Online dispute resolution (ODR) technology is now available in a number of forms. If Ireland is to be a centre of internisational dispute resolution, ODR systems need to be embraced by the court system and the legal profession. If Irish lawyers are to offer their clients the fastest and most cost-efficient means of resolving their disputes, we all need to be aware of the available technologies.
Why move to ODR?
For several years, alternative dispute resolution (ADR) has been promoted in legal systems as a quicker and less adversarial way of resolving disputes. While courts decide the outcome in public, arbitration is conducted in private. Mediation, unlike either courts or arbitration, gives the parties themselves more control over how the dispute is to be resolved, with the guidance of a third party mediator.
While lip service has been paid to mediation in Ireland for nearly 20 years, many practitioners have found that it has been used more commonly over the past 2-3 years. Its use has probably been accelerated by the Mediation Act of 2017.
But mediation is generally organised in face-to-face (F2F) sessions, or – like settlement meetings – with the parties in separate rooms and the mediator shuttling between them.
Mediation can therefore be an expensive process, as the parties, their legal representatives, the mediator – and sometimes expert witnesses – need to be present at the same time.
At the same time as the growth in mediation, the last 15 years have seen a massive explosion in online commerce. Items that were once bought in the local town are much more often purchased online from overseas.
Online marketplaces such as Amazon and Ebay have had to develop their own online dispute resolution (ODR) systems, where problems have arisen between buyers and sellers. It is said that the ODR system developed for Ebay and Paypal now handles 60 million disputes per year. Most of these disputes are resolved by use of algorithms, and rarely require the intervention of a third party mediator or arbitrator.
These ODR systems generally allow the dispute resolution process to take place remotely, while parties, their legal representatives and the mediator can engage from their homes or offices. They also operate ‘asynchronously’ – meaning that the process can take place over days or weeks rather than focusing on a particular day of mediation.
ODR technology is cheap and efficient, and would benefit Irish litigants in resolving their disputes. Irish lawyers need to know how to use it.
Most Irish legal professionals are aware of the provisions of the Mediation Act 2017. This requires solicitors to advise clients of the benefits of mediation before engaging in litigation. Not surprisingly, the Act does not discuss different types of mediation, or make any mention of ODR.
However, many practitioners will not be aware that ODR is provided for in European legislation. Under EU Regulation 524/2013, any trader engaging in online sales or service contracts must provide on their website an electronic link to an ODR platform, in order to provide a simple, efficient, fast and low-cost out-of-court solution.
Ireland has introduced penalties for failure to comply with this requirement in S.I. No. 500/2015, since amended by S.I. No 32/2016.
UNCITRAL (the UN Commission on International Trade Law) has also made tentative steps towards adopting ODR by publishing, in 2017, non-binding ‘Technical Notes in Online Dispute Resolution’.
So ODR is now becoming a reality in Europe and internationally. Legal professionals must be aware of these development.
Ireland as a centre for international litigation and arbitration
Since the UK decided to leave the European trading block, it has been clear that Ireland has an opportunity to present itself as a centre for international litigation and arbitration. As an English speaking country, a common law system and a member of the European Union, Ireland would be a convenient place for many international litigants to bring their disputes.
In 2018, the Chief Justice, Frank Clarke, gave a presentation entitled ‘Ireland as a dispute resolution hub after Brexit’, and has spoken publicly since then about preparing our court system for such changes.
But if international litigants want to come to Ireland, we will have to adopt best technological practice in exchanging pleadings, position papers and affidavits. Some evidence will have to be taken remotely. While it will be necessary for some witnesses and advocates to be present, we need to provide opportunities to reduce cost where technology allows us to do so.
We also need to provide mediation as an alternative or complement during the dispute resolution process, if it can help to narrow the issues between the parties. ODR will be an essential part of that process. Irish lawyers will need to be up to speed on the relevant platforms.
Many ODR platforms have been developed, and I shall touch on a few of them.
Modria was developed by Colin Rule and Chittu Nagarajan. Colin Rule had initially developed the successful ODR system used by Ebay and Paypal (mentioned above). It seems that Modria is more commonly used by large corporations and court systems to provide ODR services.
CREK ODR was developed by Chittu Nagarajan, who co-founded Modria. The CREK ODR system is designed for individual mediators as a ‘one stop shop’. It allows for file sharing, and has different discussion rooms available for the mediator and individual participants within the mediation process.
It should be remembered for ODR purposes that video conferencing software is now widely available. Since the advent of the Covid-19 virus and the associated social distancing measures, such platforms are used by most people for work and social purposes.
The most popular seems to be Zoom. CREK ODR will link to Zoom.
Zoom Business allows mediators to provide separate break-out rooms, where the mediator can speak to individual parties. It can also allow for individuals to speak to each other in the mediators absence – for example, if the legal representatives wish to speak to each other, or if the experts from either side wish to try to resolve any differences between them.
Smartsettle ONE was developed in Canada by Ernest Thiessen and his team. It uses a number of algorithms to assist parties to resolve disputes, and can be used by individual mediators or negotiators.
The platform encourages the parties to agree on a ‘Single Negotiating Framework’, where there is a single issue at stake – for example, a dispute as to the rent to be paid, the salary to be paid or the compensation for a personal injury claim.
Central to Smartsettle is ‘visual blind bidding’. This allows parties to make ‘open’ bids and ‘blind’ bids within an agreed range, on a visual online platform.
Where the ‘blind’ bids overlap, Smartsettle will fix an agreement. The parties can also agree to allow Smartsettle to close any small gaps between their ‘blind’ bids, if they do not overlap.
Smartsettle ONE is a simple tool that would be of particular benefit in seeking to resolve small value claims.
Also developed by Ernest Thiessen, Smartsettle Infinity uses the same ‘visual blind bidding’ principles to resolve more complex negotiations, where there are many issues to be determined between the parties.
By separating out all the issues between the parties, the system allows each party to put a ‘weight’ on the issues they consider most important. The system then uses algorithms to maximise the value that each side can get from the negotiated agreement.
The developers of Smartsettle Infinity hope that it will not just be used to resolve commercial disputes, but to assist in other negotiations such as the Brexit trade deal.
Unlike Smartsettle ONE, Infinity cannot be provided by individual mediators, but is a service provided by the developers of Smartsettle themselves.
An Olive Branch
Developed by Irish solicitor Liam Moore, An Olive Branch is like mediation without a mediator.
The system uses mediation principles to try to resolve disputes using a three-stage process. The negotiators in An Olive Branch assist the parties to frame their grievances in such a manner that they can promote a resolution with the other party without having to involve a third party mediator. See here for more information.
Training in ODR
Online training in ODR is provided by Liverpool Solicitor, Graham Ross, at his sites “ODR Training” and “The Mediation Room”. The training includes an introduction to a wide variety of ODR platforms, as well as interviews with many of the key players in the ODR world internationally.
Training in Smartsettle ONE is available from ‘The eNegotiation Exhibition’.
Training in CREK ODR is available from the developers by appointment.
Irish legal professionals need to be aware of the best practices in ODR, and the available platforms.
For any small value disputes, ODR should be considered, in order to get the best value for the litigants.
For any international disputes, ODR will provide a simpler and cost-efficient dispute resolution mechanism.
And, when parties are not able to meet in person – such as during the Covid-19 pandemic – ODR is an essential alternative to offer clients.
Mark Tottenham BL is a barrister and experienced mediator. He is trained in the use of CREK ODR and Smartsettle ONE. For more information, please contact him on: firstname.lastname@example.org