The growing use of telematic ways of communication and of the new developments of Artificial Intelligence, brought along new ways of doing business, now in an electronic format, and requiring a new legal approach. Thus, there is an obvious need for legal changes and adaptations, not only concerning a new approach of traditional legal institutes, but also concerning a need for new developments in procedural means. Transactions are now undertaken in fractions of seconds, through the telematic networks, requiring more efficient ways for solving conflicts; on the other hand, the fact that we must now consider commercial transactions totally undertaken within an electronic environment (“online transactions”) leads to an obligation of rethinking the ways of solving disputes, that will inevitably arise from electronic commerce. Chapter 3 discusses a whole new evolution towards a growing use not only alternative dispute resolution, but also, towards the so-called on-line dispute resolution.
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On-line activities, on-line contracting, will necessarily lead to on-line disputes, requiring new ways of solving conflicts. New ways of dispute resolution are thus appearing, so that the parties do not need neither to travel nor to meet in courtrooms or in front of arbitrators or mediators. Different forms or methods of alternative dispute resolution for electronic environments have been pointed out by legal doctrine. Thus being, we can now speak of Online Dispute Resolution (ODR) as any method of dispute resolution in which wholly or partially an open or closed network is used as a virtual location to solve a dispute (Katsh & Rifkin, 2001).
A relevant issue, in a first moment, will be to inquire in what way (and to what point) traditional mechanisms such as negotiation (Raifa, 2002), mediation (Brown & Marriott, 1999) or arbitration (Bennett, 2002) can be transplanted or adapted to the new telematic environments, taking advantage of all the resources made available by the newest information and communication technologies. But it will also be of the utmost importance to stretch our analysis to the point of foreseeing a real technologically advanced possibility, inquiring whether or not we can take advantage, for online dispute resolution, of the new developments in the area of Artificial Intelligence, facing this knowledge in two different perspectives: on one hand, as a tool of undeniable interest in order to help the parties and the decision makers to obtain the best possible results in solving commercial disputes, and on the other hand, considering a new way of autonomous dispute resolution through the use of autonomous and intelligent software, supported by a knowledge base and decision capabilities.
It must also be considered alternatives for dispute resolution arising from Artificial Intelligence models and techniques (e.g. Argumentation, Games Theory, Heuristics, Intelligent Agents, Group Decision Systems) (Peruginelli & Chiti, 2002; Lodder & Thiessen, 2003).
Among the possible methods for ODR, it must be referred the distinction between automated negotiation – specially the “blind bidding” procedure, by which both parties send confidential offers or proposals to the informatics system, being up to the system to detect and to declare whether or not the case gets settled – and assisted negotiation (“assisted” meaning here just providing communication facilities, trust marks, certification programs for the parties to use in their negotiation). A distinction must also be made between assisted negotiation and mediation, being the former based on technological tools, while the latter is based not only in technology (the parties and the mediator having access to different electronic communication tools, such as email, chat – with possibilities of private conversations - messenger, videoconferencing) but mainly on the intervention of a third neutral (mediator) intending to help parties to reach an agreement. If the third party appears to be a neutral party empowered to make a binding decision, through an enforceable award, as a form of privatised justice, then we must speak of arbitration (although, in theory, we might think of two possible different forms of arbitration, considering the possibilities of awarding a really binding and enforceable decision or just a contract like decision (binding only like a contract)).
In online dispute resolution it must be considered not just the parties themselves and eventual third parties (mediator, arbitrator) but of course there will be a significant focus on what Ethan Katsh and Janet Rifkin (2001) call “The fourth party”, that is to say the technological elements involved. An important element of this “fourth party” will of course be the emergence of expert systems and intelligent software agents with capabilities for helping the parties and the mediator / arbitrator in reaching a fair solution. And as Arno Lodder (2006) already refers, it must be considered, as well, a “fifth party”, that is to say the service providers, those who provide and deliver the technological elements. All this turning ODR in a quite new and somewhat complex (but eventually quite fast, cheap and advantageous) way of interaction and of solving conflicts.