ODR can be defined as the deployment of applications and computer networks to resolve disputes using the conventional Alternative Dispute Resolution (ADR) methods. Both electronic (e)-disputes that gave rise to ODR in the first place and brick and mortar (Businesses that do not operate on the internet, traditional business style) disputes can be resolved using ODR. Alternatively, ODR can be said to be the end product of the synergy between ADR and ICT as a method for resolving disputes that were arising online, and for which traditional means of dispute resolution were inefficient or unavailable.
It should be noted that ODR does not only settles some disputes, but also used as complements to traditional mediation and arbitration means of settling disputes. There are a lot of cases that do not require the degree of intervention offered by a Mediator or Arbitrator. Similarly, there are complex or impasse claims that may not settle without the assistance of a third party.
Accordingly, ODR allows Users to resolve straightforward cases faster, more cost effective and help them identify the cases that require a Neutral. In fact, some ODR providers like the Cyber settle has exclusive alliance with the American Arbitration Association (AAA) which allows both service providers and Users to move claims and cases seamlessly between each other in order to provide the fastest and most efficient resolution process for the parties.
The only requirement to have access to ODR is access to Information and Communication Technology (ICT) devices. With the availability of the internet on most handsets, sometimes with free internet bundle, ODR could be used to grant swift, cheap and transparent justice to the ordinary man at least in commercial dispute for now. This should be considered to be among the deliverables to be made available by the Nigerian Judiciary in its bid to transform and ensure quick dispensation of justice.
The evolution and historical development of ODR
ODR is fallout of increased acceptance, usage and relevance of the internet in all aspect of human endeavour. The internet with its cheap, simple, flexible and modern method of doing things has permeated the entire activity of man. Therefore, the evolution and historical development of ODR would be examined under the following sub-heads:
• ODR during the period of limited internet access;
• ODR during the period of liberalized internet access; and
• ODR Today (2012/13)
ODR during the period of limited internet access
The origin of the internet can be traced to organized and co-ordinated transmission of information among four institutions in 1969. The pioneers of the Internet at that time were concerned and focused on creating new capabilities for communicating. This means, they did not focus on possible long-term social consequences that their invention would have on the World nor did they envisage that it would subsequently reduce it to Global village. Thus, for the first twenty years of its existence, the Internet did not need formal controls, because it had sufficient informal controls for the limited number of users at that time.
The population using the Internet during this period of time was relatively small and principally in the military or academia. For each of these entities, problems or difficulties experienced by users would be resolved by the group. Thus, while the Internet was founded in 1969, there were relatively few users and few disputes for more than half of its life . If any disputes did occur, peer pressure and informal mechanisms were sufficient to respond to such problems.
However, in the early 1990s, two developments changed the status quo and people realized that more organized systems of dispute resolution would be needed:
First, university students with personal computer skills in the United States were granted access to their respective university’s networks; and secondly, the National Science Foundation removed long standing restrictions on commercial use of the Internet. These developments increased the use and patronage of the internet dramatically. The increased activity on the latter was to give birth to ODR.
Consequently, the growth in the commercial sector brought with it increased concern regarding the standard’s process itself. Starting in the early 1980’s and continuing to this day, the Internet grew beyond it’s primarily research roots to include both a broad user community and increased commercial activity. Increased attention was paid to making the process open and fair. These, coupled with a recognized need for community support for the Internet eventually led to the formation of the Internet Society in 1991, under the auspices of Kahn’s Corporation for National Research Initiatives (CNRI).
By August, 1995, the National Science Foundation had removed the ban on commercial activity on the Internet, thereby increasing internet activity exponentially. Therefore, it need not be stated that ODR at this stage was neither standardized nor formalized as a concept for wide application.
ODR during the period of liberalized internet access
Following the liberalization of the internet both in terms of relaxed rule guiding usage and availability of its infrastructure thereby ensuring ease of access, all types of activities started happening on the internet. According to Katsh, who is the acclaimed founder of ODR, “Cyberspace is an active place, a creative place and, for some, a lucrative place. It is not, however, a harmonious place. The more relationships that are formed online and the more transactions that take place, the more disputes are likely to occur. The broadening range of online activities, their increasing complexity, and the expanding information processing capabilities of computers linked to the network accelerates the pace of change. This contributes to an environment that is valuable but not stable, and where, as a result, there is a need for systems that can manage change. With existing legal institutions either slow to respond, ineffective, costly or challenged by jurisdictional issues, efforts have been made to design dispute resolution systems that employ resources and tools that can be found online. This... has been a successful effort, albeit one proceeding at a moderate pace, since it has depended on support from the private sector and on the development of software that must be targeted to particular kinds of problems. It is also an effort that is relevant to the “Law and Borders” controversy since ODR is a process out of which legal needs might be identified and from which some rules and even some rule making processes for cyberspace may emerge”. At this juncture, it is important to emphasize that online dispute resolution (ODR) emerged not to displace or challenge an existing legal regime but to fill a vacuum where law’s authority was absent or inadequate. It began, rather simply, as a response to growing numbers of disputes arising out of online activities. However, due to its immense benefits, ODR has expanded to include settlement of disputes arising off-line.
By 1996, the landscape of disputes on the Internet had changed and many of the problems we are still grappling with today had begun to be of concern even then. In response, the National Centre for Automated Information Research (NCAIR) in the USA organized the 1996 conference on online dispute resolution and provided funding for three ODR experiments.
The Virtual Magistrate project conceived by Johnson was the first ODR provider, while several others followed, all aimed at resolving disputes between Internet Service Providers and users. It must be conceded that some of these Providers have been able to evolve very simple, user friendly and innovative techniques. The University of Massachusetts Online Ombuds Office for instance, hoped to facilitate dispute resolution on the Internet generally. In the same vein, the University of Maryland proposed to see if ODR could be employed in family disputes where parents were located at a distance.
