Afternoon Keynote

Peter Fogh Knudsen, Head of the Danish European Consumer Center, European Commission

• office exists to promote consumer confidence and to assist consumers with complaints
• ECCs offer legal and practical advice, direct consumer to dispute res scheme or propose other solutions, contact a company for the consumer in another country
• ECCs have no legal power
• Most cases resolved with simple advice to consumer
• ECCs deal with respective offices in other EC countries on consumer's behalf. Other country ECC deals with the vendor.
• 48% of cases are solved by contating the trader; 39% unresolved; 13% transferred to other agency (unresolved)
• Of unresolved cases: 68% bc lack of agreement of trader; 16% claim unfounded; 7% lack of agreement from consumer
• Resources: afterge of 5 employees per country; 8 million dollar budget>
• No cost to consumers and traders

Lessons from Danish experience:

• consumers can complain about almost anything
• most areas are covered by private complaint boards set up in cooperation betw biz and consumer orgs
• remaining areas are dealt with by national, public complaints board
• the consumer complains online
• consumer has to pay small fee (to make sure the consumer is serious - get fee back if win case)
• decisions made by board with two consumer reps, two biz reps and a judge, based on law
• traders not following the process are put on a black list, which is publicized
• if traders lose case, they have to pay a fee, which is enforceable, so they have to pay whether they followed the process or not (might as well settle case even if they know they're going to lose)

Check out the website, especially the 'shopping assistant'.

Day 2 Opening Remarks

Cross-border OAS Proposal Review

• Assumes language of the transaction will be language of process unless parties agree otherwise.
• Need mechanism to ensure the cases actually close, so don't remain open indefinitely.
• Need to identify role of public agencies - as opposed to private entities who seem to run most ODR at present.
• Private entities generate more innovation. Gov't agencies have less incentive to continue evolution of the platforms
• Expect roughtly 90% of cases can be resolved in problem diagnosis phase?

Plenary Sessions:

Consumers

Q: Do you think consumers would like to use the system as proposed?
A: They want fast, cheap and free (that's whey they're on Internet already).

Q: Should users expect to pay for ODR?
A: It should be free, o/wise it will represent an obstacle.

Q: What incentives should be used to build trust?
A: ODR neutrality. Consumer protection agency in own country sponsorship. Credibility, convenience.

Q: Should the system be optional, or opt in at time o fpurchase?
A: Do not opt in at time of purpose. Better to do it at time dispute comes up.

Q: Should all consumers be able to participate in the system in their first language?
A: Maybe ODR provider could provide translater in sophisticated negotiation.

Businesses

Q: Will business want to use it?
A: Would use it to increase sales. It would have to be cheaper to participate than to use other DR mechanisms like courts.

Q: How much should businesses have to pay to subscribe to the system?
A: Pro rate based on gross sales? But may be unfair for some businesses. Could pro rate based on number of claims involving the biz. Or coul dbe flat rate.

Q: What incentives should exist to encourage businesses to join?
A: Trust mark system could work.

Q: Should businesses be shielded from future legal liability?
A: Yes, if customer satisfied. But could be an access to justice issue.

Payments:

Q: Who are the principal payment intermediaries
A: Banks, credit card systems, mobile, etc.

Q: What is the best system? Closed with efficient private remedies, or open with arbitration.
A: Best is closed system with private remedies. But would be quite difficult to achieve, and may require hybrid system with private remedies and recourse to binding arbitration.

Role for States:

Q: What is the appropriate role of states in the development of an ODR process?
A: Develop framework and standards. Develop policy and rules. Participate in regional ODR system.

Q: What is the role of states in operation of the mechanism?
A: Create a central clearing house - although consumer agency involvement could also be required.

Q: Would states support the system as proposed?
A: They would like to increase cross-border commerce, but there could be sovereignty issues.

Q: Should public agencies pay for creation / operation of system?
A: States would probably have to pay for creation (software). Once it is going, the system should be self-financing.

Q: What role should government play in enforcement?
A: In closed system, not need gov't involvement. Gov't might play role through consumer protection agency to enforce/collect.

Business, Consumer, Government and Provider Perspectives

Ernest Thiessen - Smartsettle.com

• Visual blind bidding system that rewards generosity to improve negotiations.
• When bids/offers overlap, splitting the difference can have chilling effect on negotiations.
• Dampened pendulum arbitration: outside arbitrator determines where fair deal would fall between bids. Smartsettle rewards party whose offer was closest to fair offer.

