Information and communication technology has become such an integral part of the business and commerce ecosystem that no industry or profession can ignore it. The rapid development of technology in the new millennium has led to the rise of online dispute resolution and popularising online mediation among other things. What started as an online resolution of disputes arising out or arising from cyberspace is now adopting to other use cases related to offline situations, such as loan settlements, landlord-tenant disputes, insurance claims etc. In other words, the ‘online dispute’ resolution system has moved to ‘online’ dispute resolution system, where dispute resolution professionals use online tools as the primary way to resolve disputes arising between parties, whether offline or online. Online dispute resolution (ODR) is a network-based solution that uses alternative dispute resolution methods for resolution of disputes between the parties.
Effective communication is critical to any form of problem solving, and ODR is no different. ODR is only as effective as the communication that takes place between the parties. Lack of personal interaction/communication can lead to misunderstandings, heightened emotions and increased hostility towards each other, making effective communication even less effective.
In online dispute resolution, communication can be synchronous or asynchronous. Synchronous communication uses real time communication channels such as video conferencing, instant chats, etc. Virtual mediation rooms and arbitration/mediation centres use video conferencing as a tool that enables the arbitrator/mediator and the parties to resolve disputes online. To some extent, the video conferencing mode allows the parties to understand each other’s tone, body language or facial expressions when resolving disputes.
Asynchronous communication, on the other hand, includes non-real-time communication such as emails, text-based ODR platforms, and chatrooms. Asynchronous ODR system offers parties greater flexibility to respond to the proposals or communications from the other party/parties or the arbitrator/mediator. However, implementing asynchronous online dispute resolution presents unique challenges. In this article, I want to highlight some of the challenges of asynchronous ODR from the perspective of a dispute resolution professional.
The first challenge lies in delayed response by the parties. Since asynchronous ODR is ‘anytime – anywhere’ dispute resolution process, disputing parties typically respond to each other’s proposals at their own convenience. This can significantly slow down the entire dispute resolution process and the parties may lose seriousness in the process. This can be frustrating for both the ODR provider and the parties involved. To overcome this challenge, an ODR provider or the dispute resolution professional must establish a clear timeline for each step of the process and encourage the parties to stay on track.
Another challenge is the interpretation of the parties’ submissions in a dispute resolution process that is restricted to ‘text-based only’. Incomplete statements or grammatical errors in the statement may result in a lack of proper communication between the parties. This can lead to misinterpretation of communication, or an important message can be lost in the translation. Consider an example. The small business defaulted on the loan. After repeated reminders, the bank brought the matter to an ODR provider, which offers a text-based dispute resolution platform. The following is the discussion between parties in the dispute on the ODR platform.
Claimant-Bank: Customer defaulted on $2000.
Respondent- Customer: I wish to settle the loan account by paying $1450 in 5 EMIs as full and final settlement.
Claimant-Bank: Case can be settled for $1800.
However, with this information, it would be difficult to conclude a settlement agreement between the parties, if it is not clear in which time the loan amount must be paid. The claimant-bank’s reply also did not saywhether the settlement amount should be paid as lumpsum amount or in EMIs as proposed by the respondent-customer. Such a lack of communication can frustrate the ODR process and make the dispute more difficult. It may take much longer to get all the details of settlement, if any between the parties. Therefore, it is important for an online dispute resolution provider to educate the individuals and organisations involved in the dispute resolution process about the importance of clear communication. The best way is for ODR providers to provide appropriate instructions to the parties to use clear and concise language so that the intended message is not lost. The intervention of the dispute resolution professionals to reformulate or condense the parties’ communication may be essential if the parties are unable to clearly articulate their proposal or message. Some ODR providers also encourage the use of emoticons on their platform to help parties to communicate better, especially if there is a language barrier between the parties to the dispute resolution.
Online dispute resolution providers may allow other ways of communication in addition to the text-based platform to facilitate communication by the parties. For example, a provider of an asynchronous ODR may encourage the parties to communicate with the arbitrator/mediator via telephone or other communication platforms. But the challenge here is to bring together the communications and documents shared by the parties across multiple channels. The arbitrator/mediator cannot afford to lose any negotiation/communication between the parties, which would otherwise result in loss of information necessary for the dispute resolution. Parties may even dispute what they said if not recorded correctly. The best practice would be for the arbitrator/mediator to collect all the negotiations and documents from various sources of communication and update them in the ODR platform as submissions by the parties.
Privacy and confidentiality are of the utmost importance in dispute resolution, and especially online dispute resolution. However, the use of technology in asynchronous dispute resolution may raise additional concerns about the security and confidentiality of communications and information exchange. The parties must be sensitised not to take or use screenshots of the communications made through the ODR platform and provide them for further evidence or misuse such communications. The terms and conditions of the ODR platform must include a strict privacy and confidentiality policy.
In conclusion, asynchronous online dispute resolution has become increasingly popular due to its flexibility and accessibility. However, it is not without its challenges. ODR service providers and experts must meet these challenges by establishing clear timelines and guidelines for communication. These approaches will promote a positive and successful mediation experience for all parties involved.
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