5.4 Online dispute resolution (ODR) has grown significantly in the past decade in Australia and overseas.195 ODR is ‘dispute resolution processes [that are]
conducted with the assistance of information and communications technology, particularly the Internet’.196
5.5 Internet access to Australian households increased to more than 73 per cent in 2010 and 2011.197 Internet access tends to be higher in households with children. Comprehensive recent research on internet usage in Australia shows that, despite rapid growth in internet use in the Australian community, there are still some minority groups within the community who have limited or no access to this technology. These groups include homemakers, older people, people with less education and lower-income individuals.198 Also, families in rural households are less likely to have internet usage than those living in capital cities (81.8 per cent outside capital cities compared to 89.6 per cent living in capital cities).199
195 T. Sourdin and C. Liyanage, ‘The Promise and Reality of Online Dispute Resolution in Australia’ in Wahab, Katsh and Rainey (eds), Online Dispute Resolution: Theory and Practice — A Treatise in Technology and Dispute Resolution (Eleven International Publishing, The Hague, 2011), 457.
196 M. Conley Tyler and M. McPherson, ‘Online Dispute Resolution and Family Disputes’ (2006) 12 Journal of Family Studies 1 at 5.
197 See
http://www.abs.gov.au/ausstats/[email protected]/Latestproducts/8146.0Media%20Release12010-11?opendocument&tabname=Summary&prodno=8146.0&issue=2010-11&num=&view=
(accessed 12 September 2013).
198 S. Ewing and J. Thomas, CCi Digital Futures 2012: The Internet in Australia (Administrative Review Council [ARC] Centre for Excellence for Creative Industries and Innovation, 2012), v, available at http://apo.org.au/research/cci-digital-futures-2012-internet-australia (accessed 23 September 2013).
199 S. Ewing and J. Thomas, CCi Digital Futures 2012: The Internet in Australia (ARC Centre for Excellence for Creative Industries and Innovation, 2012), 3, available at
http://apo.org.au/research/cci-digital-futures-2012-internet-australia (accessed 23 September 2013).
Chapter Five – Technology and Timely Dispute Resolution 69 5.6 Many commentators suggest that ODR has the potential to reduce delay and
broaden the range and reach of existing dispute resolution services:
Compared to the costs of litigation or even prolonged alternative dispute resolution, the investment in online technologies is potentially both value adding and cost saving.200
5.7 Online options can include those that replicate face-to-face interactions in online settings (discussed further below) or may include new technologies that provide negotiation support, indicative outcome information and advice.
Bellucci, Macfarlane and Zeleznikow suggest that, in the Australian context,
‘computers can help negotiation by providing quick and easily accessible decision support’.201 In this way, technology can play an increasing role in some forms of dispute resolution (particularly in the family area) and support faster negotiations and dispute resolution with the development of online negotiation support systems:202
Many negotiation support systems such as AdjustedWinner, Smartsettle and FamilyWinner use bargaining and game theory to provide win-win solutions to participants in disputes. Adjusted Winner and SmartSettle can be used to provide negotiation advice, whereas Split-Up, Family-Winner and Asset Divider … focus upon decision support for negotiation.203
5.8 In Australia, the area of family law has seen widespread growth in the application of ODR in the telephone and internet-based conferencing technologies. In discussing the statistical trends of this growth, Bilinsky notes that:
… most family/divorce/access/support issues take place in families where the age of the parties are often under 35. This demographic group is familiar with technology as well as having access to technology.
Given the large geographic challenges faced in Australia, this factor alone is driving the use of this system.204
5.9 In the family area, many disputes are now dealt with through the Family Relationship Advisory Line (FRAL), Telephone and Online Dispute Resolution Service (TDRS) and increasingly across Australia through video conferencing (Skype or purpose built). These options are particularly suited to disputants who may be geographically isolated from services or one another and also in circumstances where family violence may be an issue. Some issues about the
200 E. Bellucci, D. Macfarlane and J. Zeleznikow, ‘How Information Technology Can Support Family Law and Mediation’ in W. Abramowicz, R. Tolksdorf and K.Węcel (eds), Business Information Systems 2010 Workshops (Springer-Verlag, Berlin, 2010), pp. 243, 252.
