THESE disputes resolution techniques range from methods where parties have full control of the procedure to methods where a third party is in control of both the process and the outcome. The first process is conducted mainly online i.e. to carry out most of the dispute resolution procedure online sometimes with a machine interfacing, including the initial filing, the appointment of a Neutral, evidentiary processes, oral hearings if needed, online discussions, and even the rendering of binding settlements. Thus, according to some pundits, ODR is a different medium to resolve disputes, from beginning to end, respecting due process principles.
As a corollary to the foregoing, various literatures have indicated that the introduction of ICT in dispute resolution in most developed Countries is currently growing to the extent that the difference between off-line dispute resolution and ODR is blurry. It has been observed that it is only possible to distinguish between proceedings that rely heavily on online technology and proceedings that do not.
On the other hand, a segment of commentators have defined ODR exclusively as the use of ADR assisted principally with ICT tools thereby giving rise to the name e-ADR. Although part of the doctrine incorporates a broader approach including online litigation and other sui generis forms of dispute resolution when they are assisted largely by ICT tools designed ad hoc, yet ICT revolution analysts are of the view that ODR has come to replace the entire justice system with its cheap, easy, innovative, relaxed, speedy and civilized dispute resolution model with its specialized technique to resolve such disputes.
The latter definition seems to be more appropriate, since it incorporates the necessary techniques and all methods used to resolve disputes that are conducted mainly through the use of ICT, though still at its infancy stage. Moreover, this concept is more consistent with the fact that ODR was born from the distinction with off-line dispute resolution processes.
In ODR, the information management is not only carried out by physical persons but also by computers and electronic devices. The assistance of ICT to disputes resolution has been named by Katsh and Rifkin as the ‘fourth party’ because ODR is seen as an independent input to the management of the dispute. In addition to the two (or more) disputants and the third neutral party, the labeling of technology as the fourth party is a clear metaphor which stresses how technology can be as powerful as to change the traditional three sided model of dispute resolution that hitherto hold sway. The ICT embodies a range of capabilities in the same manner that the third party does. While the fourth party may at times take the place of the third party, i.e. automated negotiation, it will frequently be used by the third party as a tool for assisting the process.
The fourth party (ICT) may do many things such as organize information, send automatic responses, shape writing communications in a more polite and constructive manner e.g. blocking abusive, derogatory or foul language. In addition, it can monitor performance, schedule meetings, clarify interests and priorities and may even settle the dispute automatically in the blind bidding method and so on. The assistance and relevance of the ICT is envisaged to continue to increase and diversify with the advancement in technology, thus reducing the role of the third neutral party. Katsh and Wing argue that ICT advance is occurring exponentially since ICT advancement speeds up over the time. As a result, ODR processes are increasing in efficiency, providing their disputants with greater advantages in terms of time saving and cost reductions.
Notwithstanding the perceived confusion, ODR is observed to have emerged as one of the most used term in recent years; possessing distinctive and innovative techniques to resolve disputes. Some Conflict and Dispute Resolution Practitioners are still uncertain about whether these processes form a new discipline of ADR or a tool to aid existing methods of dispute resolution. Just like in every other human endeavour, this uncertainty might continue except for the fact that as the uncertainty gradually clears, more and more people would appreciate the inevitable change that is taking place in the justice sector until such a time when one does so at ones peril. However, it has been submitted and a great number of people agreed that the most appropriate view would be to look at same as an interdisciplinary field of dispute resolution.
Methods of ODR
The methods used in ODR can be broadly divided into Consensual and Adjectival methods.
Consensual Methods
This method entails that the parties voluntarily carryout the resolution on their own accord with or without any assistance or input from a third party. In the same vein, the consensual method can further be subdivided into Automated and Assisted ODR i.e with the involvement of a third party.
Automated negotiation or blind-bidding service
Automated Negotiation relates to those methods of dispute resolution in which the technology takes over (all or some aspects of) a negotiation. Most of the ODR services in this area are also called ‘blind-bidding’ services. This is a negotiation process designed to determine economic settlements for claims in which liability is not challenged. The blind bidding service may be described as a type of ‘auction’ mechanism where some or all information about the players’ bids are hidden. There are two forms of automated negotiation: Double Blind Bidding, which is a method for single monetary issues between two parties, and Visual Blind Bidding, which can be applied to negotiations with any number of parties and issues.
