overview

This profile looks at Alternative Dispute Resolution (ADR) schemes, legislation and issues regarding electronic commerce.

It covers -

• an introduction on this page to key issues and legislation
• Australia - Australian legal frameworks and practice
• schemes - information about offline industry and government ADR schemes in Australia
• global - international mediation schemes
• overseas - ADR in Canada, the US, NZ and other countries
• ecommerce - use of ADR in electronic commerce (B2B and B2C)
• social ADR - mediation in family and other law
• online - automated dispute resolution and expert systems developments
• studies - writing about ADR principles and mechanisms

     introduction

Several guides on this site note problems associated with electronic commerce disputes, particularly those involving activity that cuts across boders. Trans-border commercial disagreements are not new. There have been formal mechanisms for resolving such disputes since at least the 1850s, with some scholars arguing that they are discernable from the late Middle Ages onwards.

E-commerce poses particular challenges -

• whose law applies when disputants are in different jurisdictions
• are the costs of litigation (or unfamiliarity with procedures in a particular jurisdiction) a fundamental impediment to effective action by consumers in B2C disputes
• is the potential cost of litigation in some jurisdictions sufficient to deter many businesses from engaging in e-commerce with consumers in those jurisdictions
• are 'clickwrap' terms & conditions (inaccessible fine print legalese inducing site users to relinquish standard consumer protection) inherently weighted against most online consumers?

There is accordingly growing interest in online alternative/alternate dispute resolution (ADR) mechanisms that might provide timely, low-cost, transparent and accessible responses to those challenges.

This page provides an introduction to e-commerce ADR. The following pages highlight B2C and B2B proposals.

     background

As we noted above, ADR is not new to the offline and online worlds.

For many web-heads the most prominent example is the provision of dispute resolution services by the World Intellectual Property Organisation and other arbitrators as part of the ICANN Uniform Domain Name Dispute Resolution Process (UDRP) - discussed in our ICANN profile - and the auDRP for the dot-au space.

ADR generally involves mediation (parties to a dispute reach a voluntary settlement through the assistance of a skilled facilitator) or arbitration (a legally binding ruling is made by a disinterested neutral arbitrator chosen by the parties to the dispute).

Specialized rules and procedures have evolved from work by law firms and organisations such as the American Arbitration Association, Australian Alternative Dispute Resolution Centre and Australian Commercial Disputes Centre (ACDC), and the Australian National Alternative Dispute Resolution Advisory Council (NADRAC) - a body that provides advice on ADR to the Commonwealth Attorney-General

Proponents of ADR emphasise its privacy, flexibility, timeliness and (relative to many court proceedings) low cost.

Mediation involves an attempt by the parties to resolve the dispute with the aid of a neutral third party. The mediator's role is advisory. The mediator may offer suggestions but resolution of the dispute rests with the parties themselves. Many mediation proceedings are confidential.

Arbitration involves submission of a dispute to one or more impartial persons for a final and binding decision. The arbitrators may be lawyers or others with expertise in a particular field such as domain names, trademarks, computer software or the law of the sea. The parties control the range of issues to be resolved by arbitration, the scope of the relief to be awarded, and many of the procedural aspects. Arbitration is less formal than a court trial. The hearing is private. Because the parties have agreed to be bound by the arbitrator's decision, few awards are reviewed by courts.

Recourse to ADR often reflects provisions in a contract between the parties, for example highlighted in the terms and conditions agreed to by consumers buying a product or service online.

Inclusion of such provisions is recognised in most national legal codes and in proposals from the United Nations Commission on International Trade Law (UNCITRAL).

The US Federal Arbitration Act for example provides for enforcement of arbitration agreements and awards in interstate-commerce and international contracts; there's similar legislation in New Zealand and Australia.

Arbitration isn't a panacea. Not all parties to a dispute may be equal. Some may not have read the fine print (one reason why readability is an issue, online and offline) and realised that particular arbitration requirements are inappropriately onerous. IT vendor Gateway, for example, is reputed in the past to have required arbitration through the International Chamber of Commerce, with a non-refundable US$4,000 filing fee that exceeded the cost of most of its products.

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