Empowerment through E-Courts & Public Online Dispute Resolution (ODR)? Professor Amy J. Schmitz

Types of ODR (Online Dispute Resolution) Problem Diagnosis An automated process that provides buyers and sellers key information and sets reasonable expectations Direct Negotiation A tool that enables disputants to communicate directly through a web forum in an attempt to reach agreement Mediation A process in which an impartial third party joins the discussion between the disputants to help them find resolution Evaluation The endpoint for ODR, where a neutral hears both sides of the dispute and then renders decision that is binding on both sides

ODR Innovation: eBay Court Example provided by Colin Rule at Modria, an ODR provider

Why move dispute resolution online? Litigation & Face-to-Face (F2F) arb/med are costly Consumers prefer online access (85% vs. 15% by phone) Use data & online neutrals to assist resolutions Adapt to language, education, physical & time differences Ease public costs with private collaborations Provide remedies & hold companies liable in small dollar claims (where consumers would otherwise “lump it”)

Online Dispute Resolution and the Future of Consumer Protection The new handshake Online Dispute Resolution and the Future of Consumer Protection Copyright Amy J. Schmitz©

What is the new handshake?

Online Consumers have it Rough Merchants can make it tough to get solutions The Squeaky Wheel System Social pressures not to pursue redress Digital divide may create asymmetries Class actions cut off by binding arbitration Limitations on remedies may prevent action Copyright Amy J. Schmitz©

What consumers want Fast and easy resolutions Don’t want to fight or pick up the phone Free or low cost access to remedies Fair and consistent treatment (combat SWS) Privacy Copyright Amy J. Schmitz©

The business case for resolutions Copyright Amy J. Schmitz©

The new handshake Single platform Embeddable button Easy and free for consumer Scalable for merchants Visibility for auditors & consumer agencies Highly automated and scalable Copyright Amy J. Schmitz©

But should ODR Move to the Public Realm? UNCITRAL WG III (ended in 2016 but emphasized need in small claims) E-Court Pilots in the US Ohio Michigan NY Utah, Nevada, Texas…. E-Court and Public ODR Outside the US Canada-- CRT China – Hangzhou Internet Court UK – Her Majesty’s Online Court EU – EU ODR Regulation Copyright Amy J. Schmitz©

Assuring ethical standards --icodr

Icodr believes that ethical ODR must be: Accessible: easy for parties to find and participate in and not limit their right to representation; available through both mobile and desktop channels; easy for people with different physical ability levels. Accountable: continuously accountable to the institutions, legal frameworks, and communities that they serve. Competent: run by those with relevant expertise in dispute resolution, legal, technical execution, language, and culture required to deliver competent, effective services in their target areas. Confidential: respectful of party communications in line with policies that must be made public around a) who will see what data, and b) how that data can be used. Equal: respectful of all participants, including those that are often silenced or marginalized.

Icodr believes that ethical ODR must be: Fair/Impartial/Neutral: provided without bias or benefits for or against individuals, groups, or entities, with full disclosure of any concerns before ODR begins. Legal: in accordance with the laws in all relevant jurisdictions. Secure: provided with assurance that data collected and communications between those engaged in ODR is not shared with any unauthorized parties.   Transparent: in full disclosure of a) the form and enforceability of dispute resolution processes and outcomes, and b) the risks and benefits of participation. See http://icodr.org/.

Designing systems Combatting asymmetries and the Digital Divide Binding vs. non-binding Ethics and audits Artificial Intelligence (AI) and algorithms Security and privacy Copyright Amy J. Schmitz©

Additional Concerns for Public ODR State action and augmented due process duties Public perception and fear of digitalization Internet access and education Politics, start-up costs and lost jobs Transparency vs. privacy Fairness vs. efficiency Copyright Amy J. Schmitz©

CONCLUSION It is not simple to design and build ODR systems that are sufficiently secure, easy & effective. Key debates around cost, security, scope, consent, and trust have stymied development. E-courts and public ODR, however, provides promise for individual empowerment and access to remedies without the cost and time involved in traditional F2F processes. The challenge now is to engage private and public entities, and encourage experiments seeking to expand access to justice and legal empowerment using technology. Indeed, the time is now for inventing means for all individuals to enjoy access to remedies and fair treatment. Copyright Amy J. Schmitz©

Professor Amy J. Schmitz Thank you! Your comments are welcome! Professor Amy J. Schmitz Outreach: MyConsumertips.info (website/app) Newhandshake.org http://papers.ssrn.com/sol3/cf_dev/AbsByAuth. cfm?per_id=522704 (SSRN) Copyright Amy J. Schmitz©