Replies to This Discussion

Permalink Reply by Mark Wilson on November 5, 2013 at 1:46am

We are pleased to begin the discussion on ODR & Government: Citizen Empowerment through Technology!  We are looking forward to the continued discussion of this area.  

To begin the dialogue, I wanted to post a couple of questions:

1. What are some of the key tasks/responsibilities of government, and how can ODR technology assist and/or improve them moving forward?  
2. What challenges faced by governments can be addressed effectively with ODR?
   
   

Thank you very much for joining us in this discussion and we are grateful to Cyberweek 2013 for providing this forum.  We are looking forward to a great week!

--Mark Wilson

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Permalink Reply by Bill Warters on November 5, 2013 at 10:13am

Boy, the talent represented by this group of forum moderators is really impressive. Perhaps they/you should form a new ODR Cyberweek governing body? On the other hand, Cyberweek is really a "free range" animal, I think, so this probably won't work.

Anyway, thanks for including governing in our set of themes for the week. With Larry Schooler's webinar on tap as well, the table is set nicely. 

For me, I think our impression of government is struggling right now with the gridlock in Washington D.C. and a sense that good ideas are getting buried in political rhetoric and reelection agendas. So, I think government at root should be a listening agency that pays attention to the real needs of its constituencies and works to find fair, regulated ways to address the needs of competing groups without requiring or motivating any particular group to resort to force, violence or corruption to get their issues addressed. Also, government could play an educational role, helping individual stakeholders better understand the needs of the broader community, to encourage some perspective taking and the creation of a sense of "us" as a community or town or state or nation that is inclusive but realistic.  One example of this is the use of local government budget simulations to help people understand the hard decisions at stake and what the needs are locally.

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Permalink Reply by Colin Rule on November 5, 2013 at 12:55pm

Bill, compliments will get you everywhere! And I like that: Cyberweek is a free range animal -- how true :)

Mark alone could fill a cyberweek with everything he's learned from leading Modria's assessments work. Hard won lessons!  Most of our work has been on the case management side -- Larry is the man on public participation efforts, with his leadership in Austin and at IAP2.

I think the whole ACA website issue has really put government technology front and center. Eswari and I are in The Hague now working on some public ODR programs, and there have been several questions about the Obama administration's difficulties. The lesson seems to be that government shouldn't try to do tech projects themselves, they should leave it to the public sector -- which is a lesson I'm fine with :)

As to Mark's question, I've heard it framed in acronyms... in ecommerce we talk about B2B, B2C, and C2C transactions. In government, it's G2C, G2B, and G2G (Government-to-citizen, government-to-business, and government-to-government) technology. Also, because ODR is so focused on the the legal sector, we need to think about court-to-citizen and court-to-business as well.  It's hard to find any public agency that couldn't benefit from ODR in some way.

I'm particularly interested in how technology can empower citizens in their interactions with government, both from an information sharing and an access to redress perspective. Sam is doing a book on that very topic -- he has a lot to say, I'm sure. Mark can also say more about the work we've done with property tax assessment appeals.

Bill mentioned the use of local government budget simulations to help people understand the hard decisions at stake -- I think that's a fascinating approach to public education about public decisions. I'd love for Larry to speak more to that -- I've seen similar approaches used for planning dialogues and large environmental cleanup disputes. And as was mentioned in the other forum, Listening to the City and America Speaks also leveraged technology in some innovative ways to engage the public in deliberative projects.

In some respects, there's a thin line between online dispute resolution and edemocracy. I really think we in the ODR field should think beyond transactional and commercial dispute resolution to engage the potential for our tools in the public sector.  We're just getting started there.

rah

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Permalink Reply by Ayelet Sela on November 5, 2013 at 1:30pm

I'd like to add another perspective here. Under the social contract model, the State, through its government, forbids (violent) self-help and takes central control over dispute resolution in order to guarantee that society runs in a peaceful (and fair) way so that the social contract between the citizens and the State is upheld. Depriving individuals of the right to self-help is justified by the institution of fair and effective state-run dispute resolution mechanisms, which, along with the other benefits of statehood, make the social contract worthwhile for everyone. ODR technologies can help States improve their exercise of this key role by making dispute resolution functions 1) more accessible; 2) faster; 3) simpler; 4) relevant to larger classes of dispute ("the latent dispute market"); and 5) less expensive. If done properly, the State can improve its governance, strengthen the social contract and most importantly - better serve its constituents. To build on what Bill and Colin said, it is another form of eDemocracy, using technology to make direct participation - or interaction with Government - possible.

