Okay, I will provide a comprehensive yet digestible summary of the concepts discussed in the

provided texts about Online Dispute Resolution (ODR), drawing exclusively from those
sources and citing them thoroughly.

Here is a summary designed for easy understanding and internalization:

What is Online Dispute Resolution (ODR)?

 ODR utilizes information and communication technology to prevent, manage,

and resolve disputes.

 It emerged from the unique needs of online e-commerce where taking disputes to
court was often geographically and legally difficult.

 ODR is essentially the use of Alternative Dispute Resolution (ADR) mechanisms

over the internet. ADR itself refers to settling disputes by means other than
litigation.

 ODR methods can be used for both offline- and online-related disputes.

How ODR Evolved:

 The idea of using ADR online arose in the 1990s.

 Early ODR services included the Virtual Magistrate Project, the Online Ombuds
Office (OOO), and the Online Mediation Project, supported by institutions like the
American Arbitration Association (AAA).

 eBay was the first to use ODR in the global online marketplace to handle transaction
disputes on its site.

 Since then, ODR platforms have developed in both private and public domains,
with nearly fifty courts in the United States and courts in several other countries
establishing ODR process options.

 In 1997, the National Center for Technology and Dispute Resolution was founded
to support the development of technology applications and knowledge for managing
conflict.

 Over time, institutions and organizations like the EU, US Federal Trade Commission,
and World Intellectual Property Organization have explored ODR. In the EU,
legislative measures have tended to favor ODR, especially for consumer disputes.
Key Characteristics and Functions of ODR:

 ODR can offer efficiency by potentially being faster and cheaper than traditional face-
to-face processes.

 It can also present a difference in kind, especially in the use of various

communication channels, such as synchronous (real-time like texting or face-to-
face) versus asynchronous (time lag like email), and textual (text, email) versus visual
(video). Traditional face-to-face is synchronous and visual.

 ODR technology is sometimes referred to as the "fourth party" in dispute resolution,

alongside the first and second parties (disputing parties) and the third party (mediator,
arbitrator, or judge).

 The fourth party (technology) can serve in administrative (case management),

communicative (email, scheduling, etc.), substantive (legal predictive analytics), and
practical (aiding participants) contexts.

 Artificial Intelligence (AI) capacity, sometimes used in ODR, can draw on big data
to predict outcomes and aid decision making beyond human capability in real time.
However, bias can be introduced or magnified with AI.

 ODR can function as a system of its own (e.g., for smart contracts) or as one process
component of a broader system (e.g., in a court).

 The diversity of ODR in practice makes it difficult to lump all variations under one
term.

Common ODR Mechanisms:

Within ODR, negotiation, mediation, and arbitration are the most commonly practiced
forms.

1. E-Negotiation:

o This is an electronically based negotiation.

o It's defined as communication between two or more people with the aim of
reaching an agreement, conducted over the internet.

o Early research projects like INSPIRE (1996) explored negotiation via the web.
 o E-negotiation systems (ENSs) and decision support systems (DSSs) exist but
have low public awareness.

o E-negotiation is linked to computer-mediated communication (CMC),

which facilitates interaction using computers.

o Research, particularly regarding email negotiation, suggests it can lead to

misunderstandings, negative attributions, negotiation impasse, increased
contentiousness, diminished information sharing and process cooperation,
and diminished trust.

o Resolving conflict is believed to be better done face-to-face. More face-to-

face contact creates more rapport, leading to more favorable outcomes.

o Studies show information exchanged over electronic media like email is less
likely to be true.

o The majority of research casts doubt on the perceived advantages of e-

negotiation over face-to-face.

2. E-Mediation:

o This is a system-based mechanism where an impartial third party (the

mediator) facilitates negotiation online.

o It's essentially e-negotiation with third-party assistance, so arguments

against system-based negotiation can apply. This holds true for both text-based
and video-based systems.

o Some believe e-mediation is an option when face-to-face is inappropriate,

such as when parties are emotionally charged, it's not cost-effective to
meet, or there's a significant power imbalance.

o An early project towards the end of the 1990s aimed to determine the
effectiveness of e-mediation for eBay disputes, relying on email
communication. Less than 40% of cases were successfully mediated.

o A drawback identified was the reliance on text, as written language doesn't

always convey complete meaning, and linguistics emphasizes the primacy of
spoken language. This distinction can impact communication effectiveness
and mediation outcomes.
 3. E-Arbitration:

o This is an electronic version of offline arbitration, covering everything from

the online agreement to the award.