201 E. Bellucci, D. Macfarlane and J. Zeleznikow, ‘How Information Technology Can Support Family Law and Mediation’ in W. Abramowicz, R. Tolksdorf and K. Węcel (eds), Business Information Systems 2010 Workshops (Springer-Verlag, Berlin, 2010), pp. 243, 243.
202 T. Sourdin, Alternative Dispute Resolution (4th ed, Thomson Reuters, Sydney, 2012).
203 E. Wilson-Evered, D. Macfarlane, J. Zeleznikow and M. Thomson, ‘Towards an Online Family Dispute Resolution Service in Australia’ (Paper, 9th Forum on New Technologies of
Information and Communication Applied to Conflict, Buenos Aires, 2–3 June 2010,), 4–5, available at http://www.odrandconsumers2010.org/wp-content/uploads/2010/06/3.2-Wilson_Towards_Online-1.pdf (accessed 12 September 2013).
204 D. Bilinsky, Report from the ODR Conference in Buenos Aires (ODR and Consumers 2010, 3 June 2010), available at http://www.odrandconsumers2010.org/2010/06/03/report-from-the-odr-conference-in-buenos-aires (accessed 18 September 2011).
70 Chapter Five – Technology and Timely Dispute Resolution
increased use of technology include concerns about privacy, confidentiality, ease of use and the impact of reduced face-to-face interaction.
5.10 The most comprehensive and recent study of the use of technology in the Family Dispute Resolution (FDR) area was undertaken by Relationships Australia in 2011, which evaluated an Online FDR (OFDR) project funded by the
Commonwealth AGD.205 In the context of timeliness, it was noted that these processes were expected to be and often were faster:
As evidenced by respondent comments, clients may hold particular expectations of online services—of note, themes relating to speed of service and convenience emerged from the data.206
5.11 The Relationships Australia report found that there were very high rates of satisfaction with the OFDR services that were set up as part of the project in Queensland. Their research suggests that many factors support the use of effective OFDR. The factors include:
• the type of technology – the ease of use, reliability, accessibility and staff assistance (help desk and like supports);
• the skills and experience of staff; and
• the training given to staff. 207
5.12 Other technology that supports disputants in this area includes ‘supportive service technology’, such as that offered by Anglicare in Tasmania where e-counselling is provided to clients in the remote north-west of that state.208 Real-time counselling is provided online using software developed by that
organisation. Partnerships have been developed with local community organisations that allow clients to use their computer facilities for counselling sessions.209
5.13 There are numerous examples of dispute resolution that are conducted completely online in the consumer sector. One of the largest commercial operators in this area is Modria.210 These systems that mainly deal with consumer disputes and specialise in large-scale operations and Modria have dealt with more than 400,000 disputes. The eBay and PayPal online systems
205 Relationships Australia, Development and Evaluation of On Line Family Dispute Resolution Capabilities (Relationships Australia, 2011).
206 Relationships Australia, Development and Evaluation of On Line Family Dispute Resolution Capabilities (Relationships Australia, 2011), 147.
207 Relationships Australia, Development and Evaluation of On Line Family Dispute Resolution Capabilities (Relationships Australia, 2011), 150–187.
208 H. Brookes and T. Smith, ‘Servicing rural and remote communities through e-counselling’
(2010) 16 Family Relationships Quarterly: The Newsletter Of The Australian Family Relationships Clearinghouse 14, available at
http://www.aifs.gov.au/afrc/pubs/newsletter/frq016/index.html (accessed 23 September 2013).
