Distinction Between ODR and Mediation through Electronic Media

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This article written with Special Collaboration of Alfonso Fabregat Rosas.

This chapter is from “Electronic Mediation Handbook” by Franco Conforti, published, sold and distributed by Acuerdo Justo® at Amazon: http://www.amazon.com/dp/B00HYHBUCE

Distinction between the ODR and the Mediation through Electronic Media

There are certainly many ways to address this topic. As Pablo Cortés says, for example, one differentiation criterion between ODR methods and Mediation through Electronic Media could be found in his methodology when dealing conflicts:

“These ODR methods are highly automated and they identify specific controversies with suitable solutions. However, the main limitation of these methods is that they are only effective when dealing with simple repetitive disputes. he success f these automated processes depends on the nature of the dispute, the accuracy of the information provided to the system and the capacity of the software (the fourth part) when examining and solving the controversy.”; while Mediation through Electronic Media: “Consensual processes like mediation and on-line negotiation avoid disputes between laws of different countries. The parties focus on their own interests instead of analysing their legal rights. The parties focus on their own interests instead of analysing their legal rights. The biggest hindrance of these methods is that they require the motivation of both parties in the friendly solution of the controversy.”

I am going to start now the explanation introducing this topic from the paradigm of the gender and specie.

Lets imagine a group called ODR -Gender-, that contains several Elements -Species-: forum, chat, e-mail, text messages, video messages, etc. and videoconferences.

 

Now I am going to gather the group of elements with less technical complexity in one side: e-mail, SMS and chat and I will call them Simple ODR. On the other side, due to its greater technical complexity, I will place the videoconference which will be called in contrast Sophisticated ODR.

So far, I have established the gender and their species, and I also divided the gender in two subcategories depending on the grade of technical complexity. Let’s continue with the help of another graphic to explain which other aspects make this distinction possible.

Next picture depicts the differences between asynchronism and synchronism; simple ODR vs. complex ODR and the issues preventing identity impersonation, confidentiality and safest methods to carry out Mediation through Electronic Media.

This tree represents the ODR gender and we can see that the different elements or species are gathered as follows:

1. The fallen leaves in the left and the right side show their asynchronous and synchronous modalities. We can see the “Chat” element being the nearest to the Synchronic group as it may or may not be developed in a synchronic way.
2. The top of the tree has a branch with a leaf dividing the modalities depending on their technical complexity, simple or sophisticated.
3. Then we are left with two big groups: a) Document Management and b) Videoconference.
4. In the videoconference group there is also a little leaf that distinguishes videoconferences depending on the type of service and environment provider, the free or public ones and the fee based or private ones, highlighting as different the private https videoconferences.
5. The outer arrows around the tree indicate the problems or difficulties that each group of elements or species face. In this way, the asynchronous group – simple ODR: has serious difficulties avoiding identity impersonation; the synchronous group – public sophisticated ODR: has serious problems with confidentiality and the duty to secrecy; while the synchronous species – private sophisticate ODR: is presented as the most certain way to make Mediation through Electronic Media .

I must mention that everything related to “consumers” takes a different direction since it is prohibited or excluded nationally as per the art. 2.d) Law 5/2012 and at European level it is prohibited in the Directive 2008/52/EC whereas number 11, thus ODR term is used in the Proposal for a Regulation of the European Parliament and of the Council on on-line dispute resolution for consumer disputes (Legislative Resolution of the European Parliament, 12 March 2013), and I must say that mediators availing themselves of doubtful on-line mediation service providers have presented conflict Mediation through Electronic Media in an obvious mistaken way in my opinion.

I think that the complexity of this matter derives from the confusion generated when trying to apply to the ODR gender (mentioned in the Green Paper and the Directive) the Mediation through Electronic Media as one of its species (mentioned in our Law and in the future Regulations).

It is normal and perfectly understandable why so many writers lose track in this complex context which demands extensive knowledge of legal computers and dispute mediation matters. If they failed to differentiate correctly between ADR and ODR, it is going to be nearly impossible to differentiate between ODR and Mediation through Electronic Media.

The reason is that our mediation law does not define Mediation through Electronic Media in an unanimous way, but it establishes instead the requirements that the process of Mediation through Electronic Media must meet, thus distinguishing and differentiating ODR media from Mediation through Electronic Media. As I stated in my contribution to “Mediation through Electronic Media” in the 10th Conference of Mediation: “Present and future of the mediation in Spain” in the Pablo Olavide University of Seville, the past 18th of March, I think that this gets us ahead of the European Union every time that it demands much more than the Directive requires.

According to our mediation law this electronic procedure must follow the same informative principles as the in-person mediation procedure, thus these elements must be considered:

wilfulness and free disposition (art. 6),

equality of the parties and impartiality of the mediator (art.7);

neutrality (art. 8);

confidentiality (art.9);

good faith, respect and cooperation (art.10);and also,

guarantee the identity of the participants (art. 24.1).

Many people travelled outside Spain looking for a definition for “electronic mediation” and brought back different definitions from EEUU and/or Holland and I even saw some definitions from Asia. This was allowed until the approval of our Law 5/2012.

Nowadays we should look for a definition for Mediation through Electronic Media based on the Law 5/2012. To do this it would be enough with copying and highlighting the text which I use later on in the final definition.

To elaborate my own definition of Mediation through Electronic Media I am going to combine articles 1, 24 and seventh final decree of the Law 5/2012 . I am also going to consider this Law maximum value of 600 € as a reference, this Law recommends but does not ban processes over it.

Let’s have a look at articles 1, 24 and seventh final decree below. I have highlighted with different blue shades the text I am going to use to “assemble
the puzzle” and configure my definition.

Mediation through Electronic Media is: “A simplified total or partial procedure that must always guarantee the identity of the participants and the respect to the mediation principles provided by the Law. It must be carried out by electronic means where two or more parties try voluntarily to reach an agreement on their own with the help of a mediator for claims under 600 €”.

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