Traditional Dispute Resolution is often too costly a process, and for that reason Alternative Dispute Resolution (ADR) has become the preferred way to deal with disputes with less reliance on slow and costly court processes. Moving one step further and adopting new technologies we come to Online Dispute Resolution (ODR). New internet based technologies are starting to be used in some courts but their greatest potential for benefit is in ADR. Online Dispute Resolution provides the opportunity for access to justice both for people who may be physically isolated from major urban centers and for those who otherwise could not afford to pursue legal remedies. Businesses are always seeking to create efficiencies and reduce the cost of services, and ODR offers potential large cost and time savings. Key business decision makers who can not afford the time to attend proceedings can participate directly in a process that is online and make the process more effective.
The quicker and more cheaply a dispute can be resolved fairly the better. Parties should always try to directly negotiate a settlement. If direct negotiation fails mediation is the preferred process to try, because a settlement is something that immediately ends the process and it does so with a result that all parties can accept. Then they can move on from the dispute to resuming their lives and work or starting something new. Settlement is not always possible even with the best mediator and mediation process, and so Arbitration is a necessary alternative to court. Arbitration is especially preferred with international disputes, where courts local to a party are not trusted and the cost of getting there and being there for the various stages of the process are prohibitive. International arbitration awards are also more easily enforced in different countries than court judgements.
With mediation being the next step when negotiation fails, let us consider online options for the mediation process. A skilled mediator has excellent interpersonal skills and the ability to bring parties in a dispute closer together. This works well when everybody is in the same place but there is a cost to bringing the parties and mediator together. Usually it is well worth the price especially when a dispute does settle. The cost of mediation also makes people take the process more seriously as the parties involved have more invested in it and generally do want it to succeed or they would not have gone to the effort. Telephone mediation is used frequently for some types of disputes and has both a much lower cost and lower success rate. Online mediation has greater potential. as body language can be assessed to a degree, now that technology has improved, with the added video component additional to voice, but it is still far from the personal process that makes mediation most effective.
Arbitration is more perfectly suited to an online process. By this we do not mean simply sending in evidence and submissions by email which some people call online dispute resolution. That process would just be a quicker and simpler form of using documentary evidence for arbitration but it lacks the vital process of hearing evidence and allowing cross examination on it. The ability to challenge evidence by cross examination is a fundamental right in arbitration and it makes for a more accurate fact finding process where there is a dispute. In a simple case where facts are agreed or a contract is to be interpreted, email or other document review may be adequate but most disputes turn on facts which are in dispute and credibility issues.
An arbitrator is required to decide a dispute based on the evidence and not on impressions and other personal factors. Credibility can be assessed properly with an online visual hearing. An arbitrator can consider body language in assessing the demeanour of a witness to an extent but should be mainly focussed on the actual evidence given by a party or witness. To the extent that personal observation is needed by an arbitrator to assess evidence, current technology readily available across the world is sufficient. By using low cost or free existing internet methods including processes such as Skype, Google Plus Hangouts or Facetime you are not only saving money but you are potentially creating a more objective process for the arbitrator or tribunal to receive the evidence. Witnesses can be examined and cross examined from their home or office with an audio and video feed going out to everyone involved. Non professional witnesses are more comfortable in their own environment and you do not have to deal with inadequacies of evidence caused by nervousness in a formal and sometimes foreign environment, or jet lag if they had to travel far to give evidence. As part of the process documents can easily be reviewed without in person attendance and questions can be answered and submissions made by legal counsel with just a phone call. A tribunal of arbitrators does not have to meet in person to confer when they use new technology including online document management and editing.
Cost and speed of the process are the most important factors giving an advantage to online arbitration. Speed is obtained by making it easier to have a hearing date as it is no longer necessary to have everyone required for the proceedings to be in the same place at the same time. The cost savings are enormous with experts not charging for their travel time and expense. The arbitrators, witnesses, parties and counsel do not have to travel and have the added costs of travel, meals and accommodation. A court reporter can record proceedings more cheaply if they can work from home and with real time reporting instant transcripts can be available to everyone as needed.
Miskin Law is in the process of developing a standardized online arbitration service to be offered from our base in Ontario, Canada for both domestic and international arbitration. We are already using these methods on an individual basis as agreed by parties now and it works. Stay tuned for our low cost online arbitration service package and process to be offered in the near future. We will be launching the new service with a new online arbitration website as well. Once we have this service package fully developed there will be options within it and we will continue to offer tailored processes suitable to particular parties, legal counsel and disputes with lower costs. It will not be a fixed price service like some other limited online arbitration processes are, but it will contain a base price with cost variables based on likely number and length of witnesses and the proceedings. We have a number of arbitrators available for the online arbitration process so the parties can select their preferred arbitrator.
For information on Murray Miskin’s arbitration or mediation services contact the Miskin Law Office by email to firstname.lastname@example.org or call and speak with Angela at Extension 112. Online arbitration is the future and the future is now.