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Special Issue on Online Dispute Resolution Preface Arno R.
Lodder & John Zeleznikow (eds.) When
visiting the Vrije Universiteit Amsterdam early in 2001, the ICAIL
(International Conference on Artificial Intelligence and Law) 2001 Program
Chair Henry Prakken brought good news about ‘A simple model to structure the
information of parties in online alternative dispute resolution’. He had
already received a very positive review about the paper. As so often happens,
another reviewer was not that positive, whilst the third reviewer was neutral.
In the end the paper was rejected.
Later that year, in December 2001, during the annual JURIX (International Legal
Knowledge Based Systems) conference, John Zeleznikow attended Arno Lodder’s
presentation on a further elaboration of this ICAIL 2001 submission (with Paul
Huygen), ‘eADR: a simple tool to structure the information exchange between
parties in Online Alternative Dispute Resolution’. It was in fact then when we
started our collaboration on Online Dispute Resolution (ODR). During a
brief meeting at Schiphol Airport in September 2002, we laid down the
foundations for our ensuing 2005 Harvard Negotiation Law Review Paper[1]
and held discussions about the proposed ICAIL 2003 ODRworkshop (http://odrworkshop.info)[2].
In between this first and second odrworkshop (2005), the Call For Papers for
this special issue was communicated in 2004. A year after the final papers were
due for reviewing, we are glad that we can now present what we believe has become
a very interesting special issue. Before
discussing the included articles, we will include a brief discussion about the
background of Online Dispute Resolution (ODR). The history of ODR starts in the
1990s, but it was the Alternative Dispute Resolution (ADR) movement of the
1970s that paved the way. Seminal has been the 1976 conference on the concerns
about the efficiency
and fairness of court systems and their administration and how to improve the American judicial
system (Pound Conference)[3],
with a key note address by Frank Sanders[4].
Due to the high litigation costs as well as the often unsatisfying outcomes of
litigation, ADR took firm ground in practice the following decades. At this moment ADR is the standard form of Dispute Resolution
in for example the US, and Australia.[5] It was not
until the introduction of the World Wide Web in 1991, and in particular its
initial use by consumers and businesses in the mid 1990s, that people began to
wonder how to resolve conflicts via the Internet. This was especially true for
conflicts with an online origin. Over
the years, offline conflicts have also appeared to profit from the speed,
convenience, and low costs of ODR. (Katsh and Rifkin 2001)[6]
state that compared to litigation, Alternative Dispute Resolution has the
following advantages: a) Lower cost; b) Greater speed; c) More flexibility in
outcomes; d) Less adversarial; e) More informal; f) Solution rather than
blame-oriented; and g) Private.
(Zeleznikow and Bellucci 2003)[7]
claim ODR has the following additional benefits: h) Disputants do not have to
meet face-to-face: an important factor if there has been a history of violence;
and i) Mediation can occur at any time, with participants located in different
countries. The origin
of the term ODR is not easy to trace exactly. In 1996 Colm Brannigan
contributed "Online Dispute Resolution." to the Alternative
Dispute Resolution Practice Manual.[8]
In the ten years that followed, ODR has earned its place in the Dispute
Resolution arena. This special issue reflects the current state of the art from
a mere technical perspective. We are indeed interested in legal issues as well,
but paying undue attention to the law would fall outside the scope of this
journal. The first
article is co-authored by Colin Rule, currently the ODR director at eBay and
one of the most knowledgeable researchers in this field[9],
and Larry Friedberg. Essential to any e-commerce transaction is the notion of
trust. Sometimes it is said that the knowledge or information society is based
on a Trust Economy. The authors perfectly analyse the trust concept, using
their practical eBay and other experience. Laurens
Mommers considers another important notion, also relevant for the large eBay
market, that of legitimacy. Naturally, a lack of legitimacy will prevent the
acceptance of dispute resolution, and thereby its use. Characteristic for our
current society is the virtualization of it. Virtualization concerns the ways
in which information and communication technologies affect administration, communication,
accessibility and assessment. Feedback mechanisms is used as a prime example of
virtualization, and it is claimed that these mechanisms contribute to the
legitimacy of dispute resolution. Emilia
Bellucci and John Zeleznikow received much attention from the popular media for
the Family_Winner system. Not only online newspapers, but television, radio and
the printed media, covered this interesting system for supporting divorce
negotiation. This resulted in an Australian national television appearance on
the New Inventors program[10]
. The article describes the academic foundation of the Family_Winner system.