o The validity of online arbitration is generally not an issue based on party

autonomy. However, concerns exist internationally regarding the validity of
online agreements and awards under conventions like the New York
Convention (NYC), which was adopted before electronic forms were foreseen.

o There are no universally accepted rules governing online arbitration

proceedings.

o Participants in online arbitration use electronic devices. Existing systems have

been criticized for handling only restricted dispute classes, simplified
processes, or processes of a single provider.

o Some argue e-arbitration significantly reduces transaction costs, but research

on its costs versus offline arbitration is lacking. Most costs in international
arbitration are legal and arbitral fees, and it's uncertain if these would be
substantially reduced online.

o Online arbitration is considered particularly appropriate for simple fact

patterns and small claims. It may appeal to users of small claims or
documents-only arbitration.

o It's unlikely that "international arbitration" dealing with complex issues

and large sums would ever take place entirely online. Its attractiveness is
perceived as low in this area.

Analyzing ODR through the Dispute System Design (DSD) Framework:

The DSD framework provides a lens to examine how disputes are handled and what variables
make a difference. It includes six elements:

1. Goals:

o These are the fundamental objectives decision makers seek to accomplish.

o Goals can include conflict prevention, management, resolution, efficiency,

accessibility, reputation, fairness, transparency, and just outcomes.
 o Identifying goals is crucial to ensure processes align and evaluate system
performance.

o It's not feasible to achieve all potential goals; tradeoffs must be made, and
priorities determined.

o Specific ODR examples have different goals:

 eBay: Fast and fair resolutions for transaction problems.

 Courts/Tribunals: Efficiency, streamlined user experience, and

justice. (New York example specifically aimed to increase access to
justice, supplement existing procedures, help consumers understand
the process, and provide tools for settlement).

 NextDoor: Intervene on negative behaviors, promote civility.

 Kleros: Fair, transparent, scalable, self-administering.

 Credit Card Debt (NY): Protect consumers, deliver efficiency,

provide accessibility.

o There's a tension between giving primacy to fairness (eBay, Kleros,

NextDoor) or efficiency (courts).

2. Stakeholders:

o These are the people and organizations that create, host, use, and are
affected by the dispute system.

o Stakeholders' interests, representation, relationships, and power are analyzed.

o Involving stakeholders, especially users, in design and improvement is

important for long-term sustainability.

o Examples of stakeholders in ODR include:

 eBay: Consumers, sellers, regulators.

 Courts/Tribunals: Court staff, judges, the public, counsel, litigants.

(NY example involved extensive engagement with staff, creditors,
debtors, consumer reps, legal aid, etc.).

 NextDoor: Citizens/neighbors, journalists, regulators.

  Kleros: Commercial disputants, smart contract users, coders.

o The fourth party (technology) is a central stakeholder, and its owners and
evolving role (with machine learning) are significant.

o The NY Credit Card Debt example faced resistance from legal service
providers, highlighting the importance of stakeholder engagement and
leadership buy-in (like judges).

3. Context and Culture:

o Context is the circumstance in which a system is designed. Culture refers to

shared patterns of being, perceiving, and behaving (organizational, social,
national, etc.).

o Both affect the viability and success of the system.

o ODR was driven by the context of e-commerce and the growth of technology.
Smart contracts represent a leap in technological capacity.

o Cultural expectations of stakeholders (users, designers, administrators,

providers) influence ODR's expansion.

o The culture surrounding the fourth party (technology) is an important

background condition. Research on digital architecture's effect on decision-
making is relevant here.

o User experiences and expectations regarding technology have created a new

cultural dimension.

4. Processes and Structure:

o A dispute system may include one or more processes (like negotiation,

mediation, arbitration).

o How processes are linked or integrated, and their interaction with the legal
system, influences incentives for use.

o Offering multiple options (process pluralism) often strengthens a system, but

too many options can confuse users.

o Systems vary based on whether they aim to reconcile interests, determine

rights, or establish power.
 o ODR has expanded the spectrum of processes, integrating technology into
mediation, collaborative decision making, and beyond.

o Specific ODR processes mentioned include:

 eBay: Diagnosis, negotiation, facilitation, evaluation.

 Courts/Tribunals: Settlement, mediation, trial.

 NextDoor: Discussion forums, technology-based coaching/advice,

facilitative process.

 Kleros: Online evaluation, crowd-sourced jurors, incentivized

participation. (Smart contracts on blockchain use rights-based
resolution with crowdsourced jurors, arbitration using game theory,
and AI algorithms suggesting solutions).

o Designers must balance process options with resource constraints and

efficiency.

o Sela's work points out that bias can be introduced, even magnified, by AI in
digital choice-architecture.

