Online Dispute Resolution (ODR): A Viable Solution to Speed and Efficiency Issues in ADR

Disputes generally are an integral part of human interactions arisng from different human transactions. All disputes involve people and it is only natural that when these disputes occur, the parties want to resolve them peacefully and or satisfactorily. A common way of doing this is through Alternative Dispute Resolution (ADR) mechanisms. These mechanisms such as Arbitration, Mediation and Negotiation are often utilized in the settling of disputes without resorting to litigation.

ADR as a means for the resolution of disputes has in one form or another, been with mankind from the beginning of time. One can say it has a primordial origin. ADR in its formal state was introduced in Nigeria over the past few decades with a view to dealing more effectively and efficiently with the growing caseloads in the Courts system and to improve citizens’ access to justice. By avoiding a long drawn out and often-acrimonious court battle, ADR arguably affords the aggrieved party procedural justice and a less costly method of dispute settlement. There is also greater involvement by the parties in determining who hears the dispute. The Arbitration and Conciliation Act as well as the Lagos State Arbitration Law are existing legislation in Nigeria on the subject.

ADR is equally useful in commercial dispute resolution. Arbitration, as an ADR mechanism is a process where the parties are able to choose their judge/umpire- usually someone with experience in the field, with the resolve that they would be bound by the arbitrator’s decision. Arbitration proceedings are generally more flexible, shorter and quicker than litigation, meaning they are generally less costly in terms of time and money to the parties. Additionally, arbitration awards are final. Arbitration is private and can be kept confidential as proceedings are held behind closed doors and documents and awards are kept private as opposed to what is likely to occur in a long drawn out adversarial civil proceeding in Court.

Mediation on the other hand involves a neutral third party chosen by the parties also but the Mediator does not hand down a decision unlike the Arbitrator. This process which is often deemed as an easier and quicker resolution mechanism also has the benefits of confidentiality, flexibility, rapid settlements, mutually satisfactory outcomes, high rate of compliance and adherence to agreed outcomes/agreements, comprehensive agreements and a greater degree of control of the resolution process and outcome.

As with all systems, ADR generally and in particular Arbitration and Mediation have their shortcomings despite the numerous benefits alluded to them. .

Arbitration has been criticized as having become more complex, losing its early simplicity, more legalistic and more institutionalized like the Court system. One main criticism of arbitration is that the alleged benefits of the saving of time and cost are illusory with regard to the perceived efficiency in the resolution of disputes. Arbitration has come under attack for being costly and slow in both Domestic and International Arbitration. The 2015 Queen Mary/White & Case International Arbitration Survey is a typical example of parties’ perception of Arbitration. According to the survey, respondents indicated that the cost (68%), lack of insight into arbitrators’ efficiency (39%), and lack of speed (36%) were among the worst characteristics of international arbitration.

Many litigants are often surprised to find that their case progresses much like a standard lawsuit once discovery begins. This situation is more likely in cases where counsel represents the parties; the lawyers tend to gravitate towards the familiar guidelines adopted in the Courts. Accordingly, parties who opt for arbitration now tend to include time restraints within their contract’s arbitration clause, including parameters regarding the amount of time permitted for discovery and the estimated length of any evidentiary hearing.

Arguably, the most serious criticism of mediation relates to the fairness of the process. It has been argued that it can be very difficult to make sure that the settlement agreement is fair to both parties. If one party has access to more resources or is savvier about the mediation process, they may be able to get the other party to agree to a settlement that is not in their best interest. There are no formal rules for the process and if the parties involved in mediation are not able to compromise, the process can end in failure and simply add to the length of time in dispute resolution.

In the past few years, many international arbitration institutions like the ICC and WIPO have provided changes to address aspects of delay affecting speed and efficiency issues.

The practice of Mediation in Nigeria is gaining widespread traction as the process is enjoying state backing as can be seen through the introduction of the Multi-door Court House systems across the states of the Federation. The Lagos Multidoor Courthouse (LMDC) established in 2009 became the first court-connected ADR centre in Africa. There are currently Fourteen Nigerian states and the Federal Capital Territory (Abuja) that have replicated the Lagos Multi-door Courthouse model, showcasing the efficacy of dispute resolution mechanisms that resonate with local culture and practice. Some states like Rivers State have passed the Law creating the Courtconnected ADR Centre but have not yet implemented it. The Lagos State Ministry of Justice also established the Citizens’ Mediation Centre (CMC) to provide free dispute resolution services to indigent citizens of the state.The CMC became a separate legal entity in 2007 and now offers free services across Lagos. This model has been replicated in 16 states across the federation.

