Conflict Resolution|Europe

ODR from a European Perspective

In the final report from the June 2015 convening of the UIA World Mediation Forum, Elena Koltsaki of Thessalonia, Greece, led a panel addressing online dispute resolution (ODR) from an EU perspective.  She noted two principles at the outset:  First, a central goal of EU regulation is consumer protection and the provision of consumer redress.  Second, ODR is not merely the provision of conventional dispute resolution services via alternative technology, but rather technologically-modified methods of dispute resolution in areas that were otherwise impossible to accomplish.

Two directives are implicated: Directive 2013/11/EU, on consumer ADR, requiring that consumer claims can be settled out of court.  Regulation 524/2013 charges the Commission with creating an ODR platform through which consumers can seek resolution of disputes.  Dr. Koltsaki argued that this scheme addresses certain concerns such as gaps in coverage and low quality of ODR services (through imposition of due process standards).  However, she questions whether these provisions alone assure effective dispute mechanisms for e-commerce transactions.

Aleš Zalar of the European Centre for Dispute Resolution criticized the EU approach as “top down.”  It is one thing to articulate a vision of a kind and gentle ODR world; it is another to execute that vision in a responsible way that results in improvement rather than confusion.  Already, by virtue mainly of market forces, there is online arbitration (ICANN), online consumer negotiation and mediation (Ebay, PayPal), online blind bidding in B2B contexts, and online bargaining (email deal-making).  He noted entrepreneurial enterprises such as Modria and Cybersettle who remain active in the field.   And many courts around the world use online technology both to accept and to direct complaints involving small-value claims.  He emphasized that ODR will not replace conventional ADR services, but rather supplement dispute resolution activity by enfranchising claimants who currently are barred from effective dispute resolution because their claims are too small to warrant the transaction costs of settlement.

Giorgio Grasso of Simmons & Simmons’ Rome office focused on the duties of sellers upon the effective date of the EU regulation (January 9, 2016).  Sellers must provide links on their websites to the required ODR platforms, and also an email address by which a purchaser can contact the seller.  They must also commit to using ADR entities to resolve consumer disputes, and advise consumers of the identity and terms of that entity.  These duties are without prejudice to any other redress procedures available to consumers.  These requirements also apply to financial institutions who serve as intermediaries on online consumer transactions (even though it may be strongly argued that they bear no legal duty to the consumer).  Dr. Grasso voiced some concerns about the legitimacy and integrity of dispute resolution processes where the very identity of the parties cannot be verified, nor can their purported agreements be enforced (even taking aside traditional jurisdictional concerns that ADR was meant to moot).  The circularity of the problem is emphasized by the Regulation’s provision that these responsibilities of buyers shall be enforceable by (guess who?) the courts.

Thomas Gaultier of Lisbon’s Abreu Advogados was the last speaker, and noted that Portugal has a grossly underdeveloped mediation environment, much less fulfillment of the ODR Directive.  Consumer claims in Portugal are subject to mandatory arbitration, with an eye to providing conclusive finality in a small-claims context.  He described three ADR centers.  Arbitrare focuses on domain name disputes and focuses sessions by Skype, document exchanges by email, and other technological solutions devised at the behest of the users.  These were eventually developed into a basket of online solutions for resolution of a variety of claims.  Citius is an operation of the Ministry of Justice, an online submission platform for court documents including decisions.  Consultations by judges, lawyers and court clerks can also take place online.  The goal is a “paperless justice system.”  The third example, E-Justice Centre, was a virtual courthouse established in 2007 addressing virtual disputes arising from a game in which players are involved through avatars.  That is to say, rather than Pacman eating you, or Call of Duty blowing off your head, players are able to mediate conflicts in the virtual world of the game.  One of the first virtual e-justice center involved a claim of ripping off a feature of the game itself.

In the United States, market forces have prompted companies like AT&T Mobility to offer dispute resolution schemes that are highly attractive to consumers, in an effort to de-incentivize lawsuits.  Most companies perceive that it makes more economic sense to refund a purchase quickly and yield a satisfied customer than to dispute a claim and engage in needless expense.  One wonders why those same market forces are not engaged in Europe, and why it was necessary for the central legislature to impose outcomes that the market would otherwise provide.

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