Title An Asian Perspective on Online Mediation Authors Sanjana Hattotuwa Rotary World Peace Scholar University of Queensland [email protected] +1-(201)-535-3257 Melissa Conley Tyler Senior Fellow, Faculty of Law University of Melbourne VIC 3010 03 8344 1024; 0409 765 [email protected] Abstract New information and communication technologies such as the internet offer new capabilities for mediators. Online dispute resolution (ODR) refers to dispute resolution processes such as mediation assisted by information technology, particularly the internet. At least 115 ODR sites and services have been launched to date, resolving more than 1.5 million disputes. A number of these online dispute resolution services have been launched in the Asia Pacific including examples from China, the Philippines, Malaysia, Singapore, Australia and Sri Lanka. However this paper challenges the current paradigm being used for development of online dispute resolution and its application to the Asia Pacific region. Instead, it suggests that a more Asia-Pacific perspective needs to be taken that responds to the patterns of technology adoption in this region. In particular, the next generation of online dispute resolution systems will need to reflect the rich diversity of cultures in Asia and its unique socio-political textures. In doing so, these ODR systems will need to address peacebuilding and conflict transformation using technologies already prevalent in the region, like mobile telephony and community internet radio. Practical suggestions are made for future areas of development in ODR after a brief exploration of key challenges that influence the design of such systems. Author Details Sanjana Hattotuwa is a Rotary World Peace Fellow and Research Associate at the Centre for Policy Alternatives, Colombo, Sri Lanka. He is also a Fellow at the Centre for Information Technology and Dispute Resolution. His interests lie in the nexus between

technology, peacebuilding and media. He has written widely on these topics and maintains an active research interest in developing holistic frameworks that build local capacities of these sectors in the Global South. At present, Sanjana is the Strategic Manager of Info-Share in Sri Lanka (www.infoshare.org), an initiative created to bridge gaps in communication between the main stakeholders in the Sri Lankan peace process and enable greater public participation, accountability and transparency in processes of peacebuilding. His research into ODR follows the virtualisation of conflict transformation models for peacebuilding in Sri Lanka. Sanjana is deeply committed to the exploration of mobile telephony technologies, internet radio and other community media to augment the benefits of ODR to remote communities. Sanjana’s interest in ODR stems from an active field and research experience in peacebuilding. He has been published in local and international media, in print and online, and has also been invited to present his research at international fora in Sri Lanka, Australia, France, Bangladesh, India, Nepal, Netherlands, Singapore and the United States. His vision for new iterations of ODR systems to address ethno-political conflict and the complexities of peacebuilding has won wide recognition and resulted in invitations to facilitate discussions on ODR by the University of Massachusetts, Amherst and requests to give input at global online forums discussing the state-of-the-art in ODR, such as Cyberweek 2005. Melissa Conley Tyler is a Senior Fellow of the Faculty of Law at the University of Melbourne and was previously the Program Manager of the International Conflict Resolution Centre. She is the only Australian member of the United Nations Expert Working Group on Online Dispute Resolution. In July 2004, Melissa convened the UN's Third Annual Forum on ODR in conjunction with the Economic and Social Commission for Asia and the Pacific (UNESCAP). An edited book of proceedings of the Forum are available at www.odr.info. She chairs the Program Committee for the Fourth Annual Forum on ODR to be held in Bangkok in December 2005. Melissa has developed an international reputation for ground-breaking research in online dispute resolution, including a feasibility study for the Department of Justice Victoria, research on accreditation of ODR practitioners and the first published study of public demand for ODR (www.psych.unimelb.edu.au/icrc). The quality of this research has been recognised by invitations to speak at international forums including in Geneva, Edinburgh, Singapore, Sacramento, London and Wellington. Melissa teaches courses in ODR in both Law and Psychology at the University of Melbourne and guest lectures in the University of Massachusetts online ODR course. She is author of the ODR Library at www.odr.info and is editing a special colloquy on "The Human Face of ODR" in Conflict Resolution Quarterly in September 2005. Melissa is currently involved in a practical ODR project for the Australian Cypriot community. Word Count [3,983]

