No Sheriff in Town: Governance for Online Dispute Resolution

The online dispute resolution (ODR) field, since its genesis in the mid‐1990s, has developed in bursts and spurts. This is largely because of ODR's connections to the areas of Internet development and e‐commerce (Katsh 2012) and also because of the more general evolution of alternative dispute resolution (ADR) that has taken place in the last thirty years.

At first, ODR seemed like an oddity or anomaly even in the eyes of ADR professionals. Dan Rainey, chief of staff of the U.S. National Mediation Board and a leader in the ODR field, sometimes tells students that, when the field was getting started, he and his fellow conference presenters carried on a running bet on whether or not they would find themselves outnumbering the audience.

No more. As the field has grown and gained traction, it has received increasing attention from professional associations and industry leaders in the dispute resolution world. Selected examples of this include the Association for Conflict Resolution's establishment of a section on ODR, and the exposure this topic now receives on Mediate.com and ADRhub.com, leading web portals for dispute resolution professionals. The International Institute for Conflict Prevention and Resolution has recognized ODR as a practice area, and has also awarded the field's first comprehensive textbook (Abdel Wahab, Katsh, and Rainey 2012) its prestigious Book of the Year award for 2012.

Even as ODR's status solidifies inside the ADR field, it has also increasingly received attention and recognition from sources outside this milieu. Signs of this are visible in both the private and public sectors.

In the private sector, we see signs of ODR's expanding role across a number of fields. In the area of e‐commerce, online dispute resolution's early and resounding success in resolving disputes at eBay and PayPal has not been duplicated elsewhere, but the road is being paved for its utility for settling disputes originating in online reputation and feedback systems (such as customer reviews posted on Yelp.com or TripAdvisor.com) (Rule and Singh 2012). Beyond e‐commerce, private‐sector implementation of ODR has advanced in a variety of other areas. Online dispute resolution service providers have been targeting conflict niches (such as ResolutionTable.com, specializing in landlord‐tenant disputes), and authors have offered suggestions for operationalizing ODR to resolve workplace disputes (Parlamis, Ebner, and Mitchell 2016). More generally, private‐sector mediators have started to offer online services as an add‐on to their traditional, face‐to‐face practice (Ebner 2012).

Writing in 2004, Anita Ramasastry suggested that technology‐assisted dispute resolution might have its most meaningful effects in contexts beyond the e‐commerce arena, and that it should be examined for its potential in the realm of government‐to‐citizen disputes (Ramasastry 2004). Today, this area is developing rapidly. One current initiative is Modria.com's tax assessment dispute settlement service, which has been adopted by several local government jurisdictions in the United States; this service enables property owners appealing property tax assessment to have their case reviewed and resolved through a combination of online and offline procedures (Ambrogi 2015). Other U.S. government agencies, including the National Mediation Board and the Office of Government Information Services, have adopted some ODR processes (Katsh 2012), but the tax assessment appeals process goes beyond internalizing ODR for organizational communication and interaction, and constitutes the first case of institutionalization of ODR as a significant means for providing governmental services to the public.

Indeed, over the past few years, other significant indicators of institutionalization have begun to emerge, with international and government agencies, and, more recently, court systems, beginning to incorporate ODR.

One early example of ODR institutionalization occurred in 1999, when the Internet Corporation for Assigned Names and Numbers (the nonprofit that distributes Internet protocol addresses and domain names) adopted online arbitration as the resolution mechanism for all domain name disputes. This move wove ODR into the very fabric of Internet governance (Zweibel 2011). It took some time, however, before institutions unconcerned with Internet development took notice of ODR.

The United Nations Commission on International Trade Law (UNCITRAL), charged with harmonizing commercial law to encourage international trade, began exploring the use of cross‐border ODR in 2010; since 2012 it has been developing ODR Rules for disputes arising from e‐commerce transactions (UNCITRAL 2016).

In 2013, two new dispute resolution regulations came into effect in the European Union (EU). The first, known as the ADR Directive, promotes the use of ADR for consumer disputes in general; the second, known as the ODR Regulations, creates a central ODR platform intended to promote use of ADR and ODR for cross‐border disputes concerning online transactions. Although it is too early to fully discuss the development of ADR and ODR through these mechanisms, they represent a new phase of institutionalization, recognition, and mainstreaming of ODR.¹

And, most recently, in 2016, British Columbia established its Civil Resolution Tribunal, an official branch of the court system that has jurisdiction over small claims as well as some property disputes. In this system, the first full integration of ODR into a formal court system, ODR, while voluntary, is the default and primary mechanism for settling disputes (for a discussion of previous and partial efforts, see Vermeys and Benyekhlef 2012).