The question(s) then becomes: What makes ODR services appropriate (what standard should be used)? How can states guarantee that ODR services are appropriate (requirements, regulation, industry best-practices etc.)? What is the scope/class of disputes/settings/type of disputants for which ODR services can be appropriate?

I'd love to hear/read what everyone thinks about these questions...

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Permalink Reply by Colin Rule on November 5, 2013 at 5:45pm

Ayelet asked: "What makes ODR services appropriate (what standard should be used)?"

I think the question of what ODR services are appropriate falls back on the consensus ODR standards that have been promulgated (summarized well by Jeff and Ruha in ODR State of the Art: transparency, independence, impartiality, effectiveness, fairness and intergity, assessibility, flexibility, affordability).  Does an ODR program meet these standards?  Then it's probably appropriate.

Also "What is the scope/class of disputes/settings/type of disputants for which ODR services can be appropriate?"

I think ODR can add value to a wide variety of different kinds of disputes, but it adds the most value for low value, high volume civil disputes.  I don't think we forbid the application of ODR to any dispute type, but we might suggest that for some disputes certain ODR programs don't meet the standards for quality redress such disputes require.  I don't want to use a community court for death penalty cases!

And, "How can states guarantee that ODR services are appropriate (requirements, regulation, industry best-practices etc.)?"

This is a topic I know Pablo has written a lot about.  I've come to the conclusion that governments should stay out of the ODR regulation business, but I know he disagrees (as does the EU).  I think ODR is moving too quickly for governments to regulate.  Maybe I've been a private sector guy too long, but I see ODR as primarily a private service selling into government demand.  Government can issue standards and prosecute law breakers, but ODR excellence will have to come from self-regulation.

This is a good segue to another question I've been thinking about.  It seems most of the laws promoting ODR that are being passed focus on low dollar value civil disputes, particularly cross border disputes like consumer problems.  Should government be leading the implementation of these systems, or should the initiative instead be driven by the private sector?  Do you guys think government be nimble and/or innovative enough to continue to support ODR as practice evolves?

WDYT?

rah

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Permalink Reply by Leah Wing on November 5, 2013 at 10:13pm

Wonderful discussion underway! 

In considering what the role should be/if there should be a role for government leadership in implementing ODR systems, I am of the mind that we can benefit from multiple parties taking initiative and leadership.  This includes different levels and branches of government.  The private sector and the grassroots have much to offer, including a more nimble (to use Colin's word) and rapid approach to generating creative innovations which respond to the needs of citizens and communities.  However, we also have a sad history as humans of regularly not taking sufficient care of those who are most vulnerable and least powerful in our societies.  This repeatedly leads to conflict whether it is in schoolyards, neighborhoods, or the marketplace.  Therefore, governments have an important role in fostering processes of dispute resolution which are responsive and responsible.  It seems to me that striking a balance between governmental leadership and private and community leadership is vital in ODR as in other aspects of our political, social, and economic lives.  What is that balance and how do we foster it?

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Permalink Reply by Graham Ross on November 6, 2013 at 6:32am

Let me add to Colin's list of attributes.

Bearing in mind that, with the exception of ODR specific to online communities, the majority of the claimants will be using ODR systems on a very occasional basis (and probably any particular system once only) systems need to ensure they are designed to be intuitive to use by the first time user without recourse to Help pages and manuals. This is a challenge to system designers balancing novel functionality with simplicity.

