Online Dispute Resolution
Standards of Practice
These Standards of Practice are recommended by the Advisory Committee of the
National Centre for Technology and Dispute. The Standards are based on the current
literature and research in the field of Online Dispute Resolution and are offered as
guidelines for practice across the spectrum of ODR.
The Advisory Committee recognizes that other bodies have addressed the issue of
standards for ODR practice,including:The US Federal Trade Commission,The
Canadian Working Group on Electronic Commerce and Consumers,The Australian
National Alternative Dispute Resolution Advisory Council,The Alliance for Global
Business,The Global Business Dialogue on Electronic Commerce,The Transatlantic
Consumer Dialogue,Consumers International,The European Consumers’Organisation,
The International Chamber of Commerce,and The American Bar Association. These
Standards of Practice attempt to consider all of the collected wisdom of these bodies,in
addition to the considerable experience and perspective brought to the practice of ODR
by the Fellows of the National Center for Technology and Dispute Resolution.
The Committee recognizes that Online Dispute Resolution is a wide field,anchored in
technology assisted third party intervention efforts,whether aimed at resolution,peace-
building,or conflict management. In all of these venues and efforts,technology
enhances and transforms the capacity to handle dispute and conflict functions which
require the involvement of a third party to consider matters;or in those venues where
technology based Online Dispute Resolution serves as the “fourth party.”
The Committee Members recognize and honour that Online Dispute Resolution may be
used on the entire spectrum of dispute resolution;from problem diagnosis,to promoting
bilateral communication between parties,to arbitration and court-like or court
processes. The Committee Members also recognize that Online Dispute Resolution
may be applied in a wide range of disputes;from interpersonal disputes including
consumer to consumer issues or marital separation;to interstate conflict.
The Committee Members recognize and honour that each Online Dispute Resolution
scheme will be unique in its application of technology,and dependant on the community
it serves. The Committee Members also recognize the importance of national and
international law in the performance of Online Dispute Resolution schemes. Thus,
these recommended Standards of Practice must be considered as principles,and not
necessarily as individual operational frameworks.
Proposed Principles:
Accessibility
Online Dispute Resolution systems must be accessible to system users:ODR systems
should be accessible in that they are easy to find and access,but accessible also in the
sense that they address geographical and language barriers. Insofar as it is possible,
ODR systems should strive to become media neutral in order to encourage the widest
access.
The Online Dispute Resolution technology developed must reflect an ease of use to all
system users. ODR platforms should make help content and tutorials readily available
to users,and strive to keep user interfaces as simple and intuitive as possible.
The use of technology in Online Dispute Resolution must increase parties’access to
justice. Hence,technology should neither be imposed upon those who do not have the
means to interact through technology,nor discouraged for those who could profit from
use of ODR. Online Dispute Resolution providers must take into consideration all types
of individuals and their needs. Users without Internet access or with a limited knowledge
of technology should not be discriminated against by being forced into using an
unfamiliar electronic means. But neither should the law constrain those dispute
resolution providers and parties in conflict who feel confident in using Online Dispute
Resolution systems and could then benefit from their use.
Affordability
Online Dispute Resolution Systems may be an alternative to court or person-to-person
based dispute resolution,creating cost savings by their very nature. Disputes when
resolved online should be dealt with in a reasonable time period,which reflects the
needs of the disputes at hand. In any event,disputes must be resolved as expeditious
as possible. Further,Online Dispute Resolution schemes must provide an economical
alternative to formal dispute resolution processes,and provide access to justice where
formal channels are not available,at an economic level that does not disenfranchise
potential users in developing areas or in conflict/post conflict zones.
Transparency
ODR schemes must make clear the process used in pursuit of dispute resolution or
management. Further,ODR schemes must be transparent in terms of the identities and
affiliations of the ODR providers,the identities and affiliations of the interveners and
managers of the ODR systems,and the security efforts undertaken by the ODR
provider to safeguard user data and identity.
The place where the ODR process occurs is where the ODR platform is. ODR service
providers must disclose the physical location and contact details.
Parties must always retain their right to be represented or assisted by a third party at all
stages of the procedure. However,whenever parties are legally represented they may
be asked to disclose their representation.