As the ODR field develops along a path from individual private‐sector initiatives to widespread public sector institutionalization, observers and participants will undoubtedly raise questions about quality, ethics, practitioner training, service provider qualifications, and monitoring. In short, this attention will result in investigation of the field's governance.

Generally speaking, governance involves “Applying policies, proper implementation, and continuous monitoring. Typically done through or by an organization's governing body. Accountability, balance of power, and improving the worth and continuance of the firm are the mechanisms of governing” (Black's Law Dictionary 2016).

In the context of ODR rather than of a private‐sector firm, therefore, governance might be defined as creating policies, prescribing their implementation, and continuously monitoring ODR practitioners, service providers, systems and services, all to ensure that the underlying procedures are just, and that the services are delivered in a professionally satisfactory manner, for the purposes of enhancing and advancing the field of ODR.

We intend this only as a working definition, for the purpose of discussing governance in a general sense in this article. As we explain in this article, other definitions of what ODR governance would entail may arise.

It could be argued that the ODR field could and should generate some internal system for guiding and regulating the field, setting standards, and monitoring compliance with them. Alternatively, one might posit that the ODR field should seek external bodies to do that job, and benefit from the legitimacy that such oversight might provide. Before evaluating these alternatives, we first examine the current state of ODR governance. We do this in two phases. First, we explore ODR's two “motherships,” or original fields of origin, ADR and information technology (IT), and their approach to governance. Next, we map out organically emerging governance in the ODR field, by reviewing individual elements of governance that are already to be found in the current infrastructure, practices, and literature of the ODR field.

We have written elsewhere (Ebner and Zeleznikow 2015) that ODR has evolved from interactions between different fields — primarily those of ADR and information technology. Before considering governance in ODR, we describe governance in these two fields that have influenced ODR's development and culture. This might allow ODR to take culture and history into account, as it chooses which elements of governance will serve it best.

Much discussion of ADR governance has taken place over the years, with much of it focused on accreditation of individual practitioners and, following from that, what would constitute a suitable or just accreditation process. Procedural justice, which advocates standard processes, has become integral to ADR governance. For example, Rebecca Hollander‐Blumoff and Tom Tyler (2011: 2) suggested that

Alternative dispute resolution governance is also affected by the embedding of ADR in court and legal systems, with their existing structures, procedures, and oversight. Even non–court‐related ADR often finds itself anchored to court‐related standards (e.g., when two companies seeking a mediator for their un‐litigated dispute express a preference for a court‐accredited mediator). Other areas of ADR are embedded in other wider organizational and community frameworks (e.g., professional societies, human resources organizations, universities, government agencies, etc.) that oversee them. Professional dispute resolution practitioners have also formed their own organizations, some of which seek to hold their members to certain standards. Finally, to the extent that professional ethics are an element of governance, the ADR field has produced extensive material, including codes of conduct and academic literature, in this area.

To clarify, we acknowledge that in the vast majority of jurisdictions around the world, ADR is generally an unregulated activity. Anybody can hang up a shingle calling him‐ or herself a mediator or an arbitrator. One does not need a government‐issue license, or a guild‐issued membership. Standardization or regulation of any sort has generally only applied to practitioners seeking to practice in official or public frameworks, such as professional organizations and courts, which require certain standards of certain practitioners, in particular for those practitioners involved in court‐connected mediation. Alternative dispute resolution is often embedded in courts, which monitor and regulate it; part of this oversight includes setting such standards.² For practitioners of ADR operating outside of such systems in most jurisdictions, however, there are no formal standards or governance beyond general consumer protection laws.

In an attempt to develop governance standards for ADR, Carrie Menkel‐Meadow chaired the Commission on Ethics and Standards of Practice in ADR which formulated two documents. The first document, entitled Proposed Model Rule for the Lawyer as Third Party Neutral, discussed ethical rules for those practitioners who have two professional identities: lawyers who serve as third‐party neutrals (Menkle‐Meadow 2001). This document concluded that attorney‐mediators, while practicing as mediators, should be subject to all the ethical rules governing lawyers. As many mediators in the United States are attorneys, this proposed rule, subsuming mediation activity under legal activity, provides a partial, but far‐reaching, answer to issues of governance with regard to lawyer‐mediators; non‐attorney mediators are outside the scope of this proposal.