May-Britt Kollenhof-Bruning, Juripax.com

• dedicated prep and intake solutions for employment, divorce, small claims, personal injury claims
• prep: diagnosis and intake form
• emphasis on early dispute resolution
• belief that moder technology and innovation is the key to continued access to justice
• Internet as global public resource should also be able to provide disputants with tools for self-help and self-determination
• Juripax's goal ...to enhance efficiency in judicial and dispute resolution processes that create economic benefit for public
• considers self 4th party - just serves as the provider of technology

JURIPAX's Achievements

• proved case for ODR in terms of effectiveness and efficiency
• Development of process-driven software (80% generic, scalable / 20% dispute specific and dispute resolution specific)
• multilingual capability and cross-cultural competence
• confidentiality and data security
• ODR training: 1) system 2) dynamics of online negotiation and mediation
• Integrating user feedback loops
• getting ready for the future: further internationalization; interoperability; make suitable for mobile devices; up-scaling & recurring fees

Technology Assisted e-Negotiation

• multi-tiered service: facilitating handling of questions, issues or complaints throud diagnosis and direct negotiation (intelligent questionnaire)
• if the claimant decides to proceed, can file a complaint (files a form that is sent to respondent through pre-defined form)
• At any time, parties can ask for help of third party
• digital file can then be taken to Dutch complaint board [DT: filed with the court]
• platform works for multiple languages
• can include online translation services by certified professional translation services for fee

Findings

• less than 10% of cases required mediator
• structuring of process - transparency, availability of redress - is trust-engendering for parties
• most consumers indicated they are very satisfied in terms of outcome, speed and possibility to have a voice
• middle sized companies appear most satisfied. Larger companies concerned about lack of connectability with existing systems

Online Mediation

• either fully online or hybrid (combination of online preparation and subsequent traditional ADR /judicial procedures)
• online problem diagnosis / mediation prep tools for small claims, labour, divorce cases
• online mediation in divorce cases - now part of service offerings of Dutch Legal Aid Board/Ministry of Justice
• 80% settlement rate
• less than 3% of end-users used tech helpdesk (90% of probs were with log-in)
• savings relative to face-to-face mediation is 30%-40%
• evidence that online setting can help reduce perception of biases and power imbalances

Confidentiality and Data Security

• personal data protected
• web-based application protected by name and password
• secure areas of juripax are encrypted
• multiple servers protected by firewalls, etc.

Can ODR providers create business model for ODR without government money? Juripax says 'yes'. Internet gives consumers platform to organize themselves.

Eiichro Mandai, ODR Room Network, Japan

• Reinforced that ODR can help to increase cross-border transactions

Gabrielle Szlak, Latin American Institute for Electronic Commerce, Buenos Aires

Challenges for ODR in Latin American Context:

• logistice and mail services inefficient and expensive
• IT challenges
• broad band penetration (growing but still low)
• banking and electronic money (growing but still low)
• *Still, eCommerce continues to grow at 40% annually

Characteristics of Users

• broadband levels low / mobile phones high (higher than USA)
• very important to have prepaid mobile system for payment
• if we are talking about people connecting through public places or workplaces, need to consider security

Solutions in ODR: build trust in eCommerce through power of technology

ILCE Role:

• promote best practices and legal framework of ODR
• assist providers for harmonized implementation of ODR
• education

Pilot program: eConfianza.org

• believe there is no other way to get cases into system
• don't believe they will succeed if they sell ODR
• vendors will want to display seal so consumers will have confidence to purchase from them
• Pilot stage 1: direct negotiation; stage 2: can go to mediation or arbitration platform

Modules: for ODR implementation by ODR providers: tech module; legal module; training module.

Dispute Systems Design: An Analytic Framework

Janet Martinez - Stanford Law School, Gould Center for Negotiation and Mediation

Systems Design for Global & Regional Redress

What does might be some goals of an ODR system?:

1. efficiency
2. accessibility
3. trust building in e-commerce
4. transparency and fairness
5. information flow and structured communication
6. enforceability
7. predictable and consistent
8. development of norms and precedents (maybe)
9. satisfaction by users
10. prevention / early resolution
11. party control over process choice
12. flexible for diverse cultures, languages, laws, political environments
13. how are goals reconciled and prioritized

Important Process Questions

1. What are the incentives for players to play?
   What is the system's interaction with the formal legal system?
2. Who organizes it? Public? Public/private?
3. When does process start, and who decides?
4. How can we use technology to structure the communiction and shape the dialogue?

Dr. Mohammed S. Abdel Wahab - Professor of Private International Law, Cairo University, Egypt

Towards a Global ODR Culture: System Design between Integration and Fragmentation

• Glocalization: adapting global standards to local conditions
• M2M commerce: mobile to mobile transactions.
• In Africa and other places, mobiles already used for things like banking
• Building trust in ODR system requires government support
• Many disputes are not litigated or arbitrated because of low value. ODR offers advantages over litigation to deal with these disputes.
• Develop standards for accreditation of ODR providers.
• Technology is the driving force of globalization.

Mitch Chiahara, Global Business Dialogue on eSociety (GBDe)

• GBD is worldwide initiative formed to promote cross-border transactions
• Accredition or trustmark framework for Asian states

Colin Rule: We need private sector on ODR, so it can scale, innovate and ultimately work.

Colin Rule: DR has heavy cultural component varies widely by country. The eBay protection model (buy through us and we'll protect you) does not work in China or Korea. In those countries, purchaster pays money into escrow and goods are sent to purchaser. Only after purchaser expresses satisfaction will the funds be released to seller. Nobody trusts the eBay model.

