Online Justice: Ethical Considerations for Online Dispute Resolution Practice Colin Rule Director of Online Dispute Resolution, eBay/PayPal Seattle University School of Law, October 21, 2010

What is ODR? 2 Online Dispute Resolution (ODR) is the use of information and communications technology to help disputants find resolution to their disputes.

What is ODR? 3 Online Dispute Resolution (ODR) is the use of information and communications technology to help parties manage, transform, and resolve their conflicts.

Resolution Matrix EBAY INC. PROPRIETARY & CONFIDENTIAL HIGH LOW HIGHLOW OUTCOME CONTROL PROCESS CONTROL FACILITATIVE MEDIATON EVALUATIVE MEDIATON MED/ARB DIRECT NEGOTIATION FINAL OFFER ARBITRATION PRIVATE JUDGING BINDING NON-BINDING

Common (but not all) ODR Types 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 a decision that is binding on both sides

Online communication types ASYNCHRONOUS SYNCHRONOUS s discussion boards chats instant messaging audio conferencing video conferencing

The Need for ODR  All societies must provide redress Without it, users/citizens lose trust Trust is essential to commerce and cooperation Redress is just one element of trust building  Offline, redress is usually judicial Courts provide civil and criminal options Law enforcement guarantees outcomes  Online, judicial designs don’t work Geographies are irrelevant Enforcement must reside in the code

Resolving Disputes on eBay and PayPal

eBay is big More than 240 million users More than 4 billion feedbacks left >1 billion items have been listed on the site in 2008 If eBay users were counted as citizens, eBay would be the 5 th largest country in the world

eBay’s role is unique eBay sells nothing eBay buys nothing eBay holds no inventory eBay has no product, other than the website eBay’s job is to ensure that the marketplace continues to run smoothly – as such, eBay is a third party convenor B S B S

File a dispute FILE  COMMUNICATE  ESCALATE

File a dispute: step 2 FILE  COMMUNICATE  ESCALATE

File a dispute: step 3 FILE  COMMUNICATE  ESCALATE

Finding open cases (buyer and seller) FILE  COMMUNICATE  ESCALATE

Dispute details page: buyer FILE  COMMUNICATE  ESCALATE

OAS Case DB Central Clearinghouse National Administrator ODR Providers Key Components: A Central Clearinghouse, who maintains the case database; National Administrators; and ODR providers approved by the National Administrators Seller Global Buyer Protection System Design Sellers each opt-in to the system voluntarily ODR providers apply and are approved individually

The Community Court

Ethical Dilemmas  Differences between F2F and online DR  Impartiality / Independence  Cost and fees / Accessibility  Confidentiality / Transparency  Systems design UN ODR WORKING GROUP

Ethical Dilemmas (2)  Power differentials  Repeat players vs. one-off players  Selection bias  Panels vs. practitioners / feedback  Enforcing ethical standards  International standards programs UN ODR WORKING GROUP

UN ODR WORKING GROUP

UN ODR WORKING GROUP

Conclusions  ODR is a vibrant and growing segment of the ADR field  Applications are evolving all the time  It brings new ethical challenges for our field  Today’s ODR will look primitive in 5-10 years  ADR practitioners should be aware of ODR tools and techniques UN ODR WORKING GROUP

Resources The National Center for Technology and Dispute Resolution: The UN Working Group on ODR: UNCITRAL ODR Colloquium: ADR Cyberweek: