Giving ODR a chance…
by David J Bilinsky

Integrations, mediations,
United Nations, congratulations
All we are saying is give
peace a chance…

Words and music by John Lennon.

On June 17, 2008, at Royal Roads University, B.C. will host a United Nations conference on Online Dispute Resolution (ODR). This is an auspicious occasion – as B.C. lawyers and others – can play a role in the shaping of the future of dispute resolution in an online forum.

Now lawyers have been involved in the settlement of disputes between parties for centuries. However, as they say, the times they are a’ changing. For example, ODR World (www.odrworld.com) offers an online dispute resolution method for the settlement of claims. While the amounts that can be settled with this service are not typically large, the implications of such a dispute resolution service are potentially quite momentous.

For example, buyers and sellers having a dispute can use the ODR World online dispute resolution service – currently $15 – for assisted or automated negotiation for 14 days. If you wish, you can engage a professional mediator to help resolve the dispute in addition to the online dispute resolution process for $38 for 14 days. By way of contrast, arbitration services are much more expensive: they range from $380 to $1200.

Compare this to a Small Claims proceeding for the same matter – in terms of time, cost, delay, and the availability of assistance. You can see how ODR can be seen as a “disruptive technology” to the entire dispute resolution process in general and the use of lawyers (and the courts) to resolve disputes in particular. Now you may say that these claims are such that it doesn’t pay lawyers to handle them in any event. Quite true. However, the funny thing about disruptive technologies is that they don’t quite know when to quit – once they gain a foothold their obvious economic advantages start to work in favour of their application to a wider market.

New ODR systems that take advantage of “game theory” (think of the movie “A Beautiful Mind” about its discovery and its discoverer) have application to multi-party, multi-issue disputes (for example, www.smartsettle.com). These disputes are those that typically involve lawyers and large amounts of money. The possibility that these disputes could be resolved by the use of Online Dispute Resolution techniques should cause lawyers (and the courts) to give pause – and to be concerned – in fact, to be very concerned. For example, Access to Justice is enhanced under an ODR system. Parties do not need to travel (access is via the Internet), they do not need to communicate in a synchronous manner (they can access the system as their timetables permit) and the process is not procedurally difficult. ODR has already been used in family disputes, child custody, insurance claims, and consumer claims. And more importantly, it has a future in resolving major international disputes.

In your humble scribe’s opinion, lawyers are at a crossroads. If they adopt ODR as part of their arsenal of tools to be used to resolve disputes and immerse themselves into the development of ODR, they stand a fair chance of being involved in the growth of the ODR process. However, if they choose to stand apart and allow the development of ODR in a manner that does not involve the use of lawyers, then they will witness the creation of an entirely different but parallel system for the resolution of disputes. Those who have disputes to settle will face a choice: the use of the courts and lawyers (with the attendant delays, costs and uncertainty of litigation) or the use of ODR (which potentially offers speedy and inexpensive dispute resolution that allows the claimant to help craft the eventual resolution).

I see it as vitally important for lawyers to be present at the development of ODR to ensure that their thoughts, contributions and ideas are included in the future growth of ODR. This June 17th, the 7th International Forum on Online Dispute Resolution in collaboration with the United Nations Social and Economic Commission for the Asia Pacific will be held at Royal Roads University (www.odrforum2008.org). This UN Conference will be a major opportunity to help develop and guide the standards, certifications, the best practices underlying ODR and the future growth of ODR. Lawyers who have an interest in this area should be making plans to attend this conference. I hope to see you there and hopefully we can all try to give peace a chance.

This article originally appeared in the June 2008 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.