The second document, Draft Principles for ADR Provider Organizations, acknowledges that because ADR organizations provide services that are considered legal services, they should be held both legally liable and professionally responsible for the actions of their member service providers in some situations. This document suggests some best practices for organizations that hold themselves out as providers of ADR assistance, referrals, or direct services (Menkle‐Meadow 2001). Such organizations include not only ADR‐providing companies but also courts, which maintain rosters of mediators and arbitrators.

Another document arising from governance‐oriented conversation in the ADR field was the Model Standards of Conduct for Mediators (approved in 1994 and revised in 2005), which was drafted jointly by the American Bar Association, the American Arbitration Association, and the Association for Conflict Resolution. This document considers a range of issues including mediator competency, process quality, advertising, fee arrangements, and mediators’ duties in advancing the field of mediation. The European Commission promoted the development of a comparable document in Europe, providing a voluntary‐adherence code of conduct for mediators.³

In summary, whereas much of ADR practice has developed in a private and unregulated manner, a good deal of governance has been proposed, focusing on certification and ethical behavior models. This is largely the result of ADR's robust member organizations and because much of ADR's practice occurrs in the “shadow of the law” (Mnookin and Kornhauser 1979).

Information technology, of course, has no particular connection to the courts, and IT governance, therefore, does not occur in the shadow of any laws. This might, therefore, apply to the technological aspects of ODR governance, although Ethan Katsh, Janet Rifkin, and Alan Gaitenby (2000) discuss dispute resolution in the shadow of what they refer to as “E‐bay law.”⁴

Within IT communities there are at least three forms of governance:

Professional bodies such as the Association for Computing Machinery (ACM)⁵ in the United States, the Australian Computer Society (ACS), or the British Computer Society (BCS) have processes for certifying that computing professionals have adequate qualifications. Generally, such qualifications are a relevant undergraduate degree; sometimes, they require the practitioner to engage in continuing professional development. These requirements are often more stringent than those required of mediators and ADR practitioners, where attendance at a twenty‐ to forty‐hour course and an acceptable performance in a simulated negotiation are usually sufficient. Of course, ADR practitioners come from many different domains, and the relevant professional bodies (such as law institutes, bar associations, and psychological associations) have their own, far more stringent, certification requirements.

Each of the professional computing societies has its own code of conduct, which is available on its website. Students taking courses at universities must often complete professional ethics courses, both to obtain their degree and to be accepted into professional bodies.

Information technology governance also involves the products themselves. The computing societies have developed codes of testability and of quality control to ensure software engineering standards (Verhoef 2007).

No computing professional, however, is required to belong to a professional society; nor are they licensed by any government, as numerous other professionals (doctors, nurses, lawyers, social workers, public school teachers, stock brokers, etc.) often are. In the provision of both ADR and IT services, the principle of caveat emptor, or “let the buyer beware,” applies. There is thus minimal protection for consumers. Indeed, larger Internet and software corporations seem to be moving toward competency‐based hiring rather than limiting themselves to degree‐holding candidates, which could be seen as a move away from centralized governance in IT. In doing so, the service providers get what they feel they need, although they apparently assume more risk by doing so.

Online dispute resolution generally knows little or no regulation, authority, standards, or monitoring. Within the field itself, governance is virtually nonexistent: nobody monitors quality control, no well‐recognized and accepted standards of practice exist, and there is no one to take complaints or investigate bad practice. Because ODR practice is by nature Internet‐based, any external supervision, such as that stemming from consumer protection laws, is weak, and subject to jurisdictional shortcomings — which is ironic, considering that ODR has often been offered as the solution to such deficiencies in other arenas (e.g., Ebner 2008) without any acknowledgment that they are inherent in ODR's own modus operandi.

With weak normative supervision, many e‐commerce sites have turned to voluntary compliance with external monitoring to enhance their reputation and customer trust. In the past, some ODR providers have gone this route as well, attempting to bolster their credibility and consumer trust by placing emblems on their websites announcing that they have voluntarily submitted to external review by familiar traditional business‐oversight organizations (such as Better Business Bureau Accredited Business) or by trust‐mark providers. (Trust‐mark providers are external organizations that review online business practices and grant them an emblem to show on their website demonstrating that they have been vetted).

