Dispute resolution processes
Dispute Resolution Sunday, Nov 30 2014
ADR 9:51 pm
The field of dispute resolution is extensive and interesting. This could be litigation, mediation, arbitration, conciliation, facilitation, negotiation, expert determination and MedArb.
Litigation is usually an action brought before a law court to enforce a particular right to a wronged person ( s).
Mediation, a process that is usually intended to be dealt privately and one that assists in a dispute between two or more people who are undergoing challenging times.
Arbitration is a technique that resolves disputes for parties using codified rules of practise,and is usually one resolved outside the court.
Conciliation is a process where disputing parties use a conciliator to resolve their disputes.
Facilitation is usually the use of processes to help a group of people fully understand their objectives and help them attain their desired goal, which is normally through a facilitator.
Negotiation is the process of liaising with disputing parties through a negotiator who often stands as the middle man and the go- to- person in order to see that a disputes is amicably resolved.
Expert determination is a process whereby an independent technical expert gives an opinion based of academic and experiential knowledge for which he makes a binding decision which the disputing parties are bound by.
MedArb is a unique process whereby there is arbitration and subsequently mediation which often settles the disputes.
Highlights of the 30th Session of UNCITRAL Working Group III on ODR Thursday, Oct 30 2014
ADR ADR, Africa, Alternative dispute Resolution, Arbitration, E-commerce, Ije Ononogbu, Ijeoma Ononogbu, Impariality, Law, Litigation, Mediation, ODR, Online Dispute Resolution, technology, UNCITRAL, UNCITRAL Working Group III on ODR 3:02 pm
I was delighted to attend my 1st UNCITRAL Working Group III on ODR conference at the UN headquarters in Vienna from 20th -24th October 2014, as a delegate of the Chartered Institute of Arbitrators, London UK.
It felt good to see two other National Center for Technology and Dispute Resolution Fellows, Professor Vikki M Rogers and Mr Zbynek Loebl. The atmosphere at the conference was cordial, and I found fascinating the discussion groups. Also, I found the discussion groups enlightening, we were spilt up into groups during discussion session breaks, and I must point out that I found it interesting seeing the natural domination of certain countries over others during these session breaks. To a large extent, I began to understand international politics.
Since the inception of the UNCITRAL Working Group III on ODR in 2010, the primary objective has been to seek for ways to resolve high -volume, low-value disputes. Essentially, create an ODR system which is feasible, sustainable and compelling to both buyers and sellers.
Notably, most jurisdictions in the European Union, do not recognise as binding to arbitrate before an actual dispute, hence the EU stand on Track 2. The US, on the other hand, has an interesting stand on the issue of a dispute within the scope of the UNCITRAL ODR Track 1 Rules, providing for a dispute resolution process ending in a binding arbitration.
With so much to determine in international transaction under ODR, two fundamental challenges seem to be consistently raised. Firstly, the no-pre dispute agreement option, which means a variety of options could be used such as litigation, arbitration, mediation, facilitation and negotiation. The no-pre dispute option has been advocated by some, because the consumer is required by law, to be aware what the dispute is all about, and possibly of all options in dealing with the dispute, as opposed to being bound by a process that may be unfavourable. Secondly, the arbitration option, the advantage of the arbitration option is the fact, awards can be enforced internationally under the New York Convention on foreign arbitral awards to which most jurisdictions are signatories to.
Proposal by the Governments of the US and Columbia
An application under Track 1 Rules for a dispute resolution process ending in binding arbitration to be resolved under the Rules, which states in certain States, pre-dispute arbitration agreements with consumers may not be considered valid under applicable national law. Therefore, any award arising out of such agreement may not be enforceable against a consumer located in such a State.
An application under Track 1 for buyers located in certain States at the time of the transaction, a binding arbitration agreement capable of resulting in an enforceable award, one that requires that the agreement to use the Track 1 Rules after the dispute has arisen.
Any dispute that arises within the scope of the UNCITRAL ODR Track II Rules, which provides for a dispute resolution process ending in a non-binding recommendation, the parties may seek an amicable settlement of that dispute through negotiation, and if in the event negotiation is unsuccessful, facilitated settlement with the UNCITRAL ODR Track II Rules will be applied.
