schools, prisons, communities, businesses, consumers and families now have ready access to alternative dispute resolution training and specialists. Many state courts have established conflict resolutions programs such as the highly effective and award winning Mediation and Conflict Resolution Office (MACRO) of the Maryland Judiciary.
ADR has been around since the 1920’s and the founding of the American Arbitration Association. Originally the focus was on providing commercial entities with alternatives to adjudicating their disputes in the court. During the next eight decades many barriers have been overcome, however, the paper based alternatives of the past which paved the way have become expensive and time consuming – in some cases it’s as if a new bureaucracy has replaced the old judicial bureaucracy. While face to face and paper based alternative dispute resolution is not as time consuming and expensive as litigation in the courtroom, the time and expense of paper and face to face meetings denies many parties the opportunity of a fair and neutral resolution of a genuine dispute.
The ability of technology- especially the internet – to make many business processes more efficient is now making it clear that online dispute resolution is the next frontier of alternative dispute resolution. The internet promises to make more disputes reachable by ADR and to facilitate the resolution of disputes faster and at a lower cost. But like many shifts from paper to technology, a clear strategic pathway has yet to appear.
What is Online Dispute Resolution
Online Dispute Resolution provides the ability for two (or more) disparate parties to settle their dispute using the Internet. Sometimes this involves lawyers and mediators and sometimes it does not. It depends on the vehicle/provider that the parties agree to utilize to dispute their claim.
Traditional cases can be settled using the Internet, but the most common use these days involves disputes that have come out of the business of the Internet, e.g., Square Trade, used by eBay to mediate eBay trading disputes online and ICANN, the internet domain registration coordinator, vehicle for settling disputes over rights to domain names.
Outside of the embedded ODR vehicles that eBay and ICANN provide, there are several different models of dispute resolution provided by public and private entities. Some simply assist with negotiation and some completely automate negotiation where an arbitrator or mediator is not required. When arbitrators and mediators are involved, the systems are more sophisticated and many times representation will also take place either before the process starts or during the preliminary stages of the process.
Some ODR systems provide weight balancing mechanisms on terms. This will assist parties with analyzing the disparity between the parties and offer hints as to how the parties can attempt to meet half-way. Sometimes when one sees a more scientific presentation of the facts, it may make it easier to come to terms. This indeed may be one of the strengths of ODR over traditional ADR and will play out as a future feature of ODR systems.
Calculating the BATNA (Best Alternative to a Negotiated Agreement) for a party after they submit their claim may help to overcome the strongest psychological barrier that drives the party to dispute resolution in the first place. According to de Vries, Berend R., Ronald E. Leenes & John Zeleznikow of Tilburg University in the Netherlands, in their article entitled, “Fundamentals of Providing Negotiation Advice Online: the Need for Developing BATNAs†iv, most parties have an unrealistic view of the potential outcome of their case. Weight balancing of negotiation points could play a key role in the future of ODR.
It is All about Change Not Technology – Overcoming Barriers
The adoption of technology by businesses and individuals over the last two decades is astounding. Just 10 years ago managers of the nation’s largest law firms were struggling to get their lawyers to put a PC on their desk and then actually use it. One manager of a firm found a creative strategy. He announced at a firm meeting that he was conducting a pilot to determine how best to use a PC in the practice. He was going to conduct the pilot with the 10 brightest lawyers in the firm. Anyone who was interested was advised to call his office. One by one every lawyer in the firm called, and as soon as they did, a PC showed up on their desk. Adoption of the computer in the everyday life of that firm was well underway.
Today only a few laggards in the legal profession fail to make use of the PC. Interestingly enough the leaders are not always the younger generations as many senior lawyers lead the way. Take Judge Richard Rombro, a retired Judge in Maryland (having been forced to retire because the Constitution requires retirement at age 70). Judge Rombro managed the entire asbestos docket for the Circuit Court for Baltimore City using Lexis-Nexis File and Serve – sometimes even from his winter office in Florida. The legal profession has fully embraced technology including the Internet to help become better lawyers. Those who have not embraced technology are losing the competitive battle.
