1. UNCITRAL, eBay, and ODR applications in the Real World
 This work by Amy J. Schmitz is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License and is subject to the terms and conditions of that license. The final version of this document is published on the University of Missouri School of Law Scholarship Repository.

2. Readings
 Amy J. Schmitz and Colin Rule, THE NEW HANDSHAKE: ONLINE DISPUTE RESOLUTION AND THE FUTURE OF CONSUMER PROTECTION, Chapter 3, Lessons Learned on EBay, pp (American Bar Association Section on Dispute Resolution 2017)(Prepublication Draft). This is available on SSRN at
“Leveraging the Wisdom of Crowds: The eBay Community Court and the Future of Online Dispute Resolution,” Colin Rule and Chittu Nagarajan, in ACResolution Magazine, Winter Provided with the author’s permission and freely available at
Graham Ross, ODR's Role in In-Person Mediation and Other 'Must Know' Takeaways About ODR at
UNCITRAL Working Group III final technical notes at .

3. Discussion Topics
UNCITRAL and its breakdown – why didn’t it produce rules?
“Fourth Party”: What does it mean? How does it transform ADR?
Crowdsourcing: What is it? Is it fair? Security and validity? Jurors?
Ebay: At the forefront of ODR
Why invest in ODR?
Better to use 3rd party?
How and why change the “culture of conflict”?
Public vs. Private ODR Systems?

4. Revisit and Clarify!
WHAT IS ODR?

5. 2009-- M.A.R.S system-- https://www.youtube.com/watch?v=_4WVSvEFrMo
A video demo of Virtual ADR from 2009! Seems outdated?
Compare eBay:
Compare SmartSettle:

6.
Jul 5, 2016, this was posted regarding the EU Portal!
The Online Dispute Resolution website helps EU consumers and traders resolve their disputes about online purchases, without going to court.

7. 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

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

9. Why ODR?
Educates & Prevents Litigation
Uses Data to Suggest Settlements
Adds Online Neutrals to Assist Resolutions
Saves Time, Travel and Attorney Costs
Eases Public Costs With Private Development

10. The business case for resolutions: users that filed a dispute and had it resolved in a fast and fair way increased their usage of eBay at a higher rate than those who never filed a dispute – even if the user eventually lost their case.  The highest reactivation rate was for users who resolved their issue by mutual agreement with the seller

11. The Origins of ODR eCommerce and the Internet Resolution Center
Tens of millions of cases per year
50% resolved amicably
90% resolved in software, with no human intervention
Software assistance to achieve solutions by mutual agreement

12. 50% Lifecycle of a Case* Time savings Case Filed Final Order
Proposed Order
Hearing(s) Held
Answer Filed
50%
Time savings
Paper Filing
&
Party-Party Negotiation
Mediation
Settlement?
60 Days
*Based on NCSC Time Standards
Your process may be different, but this is an example of a timeline of activity that happens on a small claims case.
Filings are coming into the Clerk’s office via paper or through an electronic means, like Guide & File and File & Serve.
Once the clerk accepts those documents, the case is filed.
The defendant is notified of the filing, files their answer or counterclaim, and a hearing is set for some time in the future.
The wonderful thing about

13. UNCITRAL Working Group III
UN commission for international trade law (UNCITRAL) created a working group for development of a model procedural law that may be contractually chosen by the parties for resolving low value disputes.
This working group ended deliberations in 2016 for failing to reach consensus on key issues, including enforcement of predispute arbitration clauses.
Its final statement proposes that deliberations continue in hopes that eventually global ODR will be developed.

14. UNCITRAL debates
Track I:proposed a set of procedures ending in binding arbitration.
Track II: proposed processes with two possible final outcomes 1) an outcome terminating in a facilitated settlement stage, where a final settlement cannot be guaranteed; or 2)when a voluntary settlement has not been reached, a nonbinding decision by a third neutral will be issued but this decision will only be enforceable via party agreement.
Enforcement of predispute arbitration clauses: the United States enforces these clauses while the EU and other nations refuse such enforcement.