New information and communication technologies such as the internet offer new capabilities for mediators. Online dispute resolution (ODR) refers to dispute resolution processes such as mediation assisted by information technology, particularly the internet. At least 115 ODR sites and services have been launched to date, resolving more than 1.5 million disputes. A number of these online dispute resolution services have been launched in the Asia Pacific including examples from China, the Philippines, Malaysia, Singapore, Australia and Sri Lanka. However this paper challenges the current paradigm being used for development of online dispute resolution and its application to the Asia Pacific region. Instead, it suggests that a more Asia-Pacific perspective needs to be taken that responds to the patterns of technology adoption in this region. In particular, the next generation of online dispute resolution systems will need to incorporate [ADD]. Practical suggestions are made for future areas of development in ODR.

1. ONLINE MEDIATION AND ONLINE DISPUTE RESOLUTION

Online dispute resolution refers to dispute resolution processes that are assisted by information technology, particularly the internet (Conley Tyler and Bretherton 2003). This can include facilitative processes such as mediation, advisory processes such as case appraisal and determinative processes such as arbitration and adjudication.

ODR has been available since 1996. Its development has quickly passed through three broad stages:




a "hobbyist" phase where individual enthusiasts started work on ODR, often without formal backing




an "experimental" phase where foundations and international bodies funded academics and non-profit organisations to run pilot programs




an "entrepreneurial" phase where a number of for-profit organisations launched private ODR sites (adapted from Katsh and Rifkin 2001:47-72).

Since 2001, ODR has been entering a fourth "institutional" phase where it is piloted and adopted by a range of official bodies including courts and other dispute resolution providers (Conley Tyler and Bretherton 2003).

As of July 2004, at least 115 ODR services had been launched worldwide, settling more than 1.5 million disputes (Conley Tyler 2005). This follows on from previous research conducted for the Department of Justice Victoria in 2003 that identified 76 ODR sites and services worldwide (Conley Tyler and Bretherton 2003 summarised in Conley Tyler 2003). Earlier studies of ODR include Schultz et al 2001, Center for Law, Commerce & Technology 2000, International Chamber of Commerce 2002 and Consumers International 2001. ODR sites and services have continued to be launched in recent years with 30 new sites or services established in 2003-2004 (Conley Tyler 2005).

ODR uses a range of tools and can be used for almost any type of dispute. ODR sites us tools such as email, voice conferencing, instant messaging, bulletin boards and video facilities to enable them to resolve disputes where it would be impossible or inadvisable to meet in person. There is wide variability in the number of cases dealt with by ODR sites: from only one case to over one million disputes (Conley Tyler 2005).

ODR has been used to resolve both “online disputes” arising through or because of online activity and “offline disputes” such as family, neighbourhood and employment disputes arising in the “real world”. ODR services identified offer examples of using technology

to resolve everything from eBay disputes to commercial litigation, and from family disputes to the Sri Lankan peace process.

While most of the early activity in ODR took place in North America, both Europe and Asia have now started to adopt ODR initiatives (Conley Tyler and Bretherton 2003). There are now ODR services in all regions of the world, including a significant presence in the Asia Pacific.

2. ONLINE DISPUTE RESOLUTION IN THE ASIA PACIFIC

ODR has been adopted in the Asia Pacific in such diverse countries as Sri Lanka, Malaysia, China, Japan, the Philippines, Australia and Singapore. Despite the “digital divide” in access to information and communication technologies (Wahab 2005), a number of Asia Pacific developers have launched ODR initiatives.

Examples of ODR in the Asia Pacific region include examples of all of the main areas in which ODR has been introduced to date:




Internet disputes, especially domain names




Consumer disputes




Commercial disputes




Courts and justice




Alternative Dispute Resolution Providers




Peace and conflict

Examples of ODR providers in each area will be outlined below.

Internet Disputes

Not surprisingly, ODR has been adopted as a method for resolving disputes relating to internet addresses (“domain names”). There have been five service providers approved under the Uniform Domain Name Dispute Resolution Policy (UDRP) adopted by the Internet Corporation for Assigned Names and Number (ICANN) in 1999. These deal with disputes over the ownership and use of “.com”, “.org” and other high level domains.