So why is it that disputes are still largely resolved with a dependency on paper and face-to-face meetings. It is all about change. Old ways are not put aside easily. Who hasn’t heard a lawyer say – “I know that is the way it will be done in the future, but I am not going to change now.â€
Change requires strong and great leadership. And great leaders always have a vision, a strategy, and they are enthusiastic and work really hard. Judge Ahalt learned these attributes of leadership from basketball great Jim Valvano. He was riding in his car to a Maryland basketball game against North Carolina State listening to the Johnny Holiday’s pre-game radio show. Johnny was interviewing the State coach Jim Valvano. Valvano had just won a National Championship the year before. Shortly into the interview Johnny ask Coach Valvano what his secret to success was. Coach Valvano said rather nonchalantly and quickly–“Well Johnny you have to have a vision, then a strategy and you have to be enthusiastic then you have to work like crazy to make sure that you accomplish the vision.” Coach Valvano said that his vision was to win the game on a shot at the buzzer. His strategy was to get to the last two minutes of the game no more than 6 points down. He was sure that his team could play strong enough defense in the final two minutes to make sure the other team did not score and he was sure his team could execute and score over that relatively short period of time. Sure enough over the years Coach Valvano executed his plan for success and he wound up being one of the most successful coaches. His life was cut short by a tragic and fatal fight with cancer–but the coach never gave up. His lesson and legacy will live on for years.
Valvano’s formula for success then is:
1. Vision
2. Strategy
3. Enthusiasm
4. Work
In developing a strategy it is essential to identify the barriers. The following are but a few:
1. The neutral needs to see the parties
2. Scanning and uploading documents
3. It is easier to do it the old way
As VirtualCourthouse approaches the 1,000th case filing it has become obvious that Online Dispute Resolution (ODR) requires adoption by three separate constituencies – the claimant, the respondent and the neutral. Much like a stool, if one leg is absent the stool falls. Thus, the challenge of change is multiplied or as the mathematician might say – “cubedâ€.
Most all practitioners have successfully overcome the barriers to change which were presented with the advent of court ordered ADR in the 1990’s. The benefits have become obvious – time savings, cost savings and “resolution satisfactionâ€. Yet the court dockets keep growing so much more remains to be accomplished.
Students of the dynamics of CHANGE will testify that change does not occur unless there is;
1. Leadership
2. Strategy
3. Management
Over the past three years VirtualCourthouse has demonstrated that technology can elevate alternative dispute resolution to higher levels – but it requires the participation of all three legs of the stool. Leadership is key and the leaders in each constituency are stepping forward as the pioneer’s did and they are establishing new territory.
Eric Frye, a lawyer in Upper Marlboro, Maryland, continues to file his cases in VirtualCourthouse before he files in Court. Jeff Wigodsky with Karp Frosh, in Washington, D.C. has successfully adopted the same policy. Several insurance claims department have successfully integrated VirtualCourthouse into their claims examiner training process. The neutrals have had an easier time adopting as Judge Vincent Femia, Alan Feld and Cy Pickens will attest. The common denominator with all of these folks is there ability test the vision of VirtualCourthouse and overcome the reluctance to change.
Most people are risk-averse and they therefore resist change. “I have been doing just fine without all of this technology†is a familiar refrain. However, the evidence now is overwhelming that ODR will pay significant dividends to those willing to give it a try. The VirtualCourthouse team does a formal evaluation on every case filing and the results are truly exceptional. Over 90% of those responding are “very satisfied†– a 5 on a 5-point scale – with VirtualCourthouse as a method of dispute resolution. 90% are also “very satisfied†with the customer service. Now this does not mean that everyone is thrilled with the result, because as in all dispute resolution, everyone’s expectations are not achieved. And yes, there are occasional “technological†clichés and challenges. But that is where the ODR provider excels by its experience in overcoming these challenges. Even in the “paper world†not all is perfect and there are occasional problems and challenges to overcome.
Technologies used in ODR
Embedded Technologies
All of the technologies used in ODR stem from the Internet. The parties will initiate the ODR process on a Website and tools are provided on the Website as the negotiation moves forward. The majority of ODR proceedings take place utilizing the Web browser exclusively and plug-ins will be provided by the ODR provider in the form of communications, i.e., chat, messaging (emails), conferencing (both telephone and video) and processing.
If it’s the case of blind negotiations, i.e., an offer is made and accepted or rejected, minimal tools will be needed. As the issue or case escalates, and/or other participants get involved, there may be a wider use of technology. Email and/or instant messaging may be required, a teleconference, or in the case of face-to-face contact, video-conferencing will be utilized. Most of these services should be self-contained within the provider’s package.