209 H. Brookes and T. Smith, ‘Servicing rural and remote communities through e-counselling’
(2010) 16 Family Relationships Quarterly: The Newsletter Of The Australian Family Relationships Clearinghouse 14 at 15–16, available at
http://www.aifs.gov.au/afrc/pubs/newsletter/frq016/index.html (accessed 23 September 2013).
210 See https://www.modria.com/ (accessed 12 September 2013).
Chapter Five – Technology and Timely Dispute Resolution 71 deal with approximately 60 million matters per year.211 These systems are expanding rapidly, particularly in Europe, following the establishment of the EU ODR regulation, which will become fully operational in 2015. This extensive system has already been set up in some European countries and deals with consumer disputes.212 In areas beyond consumer dispute resolution, there has been less growth in fully online options.
5.14 There is some growing convergence between these online systems and court and tribunal systems outside Australia. For example, in British Columbia in Canada, a new Civil Dispute Tribunal is intended to operate using an online platform so that disputants will make initial contact and commence
proceedings through an online format.213 It is intended that processes used by the Tribunal will be mainly online, at least initially.214 Online-supported negotiation and supported online dispute resolution are features of the system, together with adjudication, with most cases decided ‘… on evidence and arguments submitted through the tribunal’s online tools. However, when necessary, the adjudicator will have discretion to conduct a telephone or video hearing’.215
5.15 In Ireland, the Northern Ireland Courts and Tribunal Service now offers an online process in respect of small claims. A specialised Civil Processing Centre operates according to time-based and other rules to make orders, although final adjudication remains a face-to-face option.216
5.16 Those within the litigation system have noted that technology changes have the potential to dramatically transform the way in which dispute resolution is carried out.217 Within the court system, e-callovers,218 e-filing,219 video conferencing and applications220 are now commonplace in many jurisdictions.
Technology courts, virtual courts or cyber courts now exist in many
211 See https://www.modria.com/ (accessed 12 September 2013).
212 See a discussion of these developments at
http://www.infolaw.co.uk/newsletter/2013/01/online-dispute-resolution/ (accessed 12 September 2013).
213 http://www.ag.gov.bc.ca/legislation/civil-resolution-tribunal-act/ (accessed 12 September 2013).
217 Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation.
Technology – What it Means for Federal Dispute Resolution, Issues Paper 23 (ALRC, Canberra, 1998), available at
http://www.austlii.edu.au/au/other/alrc/publications/issues/23/ALRCIP23.html (accessed 23 September 2013).
218 For example, New South Wales Land and Environment Court.
219 For example, Federal Court of Australia.
220 Bail applications are commonly carried out by video in the Supreme Court of New South Wales.
72 Chapter Five – Technology and Timely Dispute Resolution
jurisdictions,221 and the presence of such initiatives may produce more participatory court processes as well as better communication and document management. Other changes have occurred in the handling, collation and storage of information and in the way that research occurs. The information available online increases access to court systems and can assist parties to observe and understand what takes place within the court system.
5.17 While many technology and virtual courts do not necessarily support online and alternative dispute resolution (ADR) processes, some do. Some envision that this will become an increasingly important way to deliver ADR services to the community. The Federal Court of Australia, for example, developed the eCourt forum as early as 2001,222 which has now been extended to include an online courtroom that is integrated with an eLodgment system. 223
5.18 The eCourt forum ‘is a virtual courtroom that assists in interlocutory matters and allows for directions and other orders to be made online’.224 The eCourt forum can also be used in mediation, to assist with case management and includes messaging and other services. The eCourt enables updated online conversations to take place, and protocols have been developed to assist users and the court.
5.19 These newer technologies can reduce delay by supporting earlier resolution and also by supporting the faster exchange of documentation and more rapid communication. For example, the RedCrest system that is in use in the Supreme Court of Victoria TEC list (see Chapter 5) means that documents can be
exchanged, worked on collaboratively and service requirements can be dispensed with under certain circumstances. Many technologies also support negotiation and are oriented towards providing information, which can mean that unnecessary delays (due to confusion or a lack of information) are reduced.