ONLINE DISPUTE RESOLUTION

In the life of humans, disputes are bound to arise. To live in an amicable society, these disputes ought to be resolved in the best form to prevent its escalation into higher dangers. Typically within the formal legal system in Ghana, the mode of dispute resolution known to the generality of the people is the adversarial system where parties are at each other’s throat in the courtroom with hired lawyers in their elegant black gowns, bibs and wigs. This form of dispute resolution even though advantageous has downsides. The main bane of it is the excess delay in reaching a decision which is further subject to appeals. The trial dockets in court are always overcrowded of which some cases sometimes pend for over a year awaiting a trial date which may further take some three or four years to be concluded in the trial court to be further subjected to appeals of which may take some further seven years. These delays with other factors like the maintenance of relationships between parties after the dispute, and ensuring a win-win situation after the resolution of the dispute motivated the formal inclusion of alternative forms of dispute resolution mechanisms which includes negotiation, mediation (also known as assisted negotiation) and arbitration in to the legal system of which parties (depending on the type of case) can opt-out of the adversarial system to settle it amicably.[i]

In recent years, as the world navigates towards a global village, so is the legal system navigating out of traditional means of resolving disputes. The emergence of the online dispute resolution (ODR) mechanisms is one which cannot be glossed over. The ODR seeks to apply technology to expedite the amicable settlement of a dispute between parties. It uses mechanisms such as negotiation, mediation and even arbitration. The need for ODR is all the more triggered due to the increase in transactions of parties over the internet. This, in strict legal terms, creates contractual obligations of which same requires a mode of resolving such disputes still on the internet to augment the expedited sale transaction as ensued on the internet in the event of a conflict.[ii] For instance, if a person in Ghana purchases an item from a Walmart shop in Canada or on eBay via the internet and a dispute arises, should the Ghanaian party’s only recourse be to hire a lawyer in Canada and file a case in the courts of Canada? That will be quite unnecessary both for the buyer and seller especially looking at the cost involved and the time factor. The ODR thus poses a logical instance of resolving a dispute in the same means as the dispute was created having in view the potential distance that may exist between the parties.[iii]

The ODR is a symbiosis between Alternative Dispute Resolution mechanisms and ICT of which it is used in resolving such disputes as they ensue online and of which the traditional means of resolving disputes have been inefficient.[iv] It can be used for disputes that arise online, for e-commerce transactions or even for disputes that arise other than from the internet which is termed as an offline dispute.[v] The parties need not be physically present to resolve the dispute, however, their virtual presence is required. It presents the enviable advantages of cost reduction as well as that of saving time.

The ODR employs several tools in the resolution of the disputes as pointed above. For purposes of this article, only the online negotiation or automated negotiation shall be discussed.

Negotiation in its ordinary parlance involves two parties coming together to settle a dispute amicably through dialogue. Automated negotiation, therefore, involves a form of negotiation of which technology is used instead of the parties themselves being present physically to dialogue to come to an amicable settlement. The forms of ODR regarding negotiations are often termed as Blind-bidding and they are best used for those forms of economic or money related matters of which the liability is non-contentious i.e. the parties do not dispute as to who is liable in the matter. The main challenge may be as to how much compensation should be paid in the instance. For instance, if a person buys a good via the internet from Walmart of which a wrong ensues. Walmart may accept liability of the wrong and the buyer, will in turn, seek compensation. The main bone of contention at this stage will be how much compensation should be paid and that is when blind bidding is most effectively used as a resolution. It takes two forms and these are the double blind bidding and the visual blind bidding.

The double blind bidding often involves two parties who seek an agreement on a monetary amount. The offers as made by each party is hidden by the ODR software during the negotiation and no party has the opportunity of knowing the bid of the other party. The parties submit up to three bids and if their bids come within a predetermined range or amount then the system itself takes the midpoint of the amounts and that becomes the amount payable.

The visual blind bidding is often used by multiple parties and with this process, unlike the double blind bidding, what is made confidential is rather what the other party is willing to accept. In this process, the parties in the negotiations exchange their proposals in terms of their demands to determine the range of negotiation of which it is not hidden. The system then, based on their exchanges, generates suggestions to each party requesting of the party to accept the suggestion or reject those suggestions. The suggestions as generated by the system to the individual parties are kept confidential of which they aren’t disclosed to the other party. The parties continue their exchanges in negotiating whiles the system still generates the suggestions to the parties anonymously. When each party has accepted one or more of the suggestions within the predetermined range, then through an algorithm in the system, a settlement is declared with a fair outcome based on the suggestions as accepted and the proposals made by the party.

These mechanisms have proven over the years to generate fair outcomes as well as save parties many headaches from the traditional legal system.

[i] Section 1 of The Alternative Dispute Resolution Act, 2010, (Act 795) excludes matters in the national or public interest; the environment; the enforcement and interpretation of the Constitution; any other matter that by law cannot be settled by an alternative dispute resolution method from being subjected to ADR mechanisms.

[ii] Hon. Arthur M. Monty Ahalt (ret.) What You Should Know About Online Dispute Resolution

Available at https://files.ali-aba.org/thumbs/datastorage/lacidoirep/articles/PLIT0903_Ahalt_thumb.pdf (Last accessed on 22nd June, 2019)

[iii] L. Bygrave, "Online Dispute Resolution- What it Means for Consumers". Paper presented at a conference entitled 'Domain Name Systems and Internet Governance' Grace Hotel, Sydney, (7 May 2002) p. 2.

[iv] E. Katsh, and J. Rifkin, J. Online Dispute Resolution: Resolving Conflicts in Cyberspace (San Francisco, Jossey-Bass, 2001).

[v] See https://www.rickychopra.co/2018/02/21/online-dispute-resolution-an-answer-to-cross-border-disputes/

The author is Kweku Attakora Dwomoh.