There was novelty to these efforts in that, they handled conflicts either originating in cyberspace or related to cyberspace. There was also a second novelty in that the network was used to allow a human third party to interact with the disputants in lieu of face–to–face meetings. Yet, these efforts essentially copied offline models of mediation and arbitration; and, as a result, were as labour intensive as the offline versions.
A lot of Observers continue to marvel at the fact that, the Computer Internet which was employed to communicate over great distances, with information processing and information management capabilities linked to the network, could as well provide novel approaches for assisting in both dispute prevention and dispute resolution. As a result, all of these projects supported the paradigm shift of traditional ADR. These are where two parties are negotiating or a human third party mediating or arbitrating to where the computer assists parties in negotiating to automated ODR methods and even enforcements.
However, as stated above, starting from 1999, ODR began to take advantage of tools that did more than communicate online. In the process, it began to differentiate itself from its offline relatives. One of the principal catalysts for this change was a pilot project in online mediation that the University Of Massachusetts Centre for Information Technology and Dispute Resolution conducted for eBay. It should be recalled that eBay’s terms of service, both then and now, did not require it to provide resources in the event some dispute arose over a transaction.
In the main, eBay had, quite creatively, set up a feedback rating system to allow parties to indicate whether a sale went smoothly. The information when aggregated was found to be valuable in assessing whether a seller was trustworthy. Even with this resource, however, as eBay grew, disputes also continued to grow.
The pilot project ended up involving two hundred complaints that were filed in a two–week period. Its success prompted eBay to select an Internet start–up, SquareTrade.com, to be its preferred dispute resolution provider.
Consequently, the disputes that were handled within a two-week period were by far, the largest number of disputes mediated online to that point. Thereafter, eBay established ODR as a feature of its site and by 2010; it was handling over sixty million disputes each year.
The success recorded in resolving such disputes online led to efforts to use online resources to help resolve more traditional offline disputes. The field has changed greatly since then and the site was redesigned and enhanced in September 2011.
ODR today (2012/13)
Today, ODR is no longer solely focused on disputes related to online activities but is now employed in some offline disputes. In the same vein, rather than finding disputes that can utilize ODR, the new challenge is finding tools that can deliver trust, convenience, and expertise for many different kinds of conflicts.
While previously the focus was on e-commerce, the paradigm is now shifting to mobile commerce. Regulators have generally, adopted different approaches to mobile commerce oversight. Some have maintained a flexible role in order to allow the market to develop, others have been more prescriptive. However, the challenge for the Justice Sector is: How fast can justice delivery move from e-ADR to ODR and then to Mobile Dispute Resolution (MDR), since the locus in quo which is the online cyberspace is tilting to mobile environment. The emergence of smart-phone technologies is accelerating the movement from ODR to MDR. It is only when the gap between the law (justice system) and the society is not so wide that real justice and not Court victory would be dispensed to the ordinary man. To this end, the quest of the Nigerian Judiciary for an ICT enhanced adjudicatory system is achievable, if the right things are done as at when due. Already, the front-loading system has been adopted. The appellate courts have reduced all appeals to briefs. These developments have reduced the physical appearance of Counsel at the Court of Appeal and Supreme Court to ceremonial outings; since the entire filing and arguments on the brief can be reduced into writing without the necessity of physical appearance of counsel at the court premises. What remains are substitution of the hard copies with soft copies; getting the necessary software and programs; training of staff as is being done and the payments of the monetary requirements online in accordance with best practices.
Therefore, the lamentation of the former CJN, to the effect that there are over 10, 000 cases currently pending in the Nation’s High Courts is a small fraction compared to over sixty million settled by eBay through ODR mechanism in 2010. Without quibbling, the CJN has indeed captured one of the fundamental problems rendering the Nigerian justice delivery system ineffective.
On the other hand, at the Nigerian Bar Association (NBA) level, law firms in Nigeria are being urged to embrace globalization as a factor to be considered in efficient practice. At a forum recently, Ewing noted that with 5% growth per annum recorded in sub-Saharan Africa, the potential for growth (and naturally increased disputes) could no longer be ignored. He therefore suggested that ICT would help law firms to cope with the growing challenges of globalization.
In any context, levels of disputing today are influenced by measures, which are created to anticipate and prevent possible disputes. No ODR system will be used or be successful unless it is convenient to use, provides a sense of trust and confidence in its use, and also delivers expertise. See specimen ODR application form attached as Annexure ii for full illustration of how the process is initiated. Described a little differently, such systems need to facilitate access and participation, have legitimacy, and provide value to its Providers and Users alike. According to Noveck, “this technology is enabling people to engage in complex, socially contextualized activities in ways not possible before. While it used to be that geography determined the boundaries of a group and the possibilities for collective action (I had to be near you to join you). Now technology is revolutionizing our capacity for purposive collective action with geographically remote actors ... New social and visual technologies are emerging to facilitate the work of groups. What was an ‘information revolution’ is becoming a social revolution. As a result, groups will increasingly be able to go beyond social capital building to lawmaking.” Historic Milestone for the Internet’s Domain Name System and invariably ODR has been made. The Internet Corporation for Assigned Names and Numbers (ICANN) has released the list of generic Top-Level Domain (gTLD) names, in what, is expected to become the largest expansion in the history of the Internet’s Domain Name System.
A total of 1,930 new gTLD applications were received during the application period of the new generic Top-Level Domain program. According to Rod Beckstron, “We are standing at the cusp of a new era of online innovation...that means new businesses, new marketing tools, new jobs, and new ways to link communities and share information.” I must add that, this also means new areas of disputes as well as new ways of resolving them.
... Making SENSE of digital revolution!
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