Double Blind Bidding is a negotiation method between two parties where the offer and demand are kept hidden during the negotiation process.eg the e-settle window. It commences when one party invites the other to negotiate the amount of money in dispute. If the other party agrees, they start a blind bidding process whereby both parties make secret offers or bids, which will only be disclosed if both offers match certain standards. They can usually submit up to three offers and if the bids of both parties come within a predetermined range (usually range from 30% to 5%) or a given amount of money (e.g. N3, 000), then the software automatically settles the dispute in the mid-point of the two offers. Although, it is a simple method, it effectively encourages the parties to reveal their ‘bottom line’ offers and demands, splitting the difference when the amounts are close. Visual Blind Bidding The primary distinction of Visual or Single Blind Bidding from Double Blind Bidding is in what is kept hidden from the other party (ies). In Double Blind Bidding, the offers and demands are kept hidden, whereas with Visual Blind Bidding what is kept hidden is what each party is willing to accept. This method can be effectively applied to the simplest single-value negotiations or the most complex negotiations between any number of parties and issues. Visual Blind Bidding commences when all parties agree to negotiate with one another. They start the process by exchanging 3visible optimistic proposals, which define bargaining ranges. The system then generates suggestions that fall within the bargaining ranges. Parties may continue to exchange visible proposals or contribute their own suggestions to the mix. Suggestions contributed by the parties remain anonymous, thus avoiding the face saving problem of accepting a suggestion made by another party.
A resolution is declared by the system at the end of a negotiating session, if all parties have accepted one or more packages (out of two or more proposed decision values) at the end of that session. Which of those packages becomes the agreement may be determined by an algorithm that rewards the party that moves soonest into the Zone of Agreement. This algorithm is programmed to encourage concessions and quickly indicate that they are willing to accept a fair outcome.
This is in contrast to the chilling effect that occurs with the more common split-the-difference algorithm. Automated negotiation has proven to be particularly successful with insurance compensations and commercial activities. It is also a valuable pre-litigation tool for lawyers, because they too can use it without revealing what they’re willing to accept (unless an agreement is reached) and more importantly, without waiving their right to access the court, in situations where negotiation is unsuccessful.
Thus, the automated ODR is useful for resolving other disputes that arise in businesses, with insurance companies and municipalities in the USA and Europe, who are coming to terms with the reality that ODR saves them money and time when dealing with B2C disputes.
Assisted negotiation
In Assisted Negotiation, the technology assists the negotiation process between the parties. The technology has a similar role as the mediator in a mediation forum. The role of the technology may be to provide a certain process and/or to provide the parties with specific (evaluative) advice.
Generally, Mediators use information management skills aimed at encouraging parties to reach an amicable agreement by enabling them to communicate more effectively through the rephrasing of their arguments.
On the other hand, Conciliation though similar to mediation, is still different because the conciliator can propose solutions for the parties to consider before an agreement is reached. Also, assisted negotiation procedures are designed to improve parties’ communications through the assistance of a third party or software. In fact, it has been argued that assisted negotiation, conciliation, and even facilitation, are just different words for mediation. The major advantages of these processes, when used online, are their informality, simplicity and user friendliness.
Adjectival method or online arbitration
Arbitration as a process where a neutral third party (arbitrator) delivers a decision which is final, and binding on both parties, can be defined as a quasi-judicial procedure where an award is made at the end of the session and is enforceable in a Court of law just like a judicial decision. However, in an arbitration procedure, parties usually can choose their own arbitrator, on the basis of which the arbitrator makes the decision.
Furthermore, it is less formal than litigation, though more formal than any other consensual process. It is often used to resolve businesses’ disputes; because this procedure is noted for being more private and faster than litigation. Once the procedure is initiated, parties cannot abandon it. Another feature of arbitration is that the award is enforceable almost everywhere due to the wide adoption of the ecommerce directive and the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards domesticated in Nigeria as Part iii (Additional Provisions relating to International Commercial Arbitration and Conciliation). Section 54 of the said Act provides as follows: Without prejudice to sections 51 and 52 of this Act, where the recognition and enforcement of any award arising out Of an International Commercial arbitration are sought, the Convention on the Recognition and Enforcement of Foreign Awards (hereinafter referred to as the Convention’’) Set out in the second schedule to this Act shall apply to Any award made in Nigeria or any contracting state:
a) Provided that, such contracting states has Reciprocal legislation recognizing the enforcement of arbitral awards made in Nigeria in accordance with the Convention;
b) That the Convention shall apply only to differences arising out of a legal relationship which is contractual.
Since the popular view is that arbitral awards has proven to be frequently cited as being easier to enforce than court decisions from overseas, the coast seems to be clear for ODR Practitioners in Nigeria to join the band wagon in order to enjoy its immense benefit. As the country’s ODR and Cyber-Courts develop, other lacuna and impediments to its application would come to the fore; with time and some assiduous hard work, best practices would eventually be entrenched.
Although, majority of legal scholars on online arbitration agree that, neither law nor arbitral principles prevent arbitration from taking place online, there may be several aspects of ODR that need to be regulated. Just like the provision under Nigerian Law, there is a strong assumption that online arbitration is admissible under the New York Convention. Conversely, the e-Commerce Directive cited by some commentators to be equally usable seems according to other Scholars to be more of opinion than a legal statement.