5. Resources:

o Available financial and human resources are crucial for system success at the
design stage.

o Resources are needed for educating users, training staff and providers, and
shifting perceptions of fairness and success.

o This element is linked to the goals of cost efficiency for the institution (often a
driver for ODR) and the user, impacting access to justice.

o Examples of resources in ODR:

 eBay: Investments in software and staff.

 Courts/Tribunals: Public funds, employees, supporting non-profits.

(NY project used an ABA Enterprise Fund Award for a pilot system).

 NextDoor: Investments in software and staff.

  Kleros: Management investment, designed to be self-sustaining.
(Dispute handling options for smart contracts may involve paying
crowdsourced jurors).

6. Success, Accountability, and Learning:

o Transparency in how the system works and outcomes is important, balanced

with confidentiality.

o Evaluation (including independent monitoring) and learning are critical for

credibility and accountability.

o Success is judged by achieving intended goals and broader societal goals like
fairness and justice.

o Making outcomes available for independent study helps judge success.

o Traditional effectiveness measures include lessening transaction costs,

increasing satisfaction, building relationships, and reducing dispute
recurrence.

o The NY Consumer Debt project provided lessons on pre-assessment, engaging

leadership, and case/process selection.

o Evaluating digital choice architecture helps understand the tension between

justice and efficiency goals and the effect of "nudges" on user behavior.

o Cross-cutting concerns for blockchain ODR (smart contracts) include cultural,

legal, and technological issues. The uncertainty of the law in this context is a
significant problem.

o A core challenge is the shift in what constitutes trust. Traditional trust is based
on interpersonal relationships and legal mechanisms, while blockchain trust is
based on a secure coding structure. When the technology fails and trust breaks,
mechanisms for re-establishing traditional trust may be unavailable. This may
be the most important challenge for ODR.

Control over Design and Process:

 Attention is needed regarding who controls the system design (single party, all
parties, third party) and who controls the process choice at the individual case level
(disputants, third party, fourth party).
  Control over design and process choice is a significant source of power.

 In example cases, process choice is usually made by the user/consumer (eBay, courts,
NextDoor), but required by NextDoor software. Kleros allows initiation by either
complainant or respondent.

Observations and Future Prospects:

 Being deliberate about designing ODR systems involves being explicit about goals
and involving users/stakeholders.

 ODR has both instrumental (advances administrative, communicative, practice-

support) and intrinsic values (offers a different, potentially desirable online process
experience).

 ODR scholars are working to establish principles and standards.

 Research is advancing in various ODR categories (consumer, commercial, court,

algorithmic, smart contracts).

 ODR integrates with offline processes.

 The human element and psychology are at the core of many disputes, and whether
hardware/software can replace this is questioned. It's hard to untangle responsibilities
between software and humans.

 Software "does what it is told" and isn't yet designed for complex legal, moral, or
political analysis or engaging with parties' interests and feelings.

 Cyber-human learning might involve integrating machines into human activity,

with machines handling specific intelligence capabilities while humans do what
machines cannot.

 ODR is not a panacea; it is another option. States' dispute resolution machinery is

complex and cannot be simply replaced by faster technology. This machinery is
intended to maintain social order based on the rule of law, a function difficult to
perform fully in cyberspace.

Working Tips for Using ODR (when it may work well):

 Issues are relatively clear.

 Both user and administrator benefit from efficiency.

  Stakeholders (including users and decision-makers) are involved in design and
implementation.

 Intervention occurs "up-stream" (during policymaking) to prevent disputes,

potentially with AI.

 Multiple ODR processes are offered, including consensual (interests) and adjudicative
(rights) options.

 Adequate resources are available for training and educating participants.

 Process and outcomes are transparent (within privacy limits), especially regarding
data inputs for algorithms.

Situations where ODR may work less well:

 Legal parameters are unclear.

 Precedent-setting is important.

 Participants do not recognize the other side's rights.

 The process is used for delay or hindering rights.

 Algorithms guiding decisions are non-transparent.

 Designers make obscure tradeoffs across goals.

Continuing Challenges:

 User skills and dependence on technology.

 Potential backlash against processes perceived as insufficiently human or

psychologically grounded.

 Differences in people's goals and cultural preferences for ODR.

 Reliability of data.

 Complexity of underlying legal issues.

This covers the key concepts and details presented in the sources regarding ODR, its history,
mechanisms, analysis through the DSD framework, and future considerations.