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2020 J. Disp. Resol. 135 (2020)
Designing Online Dispute Resolution

handle is hein.journals/jdisres2020 and id is 137 raw text is: 






   Designing Online Dispute Resolution

                              By Janet K Martinez*

                              I. INTRODUCTION

     This Essay stems from my role as a commenter for a panel discussion among
 leading thinkers on the topic of online dispute resolution (ODR).' Generally,
 ODR utilizes information and communication technology to prevent, manage, and
 resolve disputes. The conference served as a timely pause to assess what ODR is,
 how it fills diverse functions in the dispute resolution field, and when it can better
 meet the needs of parties and increase the accessibility and transparency of dispute
 resolution.2 The panelists highlighted their study of consumer, commercial, and
 judicial ODR. As a follow-up, this Essay compares examples offered by the
 panelists through the lens of dispute system design: the study of the process and
 product of resolving disputes of a specific category.
     ODR emerged from the unique needs of online e-commerce where it was
 geographically and legally infeasible to bring disputes to court for resolution.' In
 this global online marketplace, eBay was the first to use ODR, building a private
 online option to address disputes arising from transactions conducted through the
 site.4 Since that time, ODR platforms have unfolded in both private and public
 domains. Now, nearly fifty courts in the United States-as well as courts in Canada,
 the Netherlands, India, Brazil, the United Kingdom, and China-have established
 ODR process options.
     ODR potentially enables efficiency through processes that are faster and
cheaper-a difference in degree relative to traditional, face-to-face processes. My
modest experience as an online mediator suggests a difference in kind, as well in
the qualities of online processes. For example, users experience a difference in the
use of various communication channels-synchronous versus asynchronous and
textual versus   visual, respectively, relative   to  the  synchronous, visual
communication of face-to-face dispute resolution.5 The experience of online
dispute handling may feel foreign to some who prefer person-to-person contact,
while the opposite may be true for those who have been online since childhood.


   * Senior Lecturer in Law and Director, Martin Daniel Gould Center for Conflict Resolution,
Stanford Law School. My deep thanks to Colin Rule for introducing me to the world of ODR. I
appreciate his comments, as well as those of Stephanie Smith, Amy Schmitz, and Jean Stemlight on this
piece; my gratitude to Peter John for research and editing assistance.
   1. We presented at a session of the Association of American Law Schools annual meeting in New
Orleans in January 2019. My co-panelists included Peter Reilly, Alyson Carrel, Ethan Katsh, David
Larson, Amy Schmitz, Colin Rule (by video), and Jean Sternlight, to whom I am very grateful for their
stimulating prompts.
   2. Colin Rule, Technology and the Future of Dispute Resolution, DIsP. RESOL. MAG. 4, 7 (Winter
2015), http://www.colinrule.com/writing/drmag.pdf.
   3. Id. at 5.
   4. Louis F. Del Duca, Colin Rule, & Kathryn Rimpfel, eBay's de Facto Low Value High Volume
Resolution Process: Lessons andBestPracticesfor ODR Systems Designers, 6 ARB. L. REV. 204 (2014).
   5. For example, texting or face-to-face would be synchronous (communicating in real time),
whereas email would be asynchronous, with a time lag between messages. Communication can be
textual (text or email) or visual (video, such as skype).

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