This chapter is from “Online Dispute Resolution
Theory and Practice,” Mohamed Abdel Wahab, Ethan Katsh & Daniel Rainey ( Eds.), published, sold and distributed by Eleven International Publishing.
The Hague, Netherlands at: www.elevenpub.com.
This chapter focuses on the applicability of Online Dispute Resolution (ODR) for a specific
dispute resolution mechanism, the Ombudsman. The chapter is based on the experiences
and observations of Dr. Frank Fowlie, who served as the Inaugural Ombudsman for the
Internet Corporation for Assigned Names and Numbers (ICANN).
It is submitted that ODR is a process that may be applied to Alternative Dispute Resolution
(ADR) techniques. Specifically, ODR uses technology, especially the Internet, to augment
ADR processes.
It has been emphasized that ODR may be applicable to disputes which
emanate from either online or real world activities. For example, ODR may be used as a
vehicle to handle consumer disputes relating to online purchasing of goods, or it may be
used as a resolution system for small claims in direct business to consumer transactions
(B2C).
There are two basic branches of ODR, both based on the role of technology. The first
branch may be called “Technology Based”. Technology-based ODR refers to those systems
where technology plays an active role in conducting the dispute resolution.
A prominent
example of technology-based ODR systems are “blind-bidding” systems. The technology
uses multivariate algorithms to help parties arrive at the optimal outcome.
Blind-bidding systems are, for the most part, nascent technologies. They are usually most
applicable in situations where there is some tangible and monetary remedy sought by the
parties, for example, a refund on a faulty good, or a value for an insurance claim following
a car accident. The technology-based system will assist parties to determine Best and Worst
Alternatives to a Negotiated Agreement (BATNA and WATNA). The technology receives inputs from the parties, and then draws from them to develop an optimal outcome.
Blind-bidding systems are less likely, as nascent technologies, to be able to provide for the
inclusion of the non-quantum based variables, such as apologies, or the creation of new
alternative solutions or options beyond the quantum values.
The second branch of ODR consists of technology-assisted solutions. Technology-assisted ODR refers to the use of technology to augment ADR processes that exist independently
of the technology. As the following discussion will demonstrate, technology-assisted ODR
is well suited for ombudsman work, as its tools allow for an increased efficiency of human based transactions and activities.
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