15. My experience…
One of four appointed experts at the United Nations in 2014
Attended private meetings with the Secretariat and others
Was encouraged by consensus regarding need for online dispute resolution and consumer disputes, but disappointed with the intrusion of politics in any productive discussions
There was great dissension regarding track 1 vs. track 2, and the use of arbitration
Protectionism was also a concern, as regions aimed it to advance their own trade.

16. clarifications What does online arbitration mean?
What is the profile of the users making use of ODR?
What mechanisms are adapted to business disputes and to consumer disputes?
Our procedural issues for disputes resolved through mediation similar to those resolved through arbitration?

17. Online arbitration
Unclear whether disputes must be resolved entirely online (most believe it is sufficient whenever a web – based program is utilized)
Arbitration connotes a binding procedure
A third-party neutral, or arbitrator, resolves the dispute
Examples = I cc international Court of arbitration, netcase, and the like

18. ODR user profile
Business to business = higher value and more complexity
Business to consumer = lower value and easier to settle online
Consumer to consumer = unclear, as they often involved more complex disputes and raises questions regarding classification of a business as a consumer in a particular case

19. Best mechanism for a dispute
B2B = parties usually negotiate the rules or use establish procedures such as ICC
B2C = require less procedures, and generally involve little to no negotiation of the rules for decision but consumers need protection and assurance of a fair redress system
Mediation is usually best suited for consumer disputes, with the expectation that the consumer usually does not have a lawyer and choice of law is less important
Key is to clarify current confusion regarding the differences in procedures

20. Generic procedures?
The working group had suggested generic procedures for mediation and arbitration
If the focus is on consumers, is difficult to see how the same procedures could apply for mediation and arbitration
Choice of law, choice of venue and other matters are only relevant with respect to arbitration

21. Where does this leave us?
The working group’s discussions evolve to focus on B2C claims
No consensus could be reached regarding the propriety of online arbitration
No consensus could be reached regarding uniform practices and procedures
The greatest advancements have been made in the EU system

22. Cortes on the Key functions for odr system
The conflict prevention function: use data to provide parties with realistic expectations regarding their claims
Online negotiation: assisted negotiation and automated processes using data and categorizations to solve problems based on analysis of similar past disputes
Case management: managing communication flow efficiently in order to minimize need for a third-party neutral’s involvement in deciding the dispute
Monitoring & enforcement: transparency and development of compliance incentives

23. Cost analysis
A well-designed ODR platform gives parties a sense of justice and fairness
An efficient platform saves companies time and money in resolving claims
Assisted negotiation has proved particularly useful and cost effective as has been seen by eBay and PayPal

24. Trustmark or online label
Traders and ADR entities that comply with quality criteria set out in the ADR directive
Attracts consumer confidence in business
National regulators and ODR advisors could award and withdraw the Trustmark

25. Due process Compliance
Effective automated negotiation tool
Reduced filing fees for those that comply
Cost penalties for those that do not abide by processes and outcomes
Multi tiered dispute resolution processes with a binding final stage
Publication of adjudicated decisions

26. Compliance with outcomes
Feedbacks in review websites
Cooperation with search engines
“name and shame” techniques similar to that of the Better Business Bureau
Cooperation with online payment systems like credit card chargebacks

27. Reflection Paper:
Reflection Paper: Does the growth and international depth of ODR surprise you? Briefly list the pros and cons of the UNCITRAL endeavors based on the readings, and in light of parallel ODR projects in the private sphere. The paper should be only 1 – 2 pages long but be prepared to discuss your thoughts in class. Consider how a public global system compares with private ODR like that used by eBay. Also, consider the policy differences among the UN Member States and the politics involved in Working Group III. Why do you think UNCITRAL Working Group III ended?

28. Teams of 2: Top Comments?
Swap reflection papers and share top comments
Consider whether and how you would reinvigorate UNCITRAL?
Is it best that it ended, to allow private development to take over or should we invest in developing a global system?

29. Questions and Considerations?
Save the Dates for Colin Rule presentation and classes!
March 21-22!