This is the final draft of a Chapter entitled “Online Dispute Resolution” written for the Oregon State Bar’s 2019 Handbook on Dispute Resolution.
This chapter focuses on areas of ODR that are likely to involve attorneys, be that as legal representatives or as “online” mediators and arbitrators. Given professional costs, attorney involvement in ODR tends to be for more complex and substantial disputes, such as resolving all divorce issues or settling an estate or resolving ongoing business issues. These are areas of “integrative” ODR practice, where there are likely multiple issues and, commonly, a continuing relationship.
Professor Richard Susskind has asked the fundamental question of whether “court” is a service or a place? “When people or organizations are in dispute,” Susskind asks, “must they congregate in physical courtrooms to resolve their differences?” (Online Dispute Resolution: Theory and Practice at v.) Increasingly we find the answer is “no,” since parties are in fact able to effectively resolve disputes online, or at least focus and streamline any necessary face-to- face meetings.
ODR as a general concept is applicable to a vast range of disputes. The low hanging fruit for fully automated ODR includes certain high- volume, low-value “distributive” e-commerce (e.g., eBay) and legal disputes (e.g., traffic ticket disputes, appeals of property tax assessments, etc.). Courts are also now increasingly operating online, both with e- filing and online referral to alternative dispute resolution (ADR) or ODR opportunities. Initial court ODR programs have been focused on relatively simple small claims and parenting issues. ODR has also been applied to large-scale public policy disputes where unlimited participants can be assisted to reach consensus online.
This chapter again focuses primarily on areas of ODR that are likely to involve attorneys. Attorney involvement in ODR tends to be for more complex and substantial disputes, such as divorce or settling an estate or resolving business issues. These are areas of “integrative” ODR practice, where there are multiple issues and commonly a continuing relationship. For these more substantial and complex matters, ODR technologies are helpful, but not sufficient. It is in these integrative areas where technology must be effectively augmented and integrated with “human” legal and ADR services
In substantial part, ODR, from an attorney perspective, can helpfully be viewed as an extension of ADR (mediation and arbitration) in that ODR today is largely (1) by agreement and (2) supports existing mediation and arbitration processes. ODR also continues the trends of dispute resolution increasingly being located outside of formal
governmental institutions, be that by current choice or previous contractual commitment to engage in ADR.
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