Fairness
ODR systems and providers must create a fair redress environment,unbiased toward
any individual participant in the process. Software algorithms must similarly be
designed to offer no systemic benefit to one party over another.
Innovation and relevance.
Online Dispute Resolution schemes must remain at the cutting edge of service delivery
and technological innovation.
Online Dispute Resolution schemes must meet the requirements of community,
institution,and legal frameworks they serve.
Online Dispute Resolution schemes should be funded,whenever this is appropriate and
possible,by public entities with the aim of enhancing trust and peace in society.
Third parties
Dispute resolution professionals shall have sufficient skills and training to fulfill their
function,but they will not need to be licensed legal practitioners. However,ODR,when
appropriate,must take measures to ensure legal experts are available for consultation
when specialized knowledge on the interpretation and application of laws and
regulations is required in the process of providing ODR services.
Information about the credentials and experience of third parties shall be made
available for the parties.
Third parties shall be independent,without any type of personal or professional
relationship with any of the parties.
ODR service providers shall incorporate procedures for saving harmless providers and
third parties who may be unbiased in a dispute or have any other causes which may
harm the fair use of ODR.
The third party,whenever this is feasible,shall not be linked to successful case
settlement or to a recommendation or decision in favour of any particular party. When
dealing with repeat players ODR service providers shall provide with a mechanism to
grant grater level of transparency and impartiality.
General
Online Dispute Resolution schemes must promote respectful online communication.
Online Dispute Resolution schemes should encourage parties,whenever appropriate,to
resolve their disputes using consensual processes,particularly when the restoration of
the social links amongst disputants is of paramount importance,such as in family
disputes. Consensual processes however should not be imposed against the will of the
parties.
Online Dispute Resolution schemes must provide for confidentiality and data security as
required by national,regional and international law. Yet,transparency should be upheld
in certain processes,particularly when parties have unequal bargaining power,in order
to install confidence in the Online Dispute Resolution Schemes.
Online Dispute Resolution schemes are encouraged educate users and the community
by providing generic information to users and stakeholders about trends and statistics.
Recommended by Advisory Committee of the National Centre for Technology and
Dispute,July 2009
Best Practices for ODR
AMERICAN BAR ASSOCIATION
TASK FORCE ON ECOMMERCE AND ADR
RECOMMENDED BEST PRACTICES
FOR ONLINE DISPUTE RESOLUTION SERVICE PROVIDERS*
TABLE OF CONTENTS
I. SCOPE AND APPROACH
II. TRANSPARENCY AND ADEQUATE MEANS OF PROVIDING INFORMATION
AND DISCLOSURE
III. MINIMUM BASIC DISCLOSURES
IV. USE OF TECHNOLOGY AND THE ONLINE ENVIRONMENT FOR DISPUTE
RESOLUTION
V. COSTS AND FUNDING
VI. IMPARTIALITY
VII. CONFIDENTIALITY,PRIVACY AND INFORMATION SECURITY
VIII. QUALIFICATIONS AND RESPONSIBILITIES OF NEUTRALS
IX. ACCOUNTABILITY FOR ODR PROVIDERS AND NEUTRALS
X. ENFORCEMENT
XI. JURISDICTION AND CHOICE OF LAW
AMERICAN BAR ASSOCIATION
TASK FORCE ON ECOMMERCE AND ADR
RECOMMENDED BEST PRACTICES
FOR ONLINE DISPUTE RESOLUTION SERVICE PROVIDERS
I. SCOPE AND APPROACH
A. Scope
These Recommended Best Practices are intended to assist:
• Organizations that provide online dispute resolution (ODR) services (ODR Providers),
concerning disputes that occur online or disputes that lend themselves to being resolved
online;
• Individuals who serve as neutrals for ODR Providers;
• Customers of those services,whether personal consumers or businesses;and
• Online merchants or marketplaces.
The term “online” refers to the use of the Internet or related communications technologies (such
as email,videoconferencing,or interaction via a website or chatroom) as the primary method of
communication during a transaction or related dispute resolution proceeding.