The recent achievements in ADR coupled , with the widespread and ever-expanding use of technology in communication and other ways of life, informs the need to deploy technology as a dispute resolution tool or mechanism. It can be used as a resource to provide some of the expertise of a trained third party as exists in ADR. Katsh and Rifkin named the assistance of Information and Communication Technology (ICT) as the fourth party in addition to the two disputing parties and the third neutral party (arbitrator, mediator, negotiator etc.). As a matter of fact, ICT the “fourth party” is used by the third party as a tool for assisting the process. Therefore, the use of ICT as a resource in dispute resolution does not replace the impartial neutral third party.

The use of technology and in particular the internet in the resolution of disputes is often times referred to as Online Dispute Resolution. Online Dispute Resolution (ODR) has been explained as the adaptation of technological tools and systems for the resolution of offline and online disputes. ODR has been said to encompass many forms of Alternative Dispute Resolution incorporating the use of the Internet, websites, e-mail, communications, streaming media and other information technology as part of the dispute resolution process.

It is inevitable that technology will be increasingly integrated into the dispute resolution process. We must therefore continually ask what impact technology is having on Access to Justice. Not only is technology changing the way we communicate; it is also altering the way we disagree and the way we resolve our disputes. It is further generating new kinds of disputes, many of which grow out of all the new capabilities we enjoy.

Most ODR methods are ADR provided online, i.e. they are alternatives to litigation and to state justice, but not all methods are online ADR. Online courts, for instance, are also ODR. The procedure does not have to happen entirely online, as it would be too strict to exclude an ODR mechanism which only sends a paper copy of the agreement or the award, or which accepts evidence p It is important to note that ODR is not an alternative to Alternative Dispute Resolution (ADR), neither is it limited to the resolution of disputes that arise online.

ODR does not challenge ADR but complements it and it is inevitable that technology will be increasingly integrated into the dispute resolution process. We must therefore continually ask what impact technology is having on Access to Justice. Not only is technology changing the way we communicate; it is also altering the way we disagree and the way we resolve our disputes. It is further generating new kinds of disputes, many of which grow out of all the new capabilities we enjoy.

It is a commonplace belief that ODR is solely to be utilized online. This is an incorrect assumption as ODR is not limited to any one technology or application as it can provide video links between geographically separated parties, support text based, asynchronous conversations that help parties be more reflective in their communications while enabling them to access information relevant to their dispute in real time. It can enable participation from individuals anywhere in the world or support real-time joint single text negotiation with collaborative editing. ODR can offer “wizards,” software tools to help parties explore their options or to provide early resolution for issues, sometimes before the complainant even has informed the respondent about his or her concerns. It can quickly address simple misunderstandings before they escalate or offer a library of creative possibilities to help parties craft their ideal solution.

So how can ODR solve the speed and efficiency issues in ADR? This answer I believe may be found in these two instances of my personal experience in arbitral proceedings in Nigeria.

In a recent arbitration, the preliminary meeting was held back in February 2018 and scheduling for pleadings agreed but due to inability of the parties and Solicitors to file pleadings within agreed/prescribed timeline necessitating an amendment to the already filed pleadings, a rescheduling became necessary. Upon rescheduling, one of the parties realised that the witnesses earlier identified would be working out of their offices in another jurisdiction at that period. This meant witnesses needed to be substituted and filing of fresh witness statements and of course this caused some delay as this affected the scheduling. This delay could have been avoided had the parties been informed and agreed to use an online Arbitration platform to complement the Arbitration proceedings.

Another common feature of ODR, which is already in use to complement ADR in this jurisdiction, is the use of secure ODR platforms such as MODRON and CREK for both online mediation and arbitration. These ODR platforms can be used from commencement to the end in any of the processes or in a hybrid form.

Parties in an arbitration or mediation can initiate the process by convening a face to face meeting and then agree that subsequent hearings be held online which is what has happened in Mediation/Arbitration Proceedings I am currently involved in particularly in view of the need to take account of the present realities of Covid-19 Pandemic whilst ensuring that Parties are provided an equal opportunity to present their cases upholding the principle of fair hearing. Apart from the travel time and costs that was saved, the opportunity to secure convenient times and days was expanded since the parties did not have to leave their offices to attend the meetings/sessions.

ODR therefore though at its infancy in Nigeria can be utilised as a solution to speed and efficiency issues in ADR. However, the availability and use of Information technology in ADR in Nigeria raises questions like Security/confidentiality, acceptability and the infrastructure to support the process. We are yet to reach that level but there is definitely a need to get moving.

ODR utilizes the opportunities provided by the Internet and technology in general. We are gradually as Nigerians beginning to accept that the internet is part of our lives and as we interact online, we must of necessity provide means of resolving disputes that are generated online or offline land that is where ODR is most appropriate.