While a good trust‐mark program could go a long way toward filling gaps in credibility and trust, participating in them is no longer a common practice amongst ODR providers.⁶ We conducted a sample review in which we surveyed the twenty‐seven ODR providers and nine independent mediators that offer online services in the United States and Canada as reported in a previous study (Pearlstein, Hanson, and Ebner 2012). (This is, of course, not a comprehensive survey of the field and some of these entities no longer exist or no longer offer ODR services.) We found that none of the websites providing ODR services displayed seals indicating compliance with external monitoring mechanisms. In addition, we found that some sites display emblems at the bottom of their home pages, but not all those emblems are trust marks. Some of the emblems encountered on sites do not refer to external review programs, but simply to the software used by the service provider. Although this is another measure designed to enhance users’ trust and sense of security, this is only likely to work if the user does not actually investigate what the emblem means. For example, writing “Security provided by” followed by a group of logos might provide reassurance; upon investigation, however, these logos might turn out to indicate nothing more than the service using a free anti‐virus service of questionable value. Other emblems typically link to the providers’ social media accounts.

Of course, ODR is subject to the same consumer protection laws as any other profession, but overall it inhabits an area of weak external governance, voluntarily welcomes little monitoring, and has created no internal structures. Consequently, there has been minimal review or monitoring of ODR practitioners. We suggest that this unmonitored and unaccountable environment has evolved as a natural flow of doing business in the Internet age and reflects no malicious purpose.

Most of the early ODR providers, and many of the current ones, have chosen the organizational/commercial model of “service provider company.” In this model, the company's management team is not personally identified (or even named at all). Many, perhaps most, of these service providers have significantly different professional backgrounds and orientations than the neutrals they hire. They are unlikely to share their codes of practice (both the neutrals’ individual codes of practice as well as codes of practice formulated by organizations in other fields. Many of these providers are also not forthcoming on their websites about the technology that is used in the process, describing it only in the vaguest of terms, intended to sound state‐of‐the‐art without giving any detail. Many service provider websites feature Internet‐era buzzwords, rather than precise explanation of what service is provided, by whom, and how. Of course, these service providers might hold themselves, in practice, to the very highest standards of practice and professional behavior; we note, however, that one can see few visible signs of this.⁷ A critical reviewer might detect many attempts to avoid such visible signs. Such lack of transparency — of actors, standards, technology, and process — might easily diminish the perception that the provider is accountable and trustworthy, and consequently diminish clients’ sense that the process is fair and secure, which are critical issues in ODR (Ebner and Zeleznikow 2015).

An increasing number of individual, traditional, face‐to‐face dispute resolution practitioners are expanding their practices to include online mediation (on this trend, see Ebner 2012). They tend to announce this on their website as an additional service, without providing much detail. Perhaps because they see this as a simple expansion of their existing practices, rather than a switch to an entirely new field of online practice, they have not tended to seek out external validation or new forms of monitoring for their new service. On the other hand, these practitioners tend to be more personally identified and visible on their websites, when compared to the ODR service provider websites described above.

A low‐governance model of ODR has also evolved with respect to the contract between the ODR service provider and the client utilizing the dispute resolution service. Service providers typically begin offering their services by building a website, which typically includes a “terms of use” or “terms of service” statement. Such terms of service are primarily designed not to fully inform parties, but rather to limit the providers’ legal liability. They generally include terms designed to limit litigation that could result from, for example, service provider negligence. They often include clauses designating a particular jurisdiction for any legal action taken against the provider, generally choosing the jurisdiction most favorable to the provider. Use of the website, the terms generally state, constitutes acceptance of the terms of service — although the terms of service are often hidden away in the form of a small link at the bottom of the website, often invisible to someone looking at the main page.

Although agreements between neutrals and parties exist in traditional ADR, they are often much shorter and much more limited; a one‐page contract that parties sign at the beginning of a mediation or arbitration process often suffices, and this usually focuses more on the process itself and its ground rules than on limiting the neutral's liability. In short, we suggest that ODR has acquired a tendency to include more “fine print” than ADR has generally incorporated. Such fine print, in protecting the service provider, reduces the incentive for self‐governance, and — in the case of wrongdoing on the part of the service provider — diminishes the capacity of external bodies to intervene on behalf of the client.

