The short message is: read this book. First, it is an invaluable account of the history of Online Dispute Resolution (ODR) authored, in part, by Professor Katsch, one of the great granddaddies of the subject from its beginnings with e-Bay. Second, it is clearly written and full of specific examples. Third, the authors are pro-ODR but not mindless fanatics. Fourth, it combines the general with the specific: there are chapters on the resolution of disputes in e-commerce, healthcare, social media, labour and the courts. Fifth, the authors demonstrate a capacity to organise a large amount of information in a readable way. There are some gaps: the book reflects the current experience of ODR and is stronger on its use in the private sector than in the courts. But, it changed my perception of the history, the current position and the likely future development of something which become more and more important. As the authors say, ‘Disputes are the collateral damage of innovation’ and they agree, in consequence, that ‘conflict is a growth industry’.
The growth of the internet has been so quick that it is handy to be reminded of just how short the time span has been. Only in 1992 did it open up to commercial activity after a major row when there was unauthorised advertising By 1999, e-Bay dipped its first toe into ODR with an internet start up, SquareTrade, to handle its disputes. Since then, the use of the net has exploded to levels where not only is ODR the only way in which the vast number of disputes could possibly be handled but their resolution has been incorporated into ways in which providers can prevent their recurrence: ‘Designing new processes and systems that help to avert problems in addition to resolving problems in a fair and efficient manner is at the heart of the challenge of achieving digital justice’.
Successful ODR systems, argue the authors, display three key qualities – expertise, convenience and trust – and four key differences from conventional alternative dispute resolution – no face to face interaction; automatic recording of data; opportunity for the application of artificial intelligence and greater opportunities to prevent further disputes. The authors have various interesting observations along the way, such as the insight that the internet has graduated through different interfaces with users. The first was verbal – as when you communicated with the computer by type. The second was the development of the app where you communicated through a structured pathway. And the third – illustrated by Siri and her companions – will be conversational. The authors have no doubt about the coming of the age of the chatbot – something which would appear to have tremendous opportunities for the provision of legal services to those on low incomes with problems of low profitability to providers.
One of the interesting questions about ODR is where it does not work. The authors have a stark assessment at the conclusion of their chapter on employment: ‘Technology has improved access to justice in many areas. But the work context is not one of them’. They give some reasons for this. First, ‘the inherent political and economic weakness of workers’. Second, ‘platforms’ linking providers and users – as does Uber at a presentational level – ‘do not have a vested interest in encouraging direct communication between the parties’. Third, say the authors, platforms have put more energy into dispute prevention by eg rating systems than dispute resolution.
You could probably summarise the above as saying that ODR is likely to be unsuitable for any dispute where there is a major power imbalance between the parties and the more powerful has more interest in maintaining that imbalance rather than resolving an individual dispute. That would explain why companies like Uber which operate at the frontier of employee law or Social Security ministries concerned to manage large areas of expenditure are likely to be relatively uninterested in quick, transparent, fair online dispute resolution.
The issue of balance nags at the potential extension of ODR into the formal court structure. The chapter on this is, I felt, the weakest in the book – perhaps reflecting the lack of experience as yet. The authors were unlucky in that, although they published in April this year andmuch of their content is bang up to date, the poor old Rechtwijzer went bust after their deadline and its demise needs some consideration. The authors acknowledge the difficulties of digital exclusion but these are more acute for a public resource determining claims which may arise both from the offline an online world. Courts are also unlikely to have sufficient numbers of similar types of case to operate solution by algorithm in the way that was open to e-Bay. What is more, volume ODR is supremely unsuitable to regulate major international companies deliberately seeking to avoid regulatory restriction with the resources to hire good old-fashioned physical experts at the top of their game to help them.
The book has an introduction by Professor Richard Susskind; the authors display an encyclopaedic knowledge of the use of ODR; jurisdictions like my own are hell-bent on implementing online courts in order to save money on physical provision and preserve service for those with the money to pay for it. That needs people with the expertise and credibility of Professors Susskind and Katsch: it should not be dominated by Ministries of Justice or courts with an overwhelming interest in cost reduction. As is manifest in the EU’s Charter of Fundamental Rights and Freedoms, access to justice is a human right imposing a binding obligation on public authorities. That puts courts and tribunals in a different category from Uber and e-Bay.