Another point is that in addition to being fair and impartial ODR systems need importantly to convey that impression instinctively to the parties.  In a community court dealing with consumer disputes, for example, does the trader feel confident the 'jury' fairly reflects a balanced interests of traders and consumers? Do trademark adjudications in online markets seem to fairly balance the interests of the small trader against the large trader given the small trader may sense (albeit in the main wrongly or maybe not so wrongly) that the marketplace owners may be commercially influenced by those who give them more business ( eg Amazon listing disputes and eBay/VeRO disputes).

( I will drag this back into out 'government' heading shortly - promise :-)

Fairness may relate not to the system itself but to the impact of user skill. 12 years ago I spent a week on behalf of an insurance company trying to persuade claimant lawyers in road traffic injury cases to participate in  blind bidding ( for my first ODR company We Can Settle). An impossible task. No-one could be persuaded. My guess is that it looked so much like a computer game that they sensibly assumed,  albeit wrongly in this case, that the insurer claims handlers would have had so much more experience with, or training on, the system, to have developed game skills superior to what they, as first time novices , could apply. This will be a problem for all system designers to consider ie can you 'play' the system?

My work on the European Union funded EMCOD Project produced a book and online survey to assess the quality of justice through ODR.  it's all very well being accessible and convenient and intuitive but does it give the same sense of justice to the users that they get when the deal through the more traditional venues like the courts and tribunals. EMCOD will give its return in years to come when ODR systems link to its exit survey giving providers the benefit of the user experience knowledge generated.

But, hey, we are discussing the role of government not standards. How is this relevant? Well government funding projects like EMCOD is one. More broadly, I used to fully share Colin's perspective that  government should take a back seat and leave it to the private sector. By and large I still do but I think there are nevertheless some areas that  benefit and standards is one, and the role of ODR on legal rights is another.

The EU's Recent consumer legislation, the Directive on ADR and the linked Regulation on ODR, together impose  standards , some impacting on the independence of the neutral, and also require an exit survey. BTW don't be tempted to think only the Regulation affects ODR. There is far more impact on ODR within the Directive on ADR than within the Regulation ODR. So I'm afraid you'll have to mug up on both. This is because the Directive requires the ADR organisations, to which the ODR Regulation will encourage the shepherding of claims, to provide online facilities for the filing of claims and the exchange of information. In my book that is effectively requiring ODR from ADR organisations acting in consumer claims. The standard setting provisions in the Directive therefore effectively impose standards on many organisations  who will be providing ODR....as so it should be.

The exit survey requirement for the EU's ODR signposting website ( the website being the main objective of the Regulation) is a good example of one other role for Government, being the requiring and provisioning of the gathering and analysis of user experience knowledge to better entrench ODR's role as a valid element within 'justice'.

Finally, I mentioned above about a role for government in how ODR may impact on legal rights. In Europe in ADR we already have a Directive on mediation that helps support the freezing of court time limits to allow for mediation to take place. As we have learned from the recent experiences in Italy where a narrow interpretation of mediation appeared, in seeming to require at least one physical meeting with the mediator,  to exclude online mediation, rules on ADR will increasingly impact on ODR.

But let me end this this brief note ( it was brief at the beginning I promise you:-) with a mention of a 2006 English court case ( Quads4Kids v Campbell [2006] EWHC 2482 (Ch) - sorry can't find online report - which adjudged that to pursue an eBay VeRO claim to block an alleged trademark infringement instead of litigating in court was a breach of a European law ( Community Design Regulations of 2005) that made it illegal to make  threats of design breach not backed up by litigation. The idea was that the Defendant should have the right to defend under court procedures set out in the Regulations whereas the VeRO procedure effectively removed the opportunity to exercise that right.

"It is entirely wrong for owners of intellectual property rights to attempt to assert them without litigation, or without the threat of litigation, in reply," said Judge Pumfrey.

This is a great example where government, as the leader and agenda setter for legislation, needs to better ensure that the growing areas of extra-judicial dispute resolution have their proper space within the justice system so that legislation does not , inadvertently as experienced by Italy and eBay, ignore its value.