Actions that are taken by ODR Providers consistent with these Recommended Best Practices
may (a) take the form of codes of conduct,codes of practice,best practices statements,protocols
and similar statements;(b) be reflected in the operation of their websites and in material posted
on their websites;or both. The exact form is secondary. The primary points are that the ODR
Provider’s service is clearly and comprehensively presented to the consumer in a manner that is
consistent with the Recommended Best Practices and in fact operates in the manner presented.
These Recommended Best Practices are not intended for traditional,face-to-face dispute
resolution services,though the basic principles may apply in both online and offline
environments.
These Recommended Best Practices contain many principles that are applicable in both B2B and
B2C disputes. However,they particularly are intended to enable personal consumers to make
intelligent choices concerning ODR providers,to help give them confidence in the efficacy of
ODR and therefore in B2C commerce generally,and to encourage consumers to use ODR as a
means of obtaining resolution of their complaints.
These Recommended Best Practices are also not primarily directed to the codes of conduct,best
practices statements,and similar protocols of online merchants or marketplaces (although they
may find the Recommended Best Practices useful). Other private and governmental entities have
proposed merchant guidelines and best practices for consumer protection in the context of
electronic commerce,and this Task Force does not purport to duplicate their efforts. However,
with respect to ODR,the Task Force does believe that it is important for online merchants and
marketplaces to disclose:(1) the existence of pre-dispute ADR/ODR clauses;(2) the nature of
the online merchant’s dispute resolution process,including customer service and use of formal
ADR/ODR processes;(3) any contractual relationships with ADR/ODR Providers;and (4)
information to educate their customers about ADR/ODR methods.
B. Approach
It is not the primary goal of these Recommended Best Practices to set minimum substantive
standards. The approach taken by Recommended Best Practices is based mainly on the use of
disclosure and addresses both the adequacy of the means whereby the disclosure is given and the
subject matter of the disclosures.
It is recognized,however,that the fact of comprehensively listing and organizing the topics for
disclosure has some effect in setting substantive standards. It is also acknowledged that,when
individual ODR Providers come to the act of formulating disclosures that are readily available
publicly and easily compared with those of other ODR Providers,a natural effect of a disclosure-
based system is to press ODR Providers in the direction of setting strong substantive standards.
These effects are intended. In addition,a “Commentary” area follows each of the Sections of
these Recommended Best Practices and those Commentaries indicate,among other things,
substantive standards that are encouraged. Hence,as a practical matter,the approach in these
Recommended Best Practices is unavoidably a mixed system of recommended disclosures and
substantive practice standards.
Nevertheless,the intention is to rely mainly on disclosure. There are several reasons for this
disclosure-based approach:
1. The ODR community as a whole is quite new and has not generated a sufficient
database of information on which to base confidently extensive substantive standards
particularly applicable to ODR.
2. Different ODR Providers focus on different markets (service,product,merchant type,
geography,etc.) and a single set of substantive standards may not be appropriate in all
cases.
3. The ODR community lacks a clear business model or models for sustained profitable
operations and appears to be evolving so as to develop such models. Premature
standard setting may retard that evolution.
4. From the point of view of the Bar,a consumer’s decision to use an ODR Provider (or
to make an online purchase taking into account of availability of an ODR mechanism)
is a contract decision. A central issue in any contract decision between a vendor (the
merchant or the ODR Provider or both) and a vendee (the consumer) is whether the
vendee has sufficient information on which to make an informed and intelligent
choice. The Bar is not a consumer protection regulatory agency. Its proper concern is
more with the fairness of the various processes involved than with the
appropriateness of the substance,as might be more the proper concern of a regulatory
agency.
5. Disclosure has an important enforcement consequence in that,under US law,if a
business fails to adhere to the public disclosures that it makes concerning its services,
it may,under many circumstances,be engaged in an unfair or deceptive act or
practice in or affecting commerce under Section 5 of the Federal Trade Commission
Act (15 U.S.C. §§ 41-58,as amended). This is also the case under the consumer
protection laws of many states and non-US jurisdictions.
