Advisory Group Boost for ODR

April 28, 2014

Those of us who thought that ODR was in danger of being overlooked in the course of the remorseless moves to strip expenditure in the justice system, whatever the true cost, can take some comfort from the latest move by the Civil Justice Council. It has at last showed a real interest in ODR.

The CJC is an advisory non-departmental public body of the Ministry of Justice and is responsible for overseeing and co-ordinating the modernisation of the civil justice system. The CJC has set up a new advisory group, chaired by SCL’s President Professor Richard Susskind OBE, to explore the role that ODR can play in resolving civil disputes.

ODR involves the resolution of disputes across the Internet, using techniques such as e-negotiation and e-mediation.

Professor Susskind said:

‘ODR is already used widely. Perhaps its best known application is on eBay where, each year, over 60 million disagreements amongst traders are resolved using online techniques and not the courts. The CJC advisory group will be looking at the wider potential for ODR: can it resolve disputes amicably without the expense and trauma of parties having to go to court? We are also going to explore the limitations and drawbacks of ODR – while our starting place is that ODR offers great potential, especially for sorting out lower value claims, there will inevitably be issues that need flagging up to protect consumers and businesses.’

The Chairman of the CJC, Lord Dyson, the Master of the Rolls, said:

‘The CJC is always interested in exploring ways for improving the civil justice system and making it more accessible. Online Dispute Resolution certainly offers opportunities for doing this, and we await the report of Richard Susskind’s group with great interest.’ The advisory group comprises leading academics with a special interest in ODR, legal and mediation practitioners, business people and civil service policy and operational representatives.

Its terms of reference call for the group to examine the overlap between ODR and virtual courts and ask the group to consider likely technological developments in this rapidly changing field.

The membership of the Working Group is as follows:

Professor Richard Susskind (Chairman)

Dr Pablo Cortés, University of Leicester

Adrian Dally, Financial Ombudsman Service.

Paul Harris, HM Courts and Tribunals Service

Dr Julia Hornie, Queen Mary University of London

Matthew Lavy, Barrister

Nick Mawhinney, Department for Business, Innovation & Skills

David Parkin, Ministry of Justice

Dr Sue Prince, University of Exeter

Graham Ross, lawyer and mediator

Beth Silver, Barclays Bank (and CJC member)

Roger Smith, researcher, journalist and consultant

Tim Wallis, independent mediator

Peter Farr (Secretary to the Civil Justice Council)

The Terms of Reference of the group are as follows:

·        To conduct a review of the potential and limitations of the use of Online Dispute Resolution (ODR) for resolving civil disputes of value less than £25,000 in England and Wales.

·        To review and categorise existing forms of ODR, to consider their likely future development and in so doing to raise awareness and understanding of the opportunities and challenges of ODR.

·        To undertake an initial cost/benefit analysis of ODR as an alternative and accessible means of resolving disputes, identifying clearly any limitations and drawbacks of ODR processes.

·        To kick-start the policy process of considering options for ODR provision and regulation.

·        To take account of technological advances and developments that will affect the use and attractions of ODR.

·        To consider the overlaps between ODR and virtual courts.

·        To prepare a report for the CJC (in the first instance), with recommendations for next steps or further research required. 

Laurence Eastham writes:

I welcome the creation of the advisory group wholeheartedly. I particularly like the fact that the terms of reference include kick-starting the policy process of considering options for ODR provision and regulation – I suspect it may need more than one kick.

ODR has worked well in the eBay context, where eBay has a robust structure and, in my mind more importantly, a broadly neutral stance as between buyers and sellers. One problem with all forms of alternative dispute resolution is that they have been owned by the larger party, or at least have been seen to be owned. Some make the Press Complaints Commission look like King Solomon. I am thinking of trade bodies that offer to resolve disputes referred to them by their members and, even more obviously, internal complaint handlers. The advisory group faces interesting challenges arising from the technology that works best, but a greater challenge may be in perception – finding ways for ODR to be seen to be as neutral as court action and yet more effective. The greatest challenge for ODR may be in creating awareness but that is some way off.

On a positive note, I am sure many SCL members will have resolved many disputes online – exchanges of e-mails, evidence and even counsel’s opinion. Of course that’s not ODR but it shows the potential. What I don’t understand is the £25,000 cap in the terms of reference: surely the CJC should have been looking for advice on ODR generally and that might have included advice on where the cap (if any) should be set. I think £25,000 is remarkably low – it rules out many forms of builder/consumer disputes and some affecting financial services for a start.