(Click here to read Part 1 and Part 2 of this 3-Part Series)
4.4.3 Stages of CODR Procedure
A CODR procedure consists normally of four stages, namely, (1) filling a complaint, (2) notifying the respondent, (3) reaching a decision/ recommendation/agreement, and (4) enforcing the decision/agreement.
The first stage of a CODR procedure is the filling of a complaint. It should be said that if the crowd participates in a CODR procedure as a third neutral party the complaint should not only be convenient for filling out, but easy to understand by the crowd. Otherwise, there is a risk that the decision will be taken irrationally by the crowd. Also, since disputants or members of the crowd may have difficulties understanding the complaint, there should be someone who is able to clarify the complaint to them. In a CODR procedure, this can be done either by appointed experts who will contact disputants and members of the crowd or by using another body built on the crowdsourcing principle. Since, using appointed experts will make the procedure expensive and slow, a good way for clarifying the complaint to the disputants and the crowd is by using another body built on the crowdsourcing principle. However, since the group of people participating in such body can also have difficulties understanding the complaint, it should be composed only from people having a legal or another background ensuring a good understanding of the complaint.
The second stage of a CODR procedure is notifying the respondent. But who should inform the respondent? They are two variants – (1) another body using crowdsourcing or (2) a CODR platform that is designed in such a way that automatically sends a notification to the respondent’s email/profile provided by claimant. The first variant is not used in any of the current CODR platforms. Another body using crowdsourcing will be able to search for contact information of the respondent if it is not provided by the claimant or if provided contact information is not accurate. However, if the members of the crowd that solve a particular dispute have access to the contact information of the claimant, this will threat their impartiality, because they will be able to contact the claimant outside the CODR platform. As regards the second variant for notifying the respondent, it is used in all of the present CODR procedures.
The third stage of a CODR procedure is reaching decision/recommendation/agreement. Here, two clarifications need to be made. First, assuming that the crowd has the function of a mediator or adjudicator it should be clarified how it will lead the CODR process. Second, it should be clarified how the crowd will reach decision / recommendation or how it would help the parties to reach an agreement.
As for the first clarification, at present, all of the open CODR procedures, allow every member of the crowd to ask questions to the parties. However, if a crowd is composed from many people and allows everyone to ask questions, the procedure will be extremely slow and cumbersome. Imagine that every member of a crowd composed from 100 people asks questions to the parties. Obviously, answering to every question can take a large amount of time, especially if the procedure allows rebuttal and surrebuttal. The first solution to this problem is to ask the parties only questions put forward by the majority of the crowd. However, in this case, the questions will not reflect the opinions of the entire group. The second solution is to allow only some randomly chosen members of the crowd to ask questions. This idea seems plausible, but the small group of people entitled to ask questions will again not reflect the opinions of a diverse crowd. The third solution is to allow some of the members of the crowd which best reflect the diversity of the group to ask questions. In order to find members of the crowd which best reflect the diversity of the group, certain questionnaire can be given to the crowd and, on the basis of the results, the CODR platform can automatically find a representative group.
With regard to the second clarification, if CODR uses adjudication, the final decision can be taken after an aggregation of decisions taken by the crowd. The aggregation of decisions is an easy process which can be automatized, as it is in the case of the ECRF. However, if CODR allows deliberation, a group polarization and cybercascades can occur and lead to irrational decisions. If it does not allow deliberations, the opinion of a minority of the crowd may not be taken into account by the majority of the crowd. It will lead to a decision that reflects only the majority of the crowd, but not the entire group. CODR can be also designed to solve disputes by using cooperation, which means that there would be no voting at all. Members of the crowd can provide their opinions which, without aggregating or modification, can be sent to the parties. Such dispute resolution process reflects the opinions of the whole group, but it cannot render a definitive decision. In fact, such a process can straightforwardly provide recommendations for solving the dispute to the disputants. Such a CODR procedure should not be underestimated. Recommendations can be quite helpful to the disputants because they can facilitate a settlement of the dispute. If CODR uses mediation or negotiation, the parties and mediator or facilitator may use information provided by the crowd in order to facilitate the process and reach a decision. For instance, the crowd’s opinion may better inform them about their BATNA, which will facilitate the dispute resolution process.
The fourth stage of CODR is the enforcement of the decision. In this regard, it must be said that the outcome of a CODR procedure can be a recommendation, agreement, or a decision. If it is a recommendation, obviously, there is no need for enforcement. If it is an agreement, it will be binding on the two parties on the principle of pacta sunt servanda. If the CODR procedure leads to decisions, they can be enforced by private authorities. Such enforcement can be quite effective and should not be underestimated. Since the CODR procedure is in an experimental phase, at present, its decisions are not legally binding.
The process of solving disputes by collective intelligence is in its infancy. Taking into account the ECRF, CODR will probably become in the future the online judicial system of the online communities. They need such a judicial system because the basic principle of virtual communities is that the problems must be solved as much as possible within the online community itself (Kokswijk, 2010, p.241).
However, at present, the spread of CODR is limited not only by the lack of information about its existence, but also because of the lack of a theoretical framework of CODR that can be used for designing CODR platforms. In this regard, the present paper provides a basic outline of such a theoretical framework by identifying and discussing four building blocks of every CODR system.
On the basis of our analysis above, we may conclude that, providing fast, democratic, and cheap dispute resolution, CODR has a potential that needs to be explored. CODR may set forth a new era in the dispute resolution. We speculate this to be an era in which disputes will be solved by the collective intelligence of world’s citizens.
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The authors would like to thank Roel van Rijswijck, Joe McNamee, Krista Ivanova, Dan Manolescu, and Colin Rule for their comments and suggestions on earlier versions of this article. Moreover, they are grateful to T.M.C. Asser Institute and the Center for Law in the Information Society at Leiden University for their support.
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