Is Online Mediation the Way to Fit the Forum to the Fuss?
| Date | 01 December 2012 |
| Author | Ettore Maria Lombardi |
| DOI | 10.1177/1023263X1201900404 |
| Published date | 01 December 2012 |
| Subject Matter | Article |
524 19 MJ 4 (2012)
IS ONLINE MEDIATION THE WAY
TO FIT THE FORUM TO THE FUSS?
E M L*
ABSTRACT
Traditional mediation is conducted in person with all a ected par ties at a physical ‘table’
with a session is orchestrated by the mediator with the par ties and their representatives,
o en utilizing both joint and caucus sessions. Techniques as subtle as non-verbal cues,
and techniques as overt as removing one party from the mediation room can be u sed.
Online dispute resolution (ODR) takes place in ‘cyberspace’, describe d by the US Supreme
Court as the virtual world ‘located in no particular geographic location but available to
anyone, anywhere in the world, with acce ss to the Internet’ (Reno v. Aclu, 521 U.S. 844,
849 (1997).
ODR di ers from traditional mediation in at least three ways relating to th e formation
and resolution of disputes. It represents a virtual community which deconstr ucts time,
space, and the physical. Because it eliminates and changes boundar ies it is important
to rethink the traditional paradigms for resolving con ict and create opportunities for
design of an interest-based di spute resolution model for the internet. is article disc usses
the di erences between traditional mediation and ODR and with an online mediation
conducted like traditional mediation, in which a neutral human third party facilitates
discussions betwee n the parties and helps them reach a voluntary settlement.
Keywords: alternative d ispute resolution; cyberspace; online dispute resolution; proposal
directive on consumer ADR; proposa l regulation on consumer ODR
* Assistant Profe ssor of Private Law at t he University of Florence (School of L aw), LL.M. Har vard
University (School of Law) and Le cturer of Business Law at t he European School of Econom ics.
e author would like to a cknowledge the many v aluable suggesti ons made by Rose Mackwort h-Young
and Melinda Ca stro.
Is Online Medi ation the Way to Fit the Forum to the Fuss?
19 MJ 4 (2012) 525
§1. IN TRODUC T ION
On 29November 2011, the Europe an Commission published a proposal on the Direc tive
on Alternative Dispute Resolution (ADR)1 and a proposal on the Regulation on Online
Dispute Resolution (ODR).2
ese initiatives, on t he one hand, aim to ensure a higher level of consumer protect ion,
which it is hoped will result i n enhancing cross-border e-commerce within the Interna l
Market, and, on the other, set the sta ge for a signi cant increase in t he use of these out-
of-court dispute resolution processes for consumer disputes w ithin the EU.
Based on an initia l reading of the proposal, the Commission envisages technolog y,
and more speci cally t he internet, as the key channel for delivering ser vices to users.
In light of the fact that these out-of-court mechanisms have developed di erently
across the European Union and that consumers o en refrain from cross-border
purchases because of uncer tainty about who to turn to in ca se of a problem with a foreign
trader, the need for regulatory act ion at the European level has been identi ed.
us, the European Parliament, namely t he Internal Market and Consu mer
Protection Committee (IMCO), is currently work ing on the abovementioned legislative
proposals related to alternative dispute resolution (ADR): the ADR Directive that aims
to ensure that qualit y out-of-court entities exist to deal w ith any contractua l dispute
between a consumer and a busine ss, and the ODR Regulation (ODR) that would establish
a European ODR platform – o ering a si ngle point of entry to those who seek to resolve a
dispute which has arisen f rom a cross-border e-commerce transaction.3
1 Proposal for a Direc tive of the European Parl iament and the Counci l on alternative dispute reso lution
for consumer dispute s and amending Re gulation (EC) No. 20 06/2004 and D irective 200 9/22/EC
(Directive on consumer ADR), COM (2011) 793, http://ec.europa.eu/consumers/redress_cons/docs/
directive _adr_en.pdf ( last visited 16October 2012).
e proposed ADR Directive wi ll cover complai nts between tra ders and consumers . Although t he
proposals al low complaints in bot h directions , under the present negot iations it is becomin g less
likely that the nal text would allow a t rader to bring a complaint aga inst a consumer. See, for fu rther
discussion, A nnex I[q] of the Unfair Contract Terms Direct ive 93/13/EEC of 5 April 1993, [1993] OJ
L 95/29; Art. 84(d), Propos al for a Regulat ion of the European Pa rliament and of the C ouncil on a
Common European Sales Law, COM (2011) 635, http://eur-lex.europa.eu/LexUriServ/LexUriServ.
do?uri=COM:2011:0635:FIN:en:PDF (last visited 16October 2012); and, in jurisprudence, Case
C-168/05 Elisa María Mo staza Claro v. Centro Mó vil Milenium SL [2006] ECR I-10421, and Joine d Cases
C-317/08 to C-320/08 Rosal ba Alassini and Othe rs v. Telecom Italia SpA and Others [20 10] ECR I -0221 3.
2 Proposal for a Reg ulation of the Europea n Parliament and the C ouncil on online di spute resolution for
consumer disputes (Regulation on consumer ODR), COM (2011) 794, http://ec.europa.eu/consumers/
redress_c ons/docs/odr_regulat ion_en.pdf (last v isited 16October 2012).
3 Dra Report on the proposal for a direct ive of the European Pa rliament and of the C ouncil on
alternative d ispute resolution for consu mer disputes and a mending Regu lation (EC) No 2006/20 04
and Directive 2009/22/EC (Directive on Consumer ADR), COD (2011) 373, www.europarl.europa.
eu/document/activities/cont/201204/20120425ATT43970/20120425ATT43970EN.pdf (last visited
16October 2012); Idem, Report on the propos al for a regulation of t he European Parliame nt and of the
Council on onl ine dispute resolut ion for consumer disputes (R egulation on cons umer ODR) (COM
(2011) 794 – C70453/2011 – COD (2011) 374), www.europarl.europa.eu /document/activit ies/cont/20
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