II. TRANSPARENCY AND ADEQUATE MEANS OF PROVIDING INFORMATION
AND DISCLOSURE
A. All information and disclosures,regardless of form,should be accurately and completely
stated,should be presented as clearly and simply as the substance permits,and should
present the most important points in an appropriately conspicuous manner.
B. All information and disclosures presented electronically should employ identifiable and
accessible formats.
C. All information and disclosures on the websites of ODR Providers not related to
individual cases should be printable and able to be downloaded electronically.
D. If the ODR Provider handles a substantial number of B2C disputes,regular periodic
statistical reports should be published online that permit a meaningful evaluation of the
proceedings and that respect the confidentiality of the participants and the individual
proceedings.
E. With respect to other disputes,particularly those resolved by arbitration,participants
should be encouraged to allow the decisions to be published with any confidential or
propriety information deleted.
COMMENTARY:ODR Providers are encouraged to use tables,charts,graphs and similar
formats that facilitate analysis and comparisons by consumers. These summary reports should
include,e.g.,(a) number of cases received,resolved,and pending;(b) the number of cases
resolved in favor of the business;(c) the number of cases resolved in favor of the consumer;(d)
average length of time the proceeding was pending;and (e) average costs,if any,to consumers.
It is understood that ODR Providers’ existing case management systems may not be capable of
generating detailed statistical data,and that it may be costly to develop such systems. This
Recommendation therefore is prospective in nature,and recognizes the financial and practical
concerns involved. It is recommended that until new systems are developed,ODR Providers
publish reports that,at a minimum,relate (1) the number of total cases;(2) the number of cases
resolved in favor of the business;and (3) the number of cases resolved in favor of the consumer.
With respect to Section II D,an annual report is suggested as a minimum. However,quarterly or
semi-annual reports followed by a consolidated annual report are encouraged.
III. MINIMUM BASIC DISCLOSURES
ODR Providers should disclose the following minimum level of information:
A. Contact and organizational information. This includes:
1. A mailing address,including physical location,not just a post office box number;
2. E-mail address,and
3. Jurisdiction of incorporation or registration to do business.
B. Terms and conditions and disclaimers;
C. Explanation of services/ADR processes provided
1. Description of the types of services/processes provided (e.g.,mediation,arbitration,
early neutral evaluation,blind bidding);
2. Published rules of procedure for all services/processes provided;
3. Nature of the outcome of each service/process and its legal consequences (e.g.,
whether binding or non-binding on each party),and an explanation of further possible
avenues of action (e.g.,appeal);and
4. If the ODR Provider or an individual neutral is engaged in legal services such as
client counseling and advocacy,or is affiliated with a law firm or other organization
that provides such services,identify the methods employed to separate neutral
services and legal services to avoid conflicts of interest
D. Affirmation that the ODR proceeding will meet basic standards of due process,including
(1) adequate notice to the parties;(2) an opportunity for the parties to be heard;(3) the
right to be represented or to consult legal counsel at any stage of the proceeding;and (4)
in an arbitration,an objective decision based on the information of record.
E. Any prerequisites for accessing the service,such as membership,or geographic location
such as residency in a particular country or state.
F. Any minimum value for the dispute to be submitted to the ODR provider for resolution.
COMMENTARY:This Section is intended to set forth the basic minimum level of information
without which it would be difficult for a consumer to make a reasonable decision to participate in
the service offered by the ODR Provider. Each of the remaining Sections is intended to present
the additional information that ODR Providers should,in the view of the Task Force,make
available as a matter of best practice.
Among the intended principal effects of the procedures that are disclosed are the following:All
disputants should be given a reasonable and fair opportunity to be heard. The ODR proceedings
should be perceived as treating all parties at least as equitably and fairly as a formal government
administrative or legal procedure. Published rules of procedure should clearly ensure that all
parties’ rights are protected. There should be no unreasonable barriers to access,including
unreasonable costs,geographic,linguistic or other barriers. In this regard,ODR Providers should
look to existing offline protocols for guidance (e.g.,AAA Consumer Due Process Protocol,ABA
Managed Care Protocol,or industry associations,etc.) With respect to Section III A,the listed
contact and organizational information is often lacking either entirely or partially,on ODR
Provider websites. This puts the consumer in the unacceptable position of not knowing exactly
who the party is with which the consumer is contracting.
