ODR Best Practices Outline
1. Begin with the End in Mind:
a. Objective of a Best Practices Outline that will be fleshed out after this conference and
presented for review and discussion at the next conference.
b. Who is this intended to assist?
- Not just lawyers
- Something available to anyone to reflect upon - would be the "go-to" document
- Governments, businesses, peacemaking groups, consumer organizations, AARP, NGOs, practitioners, social service agencies, family law groups, training, universities, academic entities
2. Stakeholders:
a. Identification of all stakeholders
i. Businesses
ii. Consumers - consumer groups, union
iii. Governments
iv. NGO's.
v. ODR Providers
vi. Neutrals
vii. Courts, Judges and Lawyers - tribunals
viii. Law Makers
ix. Advocacy groups
x. Victims
xi. Disempowered peoples
xii. Group of politically disenfranchised people (political groups)
xiii. International organizations
xiv. Public interest groups
xv. Providers of technology
xvii. Education - students, teachers, administration (e.g.,Peer mediation)
xviii. Religious institutions
xiv. Medical institutions
xv. Advocates, Ombudspersons, Privacy and Info Advocates
b. What are their interests and are they being addressed?
3. Proscriptive or mandatory? Do we wish to set a standard or a set of principles to form a foundation for voluntary adoption? Proscriptive --Have Model Standards -- Set driving values (the "Golden Rule" principal, incorporate into document)
4. Identification of cases that are suitable for ODR
- What is NOT suitable? Even criminal law now seen as possible. There are no "sacred cows". What about
when power imbalances exist (e.g., literacy, equal access to technology)? ODR should incorporate
principals relating to accessibility and access to justice.
5. Access to Justice Standards (natural justice?) Would "natural justice" be imposing Western values on the rest of the world? Is it universal? Must be aware about not over-legalizing ODR? What about mandating "transparency" instead? Good citizenship? (Model standard by EU - Graham Ross)
a. Natural justice includes the notion of procedural fairness and may incorporate the following guidelines:
i. A person accused of a crime, or at risk of some form of loss, should be given adequate notice
about the proceedings (including any charges).
ii. A person making a decision should declare any personal interest they may have in the
proceedings.
iii. A person who makes a decision should be unbiased and act in good faith. He therefore can not
be one of the parties in the case, or have an interest in the outcome. This is expressed in the
latin maxim, nemo judex in sua causa: "no man is permitted to be judge in his own cause".
iv. Proceedings should be conducted so they are fair to all the parties - expressed in the latin
maxim audi alteram partem: "let the other side be heard".
v. Each party to a proceeding is entitled to ask questions and contradict the evidence of the
opposing party.
vi. A decision-maker should take into account relevant considerations and extenuating
circumstances, and ignore irrelevant considerations.
vii. Justice should be seen to be done. If the community is satisfied that justice has been done,
they will continue to place their faith in the courts.
6. Minimum procedural and substantive standards
- Disclosure requirements
- Standards by which making assessments
- Balance in equal fashion by the neutral
- Procedural justice aspects - incorporate
- Base floor of procedural standards should be developed
7. Accreditation system (Trustmark?)Who being accredited - the practitioner? the technology? From whose perspective looking at accrediation - the consumer?
- Who should accredit:
- Law Society?
- Local governments?
Compliance with local jurisdiction requirements? (What about cross-jurisdictional disputes?) Rules need to be coined in a way that we can all participate.
8. Transparency and minimum basic disclosure regarding the ODR provider (Should this be the title of the
document?)(ABA Conflict of Interest - document to check)
a. Contact info – what should be disclosed?
b. Jurisdiction(s) served
c. Explanation of services offered
i. Types of services offered
ii. Rules of procedure
iii. Expected resolution, legal impact and appeal
iv. Requirements to access the service
v. Thresholds and maximums?
vi. Enforcement mechanisms - degree
vii. Costs - fees
vii. Conflict of interest (allegiances, interests; what is a conflict of interest in this area?
what of when there is no human neutral? the 4th party)
viii. Retention of data
ix. Confidentiality and security protocols
9. Technology requirements
a. Minimum technological requirements
b. Hours
c. Language(s)
d. Description of functionality
e. Security
f. Accessibility
g. Backup, retention of records, emergency
10. Training/learning required
a. Availability for users
b. Qualification for neutrals
c. Continuing training for neutrals
Useful to know whether neutral has been through training (relates to disclosure principal)
(Require disclosures re training - rather than mandating)
11. Costs
a. Disclosure of costs – who bears what
b. Recovery/award of costs
(Would already be included in an Agreement to Mediate)
12. Impartiality and Independence
a. Disclosure of relationship with organizations (contracts)
i. Statement of avoidance of involvement where a conflict may occur
b. Disclosure of referral fees, commissions etc
c. Disclosure of conflicts of interest of neutrals
d. Selection process of neutrals
e. Ethical conduct code for ODR provider and neutrals?
Should there be disclosure of involvement of ODR business methods of one party? (e.g., disclosure re recommended ODR system being used)
13. Confidentiality, Privacy and Disclosure
a. Disclosure of privacy policies
b. Use of information by ODR provider
c. Monitoring of neutrals?
d. Quality control monitoring and by whom?
e. Identification of parties (cookies etc), retention of records and disclosure
f. Reporting of decisions? Amount of information disclosed or retained and for how long?
g. Aggregation of data? Personal information retained for how long (ie google's retention of
information for 18 months)
h. Security of records -transparency a key?
i. Records retention policies -
ii. Security in place (identity theft)
iii. Safeguarding of participant info
iv. Non-retention/destruction policy of ODR provider
14. Neutrals
a. Expectations of neutrals
i. Adherence with ethical code(s)
ii. Performance expectations?
b. Qualifications?
i. Requirements for admittance as a neutral
ii. Training available?
15. Accountability
a. Decision time periods
b. Grievance procedures
c. Appeal process?
d. Accountability of the ODR provider
i. Grievance process?
ii. Publishing of stats compiled of satisfaction ratings from participants?
16. Enforcement
a. Degree to which a decision can be made legally enforceable
i. Contract?
ii. Legislative?
iii. Conventions
iv. Fraud?
b. Other potential enforcement mechanisms
17. Jurisdiction
a. Geographics
b. Choice of law
18. Others?
19. Breakout of document among groups
a. Division of document among working groups
b. Assignment of individuals to working groups
c. Time expectation to assemble document
i. Format
1. Principles and commentary?
ii. Ethical code?
What is "good behavior" from consumer perspective?
Need something overarching - consumer voting re practices.
Degree of flexibility of what we are compiling here.
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