Law Times

PAGE 12 FOCUS April 2, 2012 • lAw Times Online dispute resolution grows up But practitioners still skeptical of mediation by e-mail BY JUDY VAN RHIJN For Law Times J ust as the fax machine changed the way lawyers went about their everyday practice of law, the use of online technology looks set to diversify the ways in which parties resolve legal disputes. While even the greatest pro- ponents of online dispute reso- lution (ODR) admit that it will never outshine face-to-face mediation, the development of best practices and procedures look set to improve the eff ective- ness of the new approaches. "In the same way that ADR CANADIAN LAW LIST 2012 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: • an up-to-date alphabetical listing of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law- related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year On subscription $149 • L88804-571-26084 One-time purchase $165 • L88804-571 • ISSN 0084-8573 Prices subject to change without notice,to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation CANADIAN LAW LIST can mean 100 diff erent things, ODR is a term used to mean many diff erent things," says Al- lan Stitt of ADR Chambers. He mentions e-video mediation, use of e-mails, and virtual mediators as some of the variations. "It's not particularly suited to any types of dispute or areas of law. It's for the situation where the lawyers and clients are in diff erent cities and it's uneconomical to fl y in." Stitt gives the example of a situation where an insurance ad- juster is in Toronto, the lawyer is in Hamilton, Ont., and the client is in Sault Ste. Marie. "If they all gathered together for a three- hour mediation, they would all lose their day. Th is way, you can log in fi ve minutes before the me- diation and go back to your desk straight aſt erwards." In the e-video system used by ADR Chambers, the parties can look at documents on the screen and even go into an online caucus with each other simply by having the mediator drag the parties into a room. "You can use Skype," says Stitt. "Th at's a public system, but it's not specifi cally designed for mediation. When people access our system, we train them how to use it. But otherwise, no special training is required." Ian Hull of Hull & Hull LLP CLL - 1/4 pg - 3X.indd 1 Reach one of the legal and business markets in 1/20/12 10:48 AM Canada! isn't so sure that this applies to other forms of ODR because communicating via e-mails and tweets can involve a lot of mis- interpretations. "I have seen it done informally very eff ectively, but you need to have some train- ing on how to pose questions and provide answers. It's the same as what happens in e-mail ex- changes between lawyers. It's easy to misread tone and what's been stated. People read quickly and we are not tonal sensitive." Hull believes a lot of it de- pends on how lawyers present their position. "We need to refi ne more and more and focus our an- swers on the recipient." Even with such care, nobody With 250,000 page views a month, canadianlawlist.com captures your market The all-new canadianlawlist.com features: — A fresh new look, designed for improved user experience — Effective new ways to reach the legal market — Gold and silver advertising packages For more information contact: Colleen Austin at 416-649-9327 or toll free at 1-800-387-5351 colleen.austin@thomsonreuters.com www.lawtimesnews.com CLL Online ad - 1/4 pg LT.indd 1 2/15/12 1:38 PM will say that online mediation is as eff ective as being in the same room, but Stitt says it's preferable to the alternatives when people can't aff ord to fl y to the same city. "It's better than having people on the phone or not doing it at all. If it was a multimillion-dollar dispute, the benefi ts of being in person would make it worth throwing the money at it. But for a lower amount of money, it's a very good alternative." Mediator and arbitrator Barry Fisher also stresses that mediation will always be a highly personal area. "Th e more you get away from face to face, the less eff ective it be- comes. ODR has its niche for small transactions over a large geograph- ical area where there's no other possible way to do it, like domain names and online shopping. Is it going to replace face-to-face me- diation? No." ADR Chambers will soon be launching what it calls ODR Chambers, a virtual mediation 'People read quickly and we are not tonal sensitive,' says Ian Hull. Unlike the virtual media- tor system in Britain that uses a chatroom, parties using ODR Chambers will communicate through e-mail. Because of this, the parties don't have to be online at the same time. "You can do it at 2 a.m. because there's no person involved, and the pricing for the service will provide that if you don't reach a deal, you don't pay," says Stitt. While the product will allow for the negotiation of other terms as long as the parties agree, the service will only be of real use if the substantive issues in the dis- pute come down to money. Currently, there's a drive from international business groups to encourage the practice of resolv- ing e-commerce disputes in the same medium that they are made. Th e United Nations Commis- sion on International Trade Law's working group on online dispute resolution has been working on draſt procedural rules for ODR since 2010 and is now calling for submissions on the principles of best practices. It is the working group's intent to create a remedy for consumers where none cur- rently exists and where traditional dispute resolution mechanisms are too costly and time-consum- ing for low-value disputes. Th e proposed procedural rules encompass dispute resolution through three successive stages: complaint handling, conciliation, and arbitration. Th e principles of best practice under consideration cover the maintenance of a ros- ter of qualifi ed and independent neutrals; a system off ering con- fi dentiality, reliability, and secu- rity; safeguards for establishing the identity of the parties; sensitivity to language and culture; and prin- ciples for enforcement and redress. "International standards are a huge challenge," says Stitt. "ODR encompasses a very large fi eld. What will probably result from this won't be too specifi c. Standards in one part of ODR mightn't make sense in another area." LT service that will allow parties to make off ers online. "Th e vir- tual mediator will tell them if their off ers overlap," says Stitt. "If they don't, you don't have a deal. If they do, the virtual media- tor chooses the midpoint of the overlap, so it will be better than each party's worst scenario." largest more than Online Print and in

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