Settling it Online

Online Dispute Resolution (ODR) is a small but growing phenomenon that adapts the long-established principles of alternative dispute resolution (ADR) for the web environment. On the internet, parties can meet — in real time or asynchronously — in shared, protected spaces to exchange information, post and manage key documents, make offers and counteroffers, access databases with precedents, and use voice- and videoconferencing.

“ODR is simply a branch of dispute resolution facilitated by technology,” says mediator Colm Brannigan, a lawyer by training and one of the principals at Mississauga, Ontario-based mediate.ca. “Essentially, ODR helps people negotiate disputes with online tools that are often cheap and ubiquitous, like e-mail.”

When it works, says Brannigan, ODR can be cheaper, faster, more convenient, and easier than traditional ADR. ODR is now used regularly for commercial transaction dispute settlements, insurance claims, e-commerce, and family law.

Sometimes, ODR is the most logical option. “For disputes that originate in online environments ? for example, on Facebook or around domain names ? it’s natural that the resolution of those disputes will happen in those environments,” says Michael Erdle, a founding partner at Deeth Williams Wall in Toronto and director of the ADR Institute of Ontario.

And sometimes, ODR is the only option. In many cases, the value of the claim is simply too low to warrant face-to-face mediation. Where there is no clear jurisdiction ? for example, an online transaction with the buyer in one country, the seller in another, and the platform in a third ? ODR can resolve disputes in the “everywhere and nowhere” of cyberspace.

Brannigan finds ODR useful to mediate in family law cases where there have been instances of domestic abuse and “it makes sense to keep family members apart.” He also cites a family law case where one half of a divorcing couple lived in Ontario and the other in British Columbia. They used ODR to work out the details of their children’s summer holiday visits.

Does ODR have the potential to one day replace its face-to-face version? Erdle, for one, still favours the tried-and-true process of bringing people together in the same room. “I think overall, it’s better to be able to see and hear people when they’re making their positions and hearing the other party’s arguments. There’s a lot in body language in simply sitting across the table and hearing what people have to say. That’s what you lose with ODR.”

He readily admits that, as a generation of users accustomed to working and socializing almost entirely online comes of age, ODR will become more acceptable in a wider variety of mediation settings. Still, he suggests that — at least for now — ODR remains most useful in situations that are fairly well-defined, like exchanging offers. “If you want an apology, Cybersettle is not going to give it to you.”