IV. USE OF TECHNOLOGY AND THE ONLINE ENVIRONMENT FOR DISPUTE
RESOLUTION
ODR Providers should disclose:
A. Specific Disclosures Regarding Current Technology
1. Systems requirements (hardware and software) for using the ODR Provider’s service
2. Any limitations on accessibility to ODR systems,such as hours of operation or
specific methods of access.
3. If they employ systems that accommodate the disputants’ differences in language and
culture and,if so,what these are and how they function.
4. Any specific electronic techniques offered to enhance the efficacy of ODR and,if so,
what these are and how they function.
5. If they provide techniques for accessibility to persons with disabilities or with low
levels of literacy,and,if so,what these are and how they function.
6. If they employ security to ensure the identity of the participants and to preserve
confidentiality and privacy of the participants and,if so,what they are and how they
function.
7. If they have back up and arrangements for alternative emergency access.
B. Specific Disclosures Regarding Training in Use of Online Systems
ODR Providers should disclose:
1. If they educate potential participants in online procedures to help assure access to all
users,and if so,by what means (such as through provision of instructions,tutorials,
help files,and support personnel via email or telephone.)
2. If they provide training in the use of the ODR system to neutrals
3. If they provide training in adapting the neutrals’ skills to the online environment
(such as training to help overcome the challenges of communicating without face-to-
face meetings.)
COMMENTARY:Section IV addresses the current technological practices of the ODR Provider.
However,ODR Providers are encouraged to disclose their policies and plans for encouraging and
incorporating new technological advances into their ODR processes.
The technological area is one in which context sensitive help files and tutorial can be the most
effective mean of providing meaningful information and disclosure to consumers. The use of
such techniques is encouraged.
V. COSTS AND FUNDING
ODR Providers should disclose:
A. All costs of the process,what portion of the cost each party will bear,and the terms of
payment.
B. In B2C disputes,if there is no cost to the consumer,or if the costs are subsidized,the
source of the funding.
C. In B2B disputes,if the costs will not be borne equally by the parties,explain the
distribution.
COMMENTARY:Costs of an ODR process should not be so high as to foreclose the
opportunity to resolve a dispute;cost should be commensurate with the value of the dispute,
while taking into account the need to avoid frivolous claims. Investment in and costs of operating
the ODR service,as well as a reasonable profit,also should be considered in setting the costs of
the dispute.
VI. IMPARTIALITY
ODR Providers must disclose all matters that might raise a reasonable question about the
impartiality of the ODR Provider or its neutral(s). Specifically ODR Providers should disclose
the following:
A. Relationship to others concerning providing ODR services
1. If the ODR Provider provides ODR services under a contractual relationship with
other organizations,such as merchants,trade associations,etc.
2. If the ODR Provider provides any referral compensation (referral fees,rebates,
commissions,etc.),and if so:
a) to whom it is paid,and
b) the amount of the compensation or the basis for calculating the amount of the
compensation.
3. An ODR Provider shall take reasonable steps to cause its Neutrals to disclose whether
the Neutral or a person closely affiliated with the Neutral (e.g. spouse,relative,or
business partner,etc.) has any conflicts of interest,including but not limited to:
a) Any direct personal,business,professional or financial relationship with a party
or its representative;
b) Any direct or indirect interest in the subject matter or outcome of the dispute,
including contingent fee arrangements;and
c) Any personal knowledge that the ODR Provider or Neutral has of facts relevant to
the dispute.
B. Selection process of neutrals
1. How individuals are selected to become part of the panel of neutrals eligible to handle
disputes.
2. How a particular neutral is selected to handle a particular dispute.
3. The process by which neutrals are required to certify that they have no conflicts of
interest and have disclosed all matters that reasonably might affect impartiality with
respect to a particular dispute.
