Online Justice:Ethical Considerations for

Online Dispute Resolution Practice

Colin RuleDirector of Online Dispute Resolution, eBay/PayPal

Seattle University School of Law, October 21, 2010

What is ODR?

2

Online Dispute Resolution (ODR) is the use of information and

communications technology to help

disputants find resolution to their disputes.

What is ODR?

3

Online Dispute Resolution (ODR) is the use of information and

communications technology to help parties manage,

transform, and resolve their conflicts.

Resolution Matrix

EBAY INC. PROPRIETARY & CONFIDENTIAL

HIGH

LOW

HIGH LOWOUTCOME CONTROL

PROCESSCONTROL

FACILITATIVE MEDIATON

EVALUATIVE MEDIATON

MED/ARB

DIRECTNEGOTIATION

FINAL OFFERARBITRATION

ARBITRATION

PRIVATEJUDGING

BINDINGNON-BINDING

Common (but not all) ODR Types

Problem DiagnosisAn automated process that provides buyers and sellers key information and sets reasonable expectations

Direct NegotiationA tool that enables disputants to communicate directly through a web forum in an attempt to reach agreement

MediationA process in which an impartial third party joins the discussion between the disputants to help them find resolution

EvaluationThe endpoint for ODR, where a neutral hears both sides of the dispute and then renders a decision that is binding on both sides

Online communication types

ASYNCHRONOUS

SYNCHRONOUS

emails

discussion boards

chats

instant messaging

audio conferencing

video conferencing

The Need for ODR

All societies must provide redress• Without it, users/citizens lose trust• Trust is essential to commerce and cooperation• Redress is just one element of trust building

Offline, redress is usually judicial• Courts provide civil and criminal options• Law enforcement guarantees outcomes

Online, judicial designs don’t work• Geographies are irrelevant• Enforcement must reside in the code

Resolving Disputes on eBay and PayPal

eBay is big

More than 240 million users

More than 4 billion feedbacks left

>1 billion items have been listed on the site in 2008

If eBay users were counted as citizens, eBay would be the 5th largest country in the world

eBay’s role is unique

eBay sells nothing

eBay buys nothing

eBay holds no inventory

eBay has no product,other than the website

eBay’s job is to ensure that the marketplace continues to run smoothly – as such, eBay is a third party convenor

B S

B S

File a dispute FILE COMMUNICATE ESCALATE

File a dispute: step 2 FILE COMMUNICATE ESCALATE

File a dispute: step 3 FILE COMMUNICATE ESCALATE

Finding open cases (buyer and seller) FILE COMMUNICATE ESCALATE

Dispute details page: buyer FILE COMMUNICATE ESCALATE

OASCaseDB

Central Clearinghouse

NationalAdministrator

NationalAdministrator

ODRProviders

Key Components:A Central Clearinghouse, who maintains the case database; National Administrators; and ODR providers approved by the National Administrators

Seller

Seller

Seller

Global Buyer Protection System Design

Sellers each opt-in to the system voluntarily

ODR providers apply and are approved individually

The Community Court

Ethical Dilemmas

Differences between F2F and online DR

Impartiality / Independence

Cost and fees / Accessibility

Confidentiality / Transparency

Systems design

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Ethical Dilemmas (2)

Power differentials

Repeat players vs. one-off players

Selection bias

Panels vs. practitioners / feedback

Enforcing ethical standards

International standards programs

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232008 UN ODR WORKING GROUP

Conclusions

ODR is a vibrant and growing segment of the ADR field

Applications are evolving all the time

It brings new ethical challenges for our field

Today’s ODR will look primitive in 5-10 years

ADR practitioners should be aware of ODR tools and techniques

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Resources

The National Center for Technology and Dispute Resolution: http://odr.info

The UN Working Group on ODR:http://www.odr2010.com.ar/ing/

UNCITRAL ODR Colloquium: http://www.pace.edu/page.cfm?doc_id=35749

ADR Cyberweek: http://www.odr.info/cyberweek.php