Race with the Machine: A Review of Online Dispute Resolution by Colm Brannigan and Marc Bhalla

  • April 12, 2024
  • Matthew Gordon

In 2022’s Online Dispute Resolution, Colm Brannigan and Marc Bhalla detail their definitions of, contributions to, and issues in the growing field of online dispute resolution (ODR). Throughout, they emphasize that ODR is a procedural, rather than a substantive distinction; while subject matters such as e-commerce and domain name disputes lend themselves to ODR, ODR can be used to resolve just about any dispute. The most concise definition comes during the book’s introduction and conclusion: “At its most basic, ODR is the application of technology to ADR [Alternative Dispute Resolution]”. (25, 262)* This covers arbitration, mediation, med-arb, and any other non-trial dispute resolution method.

The advantages of ODR are numerous and, as Brannigan and Bhalla rightly point out, plainly evident since the suspension of most in-person court proceedings in March 2020. Electronic data storage and retrieval, for example, means parties to disputes with extensive documentary evidence can pinpoint within that evidence during an arbitration or mediation without having to carry around thousands of sheets of paper. (114) Asynchronous methods like email give parties time to reflect and allow for explanation of their positions. (114) Transportation costs, which rank surprisingly highly in barriers to in-person dispute resolution, are eliminated entirely. (67)

Drawbacks include the comparative lack of co-presence, in which the parties are in the same room, experiencing the same surroundings. (122) In my experience attending mediations as an advocate, and in shadowing mediators, the room itself added character. The loss of this physical room creates a distance between the parties even when they can see, hear, and converse with each other on a videoconference. (122) This “depersonalized form of communication with decreased awareness of others” (124) may be a non-factor in one-off disputes, but may inhibit the sort of relationship-building behaviour that can help repeat-player parties such as divorced ex-spouses or business partners. Further, burned-bridge bias may cause parties communicating textually to be more aggressive or confrontational than they would during an in-person conversation, such as in making offers containing unreasonable deadlines. (132) This last issue is one that should be addressed by either in-person or virtual conversation.

ODR is still a very human process. Despite the book’s postulations about the existence of robot mediators, arbitrators, or judges, (170, 262) the current era of ODR is showing no tendency toward an ADR vending machine. In my own experience during video negotiations and video judicial pretrial, the setting was very different but everyone’s role in the proceeding was the same. While I applaud Bhalla’s creativity in comparing future ODR capabilities to the technologically enhanced strike zone in Major League Baseball, (269) the strike zone itself is a bright line analogous to a police officer’s radar gun. Whether the batter truly swung may be an issue of judgment, but the location of the strike zone is not.

Who sets the standards of an adequate proceeding when technology is the driver of how justice is heard and dispensed? Branigan asserts that “With well drafted rules, an adequate technological setup and good people[,] due process can be achieved online.” (228) This sentiment hearkens back to the inherent flexibility in ADR. The extensive chapter on self-represented litigants discusses unique challenges in ODR, notably the negative emotions self-represented litigants experience when they feel a power imbalance against them or as though they are not being heard. (200) It is up to the neutral, any advocate present, and the technology itself to assure a self-represented litigant that the ODR process is just as fair as an in-person proceeding.

All the way back in 2000, the authors pointed out that a greater incidence of online transactions would lead to a high volume of low-level transactions that do not justify the high transaction costs of administrative tribunals and especially of the courts. (50-51) While it is simple enough on its face to include a choice of forum clause in an online contract, there can be public policy concerns when foreign corporations engage in complex consumer contracts with Canadians. The most notable example is Douez v Facebook, Inc, 2017 SCC 33, in which British Columbian Facebook users claimed that Facebook violated their privacy rights under BC’s Privacy Act. The Court held that despite the choice of forum clause in favour of California, the grossly unequal bargaining power and the quasi-constitutional nature of the privacy claims militated toward hearing the dispute in BC. Douez demonstrates that the rise of international online transactions affects all of us.

The vast difference between the way online disputes were viewed during the early lectures of 2000 and 2003, and the way they are viewed now, cannot be understated. For example, the authors note that some litigants may be uncomfortable using email due to security concerns, (118) and similarly that people may simply prefer ordering a pizza over the phone than online. (34) Most people in 2024 would quickly note that even their most personal details are frequently shared via email, and that online ordering is far more secure than telling a call centre employee one’s credit card number over the phone.

The early lectures and the summary of Brannigan’s research of twenty years ago have archival interest but are not directly applicable to legal practice today. Forewords for these chapters that tie them into the surrounding chapters would tell more of a story of how ODR came to be so prevalent, which would help the reader understand their importance. Especially when the timing of the lectures and essays went forward and then backward, in a dispute resolution textbook version of Memento,** interstitial 1-2 page editorial notes explaining why the pieces were arranged as they were would be very helpful.

Lastly, a topic such as ODR could benefit from some common lecture aids similar to the ones I use in my lectures on negotiation: diagrams, flowcharts and infographics. At times, I felt barraged by text, which, ironically, online media are uniquely well suited to break up with more hands-on learning tools. These could inform a field guide for the arbitrator, mediator, lawyer, or litigant who decides to resolve a dispute online.

All in all, an interesting look into where we came from and where we are now. The book’s subtitle, Yesterday. Today. Tomorrow., reminds us that the use of technology to resolve disputes has only just begun.

*When I use page citations that are only numbers, I refer to Online Dispute Resolution, First Edition.

**Given the book’s references to movies like Back to the Future, and the earliest lecture in the book being from 2000, mentioning this movie felt almost mandatory.

About the author

Matthew Gordon is a Toronto-based litigator with experience resolving civil, administrative, labour, employment and constitutional disputes. He is the sitting Chair of the Ontario Bar Association’s Alternative Dispute Resolution Section.

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.