Proposed by the Governments of the US and Columbia on the Model Clauses for Track I and II
Subject to Article 1a of the UNCITRAL ODR Track 1 Rules, any dispute within the scope of the UNCITRAL ODR Track 1 Rules, which provides for a dispute resolution ending in a binding arbitration, shall be settled by arbitration as stated under the UNCITRAL ODR Track 1. The US stand on Track 1, which advocates for arbitration is an attractive one, however, there has been some sceptics who view the Track 1, which promotes binding arbitration, as a means to avoid consumer class action under their domestic civil law procedure. The US stand on the use of Track 1, presupposes that there are few if not the non-existence of international class action cases.
Proposal by the Chinese government for an integration of Track 1 and Track II of Online Dispute Resolution (ODR)
Rules should be a cost-effective procedure for dispute resolution in low-value, high-volume e- commerce transactions.
Rules should provide and ensure both buyers and sellers have confidence in a predictable legal environment in the online market.
Rules should facilitate micro and SMEs businesses access to international markets through e-commerce.
There was an unanimous agreement on the Chinese proposal. This was simply because the pointers dealt with, were all encompassing, most importantly the principle of having the best interest of consumers, as well as protecting the sellers’ rights at its core. The proposal made will certainly get both buyers and sellers into the ODR System. With buyers and sellers getting on the system, this means the buyers have some confidence on the ODR system. As this is established, confidence will be there that any dispute that does arise will be handled through a structured ODR platform.
The adoption of the Online dispute resolution for cross-border electronic transactions: draft procedural rules.
In as much as there was an adoption of the Online dispute resolution for cross-border electronic transactions: draft procedural rules, there were a couple of concerns raised which were said will be addressed by the Commission. An important success of the conference was the agreement, if parties failed to agree on a proposed track, an application of a default rule to the effect that only the consumer would be presented with the option to determine the procedure to be followed.
Another commendable point, was the agreement only consumers from jurisdictions in which pre-dispute agreements to arbitrate were not binding should be permitted the right to an option to determine the nature of the final stage, and that all other parties would be bound by their initial agreement made at the time of transaction.
Clarity was sought in possible consequences where vendors failed correctly to notify buyers of their options regarding the final outcome of the process. It was agreed, in such circumstance, the likely result would be that the notice was not valid.
The UNCITRAL Working Group III on ODR continues with its deliberations on in New York, USA in February 2015.
Following the outcome of the just concluded 30th Session of the UNCITRAL Working Group III on ODR in Vienna, I would suggest that representatives of consumers’ international groups should actively participate in the system that UNCITRAL is seeking to create in online dispute resolution.
As deliberations continue in coming months, what other considerations should the ODR Working Group explore?
Technological revolution Monday, Sep 29 2014
ADR 10:02 pm
There was a time MAN was subjected to working manually. This form of work created ample opportunities for people. However, with time came the industrial revolution which changed the face of work ethics.This brought about the use of industries to handle MAN’s work, which were initially done by MAN manually. As expected, the change of work method meant lots of people lost their jobs, and fewer capable hands were able to man the machines. This does seem so many years ago, which is true. Interestingly, a similar occurrence is taking place in our world, however, this is taking a different dimension.
The recent advances in information technology and specifically the internet has made provision for awesome opportunities for consumers and sellers. The relationship has the ability to transform the relationship between buyers and sellers on a scale not witnessed since the beginning of the industrial revolution.
What the world is witnessing is a technological revolution. This is with websites, blogs, discussion platforms and forums are now a commonplace method for people from all walks of life to receive and pass on information on an increasingly fast means and without scrutiny.
Legal practitioners have had to take a radical look at the way disputes are resolved.Consumers now demand that sellers be open in their dealings. Access to information about a product or service is both a consequence and a driver of the information age.
A better informed consumer is in a better position to exercise its rights, and better able to carry out responsibilities with the seller within the terms of the contract without an iota of fear.