Throughout the process, automated steps will be followed that will be driven by the ODR provider’s Web program. This may include calendaring, case management, automatic payment processing and other programs typically associated with court and case management.
Use of Technology Outside of the ODR Website
In some cases, depending on the provider, going outside the Website might be required. That may involve using business or personal email, instant messaging software and/or WebEx, NetMeeting or Live Meeting for video-conferencing and traditional use of teleconferencing services. The conferencing services may make use VOIP vs. traditional land telephone lines.
What works Best in ODR
In developing a strategy to successfully implement an ODR project it is helpful to analyze what has been successful.
What is becoming clear is that certain case criteria lend themselves to online activity, while other criteria lend themselves to the physical world. Online activity works best when there are only two parties and where the substance of the dispute is only monetary. ODR also has been effective where the dispute arises out of Internet commerce. ODR is difficult when there are many parties, the substance of the dispute is emotional or there is a large amount of money in controversy.
Square Trade has handled thousands of disputes which have arisen between the buyer and seller of goods on eBay. Using this online solution a neutral mediates the dispute in an online chat format.
Cybersettle has successfully settled thousands of disputes, mainly involving personal-injury claims. Using the Cybersettle online process, the parties submit blind monetary demands and offers and agree that if they are within certain limits the case is settled at the midpoint of the last demand and offer.
The American Arbitration Association has settled several thousand cases digitally, but it still remains a very small percentage of the AAA caseload.
VirtualCourthouse.comâ„¢ has successfully settled hundreds of personal-injury claims through an online binding arbitration process. The parties select a neutral though an online negotiation. Once the neutral is selected each party presents their case online – uploading supporting medical bills, doctor reports, pictures and other relevant evidence. The neutral then reviews the presentations and renders a binding decision.
Current ODR Providers
Business-to-Business/Online Enterprise ODR Models
One of the most well-known ODR providers is Square Trade. They are responsible for handling eBay disputes. A fairly simple process is followed to present the case and the parties have the ability to bring in an arbitrator if necessary to settle the case. An example of the steps followed is illustrated below on the SquareTrade.com Website:
Square Trade Process – Figure 1
ICANN (Internet Corporation for Assigned Names and Numbers) recommends several ODR providers to assist in disputes over Internet domain names. One of those providers is the WIPO (World Intellectual Property Organization) and another is the National Arbitration Forum. Each recommended organization follows the rules and guidelines set by ICANN although they may supplement those rules with their own to best facilitate the process.
Below are the steps involved in the National Arbitration Forum’s dispute process:
Domain Name Disputes Process
A party files a domain name Complaint with the FORUM in accordance with the appropriate policy and Supplemental Rule set. This party is known as the Complainant. A copy is sent or transmitted to the Respondent and the disputed domain name’s registrar.
Once the case is filed, the FORUM reviews the Complaint for administrative compliance. The Complainant has 5 days to bring the Complaint into compliance with the rules or the Complaint will be dismissed.
Once the Complaint has been processed and accepted by the FORUM, the case is commenced. In most cases the Respondent has 20 days to file a response with the FORUM in accordance with the appropriate policy and Supplemental Rule set.
The Respondent files a written response with the FORUM. If the Respondent does not provide a written response, the deciding panel will only consider the Complainant’s submissions.
Each party may submit one additional submission following the FORUM’s acceptance of the Response; refer to the Supplemental Rules for instructions, restrictions and fees.
The FORUM assigns a panel (or arbitrator[s]) to hear the case.
The panel reviews the Complaint and the Response, and has the discretion to review any additional submissions from the parties.
The panel issues a decision. The decision is published by the FORUM and communicated to the parties, the registrar, and the appropriate Internet body (such as ICANN or NeuStar).
CyberSettle holds patents for several automated dispute resolution processes including the “double-blind bid†automated process. CyberSettle was begun in 1996 by two lawyers and has since grown into a company that claims to have handled enough cases to exceed $1 billion in settlements. Their clients are insurance companies, municipalities (New York City is listed among their clients) and other entities that would benefit from ODR. CyberSettle is a private company that also has a spin-off called Debt Resolve, Inc. that focuses on debt collection disputes.
Neutral-Focused ODR Providers
Services like VirtualCourthouse.com specialize in providing neutrals in addition to taking the parties through the entire ODR process. VirtualCourthouse.com comes closer to mimicking the actual court process than most of the services outlined above. They allow exhibits and supporting materials to be submitted electronically and case information is shared among the parties and the assigned neutral in a secure environment. The lowest cost for a simple case brought to VirtualCourthouse.com would be less than $400.