One of these, the Asian Domain Name Dispute Resolution Centre (www.adndrc.org), is available to arbitrate any high-level internet domain name disputes, including those relating to parties in the Asia Pacific. It was established as a joint venture of the China International Economic and Trade Arbitration Commission (CIETAC) and the Hong Kong International Arbitration Centre (HKIAC) in 2001 with offices in Beijing and Hong Kong. Its website is available in Chinese and English.

ODR is also offered for some national domain name disputes, such as:




CIETAC Domain Name Dispute Resolution Centre (www.cietac.org.cn) operated by the China International Economic and Trade Arbitration Commission, which offers arbitration of China's “.cn” domains




Hong Kong International Arbitration Centre (www.hkiac.org) which arbitrates .hk and .cn domain name disputes.

Consumer Disputes

Given that the need to resolve online disputes was one of the key drivers for the development of ODR, it is not surprising that many sites were established mainly to resolve disputes arising through or because of online communication.

Consumer ODR tends to be provided as a service for consumers in a particular “marketplace” (such as an online auction site or electronic gaming) or those residing in a particular geographic area (such as national schemes in Iceland and Germany) (Conley Tyler 2005). The largest provider in this area is Square Trade (www.squaretrade.com) a private U.S. company that offers facilitated negotiation and mediation of mainly online disputes, including for the eBay, Google, Yahoo! and other online marketplaces as well as for “offline” markets such Californian Association of Realtors disputes.

Examples of consumer ODR in the Asia Pacific include:




ChinaODR (www.chinaodr.com), a Chinese site that offers negotiation, mediation and arbitration of online disputes, especially e-commerce disputes. Launched in June 2004, ChinaODR currently offers its services in only in Chinese but plan to add English language services




NotGoodEnough.org (www.notgoodenough.org) an Australian “gripes” site where disgruntled consumers can post complaints to be forwarded to the company involved.

Commercial Disputes

At the other end of the spectrum, ODR has been adopted for quintessentially “real world” disputes such as commercial, family, workplace and neighbourhood disputes. ODR is now being used in situations where face-to-face dispute resolution might have been possible but, for some reason, ODR is preferred.

There are a few Asia Pacific examples of providers that resolve commercial disputes:




ODR MALAYSIA (www.odrmalaysia.com), a new service launched in late 2004 that provides facilitated negotiation, mediation, arbitration and automated negotiation for any disputes. Services are provided in English only.




The Claim Room (www.theclaimroom.com), a UK company that also operates in Australia and provides mediation for mainly commercial litigation disputes.

Courts and Justice

ODR is also being adopted by courts and tribunals seeking to improve access to justice and streamline the litigation process. Worldwide, this ranges from online filing and negotiation in the United Kingdom' MoneyClaimOnline to electronic courtrooms in the Irish Commercial Court (Conley Tyler 2005). An unusual example is Justica Sobre Rodas, a mobile court in Brazil that uses an artificial intelligence program to analyse witness statements and assessors’ reports to enable a Judge to hand down a decision at the scene of a vehicle accident (Conley Tyler 2005).

In the Asia Pacific, there are a number of initiatives worth noting:




e@dr (www.e-adr.org.sg), an initiative of the Singapore Subordinate Courts which provides ODR for cases filed in the Small Claims Tribunal. Online mediation and arbitration are both provided by Court Mediators or Judge Mediators from the official judicial system. Services are provided in English only




The Federal Court of Australia eCourt (www.fedcourt.gov.au) which enables electronic filing and document management and offers a “virtual courtroom”, including videoconferencing, particularly for Native Title hearings in remote areas (Tamberlin 2005)




Most Australian state courts have also introduced limited ODR including document filing, case management and some directions orders.

A separate Singapore initiative, Dispute Manager (www.disputemanager.com), is not formally associated with a court but deals with litigious matters. It provides automated negotiation, mediation and case appraisal in English and is operated by the Singapore Mediation Centre and Singapore Academy of Law under the auspices of the Ministry of Law.