Bullying on the Net – California Hackathon experience Saturday, Aug 30 2014
ADR 4:13 pm
As technology changes our lives positively, there are some negative consequences of the internet. Such as Cyber bullying which has caused some people to commit suicide. Youngsters seem to be the biggest victims of online bullying, whether on twitter, or Facebook or even YouTube. However, increasingly governments around the world have been keen to stamp out bullying on the net. Mostly by educating the populace, and regulations geared towards safeguarding actions of online users.
California hosted a group of intellectuals, which included Ms Ijeoma Ononogbu, Solicitor England & Wales, MADR Director Bill Warters,
Professor Leah Wing of the University of Massachusetts, Amherst
a social justice educator and Mr Patrick Chan San Francisco- based student interface designer. Our group took on the challenge of addressing cyber bullying. There were cross movements of advisors, however, after the 1st day groups settled into concrete block with an intention to build an App that stands out.
Our summer participation in the first national Tech for Justice Hackathon held at the Code for America Office in San Francisco. Pressing issues in the justice field (bullying, landlord tenant conflicts, environmental and public policy conflicts, access to justice services, etc) were presented by topical experts and then teams of designers, coders, law students and dispute resolution specialists formed around about 7 different projects, building the best app they could imagine in the 2 days of available time.
Our team came up with a mind- blowing App on curbing and stopping Cyberbullying. Interestingly, delegates found our App interesting, one of a kind, and insightful.
Why did our team think Cyberbullying worth addressing? We felt there is a need to address the dangers of online bullying on the Net. In recent years, media centres have captured the demerits of Cyberbullying, which has not been adequately addressed.
The exciting news is that our app design for the “We’re With You” cyberbullying bystander activation app was awarded the second place prize. Our team was given individual prizes by the current President of the American Bar Association, Jim Silkenat, during a full-day conference entitled “Breaking Mad” held at Hastings Law School exploring conflict resolution in the emerging “collaborative economy”. Video footage from the live stream recording is available online, and will be uploaded for public viewing shortly.
Power of negotiation in conflict situations. Thursday, Aug 14 2014
ADR 5:27 pm
Conflicts have always existed in all cultures and religions, from the time man was created. Conflicts are present in all areas of human relationships, and have been known to occur in the animal kingdom. The beauty of conflicts is that there are means of resolving the disputes, regardless of how serious they are, or how long it has been ongoing. Human beings , according to researchers are short memory span, in other words, people have a tendency to disregard an offence committed. However, the duration of actual forgiveness varies from person to person. As such , there are no absolutes, rather this is the general notion of most people do let go of a wrong done to them.
We find stories in Christianity, in the Islamic culture, among Native Americans, and many other traditions that describe processes that have been used from the earliest times to find peaceful solutions to various disputes, and much can be learned from the past. There are means of resolving conflicts ,notably in the use of negotiations. Conflict is endemic to human society, among individuals and groups, and it is important to manage it.
In recent decades, the various conflict resolution approaches have become a widely accepted field both of academic study and of practice, with official and/or legislative functions in many countries. In international relations, they plays an increasing role in containing, managing and resolving potential sources of conflict.
Alternative Dispute Resolution utilises various approaches for the resolution of disputes in a non-confrontational way. This ranges from negotiation between the two parties, a multi- party negotiation, through mediation, consensus building, to arbitration and adjudication Key skills required, with particular attention to their important role in the process of negotiation and mediation, with examples of their application in national and international water conflicts.
In recent decades, the various conflict resolution approaches have become a widely accepted by legal practitioners and non-practitioners alike. In international relations, they plays an increasing role in containing, managing and resolving potential sources of conflict.
While conflict is be dangerous, it also carries the possibility of producing creative cooperation in a win–win solution. The key to this is when participants are keen to engage as joint problem solvers, whereby they are really seeking to resolve the dispute, and to try to “enlarge the pie” rather than acting as adversaries and aggravating the situation.
An arbitrator has the mandate that disputing parties come out after an awards given satisfied, feeling its been a WIN/WIN situation , as opposed as a feeling of loss. Equally, a mediator can play a valuable role in this process, this is done by the facilitation of a negotiation process which may have come to a dead-end, as well as helping the parties concerned to focus on their essential interests rather than defend (or attack) fixed positions.