Notwithstanding the above contentions, some discerning ODR Practitioners observe that arbitration is based on a contractual agreement between the parties. Therefore, they further opine, an online process without a regulatory framework may generate a significant number of challenges from consumers and other weaker parties if due process cannot be assured. To allay this fear using Nigeria as an instance, most arbitrators are either retired Judges or Licensed legal Practitioners with a few other Specialists with a code of ethics or rules of professional conduct guiding their operations.
Despite this fact, the need to update such code is not out of place. However, the existing rules could be used for now. It is only by constant usage that some of the inherent defects in the rules could come to the fore. Currently, most arbitration providers allow parties to carry out online aspect only as part of the arbitration process, e.g. parties may download claim forms, the submission of documents through standard email or secure web interface, the use of telephone hearings, etc. Seen as a silver lining, the Nigerian Judiciary is currently training its Judges to imbibe online process to ensure quick dispensation of justice. In this regard, the former Chief Justice of Nigeria (CJN), Dahiru Mustapha also disclosed that the code of conduct for judicial officers was being reviewed in line with emerging developments in the society including the challenges of ICT. He therefore urged the judiciary to adapt and benefit from information and communication technology.
On his part, the National Judicial Institute (NJI) Administrator, Justice Umaru Eri (Rtd), noted that the theme of the workshop, ‘Improving the administration of justice through the application of information technology,’ was informed by the current drive of the former CJN to reform the country’s judicial system with a view to achieving justice without delay. He emphasised the need for judges to have robust knowledge and skills in ICT. Eri further expressed hopes that, through effective application of ICT, litigants and lawyers would be able to file court cases and processes online, while judges can sit in their chambers and adjudicate cases to conclusion without the physical appearance of parties in a formal courtroom. This is gladdening news for the Nigerian Justice sector.
However, the applicability or otherwise of ODR within existing Legal provisions in other jurisdictions would depend on what the legal instruments of the countries provides; in addition to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. To illustrate this point, we would talk briefly on the application of ODR in other jurisdictions below.
Going back to our discussion on Nigeria, in addition to the efforts of the CJN and the Administrator of the NJI to cover all aspect of dispute resolution with online facilities in the future, some amendments to the relevant laws would be desirable. For instance, Section 57 of the Nigerian Arbitration and Conciliation Act could come in handy. It defined Arbitration to mean: “...a commercial arbitration whether or not administered by a permanent arbitral institution’’. Although the Act repeated the term “arbitration” to define arbitration as underlined in the definition above, that is a different issue altogether; except that by so doing it made the definition a bit ambiguous. The point sought to be made is that under the present Nigerian law, as long as the disputes arise out of a contractual or commercial transaction, ODR could be applied otherwise it would not apply without an amendment thereto. In the same vein, the same section 57 also defined “Commercial” which is part of the subject matter of this thesis to mean:
... all relationships of a commercial nature, including any Trade transaction for the supply or exchange of goods or services, distribution agreement, commercial representation or agency factoring, leasing, construction works, consulting, engineering, licensing, investment, financing, banking, insurance, exploitation agreement or concession, joint Venture and other forms of industrial or business co-operation, carriage of goods or passengers by air, sea, rail or road.
Although the poor legal draftsmanship, hasty and half-hearted legislative process is oozing from the two definitions, there was an attempt in the latter to make it as comprehensive as possible. However, this does not mean further amendments to make it incorporate ODR, other fallout of the on-going globalization process, capture the goal of the CJN to make them part of our laws and accordingly regulate the relationships developed thereof is apt. In light of the above, it is observed that the present system could accommodate most ODR processes in application for now.
The main challenge for online arbitration according to those who want the process to commence and finish online, including enforcement is that if judicial enforcement which is off line is required, then it partly defeats the purpose of having an online process. While others aver that, if ODR could handle all aspects except the enforcements online, thereby cutting down cost, time, creating ease and flexibility in its train; then ODR has really revolutionized the justice sector. They further aver that since ODR is a fast changing and fast developing model, it would overcome the enforcement challenge. Already it is posited that some processes have developed self-enforcement mechanisms such as technical enforcements, black lists and trust marks.
Conclusion
The adversarial system of settlement of disputes, just like its predecessor of settling disputes through battles and wars must with time give way to consensual means of settling disputes. Commenting on the desire of litigants for fast, cheap and convenient system of dispute resolution, Justice Burger, Former Chief Justice, U.S. Supreme Court stated as follows:
The notion that ordinary people want black robed judges, well-dressed lawyers in fine courtrooms as settings to resolve their disputes is incorrect. People with problems, like people with pains, want relief, and they want it as quickly and inexpensively as possible. I cannot emphasize too strongly to those in business and industry — and to lawyers — that every private contract of real consequence to the parties ought to be treated as a candidate for binding arbitration.
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