4. Procedures for disqualification of a neutral for cause.
C. Ethical standards for neutrals
1. Identify and/or link to the ethical rules by which the neutrals are bound.
COMMENTARY:Impartiality of ODR Providers:This section suggests that an ODR Provider
should disclose the existence of contractual relationships to provide ODR services on a
continuing or repetitive basis to or involving a particular organization. For example,if a
merchant contracted with and pays an ODR Provider to arbitrate disputes between the merchant
and its customers,that relationship should be disclosed so customers are aware of it. This
Recommended Best Practice does not suggest that an ODR Provider must disclose every party to
whom it previously has provided ODR services,training programs,etc.,which would be overly
burdensome and perhaps contrary to the confidential nature of ADR. Further,this Recommended
Best Practice is intended to be prospective if for financial and practical concerns it is not possible
to capture and disclose information about existing contractual relationships. ODR Providers
should use their best efforts to apply this Recommended Best Practice retrospectively,where
feasible.
Impartiality of Neutrals:This section affirms as a substantive standard that all neutrals
must act impartially and must disclose any conflicts of interest. It is understood that even if an
ODR Provider has a contractual relationship to provide ODR services on a continuing or
repetitive basis to a particular organization,the neutrals assigned to individual disputes arising
under this contractual relationship will be bound by the same substantive standard to act
impartially and disclose any conflicts of interest. If the neutrals are bound by a published set of
ethical rules,ODR Providers are encouraged to post the full text of such rules,or at a minimum
include a link to a page where the full text is posted. If the parties wish to know more about the
selection process of a neutral in general or for a particular matter,that information should be
available.
VII. CONFIDENTIALITY,PRIVACY AND INFORMATION SECURITY
ODR Providers should be prohibited from disclosing any personally identifiable information
without the party’s affirmative consent. ODR Providers should disclose:
A. Confidentiality Policies Concerning Information About Participants Provided to the ODR
Provider
1. Their general privacy policies.
2. If they are members of any Privacy Seal or Privacy Trustmark program(s) and if so,
provide a link to the program.
3. If customer information may be released by the ODR provider,and the circumstances
under which that information may be released.
4. If any ODR proceedings being conducted by the neutrals are monitored by the ODR
Provider,and under what circumstances.
5. If the ODR Provider reviews customer information as part of a quality control
process,and who conducts the review.
6. If the ODR Provider’s website uses technological means to identify the participant
and/or track the participant’s online behavior (e.g.,session cookies,persistent
cookies,web-bugs,clear gifs,and the like),and whether the ODR Providers provides
an opt-out opportunity.
B. Confidentiality Concerning Specific Proceedings
1. The scope of confidentiality accorded to the ODR proceedings,including mediated
settlement agreements and arbitration decisions,and the basis for protection from
disclosure.
2. If arbitration decisions will be published,the manner and location of publication,and
any limitations on accessibility (e.g.,subscriber-only access).
3. If aggregate data without personally identifying information will be released.
C. Confidentiality Concerning Both Participants and Proceedings
1. Records retention/disposition policy,particularly concerning retention of information
concerning individual participants,as well as records related to specific proceedings.
2. What forms of security for all online processes,particularly from theft or disclosure
of information provided by participants and information or documents related to
specific proceedings.
3. What kinds of security mechanisms have been put in place to safeguard participant
information.
COMMENTARY:ODR users frequently question the privacy commitments of ODR Providers
prior to engaging in the ODR process. ODR Providers are encouraged to identify the laws,
regulations,standards and/or guidelines regarding privacy (data protection) and information
security applicable to them or to which they voluntarily adhere. Examples of such standards or
guidelines are those of TRUSTe and BBBOnline. Examples of privacy (data protection) laws are
the Gramm-Leach-Bliley Act in the United States,the Personal Information Protection and
Electronic Documents Act (PIPEDA) in Canada,and the laws of the various Member States of
the European Union resulting from the transposition into national law of Directive 95/46/EC of
the European Parliament and of the Council of 24 October 1995 on the protection of individuals
with regard to the processing of personal data. ODR Providers should consider that (1) privacy
laws often contain information security requirements;(2) privacy and information security
requirements may also stem from consumer protection and telecommunications laws;and (3)
strong requirements in these areas may derive from sub-national laws,such as state or provincial
laws.
