ODR Forum Opening Discussion Notes

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Opening Discussion

International ODR Forum Number 12

Montreal, Canada

June 17, 2013

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To open the 2013 Forum, Mohamed Abdel Wahab and Daniel Rainey facilitated a discussion among all of the attendees, begun with a basic question about how ODR relates to the concepts of Rule of Law and Access to Justice.

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The topics that came to the front from the participants are noted below.

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  • There is a crisis in the law, and that crisis has been at least partially caused by the disruption caused by the use of technology.

  • One big change in the recent past is that the traditional legal community is coming to the ODR world for answers about how to “save” the law.

  • The upshot of this is that the ODR community must begin to think about justice, access to justic and rule of law in a systematic way.

    • How do we deliver legal aid/services to those who do not have easy access to the formal justice system?

    • Is there a way to use ODR to improve poverty law services? This may be counterintuitive since one of the usually cited barriers is lack of access to those with less money or those on the bottom of the social order – is there enough penetration of online technology to make poverty services really deliverable via ODR?

    • Related to the note above, how does the use of ODR affect power imbalance among parties?

  • How does ODR relate to International Humanitarian Law – is ODR capable of delivering information in a way and to places that are new?

  • Much of the work in ODR has focused on resolving disputes that have always existed – what is ODR’s role in “new” disputes, types of disputes that are new or for which there have not been resolution methods before?

  • Related the notes above, ODR developers need to begin delivering methods from “a blank piece of paper.”

  • We have tended to talk about the process – we should be talking about harmonization and consensus building apart from process. Perhaps this means that we should look first at the problem and the human dynamic, then worry about creating processes that address those.

  • Should we encourage more regulation of ODR, or should we maintain a hands off approach?

    • What does the absence of law in cyberspace mean?

    • In Latin America – “if it’s not in the law, it does not exist” – we have to be sensitive to the local conditions and use regulation or formal modes when they are the norm. ODR should be Glocal, not Global.

  • After a presentation, the response indicated clearly that the clients are interested in ODR, but the lawyers are not.

  • How do ethics fit in? Should we, as a group, consider more professionalism or more regularization? Is this linked to credibility? There is no access to justice and no justice if no one uses the platforms.

  • Who are the disputants? The parties in ODR may not always be as they seem – for example, in bullying, does the use of ADR and ODR blur the line of who has been harmed?

  • ADR is becoming more and more ODR every day – we should acknowledge this and not make the mistake of trying to regulate what is an evolving field.

  • Is the devlopment of ODR a top down or bottom up process – does the state impose ODR or is ODR developed because the users demand it?

  • There is a lack of engagement between technology and the tasks that we are asking ODR schemes to perform and formal theories of justice – there is a gap in the literature that we should begin to fill with formal development of ODR theories of justice.

  • China’s experience demonstrates that ODR is unbiased – breaks down cultural barriers and allows for “level” interaction not just across national borders but across cultural differences.