Alternative Dispute Resolution Providers

A number of providers of face-to-face alternative dispute resolution have begun adding online communication to their options. In the Asia-Pacific, notable examples include:




Philippine Online Dispute Resolution (www.disputeresolution.ph), developed by the Developed by the Cyberspace Policy Center for Asia-Pacific for the Philippine Dispute Resolution Centre. It provides automated negotiation, neutral evaluation,

online mediation and online arbitration for any disputes, especially those involving a monetary claim. As well as using a web interface it also incorporates SMS


In the Australian state of New South Wales, the Retail Tenancy Unit (www.retailtenancy.nsw.gov.au) provides online filing, case management and communication with advice officers and mediators prior to mediation; however mediation itself takes place face to face. This adds an online facility to a government mediation service for retail tenancy disputes




In the Australian state of Victoria, the Department of Justice’s disputeinfo service (www.justice.vic.gov.au/disputeinfo)uses Acumentum’s Scenario Builder to guide disputants through the options for dealing with their dispute. This includes neighbourhood and consumer disputes currently provided with conciliation and mediaiton by Department of Justice agencies.

Peace and Conflict

Finally, online tools are being used to assist in peacebuilding and conflict resolution in the Asia Pacific:




Info-Share (www.info-share.org) is a tool for bringing the parties in the Sri Lankan peace process together electronically in a situation where it would be impossible for them to meet. Its aim is to promote conflict transformation by knowledgesharing, information and communications flow and offering shared spaces for stakeholder dialogue (Hattotuwa 2005).




Cultures of Peace News Network (CPNN) (www.cpnn.org) is a global network of sites created by UNESCO to enable people to exchange information to promote a

culture of peace (Balvin 2005). CPNN has three sites in the Asia Pacific: Japan, Australia and China.

3. PROBLEMS WITH ODR IN THE ASIA PACIFIC The development of ODR in Asia shows different trends and is informed by different dynamics to that of the West and has been explored earlier in this paper. The fecundity ODR in the West is on account of a rich confluence of sophisticated and pervasive internet services and infrastructure, low cost of access, the ubiquity of PC’s, entrenched legal frameworks and the rapid growth of e-commerce and multi-player online gaming. However, the digital divide – the inequitable distribution of technology to social elites and on the other hand, the gap between these elites and their use of technology and the realities of the many millions who do not have access to such knowledge and by extension, power – under-gird the socio-politic fabric in many countries in Asia (Parlade 2003, Hattotuwa 2004). Such countries, amidst a litany of other issues coterminous with under-development and protracted ethnic violence, have skewed IT frameworks, myopic e-government initiatives, have very high cost of access, vast regions with no electricity and by extension, unable to run and maintain PC’s, have little or no human resources to sustain sophisticated ODR mechanisms and are debilitated by protracted and violent socio-political conflict. Some studies that look into the issue of Asia’s digital divide propose the distribution of more PC’s to remote cyber-centres, or village cyber cafes to alleviate the structural underpinnings of inequality and access to technology. This paper contests the validity of the assumption that the installation of PCs connected to the internet miraculously empowers communities, especially when many such communities do not have the skills needed to transform information into knowledge. On the other

hand, PC centric models of community IT empowerment rarely, if ever, take into account the sustainability of such interventions. Failure to recognize that the latest computing equipment cannot function without requisite maintenance and technical support, grand IT enlightenment projects resemble a graveyard of well intentioned projects when issues like continued cost of access & maintenance dog efforts at promoting ODR amongst rural communities.

As such, the ‘benefit’ of ODR is not a given in all parts of Asia, where a myriad of social and political ills prevent society from the enjoying the good life and stunt opportunities for the promotion of ODR taken for granted in the West. Designing and implementing ODR systems for peace processes and conflict transformation requires a shift from theories which concentrate on dispute resolution to frameworks that engage with conflict and mitigates violence. Such frameworks would recognise that the ‘resolution’ of protracted ethno-political conflict is untenable and the very best mediation can hope to do is to bring about a transformation of the value systems of disputants so as to achieve a change in the hearts and minds of combatants that in turn de-escalates violence and endogenously empowers communities to manage difference peacefully.