Dedicated ODR platforms available for the resolution of disputes achieve the level of security and safety features that are akin to those that exist on international internet/mobile payment systems. There is definitely, a need for the creation of awareness in Nigeria on the suitability of ODR mechanisms in the resolution of online disputes.

Furthermore, ODR presents the biggest opportunity and the biggest challenge for the practice of dispute resolution. According to Colin Rule, “Our field is being transformed by the use of technology, and the only uncertainty that remains is whether this transformation will take one, two, five, or 10 years to play out completely. In the interim, there is a need to work together to design systems that leverage the historical lessons of ADR while supporting the needs of our modern, global, connected, online world. A successful ODR system will improve access to justice, provide speedier and better outcomes, maintain our relevance in the lives of our customers, and live up to the promise of our field”.

The MODRON Spaces Dispute Resolution Platform is an example of existing ODR platform, which can be deployed to resolve domestic and international disputes via Arbitration and Mediation. ODRAFRICA is currently working with the MODRON team to make available online dispute resolution platform for both Arbitration and Mediation in Nigeria. The benefits of this platform include:

  • Secure Onboarding – All users are onboarded with secure account access, and users are securely associated with a specific case;
  • Case Management – At the top level, MODRON Spaces provides case management functionality so you can manage all of your activities. Each case gets a high-level view that aggregates the relevant information from the various conversations taking place within it so you can find everything easily;
  • Virtual Rooms – By default, each case has a space shared with everyone but as a facilitator you can create spaces and invite whoever you feel is relevant;
  • Advanced Video Conferencing – Different video modes allow you to give everyone the same level of attention or focus directly on a particular person speaking. You are also free to navigate around the interface, your call will be seamlessly dropped into the corner so you can stay engaged;
  • Guided Conversations – MODRON Spaces helps guide the process of dispute resolution through capturing key information;
  • Information Access – The platform can be available everywhere, it is available on your device, whether you are on your laptop, tablet or mobile device;
  • Secure Document Sharing – MODRON Spaces has secure file sharing as part of its core feature set, allowing documents to be uploaded to a space and have them only visible to the participants of that space;
  • Audio and Video Recordings;
  • Templated Forms – Throughout a dispute, you may wish to obtain structured information from a participant. While you could upload a form and have the respondent upload it again when they have completed it, MODRON Spaces includes a facility to create templated form requests that you can assign to people and they can complete inside the platform itself;
  • Event Scheduling – MODRON Spaces allows you to schedule events in the platform itself and send reminders so everyone can be online together when need be;
  • Invoicing and Payments – MODRON Spaces is integrated with the popular Stripe payments platform. Once setup, you can invoice the parties and receive payments within the platform itself;
  • Dashboard and Stats – if you have many cases in progress, sometimes it is useful to get a bird’s eye view of what is happening right now. MODRON Spaces includes a dashboard view which shows you information about your cases, any pending work to follow up, or any events that are scheduled for the near future.
  • Control the Branding – You can completely rebrand your Spaces platform to match your organisation. Everything you, your colleagues and parties to a case will see will be branded as your own. This includes login pages, the platform itself as well as emails that go out from the system. It is also a quick and simple process to integrate your Spaces platform into your existing website.
  • Security – All voice, video and signalling traffic is AES 128 encrypted and is GDPR compliant, ensuring customer privacy and comfort. All video and audio recorded messages are AES-256 encrypted at rest as well as in transit to ensure deep security. MODRON leverages AWS military grade cloud storage infrastructure.

The CREKODR platform is another online dispute resolution platform aimed at making the resolution of these issues easy and inexpensive.

The benefits of this platform include:

  • Full Spectrum ODR – Supports all phases of the ODR lifecycle including Negotiation, Mediation & Adjudication;
  • Completely Configurable – CREK SaaS offers a suite of readily customized ODR solutions for most popular Business Domains including, Mediation Rooms, eCom, ADR. CREK Enterprise offers customization to arrive at an ODR solution that suits your specific ODR needs;
  • Robust System –configured to be highly available and secure. The System & its underlying software are regularly upgraded, so it’s immune to all threats. We strive to constantly improve the technology and features to derive the best from latest technologies
  • Easy to use interface- simple & intuitive workflow helps arriving at a perfect solution quickly & smoothly;
  • World Class Support – CREK works on a “Clients First” model and the support team works round-the-clock all through the year

ODR can thus be that viable tool if properly harnessed to address in appropriate cases speed and efficiency issues in ADR.

written by: Morenike Obi-Farinde
link: Online Dispute Resolution (ODR): A Viable Solution to Speed and Efficiency Issues in ADR