Impressions from the ODR Forum 2024
The online dispute resolution (ODR) forum was held for the 24th year on the 5th and 6th of June in Prague, the Chezch Republic. Here’s a link by the hosts - PRK.
This was my first attendance of this forum and I was excited to associate the names I knew with faces, voices, etc. I was negatively surprised that the online attendance was not more than videoconference meetings. I am aware of my bias from my cybersecurity background where I have attended conferences with virtual boots and dedicated networking sessions. I may have misled myself by the focus of the confernce being on “online” practices to expect that there would be a higher standard for the remote participation. Maybe there should be? It’s an open question. Nevertheless, I thank the organisers for the event which was certainly rich in content.
Here’s the table of contents for this essay:
State of progress
Europe
European Union
The European Commission is planning to repeal Directive 2013/11/EU. The online platform which is not accepting new cases since May 13th,
creates more issues than it solves - Margarita Tuch
The plan is to provide only awareness materials going forth.
Would this create a vacuum for the ecosystem? It doesn’t seem so because the Digital Services Act (Regulation (EU) 2022/2065) (which entered into force on Feb 17), articles 20 and 21 proclaims the creation of out-of-court dispute settlement (ODS) bodies. It is not clear yet if the “necessary expertise” includes legal expertise or subject matter expertise is sufficient.
United Kingdom
Her Majesty’s Courts and Tribunal Service (HMCTS) has been working on a reform programme since 2016. The results have been mixed but it can be stated with confidence that the programme has been extended because of issues more than because of opportunities.
The inflientual pioneer Mrs Caroline Sheppard has given an example of a design flaw whereby all money claims are being sent to mediation whereas some of them require only an expert evaluation.
Ukraine
Work in progress to create a single judicial system - servers are not so reliable, the transfer of statements between the electronic court and the real court is complicated.
What the Singapore initiative is aiming for, the Ukranian company LIGA 360 Forecast already claims to provide - prediction of court decisions. To make more persuastive arguments, to increase the changes in court or do trop futile lawsuits. We would have to wait for feedback on the usefulness of the system.
North America
Canada
Richard Rogers spoke about the tribunals in British Columbia. The general adoption trend is to start with online intake and case management - the first phase of digitalisation. Some practitioners claim that this counts as online dispute resolution. Others may not agree.
Since 2020, the courts in Nova Scotia are piloting synchronous online exchanges with judges on the condition that the parties are represented by legal counsel.
Asia
Singapore
In 2015 a new division of the state courts was launched - the Comminuty Courts and Tribunals with the goal of advancing access to justice. The process is designed for self represented litigants and encourages (nudges) an amicable resolution with adjudication being a last resort. Similar to Canada, the initial efforts are on filing and manageing claims online.
Their approach to the online/electronic negotiation (E-Negotiation) is interesting - asynchronous (email/SMS) and it is limited to 5 rounds. Without looking at the system I’m assuming that this is more of a check-the-box type of solution rather than a genuine support system. Besѣda® features voice communication with non-interrruptible turns, built in prevention of risky speech actions and more!
As many other practitioners, they are exploring the use of generative artificial intelligence (AI). One of the potential use cases they identify is to predict outcomes. I mention this one particular use case because the implementation may be unethical if it would result in a litigant who abandoned a case when they could have achieved some compensation.
India
I was amazed and confused by the presenters of the platform Jupitice. They claim that they created everything themselves “from scratch”: no reliance on 3rd party apps and the presenter specifically mentioned viodeconferencing, the slides mention “data analytics engine”. As a developer I find that extremely hard to believe: if their code is custom it would be exponentially hard to attract and train new talent to maintain and develop it (because developers don’t want to learn something which can be only applied in one context).
There is the possibility that this solution/program is treated as critical for the Indian nation in which case that special status would justify the resources. Most of their clients are Indian judiciary, police and some private sector. There are notably two international institutions which use their platfrom - does that mean it is being exported and sold? Or are they the exception?
Also I assume that their platform is infrastructure as a service (IaaS) but again - it is difficult to understand from their website. Certainly they include a lot of technical buzzwords and revolutionary marketing talk.
Prevention is not yet a priority
Eric Katsh, who is a pioneer of online dispute resolution, delivered a keynote in which he lamented the way the phrase “dispute resolution” has been cemented in lagnuage. He implied that the negligence over the prevention and management of disputes is an issue. Mr. Katsh and other authors have elaborated this topic more in a 2021 paper, specifically about dispute system design (DSD). DSD is a topic I’m planning on writing more about in the future.
My thoughts on this is that there are at least two main reasons for the focus on resolution: i) heavy influence by the courts system which is focused on the measurable outcomes of its work, ii) the main use cases of the online dispute resolution have historically been online marketplaces (such as eBay) and divorces (see Family Wizard, Justice42). In such cases, the relationships are less important than the completion of goals. Parties are driven primarily by self interest and there are only a few possible outcomes: most likely either one side is more powerful and imposes its conditions or the responsibility is transferred to some authority to decide (administrator, conciliator, arbitrator, judge).
We already have the answer to the question: “How to prevent disputes when relationships are not important?“. By deploying a third party - policemen, lawyer, etc and/or by deploying self regulation via reputational pressure and other means. This topic has been developed to a large extent by the cybersecurity expert Bruce Schneier in his book Liars and Outliers, specifically part II.
To prevent, the system would need to be focused more on the social interactions than the financial or other transactions. The system would need to be tightly integrated into the ecosystem where the interactions happen and not be an outside platform.
What has been ignored (or has seen little progress) so far is the question:
How to prevent disputes when relationships are important?
For example - people who live together (condominium) and people who work together (employment). That is my main research area. Stay tuned for future insights.
The millenials have to develop something for themselves. - Chittu Nagarajan
I accept this challenge!
Conclusion
Overall, these developments remind me a lot of the cybersecurity industry some years ago:
- Clients were initially struggling with security orchestration automation & response (SOAR) because they were using it only for case management when the potential was to orchestrate workflows.
- The industry as a whole is focused on the intermediary roles which explains why the core use case is the final settlement of the disputes and not the prevention or management.