The principles of negotiation, based on interests and needs of the parties, the use of proper communication, and maintenance of a working relationship as an essential component for reaching a durable agreement. The crucial element in negotiations, is the principles and procedures of consensus building in alternative dispute resolution.
The future of law Saturday, Feb 15 2014
ADR 1:18 pm
Technology is not here to damage or attack the traditional ways of adjudication, instead it is here to help, expand, the role of legal practitioners in the execution of justice. It follows, that lawyers who have reservations toward the complex nature of litigation, and the challenges of alternative dispute resolution (ADR) , will certainly find online dispute resolution (ODR) easier to comprehend.
The new European Union legislation states the ADR Directive will cover ADR at most levels of e-commerce . This in a big way, signifies the provision of available ADR procedure for all contractual disputes in virtually every sector, and in all Member States. This provision makes it mandatory for every seller/trader an obligation to inform a buyer/user about the ADR as an option when a dispute cannot be settled directly between the buyer and seller. There is the requirement of sellers, to create a link to an ODR platform on their websites to inform their buyers of the option to resolve disputes through an online dispute resolution platform.
At the rate ODR advancing, it is obvious it has got a grip on the future of dispute resolution processes. It is estimated that once consumers/buyers understand the use of ODR, there is bound to be a reduction in costs of over €250,000,000 yearly.
Promoting the use of technology in dispute resolution is an excellent way, and a great platform to use in workplace disputes, family/private matters as well as interestingly the real-time election monitoring medium.
As identified, ODR helps consumers resolve disputes with sellers/traders when they have issues with a purchased product or service. ODR steps in, to accelerate the process of dispute resolution for the buyer, who may be have challenges getting some compensation or restitution for a broken contract agreement, which may have been expressly or impliedly entered by both parties.
The future of law with the evolution of ODR looks extraordinary, do you feel the same ?
Trust in the use of Online Dispute Resolution process Sunday, Mar 31 2013
Trust as we all know is mostly earned over a period of time. It therefore can not be forced or requested. In all spheres of life trust ensures there is good communication between parties involved as well as continuity. Litigation, as a form of dispute resolution process has over the years enjoyed trust among litigants and the public, simply because there are set of rules and procedural processes which must be adhered to, before the litigation can properly commence. There has hardly been an issue on the observance of this code of conduct, and due to this both litigants and the public are aware what is expected, fortunately more often than not the courts have delivered, and with this the trust in the litigation process has continued to grow.
Online Dispute Resolution,on the other hand an evolving concept in the dispute resolution process is guaranteed to come under scrutiny on the issue of trust. One of the fundamental question that is usually raised by intended users of the ODR platform is how can we trust the adjudicator on the other end, whether the e-arbitrator, e-mediator, e-negotiator etc, and my answer to this, is always verify their credentials which is usually public knowledge. You must make an informed decision on whether you can trust the adjudicator by possibly calling up the accredited school/ institution that the adjudicator has claimed to have attended. Once there has been due diligence, simply take the plunge and have your claim/dispute resolved by an online dispute resolution process/ adjudicator. I employ this because this is where the dispute resolution process is heading to. One which is constantly evolving in astonishing ways.
Trust in ODR is one which will be earned in due course. Since ODR guarantees faster,simpler means of resolving disputes, it is important that both consumers, sellers, disputants and the general public understand the intricacies of Online Dispute Resolution and embrace it in all its fullness. According to the recent EU ruling on ODR, this form of dispute resolution is one which must be expanded because of the benefits it offers, especially in our rapidly changing world.
Youths and Cyber law Sunday, Jan 27 2013
Education continues to play an important role in cyberspace.The cornerstone of any society is the educated citizens, purely because they can make informed decisions about situations. Education whether primary, secondary or even tertiary whatever form it takes, places value on the ability of the individual to think independently as well as apply logical analysis in the application.