Mediate.com is a site that helps one locate a mediator in a particular geographical area and practice type. Unlike the VirtualCourthouse.com outlined above, Mediate.com does not offer a Web interface to enable one’s case to be submitted and adjudicated online.
Paper Based Organizations in Transition
The American Arbitration Association offers a lot of information on their Website, including PDF forms. You have the ability to file your case electronically through AAA Webfile. The AAA offers both mediation and arbitration services and is the oldest ADR organization outside of the courts in the U.S.
JAMS, founded by Hon. H. Warren Knight in 1979, provide mediation and arbitration services across the country. They specialize in a variety of claims including bankruptcy, mass tort and international. The JAMS Website allows the visitor to file an initial claim and select a location and neutral. But beyond that, JAMS does not offer the automated case monitoring that the other services outlined above do.
Regional ADR Service Providers
There are several regional ADR providers, like ADR Systems of America, LLC, headquartered in Chicago. ADR Systems has many retired Cook County Circuit Court judges on their roster of neutrals and specialize in complex personal-injury cases. The ADR Systems’ Web interface is limited but they focus on being a regional provider and therefore the need for automation is not quite as great as in a case involving geographically diverse parties.
Other ODR Providers
The ElectronicCourthouse.com, run by a Canadian company called iVentures, provides services to companies that must offer dispute-resolution. They specialize in companies that manufacture and distribute internationally.
Developing a Successful Strategy
Transferring an existing process from the bricks-and-mortar world to the Internet is a daunting undertaking. The process is fraught with barriers of change involving multiple parties and multiple processes. Developing a strategic approach is therefore essential. It is similar to “eating and elephant†– you do not want to plan this event for one meal or you will surely fail. You need to start small but you need to start. It is necessary to strategically identify a starting point where the existing barriers are not overwhelming and where efficiencies of online business will bring the greatest bottom line result. To commence your ODR learning you need to register as a neutral or initiate a claim online.
Register as a Neutral
Currently only three providers allow for online registration. SquareTrade.com, Mediate.com and VirtualCourthouse.com.
To register with Square Trade go to – http://stn.squaretrade.com/
Mediate.com charges a membership fee.
Mediate.com Membership includes:
• Locate A Mediator Directory Listing at Mediate.com
• Optional Participation in Mediate.com’s Qualifications Disclosure Program
• Eligibility for Professional Liability Insurance
• All MediateInside content, including News, Jobs, Archives, Video and more
• The Bi-Weekly Mediate.com Newsletter
Mediate.com Membership is only $17.95/month or $179.95/year!
Apply for membership by going to –www.mediate.com/membership/
VirtualCourthouse.com does not charge for membership or for listing. To register as a neutral with VirtualCourthouse.com go to – www.virtualcourthouse.com/system/neutral_register/neutral_register.asp
Initiate an Online Claim
To start a claim with Cybersettle you must first register –www.cybersettle.com/user/usersignupstart.aspx
A fee is charged only if a settlement results and will range from $100 to $700 depending on the amount of the settlement.
To initiate an ODR activity with VirtualCourthouse.com – go to –
www.virtualcourthouse.com/system/start_case/start_case.asp. There is no fee to initiate an ODR activity and an online arbitration fee is $200 per party.
Conclusion
A few years ago eFiling in the courts was considered far off and challenging, now it’s a reality in most federal courts and many state courts. ODR may appear to be as far-off as eFiling did, and similarly will be an accepted norm for cases appropriate for the ADR process in the near future. So take some steps in preparation of ODR.
Less than 15 years ago the legal community struggled to implement alternative dispute resolution (ADR) into the case management programs of federal and state trial courts. This effort was largely motivated by overcrowded trial dockets which allowed cases to remain pending 4 and 5 years before a trial date. Now ADR is an accepted component of most case management programs of any trial court and reaches into almost every segment of our lives. Schools, prisons, communities, businesses, consumers and families now have ready access to alternative dispute resolution training and specialists. Many state courts have established conflict resolutions programs such as the highly effective and award winning Mediation and Conflict Resolution Office (MACRO) of the Maryland Judiciary.
by Judge Arthur M. Monty Ahalt ( Ret.) and David Glynn – March 13,2008