4. DEVELOPING AN ASIAN PERSPECTIVE ON ODR Proposing a unique Asian perspective on ODR is largely based on acknowledging the complexity and rich diversity of cultures & socio-political issues that are inextricably entwined into the Asian fabric. To fully engage such complexity, this paper underscores the need to eschew PC based ODR systems and instead create hybrid systems, that use mobile telephony and community internet radio (among other technologies) in concert

with PC’s where applicable. This vision is fuelled by a commitment to recognising and developing existing local / grassroots capacities to feed into ODR mechanisms and discarding systems that do not engage with the potential of technologies that are already entrenched in grassroots communities. This eschews the notion that ODR is simply ADR augmented by the use of the internet via PC’s. For communities are unused to PCs, cannot maintain high-end equipment, cannot afford internet access, do not have the necessary infrastructure (from electricity to telephone lines) to effectively use PC based ODR systems and lack the necessary IT and language skills, a purely PC based solution would be sub-optimal and may even augment structural violence on account of the marginalisation of those who are denied access to such technology. The perception that some disputants ‘have it better’ because they have access to computers itself can create societal rifts and increase communal conflict, irrespective of whether the communities that ostensibly visibly have access to ODR systems that use PC’s use the system or not.

The ODR processes envisaged in this paper address the needs of grassroots to stakeholders involved in official peace negotiations, without overloading participants with information frameworks that kill their ability to creatively engage with locally driven solutions to conflict. Such systems can use their footprint to serve ODR solutions to entire villages, districts and provinces – creating links within and between them, along with links to international ODR experts and mechanisms. It is evident therefore that the argument for new iterations of ODR systems for Asia goes far beyond a mere technical or design issues and is deeply linked to conflict sensitive approaches to the creation of such systems in contexts of nascent peace processes or protracted ethno-political conflict.

An Asian perspective for ODR involved systems for peacebuilding and conflict transformation involves a number of salient challenges that must be met.

1.

Systems architecture geared for Asian conditions Given that ODR systems in Asia need to work with technologies that it has hitherto excluded (like mobile telephony and community internet radio), a period of experimentation and a blossoming of many standards, possibly incompatible with each other, will be followed by a period of consolidation and standardisation. Systems architecture in this interim period will deal with the problems and challenges associated with data exchange, input and dissemination within and between hugely disparate systems with a broad spectrum of users, writ against the tableau of diversity that colours much of Asia.

Open and sustainable standards based CSCW systems and ICT frameworks are imperative in support the long term needs of peacebuilding. Closed standards that are based on proprietary solutions, however powerful, lock in communities into frameworks that maybe sub-optimal for successful conflict transformation and at worst, may impede progress and result in the resumption of violent conflict. Open standards encourage creative mixing and matching of suitable ODR frameworks to create customised solutions that best fit specific geo-physical context and the specific issues that the process is founded upon.

2.

Legal and political context

The volatile political context that is inextricably entwined in nascent peace processes and the very nature of peacebuilding itself can undermine the processes engendered by even the best ODR systems in Asia. A lack of enabling and supportive legal frameworks can undermine the trust in ODR systems, or at worst, create the perception that such frameworks do not have the clout to ensure compliance and are a waste of time. Corrupt judiciaries, biased justice systems, cultures of sycophancy and favouritism and zero-sum politics also play a large role in determining the success or failure of ODR systems.

As such, designing ODR solutions in Asia requires an attendant knowledge of the culture of politics and its praxis. ODR system that fall prey to and concretise existing power inequities might in the long term be as ineffective as real world ADR processes that are partisan and biased. On the other hand, ODR systems that are not designed to address such local dynamics might be ineffective since they operate with the assumption of Western liberal cultures of participation, knowledge sharing and dispute resolution that are discordant in the Asia-Pacific region. Working in concert with progressive legal frameworks, ODR systems must endeavour to transform the interactions of the stakeholders on such systems to explore mutual interests that drill through ossified positions to the root causes of conflict.

3.

Resistance from communities to PC based frameworks Those who have invested millions of dollars in years of research and development for PC based ODR systems have a vested interest in the promotion of PCs as the

central component ICT frameworks for conflict transformation. However, it is not immediately evident that ODR frameworks supportive of peacebuilding need to posit PC’s in communities who oftentimes do not have the requisite knowledge or capacity to sustain the use of such equipment once donor funding dries up. It is argued that frameworks need to make use of technology already in the hands of such communities – mobile phones, internet radio etc – in the creation of systems that support and strengthen conflict transformation using existing capacities.