CR: ODR is the 'how' and not the 'what'. We are trying to achieve DR solutions and build protections.

Keynote - Hon. Madame Justice Frances Kiteley

Hon. Madame Justice Frances Kiteley is co-chair of the Canadian Centre for Court Technology and member of the Ontariou Superior Court of Justice

Madame Justice Kiteley's speaking points:

• Justice sector still stuck in dark ages while ODR proponents looking at new ways of doing things.
• Courts live in the past. Jurisprudence moves with glacial pace.
• Rule of law built on predictability. Sudden change does not exist in justice system.
• 99% of docs created digitally -> then printed -> scanned and emailed around
• Courts don't treat users like customers.
• Cross-border commercial disputes now requiring judges to also communicate across borders!
• Courts other than in Canada are doing much better. Americans are way ahead. Singapore has continued to lead.
• Courts were once dispute resolution method of choice. Now, they are dispute resolution method of last resort.

• Can we enhance access to justice through technology?
• What about business, employment and family disputes in ODR?
• Norm is to have multi-issue, multi-party and multi-jurisdictional disputes. E.g. family law will involve custody, access, support issues.
• Unbundling: opportunity to deal with child support issues based on income of parties, guidelines. But, what about issue of surpression of income by one party?
• People spend more money on court applications in child disputes than they might spend on university education for them.
• Enable parents to go online to resolve disputes without having to take time off work or deal with stress of showing up in court.
• Uncontested divorce applications: online application to reduce amount of handling that judges can review online, send back requests for amendment and approve.
• Self-represented litigants: some by necessity and some by choice. Both are motivated to find a resolution. Can we level playing field?
• Case management: conduct conferences online without having to attend in court.
• The status quo requires transparency - disputes must be heard in open court. BUT why are we so committed to adjudicating disputes in open court?
• Is quality of justice in person comparable to quality of justice online?
• Why continue to build courthouses that fail to respond to people's needs?
• ODR will create parallel justice system.

Administering a Global Extrajudicial System

ICANN's Role in Domain Name Disputes
Tim Cole, Chief Registrar Liaison, ICANN

Lessons Learned - Uniform Domain Name Dispute Resolution Policy

• Rules now require electronic submission of certain documents (does this facilitate translation?)
• Over the years, the way the dispute resolution process is used has changed - it is not static.
• Do not expect to 'solve it all' with the first iteration. Change will be necessary.
• UDRP does not supersede legal process - but only small percentage of claims that have been filed actually end up in court.
• Selection of panelists involves review of track record with ADR proceedings and training.
• ICANN role: effectiveness of dispute policies; complaints about implementation of decisions; complaints about DR providers; monitors domain name registrars for compliance.

Nicolas Vermeys, Centre de recherche en droit public

ECODIR demo:

1. Includes a form for claimants to fill out that narrow issues in dispute
2. Completes forms, loads up docs
3. email sent to other disputant
4. Disputant can accept demand of claimant, or make offer
5. If they cannot resolve themselves, you can ask for mediation
6. Arbitrator is named, file added for him/her
7. Arbitrator makes proposal to the parties and sends by email
8. Parties can decide whether to accept, continue negotiating...

Most of the time, people agree to the process voluntarily = reduced need for enforcement.

Building a Practical Legal Framework for eCommerce Dispute Resolution

Michael Dennis, Attorney Advisor, Private International Law, Office of Legal Advisor, US Department of State

• e-Commerce sales estimated to be 8 trillion in 2008 and will rise to 16 trillion soon.
• Existing legal framework for cross-border disputes has been comparable with Wild Wild West to date
• Studies show consumers gain benefits through cross-border commerce. Benefits usually mean cost savings!
• But many traders unwilling to trade across borders, even within EU.
• 51% of EU retailers sell via Internet, but only 21% conduct corss-border transactions.
• Could the system be free to consumers with a small charge to participating businesses?
• OAS proposal: Select and approve ODR providers - and get sellers to participate.
• OAS Process: Consumer initiates -> diagnosis -> negotiation -> facilitated settlement -> arbitration -> enforcement
• Anticipated that most disputes will be resolved in early phases.
• Challenge: build system to handle high volume, low value disputes at a reasonable cost.
• OAS procedural rules attempt to minimize cost by providing procedural rules to create multi-phase process.
• First phase(s) totally automated - lowest cost
• OAS: provide standards for certifying ODR providers
• Significant challenges remain - but the need for solutions is even greater. The time is now to build a global ODR system to provide much needed justice solutions.
• Enforcement could be one of the most difficult issues we face in international ODR context.

Prof. Lou Del Duca - Dickinson School of Law, Penn State, UCC Law Journal

Prof. Del Duca's talking points:

• Ongoing blurring of distinction between B2B and B2C: the smaller claims need immediate, efficient, transparent solutions.
• Must distinguish between high volume / low cost and high cost/low volume disputes
• Optional instrument: set up a new system of law for ODR; let contracting parties opt into it
• How do individual governments develop their legal framework in the context of setting up a body of law that's optional for contracting parties to opt into?