One final point. I was at the recent Oxford Conference on the European consumer legislation on ADR/ODR and asked Christopher Decker. , head at DG Sanco in the European Commission and the man in charge of the legislation's journey, what consideration they had given for  the problem that even though a trader may find a claim against him rejected by the ADR/ODR service to which the dispute was referred by the EU's website, the consumer could then cause continuing damage to the trader by posting grossly unfair consumer reviews about the same transaction. He said they had not given any consideration to it. Fake /malicious reviews affecting the metrics of Google Star ratings  and similar cause unfair damage to   reputation. I would like to see the EU at least in discussion with Google etc so at least they may perhaps, and albeit voluntarily, show some recognition of ODR outcomes especially when by  approved organisations to whom the case was referred through the EU website in the first place.

Please save a mouse and keep your responses brief :-) - but no seriously and apologies for the length I am so maxed out this week and know I do not have the time I wish I had to spend  on Cyberweek- so thought I would at least get as much in now!

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Permalink Reply by Spenser Hilliard on November 6, 2013 at 9:26am

Yes indeed, a spectacular array of talent and it is wonderful to be able to participate from 4000 miles away in London.

My question concerns the admirable efforts of the Belgian goverment to set up Belmed, an online portal to both promote  ADR and to provide free ODR for consumer complaints. It was specifically designed to be very user-friendly and went live in April 2011. The latest figures show that between April 2011 and August 2013 a total of 665 cases have been registered. Of these 52 are still pending and only 28 (8%) have been settled. These figures come from Dr Stephan Voet of Ghent University Law School. However much positive spin one tries to apply, it is impossible to see them as other than very disappointing.

We are all here because we are convinced of the value of ODR. How do we explain the poor outcome, so far, in Belgium. Graham has already mentioned the EU Directive and Regulations on ODR. What lessons can be learned to ensure that the European scheme is not as ineffectual as the Belgium one?

I would value greatly the views of the distinguished panel on these matters.

Many thanks

Spenser   

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Permalink Reply by Colin Rule on November 6, 2013 at 9:47am

Leah wrote: "It seems to me that striking a balance between governmental leadership and private and community leadership is vital in ODR as in other aspects of our political, social, and economic lives." ADR has always been seen as a way to empower local communities. Some have criticized ADR as a tool for "pacifying the masses" (as it were) by localizing and personalizing conflicts that may in fact be system-wide. But the community dispute resolution movement has always been about local empowerment and grassroots, egalitarian decision making. What does that make ODR, if so many of the ODR intiatives are cross-border, global, and designed in the halls of international organizations like the European Paliament and UNCITRAL? I like to think that ODR is about empowering individuals, but the kind of empowerment represented by the internet may serve to weaken local communities and attenuate relationships based on geographic proximity. In "Bowling Alone" Putnam observed that technology may be undermining the social institutions that traditionally held our society together, replacing them with virtual connections that don't create the same kind of community connections (and may in fact undermine local community engagement and trust). Is it a bad thing if I skip my PTA meeting to bond with fellow Lord of the Rings enthusiasts in a MMORPG? Maybe it is. But I'm cosmopolitan enough in my worldview to think that net net it's a good thing, even if it does undermine my local community engagement a little bit. Maybe it will make us a little less parochial, and encourage us to think globally and act locally.

Graham said: "I used to fully share Colin's perspective that government should take a back seat and leave it to the private sector. By and large I still do but I think there are nevertheless some areas that benefit and standards is one, and the role of ODR on legal rights is another."
This point is well taken. Government doesn't run the economy, government sets the rules for the participants in the economy and ensures those rules are followed. The same should be true in ODR. I know there is potential for abuse, and I think government should ensure that abuse does not occur. But I don't think that means government should get into the ODR business. Standards is fine, but saying "ODR must always work this way and no other way" is not. And Government getting into the ODR business is highly unadvisable.

Graham also said: "I would like to see the EU at least in discussion with Google etc so at least they may perhaps, and albeit voluntarily, show some recognition of ODR outcomes especially when by approved organisations to whom the case was referred through the EU website in the first place." This is a good point. Government can encourage the growth of ODR, and tell companies hey, this is a problem in your ecosystem, and we don't want to have to get involved -- but if you were to implement an ODR scheme, particularly one run by one of these very reputable and well run ODR system administrators, that would go a long way to assuage our concerns.