The system uses empirical evidence to dynamically modify initial preferences
throughout the negotiation process. It sequentially allocates issues using
trade-offs and compensation opportunities inherent in the dispute. Douglas
Walton and David M. Godden analyse an approach less common in ODR, that of
persuasion dialogues. Their claim is that dialogue-based theories of
argumentation can contribute to the construction of effective systems of
dispute resolution. They discuss the model present by Mochol during the First
ODRworkshop, and proposed a revision to that model of negotiation dialogue
system. They show how persuasion can be incorporated into the negotiation model
by locating the places at which persuasion dialogues can be functionally
embedded into negotiation dialogues. Finally,
Gerard A.W. Vreeswijk and Arno R. Lodder present the GearBi system, meant to
support the parties in online arbitration. Their basic assumption appears
simple but is indeed difficult to
realize: an ODR service should be easy to use (convenient), and at the same
time provide meaningful support. Besides discussing the GearBi system they
propose underlying design principles: simplicity, awareness, orientation and
timeliness. [1] Lodder, A..R. and Zeleznikow, J.
2005. Developing an Online Dispute
Resolution Environment: Dialogue Tools and Negotiation Systems in a Three Step
Model.
The Harvard Negotiation Law Review. Vol. 10:287-338. [2] Information about the first three
ODR workshops can be found at http://odrworkshop.info/ Accessed 3 February 2006. [3] It took place in Minneapolis, April
7-9, 1976 and was officially called the National Conference on the Causes of
Popular Dissatisfaction with the Administration of Justice. [4] See Sander, F.
1976, ‘Varieties of dispute processing’, 70
Federal Rules Decisions 111. [5] For example Ross
(1980) states “the principal
institution of the law is not trial; it is settlement out of court”.
Recent figures from a survey in The Netherlands illustrate this statement.
Around 48% of all disputes were settled out of court and just 4% is decided by
litigation (Velthoven & Ter Voert 2004). In the United States, Williams
(1983) notes that whilst the figures may vary in different jurisdictions, of
all the cases listed before the courts only about 5% of the cases are ever
heard by the court and only 1% of the cases result in judicial decision-making.
Nevertheless, judicial decision-making has a major influence on the outcome of
negotiated settlements, because judicial decisions serve as the very basis from
which negotiations commence, they take place in the shadow of the intervention
by a court (Williams 1983). See Ross,
H. L., 1980, Settled Out of Court,
Aldine; Van Velthoven, B.C.J. & Ter Voert, M.J. 2004, Geschilbeslechtingsdelta 2003 The Hague: WODC/Boom and Williams,
G.R., 1983, Legal Negotiation and
Settlement, West Publishing Co., St. Paul, Minnesota [6] Katsh, E. and
Rifkin, J. 2001. Online Dispute Resolution: Resolving Conflicts in Cyberspace. Jossey-Bass, San Francisco Ca. [7] Zeleznikow, J. and Bellucci, E.
2003. Family_Winner: integrating game
theory and heuristics to provide negotiation support. Proceedings of Sixteenth
International Conference on Legal Knowledge Based System. IOS Publications, Amsterdam,
Netherlands: 21-30. [8] Edited by Allan Stitt, 6901-53.
Looseleaf Service. North York, Ontario: CCH Canadian Limited, 1996. [9]
See
for example Rule, Colin (2002). Online Dispute Resolution for Business: For
ECommerce, B2B, Consumer, Employment, Insurance, and Other Commercial
Conflicts. Jossey-Bass. [10] They actually won the November 16
2005 edition of the program. |
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