The Roles of Dispute Settlement and ODR
ADR IN BUSINESS: PRACTICE AND ISSUES ACROSS COUNTRIES AND CULTURES, Vol. 2, pp. 135-155, K. Arnold Ingen-Housz, ed., Kluwer, 2011
22 Pages Posted: 17 Apr 2011
To anyone asking whether online dispute resolution (ODR) works, whether it is important, whether it deserves to get a chapter of its own in a book such as this, a simple answer may be offered: eBay today resolves through ODR about sixty million disputes per year. At this stage, the normal reader will probably feel either dismayed or puzzled. Or both.
Dismayed that a few lines into the article, an important typo has escaped correction. But no, this staggering number is not a reckless lapse in accuracy. To make it more credible, it may simply be compared with this statement by two high-ranking eBay officials, one of whom is perhaps the world’s most respected ODR expert: ‘Unofficial estimates put the number of online disputes into the hundreds of millions of cases per year, maybe even into the billions.’ Sixty million disputes resolved remains a relatively small fraction of all the disputes that could be submitted to these forms of resolution – there is in fact much room for growth of ODR.
How is it possible that this set of dispute resolution mechanisms has grown so much without attracting notice? Why are important international regulatory bodies not evincing more compunctions about their lack of work in this area? Why have the numerous books on ODR (including some of my own) not found their way onto the shelves of every arbitration and mediation practitioner, when they deal with the world’s most successful dispute resolution systems, caseload-wise? Possibly yet more puzzling is why is it so extremely rare to meet an e-commerce consumer who has ever heard of the concept of ODR?
A partial answer to this last question likely is that many online shoppers have used an ODR system, but without actually identifying it as such. And there is the rub – ODR is, to a certain extent, not really dispute resolution at all.
So what is there to know about ODR? However much one may enjoy the logical thrills of investigating legal rules and their interconnections, at this stage of the research in the field one must surrender to the conclusion that questions of black letter law relating to ODR have become barely deserving of esteem by anyone not looking for an exercise. A recent excellent book by Julia Hornle adroitly settled the remaining questions in this regard and only invites comments regarding some of its sociological, practical and philosophical underpinnings. Today one is left with a gnawing sense that the real questions are elsewhere. They may well be situated at two extremes: on the one hand at the level of punctilious but nonetheless crucial questions of practical implementation, such as the most appropriate ways to design a webpage and an IT system so as to create an electronic environment particularly conducive to settlement. On the other hand, important underlying questions appear with respect to the role of dispute resolution in society. This book’s editor asked me to focus on the latter, quite rightly so.
Accordingly, this chapter will start with a particularly terse summary of ODR mechanisms, before quickly moving on to a nutshell illustration of how a dispute resolution-based regulatory system can be made transnational and over-come the hurdles of the world’s segmentation into different states with different laws. These two sections set the background for the real theme of this chapter, which will form the balance of the essay: the variegated roles of dispute resolution systems.
Keywords: online dispute resolution, dispute resolution, non-state law, transnational law, roles of dispute settlement, arbitration, meditation
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