Clear and unmistakable role of online dispute resolution in the dispute process Saturday, Jul 21 2012 


The current online dispute resolution law is fairly complicated. However, this complication is purely on the ground there isn’t any universal consensus in the ideal method of operation, for the resolution of disputes online. For this reason, cases that do not address the technological state of things in the judicial process globally, fall short of the fast-paced expectations of vast majority of the population. Instead, what we see now in the resolution of disputes online, are inadequacies of dispute resolution in a forward – looking world, which are being addressed by various  platforms such Modria.

Interestingly, there has been significant support for a new EU ODR framework amongst ”many stakeholders”. Whilst there has been support, some have voiced their reservations stating that ODR framework would act as a catalyst for consumers to use the conventional ADR mechanisms for the resolution of disputes, and not the resolution of disputes online. However, if consumers opt for the ADR conventional means in the resolution of disputes, as opposed to the use of ODR platforms which is the sole objective of ODR, this invariably will defeat the sole objective of ODR as a form of dispute resolution.

Recently, the UK government agreed with stakeholders, that the notion ODR may not be entirely clear to consumers, thereby offering limited benefits to its users. In order to avoid confusion and mislead consumers, the UK government sought the European Commission for extensive clarifications on grey areas on the immense benefits of ODR.  Accordingly, in a communique “The UK Government will seek an agreement from other Member States to amendments to enable the proposals to deliver real benefits whilst reducing the risk of consumer confusion and unnecessary costs.”

In December 2011, there was a proposal by the European Commission for an online dispute resolution platform which would be free, through which traders and consumers alike can easily resolve disputes that occur over online transactions.  Under the proposed scheme, either the traders or consumers could submit their complainants to the online dispute resolution platform, which will be determined by the relevant body within a 30 day period.

Many stakeholders were happy with this proposal, and hailed it as an indication of the triumph and acknowledgement of online dispute resolution in the dispute process.

The UK government promised to ensure respect for the EU proposals, and at the same time make sure that it does not stop schemes in place in the UK from forging an appropriate ODR platform. More so, where businesses are expected to use certain ADR providers in the resolution of disputes,there would be an encouragement, and at the same time a suggestion for the use of an ODR platform even when the grievance is from a consumer in another Member State.

The EU ODR platform will help in the resolution of disputes, with regards to cross-border online sale of goods and provision of services from e-commerce transactions. Consumers are encouraged to submit their complaints in their own language. This thankfully is free of charge. However, the ODR process may require some payment, for which two ODR facilitators per Member State will be assigned to the European Consumer Centres to assist parties with technical and language support, more like a technical support team.

With all these proposals and schemes in place, it definitely shows the direction of online dispute resolution in the dispute resolution process. One which is unmistakably important, faster, and useful today.

 

Does the resolution of your disputes/conflicts online sound feasible?

 

 

Parties power in dispute resolution Tuesday, Jul 17 2012 


The power of the parties to appoint a neutral in the resolution of a dispute is of immense importance. This could be in an arbitration, mediation, negotiation or other hybrid forms of alternative dispute resolution.  A good example is international arbitration, where the appointment of the arbitrator forms one of the cornerstones of a successful arbitration.

Parties, usually take the responsibility to appoint a neutral, whether it is a lawyer or arbitrator, or mediator or negotiator seriously. Mainly because various factors are normally considered in the appointment of a neutral from cultural factors, to personal needs as well as jurisdictional provisions. An understanding of the cultural and political factors of a particular neutral, always helps parties determine who they decide to appoint, either individually or collectively.

London has a proven track record in arbitration as a sought after seat. This is together with its renowned legal practitioners who are  notable neutrals. The developed countries have arbitration-friendly provisions, because they understand the demands of international business, and the need for the resolution of disputes, as soon as practicable in an inexpensive means. However, this is not the same with developing countries. What happens with developing countries, though most are signatories to the New York Convention, is a situation where they all seem to do a catch-up with the developed countries. Ironically, some of the developing countries, especially in Asia have come up with fantastic provisions; notably in arbitration which have been widely recognised, such as Singapore.

Currently, there are so many arbitration seats to choose from, an obvious competition between the various seats from Paris , London, New York, India to Dubai etc.

A familiar scenario for most people is litigation.  Here the parties choose their representatives, based on their financial capability. As a matter of fact, the ability to pay for a good reputable lawyer to a large extent,  guarantees a successful litigation. Many litigation cases have been won solely on the basis of hiring a good lawyer, who more often than not are expensive.

The power of parties in a dispute to act accordingly over intangibles, such as respect, self-expression, self-determination and self-confidence is unquantifiable. A loss of these intangibles, can cause an escalating distress and suffering. This explains why parties take their responsibilities and duties seriously.

Disputes are inevitable , although sometimes avoidable. Parties with their powers in the resolution of disputes, can make the process, one that makes the journey worthwhile. Through tolerance, peaceful resolution of dispute, respect for human rights and valuable friendship.

Do parties use their powers effectively in the resolution of disputes?