Spenser wrote: "The latest figures show that between April 2011 and August 2013 a total of 665 cases have been registered. Of these 52 are still pending and only 28 (8%) have been settled. These figures come from Dr Stephan Voet of Ghent University Law School. However much positive spin one tries to apply, it is impossible to see them as other than very disappointing." This is very disappointing. Unfortunately, I see the EU and UNCITRAL going the same way. THey will never get close to the case levels and resolution rates of eBay and PayPal and ICANN, because they're thinking about these cases the wrong way. We see a lot of these systems becoming baby court systems without enforcement, which is a recipe for failure. Enforcement must be built into the system or all these efforts are for naught. Parties don't want a decision about who is right -- they want an enforced outcome. If I file a case and get an email saying I'm right, I should get a refund, that's worthless to me. I want the money back, not a note saying I deserve to get my money back. This is the point so many of the government ODR designs continue to ignore, and it will steer them inevitably to the same type of miserable results that BELMED has experienced.

rah

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Permalink Reply by Spenser Hilliard on November 6, 2013 at 10:18am

Colin Rule said:

".......Enforcement must be built into the system or all these efforts are for naught. Parties don't want a decision about who is right -- they want an enforced outcome. If I file a case and get an email saying I'm right, I should get a refund, that's worthless to me. I want the money back, not a note saying I deserve to get my money back. This is the point so many of the government ODR designs continue to ignore, and it will steer them inevitably to the same type of miserable results that BELMED has experienced.

rah"

Oh dear - getting the EU juggernaught to change course is not gonig to be easy. I suppose we must prepare for the inevitable car-crash, with the damage that the fall-out will cause to the concept of ODR.

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Permalink Reply by Graham Ross on November 6, 2013 at 1:55pm

Spenser and Colin are the realists - but let the optimist have a word in. Belmed relies on people finding out about it. Spenser, do you know how it is marketed if it is marketed at all. I suspect most buyers with a complaint in Belgium do not know about it.

The big difference surely though is going to be that once the ODR Regulation kicks in and the EU's ODR platform is in place, everyone making an online purchase on a site other than one exclusively B2B  will know that, should they have a complaint later, that they just go back to the traders website and that once they click the ODR link (which will be on the traders website -what could be easier and more obvious than that) that they will get to an  official EU site where they will fill out a form which will be passed on to an online DR service. The point is that  the EU have forced  the trader to be the marketing arm of the ODR industry by requiring every such site to be legally obliged to carry the link to the EU website from where the completed claim form will be passed to an ADR provider using online facilities for resolution (aka an ODR provider).   

So full marks to the EU for being so inventive as to ensure every consumer will know about, and have access to, ODR by the requirement on the trader to carry the link. 

Nul point however to the EU for backing down to commerce industry pressure by not making participation in the dispute resolution process itself obligatory on the part of the trader. 

But, of course many websites will breach the law and not carry the link (with too small a Trading Standards  'police force', much of European law is already ignored by a large proportion of e-commerce websites) and many who do carry the link will not participate in the ODR to which they are invited. But the fact that there will be the EU website will massively increase awareness of the existence of online systems to resolve claims should mean still that awareness and volume will not be the problem.

The possible problems will be of a different nature. I think that not requiring traders to participate will generate false trust in those traders. You see a product and see on the website a link to the EU ODR site for resolving any problems. You will assume that trader will participate and thus have trust enough to buy. You then have a problem with  the product/service and click on the link  to the EU site and complete the form. It is all sent to an ODR provider only for you to be later told that the trader will not participate.That is not good. It will be for the consumer organisations  and chambers of commerce etc to get over the message , so clearly shown in Colin's eBay stats, that if you want loyal customers who will buy again later down the line , then you participate in ODR.

So no I don't see the failure of Belmed to be relevant. Awareness will significantly increase but the different problems will have to be overcome

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Permalink Reply by Spenser Hilliard on November 6, 2013 at 4:10pm

I do hope that you are right Graham. Certainly the EU deserves credit for trying. Fingers crossed.

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