4.

Culture & language At present, existing ODR systems pay scant regard to the entrenched cultures of disputants or ways in which such cultures help or impede mediation processes. Ethnic conflict and other value based conflicts are under-girded by complex cultural constructs that need to be recognised in the design of ODR systems for peacebuilding. Influencing the selection of technology to the modes of service delivery, the study of culture will play a vital role in the creation of ODR systems in Asia for processes that are unique to the region – conflict transformation, peacebuilding, nation-building and resource conflicts that arise from large scale humanitarian disasters. The ability to access and benefit from ODR systems for such tasks will also rely heavily on the politics of language – systems that use English exclusively will alienate large swathes of grassroots communities who do not speak, read or write English. From simultaneous translation to multi-lingual interfaces, new generation ODR systems need to eschew monolingual approaches and design systems with the flexibility to operate in several languages seamlessly.

The vision for ODR in peacebuilding and conflict transformation using technologies such as mobile telephony is based on a confluence of what is eminently possible in countries such in Asia using existing capacities and the need to re-write the frameworks on ODR to fully deal with the challenges of new iterations of systems that are specifically designed for conflict transformation.

The authors submit that these new generation ODR systems must go beyond the mere replication of web based content for PC on mobile devices. Rather, ODR systems must treat the smaller form factor of mobile devices as an advantage, creating experiences that are designed to effectively make use of phone keypads and smaller screens, pervasive and user independent standard for data exchange between PC and non-PC devices, expert systems that intelligently manipulate information and deliver it in appropriate ways to users of the system, systems that use voice and video to facilitate virtual face-to-face (F2F) interactions and use internet radio to promote ADR mechanisms and most importantly, augment the capacity of existing ADR providers to engage with the complex socio-political issues that result from protracted conflict and peacebuilding. In creating new ODR systems for conflict transformation, the emphasis should firmly be on frameworks that hide the complexities of the technology and present users who with a human face for ODR. Such systems will engage communities rather than overwhelm them with sophisticated systems that bear little or no relation to the problems of their daily lives. Systems that are self-effacing and empower communities resolve conflicts on their own stem from a design perspective that is nourished by a recognising and acknowledging the needs of communities on the ground, as opposed to the imposition of high-end systems in a top-down approach. In doing so, the new iterations of hybrid ODR

systems envisaged in this paper are attendant to the rich texture of grassroots needs in post-conflict contexts and develop frameworks that, inter alia, address the following:

•

Defining ODR requirements and systems based on needs and priorities that have been expressed by the communities and users themselves, and not just articulated by political stakeholders or traditional power-centres;

•

Given state-of-the-art tools to ignite community aspirations and transfer appropriate skills for fostering sustainable development, while at the same time keeping in mind the fragility of socio-political relations in the context of on-going peace processes;

•

Expanding a community’s social capital through enhanced access to ODR, while eschewing the facile notion that the prevalence of PC’s itself is indicative of community empowerment;

•

Embedding

community-based

ODR

services

within

existing

economic,

governance and social structures, while at the same time creating opportunities for communities to use ODR systems to transcend regressive socio-political architectures and create new social contracts; •

Infusing enhanced capabilities for information access within & between communities, for purposes of grassroots conflict transformation;

ODR systems that don’t develop existing local capacities and instead impose architectures that are alien to target communities may well lead to new conflicts which in turn re-ignite dormant emotions, leading to a spiralling vortex of violence that runs counter to the intended goals of ODR itself. While there is no easy framework to ensure

that new iterations of ODR systems do no harm to local communities, humility in the face of local capacities and a deep commitment to the development of existing strengths can mitigate to a large degree the negative impacts of such interventions in Asia.

5. CONCLUSION

Online mediation has great potential to assist in resolving disputes. In the Asia Pacific region, it has a particular place in enabling access to justice for large populations who have little access to dispute resolution by other means.

However in order to make use of this potential, a specially developed Asia-Pacific perspective needs to be taken that recognises the distinctive patterns of technology use in the region and the particular cultural or other factors at play in each context.

Online dispute resolution has already arrived in the Asia Pacific. The challenge is to ensure that the next generation of ODR meets the challenges of a diverse, demanding and dynamic region.

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