The number one benefit of information technology is that it empowers people to do what they want to do. It lets people be creative. It lets people be productive. It lets people learn things they didn’t think they could learn before, and so in a sense it is all about potential.
-Steve Ballmer
Over the past decade, the world has experienced vast technological advances. The growth of the internet has eased our lifestyles so much that we no longer have to do little mundane tasks like running to the grocery store- you can now do that online and have it delivered right to your doorstep! Do you want to call a relative residing abroad? Call them via Skype! The internet is also being integrated in other spheres of life. In the medical sphere, surgeons can now proceed to operate on their patients from hundreds of Kilometres away through remote surgery, also known as telesurgery, which requires the internet.
The legal realm has also jumped on the bandwagon. By as early as the mid-1990s, legal scholars from the United States had already begun to look for a ways through which they could solve disputes online. In 1998, University of Massachusetts professors of legal studies, Ethan Katsh and Janet Rifkin, received grants to carry out a project on Online Dispute Resolution. Online Dispute Resolution (ODR) refers to the use of the internet to resolve disputes whether or not they occurred online or offline. This process can either be carried out partially or wholly online. It inculcates the principles of alternative forms of dispute resolution such as arbitration, negotiation or mediation.
ODR may be carried out in two ways: wholly or with the use of computers. It is considered to be wholly online when the parties use ODR websites to negotiate their claims. This mostly happens where the issue is a financial one. Both parties submit their offers and the reasons for their offers, these are weighed by the computer, which then generates a sum that is a compromise between both offers. The computer then informs both parties of that sum. Should the parties agree, the process ends, but if they do not, they submit their new offers to the website which generates a new sum, continuing the process for a limited duration of time until an agreement is reached. ODR is partially online where it uses internet facilities such as chat rooms, e-mails and teleconferencing to mediate or arbitrate an agreement between the parties with or without the help of a professional third party.
In its earlier days, ODR was used mainly to resolve disputes that occurred over the course of internet transactions such as disputes between Internet Service Providers and their subscribers or between buyers and sellers on online platforms. In 1999, eBay, an online sales platform, carried out an ODR pilot project in which they were able to resolve over 200 cases in two weeks. Over the course of time, ODR begun to be used to resolve disputes occurring outside of the internet but were more conveniently resolved online.
Pros of ODR
ODR maintains all the benefits of regular dispute resolution while conferring a few extra benefits that are special to itself.
- Cost Savings and convenience especially where ordinary circumstances would require one or both of the parties to incur travel and accommodation expenses in order to proceed with the mediation or arbitration.
- By completely excluding the court in the process of ODR, the process avoids complex jurisdiction issues.
Cons of ODR
- ODR, while highly efficient, is only suitable for a limited range of disputes for example where only compensation or any other monetary issue is in dispute. This applies especially where the resolution is carried out solely by the computer with minimal or no human intervention.
- Where ADR is praised for its personal nature, ODR creates a sense of impersonality due to the physical absence of the parties. This may reduce the air of trust fostered in ADR.
- ODR requires access to computers, fast internet and ODR resources which may not be easily available to everyone.
While ODR may not be actively practised in Kenya, we have made a progressive step towards popularising ADR through the Judiciary’s implementation of the Mediation (Pilot Project) Rules. It is only a matter of time before we embrace technology fully and utilise ODR where applicable.
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