CONFLICT RESOLUTION FRAMEwORK ANd SySTEMS 93

As described in the previous chapter, the tools used in online resolu-tion systems reach beyond mere methods and mechanisms. Hence I add here to Hörnle’s division elements that broaden dispute resolution

87 See AirHelp, chapter 3.6.

88 See private enforcement resolution systems, chapter 3.4.

89 Vilalta 2013, p. 116.

90 This term is tied to the concept of DSD, dispute system design.

91 On the distinction of tools and systems and their essential difference, see Rabi-novich-Einy & Katsh 2012, p. 40–44.

92 Lodder–Zeleznikow 2013, p.74

93 I here use a similar term than Rabinovich-Einy and Katsh. They separate ODR tools and ODR systems. see 2012, p. 40-41.

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into conflict resolution and management. The framework may be used from the user point of view or/and from an institutional perspective, but some terms take a different flavor depending on the viewpoint. It is a simplified starting point to studying costs but nonetheless neces-sary in order to proceed in determining exactly where cost-efficiency manifests itself in online processes. Rabinovich-Einy and Katsh say that online systems are more suitable and involved in conflict management whereas ADR processes are more concerned with resolving a single conflict or dispute.⁹⁴ Here I agree, since the tools presented in the pre-vious chapter are not only targeted at resolving disputes actualized, but at avoiding them altogether and at finalizing the results, enforcing them privately with technology. I will also add a mechanism of contrac-tual rules. Contraccontrac-tual rules that define the procedure and are manda-tory, can not be defined as arbitration or litigation but rather resemble an administrative procedure. The main difference between contractual adjudication and arbitration is that arbitration is regulated by law and for contractual adjudication the normative source is in the user agree-ments themselves.⁹⁵ Another is that parties have to specifically agree to use arbitration. This is not the case in contractual adjudication.⁹⁶ If contractual rules are fully automated processes, neither party is able to affect the outcome after the initial input of data, and the outcome is dependent on the used software alone. I feel that methodically, contrac-tual processes belong to adjudication. Arguments for bargaining would be defendable as well. I argue for adjudication because parties submit the outcome to an outside authority, possible also code, or rather to the rules programmed. For bargaining, an argument for freedom to choose any desired way to solve disputes, even throwing dice, could be given.

By agreeing to user agreements a party exercises this right. However

94 Rabinovich-Einy–Katsh 2012, p. 57.

95 See chapter 3.4. self-enforcement resolution systems eBay and UDRP and Schultz 2011b, p. 153

96 Cortés points out that in the UDRP process one party is bound to the process by initiating a claim and another is by originally registering the domain name and thus ac-cepting an user agreement. 2012, p.156 Also the eBay procedure actually binds only the seller by initial user agreement and the buyer has a choise and accepts the terms only when she initiates the process. see chapter 3.4.

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automated processing is not random, unless specifically desired to be, and resembles more the formal structural reasoning used when apply-ing rules of law, or any norms, to a case. Coupled with automatic en-forcement method, contractual adjudication forms very effective res-olution systems of extra-judiciary nature. I will not go further in theory but will instead return to analyzing existing online resolution systems using the framework below.

There are numerous combinations of method and mechanisms, together processes, to resolve disputes. There are also numerous ways to bine ITC tools to these processes both online and offline: ADR com-bined with assisted or structured negotiation tools, arbitration online etc. A dispute resolution system can follow a single method vertically from determination to enforcement. In a single method system, multiple mechanisms may be used to resolve the dispute. For example, following the Bargaining method, one can first use negotiation and then neutral evaluation or mediation. Many online systems include an element of avoiding dispute escalation altogether⁹⁷, while offline systems tend to start at the access phase.

97 Rule–Nagarajan 2011, p. 97, information on shipping and tracking records offered online prevent escalation of e-commerce disputes.

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Multi-tier systems are formed by incorporating multiple methods into one system. The idea is that if the first method fails to bring a solution, there is the possibility to escalate the dispute. So, if a vertical dispute resolution path does not bring about a solution, disputees may switch horizontally to another method. The graph below shows the methods of resolution with some examples of possible mechanisms to be used.

It must be noted that all mechanisms can be technologically enhanced and technology can and is used on all levels of conflict resolution.

In the next chapters I will describe and evaluate systems used online. I will focus on evaluating the costs to users in different systems and will also comment on the expenditure of processes. When using bargaining as a method, conflicts generally move from negotiation to dispute res-olution by a third neutral. Also, another design that online systems of-ten follow is a structure with negotiation (automated structured forms) first, mediation or facilitation second, and finally arbitration.⁹⁸ Here one must note that the terminology is not coherent. The term non-binding arbitration is used when expert evaluation or other similar third party

98 Lodder & Zeleznikow 2013, p. 74

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decision process is used. Factually such processes belong to mediation mechanisms. One other observation worth keeping in mind is that in B2C disputes, but also other voluntary processes, there is often a pos-sibility to start litigation even in the middle of the ADR process.⁹⁹ An-other possibility is that after an initial negotiation phase the dispute is resolved by using pre-agreed contractual rules, applied by a resolution provider or automated rules. Contractual rules refer to user agreements.

Automated rules, however, only refer to the mechanism where no hu-man decision is involved in deciding the outcome of a case or parts of it.

Automated rules may be applied using algorithms or machine learning tools and they can arguably be likened to expert evaluation processes.

An important aspect to consider in all dispute resolution is the cost of resolving the whole conflict compared to just the one dispute. From the self-representing user point of view, it might be unclear what oth-er options are available. It may also be hard to fathom that, in the end, some of the resolutions or outcomes do not bind any of the parties, and do not prevent any further litigation or other new processes. When the dispute is about a low value object, it is highly unlikely that further dis-putes ensue, but the possibility is there nonetheless.

Online conflict and dispute resolution systems termed ODR range from ones only featuring online information and guidance on how to contact offline service providers by email to those that are specifically developed automated systems with enforcement mechanism in place.

I will attempt to clarify some of the confusion on what ITC tools are ap-plied and which different methods and mechanisms are used. I have chosen a variety of currently available dispute resolution systems. They are selected for their capability to shed light on different aspects of conflict management online. I will first cover online ADR and systems with private enforcement methods, then move on to public initiatives and eJustice and finally to what I call Access Services.

99 Risto Koulu 2006, p. 178–179, in comparison to B2B dispute resolution tier clauses.

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