With respect to Section VII C,ODR Providers are encouraged to state specifically whether they
employ SSL or SET protocols,a Virtual Private Network,or other means to protect data in
transmission,whether they employ a fire-wall and anti-virus software,and what back-up
practices and other technological and non-technological means of providing information security
they employ.]
VIII. QUALIFICATIONS AND RESPONSIBILITIES OF NEUTRALS
A. Responsibilities. Neutrals shall:
1. Disclose all conflicts of interest and act with impartiality and independence;
2. Adhere to applicable ethical guidelines of their jurisdiction and any other guidelines
specified by the ODR Provider;
3. Act promptly and manage the dispute effectively;and
4. Maintain communication with the parties.
B. Qualifications. ODR Providers should disclose:
1. The minimum qualifications required for inclusion on the ODR Provider’s panel of
neutrals,such as education level,lawyer/non-lawyer,prior ADR experience and the
like.
2. The qualifications (including ADR training,degrees or certificates,level of
experience,and areas of expertise) of individual neutrals.
3. If the ODR Provider provides additional training for neutrals,and the type of training
provided.
4. If they require that their neutrals have had training specifically with respect to use of
the online medium (and how it differs from traditional face-to-face ADR) and the
technology used by that ODR Provider.
COMMENTARY:With respect to Section VIII A,possible sources of disclosure standards
regarding conflicts of interest are the American Bar Association,the American Arbitration
Association,the CPR/Georgetown Legal Ethics Commission,the Association for Conflict
Resolution (ACR (formerly SPIDR,AFM and CREnet)),and the International Bar Association
Ethics for International Arbitrators.
IX. ACCOUNTABILITY FOR ODR PROVIDERS AND NEUTRALS
ODR Providers should disclose:
A. Accountability for Neutrals
1. What steps they take to require neutrals to fulfill their responsibilities promptly,
maintain communication with the parties,and comply with the stated ethical
guidelines.
2. If they provide a process to allow participants to file complaints for neutrals’ failure
to comply with the above requirements.
3. If they provide an appeals process for arbitral decisions rendered by the neutrals.
B. Accountability for ODR Providers
1. If they comply with published guidelines,such as the guidelines of relevant
trustmarks,and the full text of (or link to) of any such guidelines or trustmark
requirements.
2. If they provide a process for participants to file complaints concerning the ODR
services rendered,both with the ODR Provider itself,and with any relevant external
organizations (such as trustmark providers).
3. If compiled,provide the percent of cases in which the parties are satisfied with the
process.
COMMENTARY:ODR Providers should display all relevant trustmarks.
X. ENFORCEMENT
ODR Providers should disclose:
A. If they provide any assistance in enforcing any agreement,award or decision reached or
rendered through an ODR process.
B. Whether they cooperate with law enforcement officials so instances of fraud can be
detected and prosecuted.
COMMENTARY:With respect to X.A.,some ODR Providers may determine that enforcement
is best left to the parties and courts. Other ODR Providers may determine that it is in their best
interest to have their awards enforced,and therefore may choose to provide assistance in a
manner that does not affect the ODR Provider’s neutrality. For example,at the request of the
prevailing party,an ODR Provider may provide certified copies of awards and other documents
for use in seeking enforcement before a national court. Further,some ODR Providers may agree
to send a reminder letter to a party that has not complied voluntarily with an award. But if an
ODR Provider renders assistance,the type and extent of that assistance should be disclosed,and
any related costs.
As part of their periodic disclosure ODR Providers are encouraged to provide statistical
information regarding the experience participants have had in enforcing prior decisions rendered
by the ODR Provider.
XI. JURISDICTION AND CHOICE OF LAW
ODR Providers should disclose the jurisdiction where complaints against the ODR Provider can
be brought,and any relevant jurisdictional limitations.
* Disclaimer:
The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of the American Bar Association,the Section of Business Law,the Section of Dispute Resolution,the Section of International Law and Practice,the Litigation Section,or the Section of Intellectual Property Law unless adopted pursuant to the bylaws of the Association. Nothing contained herein is to be considered as the rendering of legal advice for specific cases and readers are responsible for obtaining advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only.