Does Online Dispute Resolution Need Governmental Intervention? The Case for Architectures of Control and Trust

June 16, 2012

Many believe that cyberspace was born out of a world of no regulation. And many believe that the future of dispute resolution lies in the absence of the state. The general view of online dispute resolution (“ODR”) follows from these beliefs: it is a new and promising form of dispute resolution, and it takes place in cyberspace; consequently it should be left to self-regulation. It is this view that I want to challenge.
My article moves in two parts, the first descriptive, the second prescriptive. Part I provides that confidence is hardly present in the absence of control. I begin with an examination of the confidence problem ODR faces. I then propose a solution to that problem: control. The lack of control induces a lack of confidence in ODR. Control of ODR needs to be established. This entails setting in place an architecture of control of ODR in order to increase confidence. Only then will it be utilized on a large scale. Part II maintains that this control should be in the hands of the government. People will trust ODR only if the government controls it. My claim does not follow the ethical argument that only the government provides a real guarantee of certain fundamental values or that government intervention would make ODR fairer. Although I believe such an argument is true, I rather take a realist approach and argue that government intervention simply would be the best way to increase confidence in ODR. Part III finally illustrates how the government could construct an architecture of control for ODR. This shows, incidentally, from a structural perspective, how the government could regulate ODR. Before these issues are addressed, it is helpful to reflect on what ODR actually consists of: a dispute resolution process that operates mainly online. This encompasses both online versions of alternative dispute resolution (“ADR”) and cybercourts, the former being dominant. In other words, ODR relates to negotiation, mediation, arbitration, and court proceedings, whose proceedings are conducted online. Disputes submitted to ODR are mainly, but not exclusively, e-commerce business-to-consumer (“B2C”) disputes.