Tertiary education is one which a lot of people seek to achieve in their lives. However, not everyone is able to attain that height for various reasons from lack of finances, to inadequate provision of the needed infrastructure for the achievement of this goal. In a 2012 statistics provided by the OECD published by the Wall Street Journal, these figures state the picture of the importance of education in various countries and the numbers who are able to achieve the much-needed education ; 37.5% in Chile 33.7% in Singapore 16.5% in Malaysia 14.6% in Brazil 4.3% in Nigeria attain tertiary education. The statistics still shows that countries with the most highly educated citizens such as the US, Japan, Canada, South Korea, Finland, Norway, Israel, UK, New Zealand and Australia are the wealthiest and therefore in a position to dictate how cyberspace is governed and used. The same can be said for countries grappling with a crawling progress in education and how cyberspace law can impact daily lives.
In our digital world, we are all in one way or another affected by cyber law. Therefore, cyber crime cases are on the increase such as online banking frauds, online share trading, source code theft, tax evasion, virus attacks, denial of service, hacking, email hijacking, phishing attacks, cyber sabotage and credit card fraud are common occurrences. With the advancement in technology has been the popularity of Digital Signatures and E-contracts, which are increasingly replacing the conventional methods of conducting business.
Cyber law, having emerged from the internet has grown unplanned and largely unregulated. No one could have envisaged the far-reaching consequences and merits of cyberspace. The internet is growing in astonishing levels, and has become the preferred environment of the world for the conduct of every activity known to man. With Cyberspace ‘s growth has resulted the need for the regulation of cyber law. The youths are the ones positioned to grasp and embrace cyber related matters with no difficulties. Cyberlaw is simply the regulation of the cyberspace, one which governments and individuals are keen to see implemented.
Why are the youths able to understand cyberspace related matters with ease? The answer purely lies with the ease with which the youths are able to identify , experiment and explore. Also because the youths are the ones known to come up with lots of questions. Most of these difficult questions can virtually be found in cyberspace. Issues the youths face such as frustrations have been known to be vented online, either on Facebook or twitter etc. In our society, many youths are known to hang out online; usually in email groups, chat rooms, message boards and through these various mediums experiences have been known to be shared and conflicts resolved.According to recent studies, youths tend to know quite a significant knowledge on global issues, though not experts however their knowledge has been the cyberspace a lot tolerant to people for diverse backgrounds.
Can the youths change the landscape of cyberspace through cyber law, since most are conversant with the workings of cyberspace?
Interconnection between E-commerce and ODR Wednesday, Oct 31 2012
Electronic commerce commonly referred to as E-commerce, has seen a surge in its use since the advent of technology. Companies such as eBay, Amazon are popular because their goods and services are made available online, through various technological means. The vast opportunity E-commerce offers range from its ability to render services to consumers anywhere in the world as well its ability to cater for the needs of individuals in a specific location.
The success of these companies have largely been because of its appeal to various age groups from the elderly to the youngsters. In a fast moving world, like what we have today, it’s of paramount importance that companies adapt to the changing requirement of our times, mostly technologically. This has been seen in the evolving nature of E- commerce.
E- commerce has been successful in most parts of the world, because electronic/online concepts constitute the watchword of today and the future. Most consumers are constantly seeking companies, who can offer their goods and services electronically. With this scenario, the market for goods and services online have been on the increase.
It goes without saying, disputes are bound to occur online as a result of various activity taking place on a daily basis. For this reason, it is only legitimate, an online judiciary system is established. On this premise, Online Dispute Resolution (ODR) cannot be over emphasised because of its obvious advantages which include accessibility, an obvious requirement in the technological world we live in today.
‘The Internet: transforming society and shaping the future through chat’
The ability to resolve E-commerce disputes via Online Dispute Resolution would definitely go a long way for both businesses and consumers. The added advantage in ODR, which includes its ability to understand the online terrain, convenience to consumers as well as Business 2 Business(B2B). ODR as a platform will surely change the landscape of E-commerce because of its ability to cut across jurisdictions regardless of where either party is stationed.
I envisage NOW is the time for Online Dispute Resolution process to be used in E- commerce disputes. Paypal and eBay, have both been successful in the resolution of online disputes through their Online Dispute Resolution departments, which has shown its practicability and cost efficiency in the dispute resolution processes.