Dispute Resolution (Online)

Author: Catalina Goanta

Online dispute resolution (ODR) is an umbrella term referring to out-of-court dispute resolution techniques which are offered using technological infrastructures, particularly on the internet (Thomson, Sherr, 2012)¹. As a sub-category of alternative dispute resolution (ADR), ODR is a ‘private independent but binding justice system’ (Mistelis, 2006)², by which parties to a dispute have access to procedures through which they can settle their differences (Hörnle, 2009)³.

Some authors argue that ODR systems should have essential properties such as simplicity (user-friendliness), adaptability (processes automatically adjusted to the needs of the parties), and interoperability (ensuring connectivity of stakeholders regardless of data architecture differences), in order to be properly integrated into Internet-based industries such as e-commerce (Kaufmann-Kohle, Schultz, 2004).

As a system of private justice, ODR has been historically focused on facilitating the solving of disputes between sellers and consumers, which is why one of the most cited case studies of successful ODR is eBay’s Resolution Center (Del Duca et al., 2014)⁴. However, this success from early commercial activity on the Internet did not transfer smoothly to other categories of intermediation business models which occurred at later stages. For instance, originally, sharing economy platforms such as Airbnb or Uber would catalog disputes between hosts and guests or drivers and passengers as customer care problems, often solved through the use of FAQs or automated forms which would provide certain forms of immediate or reviewed relief (e.g., the return of a deposit fee; the return of the charged ride rate). Especially in these cases, the limited platform support in even reaching the other contracting party before or after the completion of the transaction has amplified the pitfalls of the limited liability regimes information society services have been traditionally benefitting from. The same can be said for social media platforms, which provide the intermediation of media services as well as peer content, in an environment where toxicity and abusive language is abundant. This leads to various harms, some of which can be easily labeled legally (e.g., insult, defamation, incitement to hatred), and some of which are more difficult to pinpoint from the perspective of existing legal frameworks (e.g., swarm bullying or cancel culture). All in all, the rationale behind dispute resolution is that users are in search of justice (Citron, Jurecic, 2018; Katsh, Rabinovich-Einy, 2017)^{5 6}, and when justice deals with the removal of content, it goes into the realm of content moderation, absent a framework for the resolution of disputes between peers, beyond systems for the reporting of abusive content, which, ironically, are often themselves abused (e.g., cancel culture). Some platforms may have content and reporting management centers (e.g., YouTube) for areas of activity where platform liability may arise in the absence of additional measures (e.g., copyright; Google, 2020)⁷. However, given the existing disconnect between real courts and Internet harms, as well as the lack of successful, scalable models for ODR across the various services offered by information society services, it can generally be said that ODR is a field still in its infancy.

References

Loebl, Z. (2019). Designing Online Courts: the Future of Justice is open to all. Wolters Kluwer.

Tworek, H., Ó Fathaigh, R., Bruggeman, L., Tenove, C. (2020). Dispute resolution and content moderation: Fair, accountable, independent, transparent, and effective.

1. Thomson, S. Sherr, A. (2012). Definitions of Online Dispute Resolution.  In:  Gramatikov, M. (Ed.). (2012). Costs and quality of online dispute resolution: a handbook for measuring the costs and quality of ODR. Maklu.
2. Mistelis, L. (2003). ADR in England and Wales: a successful case of public private partnership. ADR Bulletin, 6(3), 53-55.
3. Hörnle, J. (2019). Cross-border internet dispute resolution. Cambridge University Press.
4. Del Duca, L.F. et al. (2014). eBay’s De Facto Low Value High Volume Resolution Process: Lessons and Best Practices for ODR Systems Designers. 6 Yearbook of Arbitration and Mediation.
5. Citron, D., Jurecic, Q. (2018). Platform Justice: Content Moderation at an Inflection Point. Aegis Series Paper n˚. 1811. Available at https://www.lawfareblog.com/platform-justice-content-moderation-inflection-point.
6. Katsh, M. E., Rabinovich-Einy, O. (2017). Digital justice: technology and the internet of disputes. Oxford University Press.
7. Google. (2020). What is a Content ID claim? Available at: https://support.google.com/YouTube/answer/6013276?hl=en.