Online dispute resolution has also developed few standards for practitioner qualifications or training. In 2001, Lucille Ponte (87) wrote:

This description, for the most part, remains apt fifteen years later. Several individual initiatives have aimed to collate best practices as part of a practitioner training program. For example, the Distance Mediation Project conducted by Mediate BC in British Columbia published a set of practice guidelines for family mediation at‐a‐distance (Jani and Getz 2012). A training course on online mediation for practitioners, building upon those guidelines as well as input from other experts, is currently offered through Royal Roads University in Victoria, B.C. Other training courses have been offered by the Virtual Mediation Lab, which is a pilot project sponsored by the Hawaii Chapter of the Association for Conflict Resolution; TheMediationRoom.com, an ODR firm in the United Kingdom; and the National Center for Technology and Dispute Resolution at the University of Massachusetts, Amherst. These are all good efforts, but are among the very few, and are uncoordinated and focused on separate areas of the field: they are a “far cry” from the framework of international ADR organizations harmonizing curricular standards that Ponte (2001) advocated.

As described above, ADR itself is arguably a low governance field because in most countries practitioners are unlicensed and the field is largely unregulated. On the other hand, as we also noted above, ADR is often embedded in courts, which monitor and regulate it, and some areas of ADR are embedded in other wider frameworks (organizations, communities, professional organizations) that seek to hold their members to certain standards. We note that it took the field several decades of development to reach even this partial level of internally imposed governance.

Online dispute resolution, as a field distinct from ADR, is young and has not developed such internal governance, either in practice, as discussed above, or through field‐wide organization. It has, thus far, generally not been embedded in court or government systems and as a result, has hitherto developed largely unregulated from a public policy standpoint.

In practice, private players still drive the ODR stagecoach. As noted above, most ODR is currently implemented by private, for‐profit companies, operating in the context of open markets rather than of constraining institutionalization. While some of the processes offered by the field (those closely mirroring their face‐to‐face counterparts, such as online arbitration) hold out the promise of a certain degree of procedural justice, this has not yet been formalized in any way, and parties at‐a‐distance may not experience a sense of procedural justice as do parties in‐the‐room. The ODR field is also somewhat distanced by the ideological underpinnings of the ADR movement, which may have served to self‐regulate the way actors behaved. Participants in the field are dispersed geographically and are operating in different systems and jurisdictions — causing any organization or overall oversight to be more challenging.

Removed as ODR is from the frameworks of legal or community contexts, and operating in a cross‐jurisdictional manner, there is less, if any, shadow of the law regulating behavior and outcomes than there is in traditional ADR. That status quo, however, seems unlikely to hold for much longer.

In the past, bodies external to the field have considered implementing external governance for ODR. For example, the American Bar Association's Task Force on Electronic Commerce and ADR published a report in 2002 that recommended a set of best practices for ODR providers regarding the disclosures they should make to consumers. It also called for the creation of an ODR center for the purposes of providing information and education about ODR to consumers. The report, specifically recommended, however, that the ODR center itself not provide oversight or significant governance for the ODR field. More recently, the issue of accrediting ODR providers has been raised during UNCITRAL's proceedings, and UNCITRAL is currently discussing setting standards for ODR entities (using the terms “platform/provider/administrator”), with regard to transparency, independence, expertise, confidentiality, and procedural fairness.⁸ Under the EU's new ADR Directive and ODR Regulation, ODR providers will essentially be treated as ADR providers, accredited and governed according to the ADR‐related norms of their home countries.⁹

All this suggests that unless something is done to organize internal governance in ODR, external governance is likely to be imposed. Further, if any internal structures are created and implemented, the open spaces they leave are likely to be filled externally. Without addressing the substantive quality of such external governance, it is likely to be piecemeal, with different standards applying to different areas of activity and different geographical regions

One recent example underscores this last point: In November 2015, the Council of Europe's Committee on Legal Affairs and Human Rights (2015: 1–2) passed a draft resolution calling on Council of Europe member states to

This resolution comes from the European body concerned specifically with human rights and access to justice; it may approach this differently than the European body concerned with customer protection, which developed the ADR Directive and ODR Regulations adopted by the EU. Without critiquing the content of any standards they may set, this demonstrates how different standards may be formulated based on geography (EU/rest of the world) and on perspective (access to justice/consumer protection).

The distinction between “internal” and “external” regulation is not simple or clear‐cut. Many ODR experts have participated in the external governance efforts and deliberations discussed above and reports of developments have regularly been shared with the ODR community. Nonetheless, actual ODR practitioners and entities have largely been onlookers, and the industry has not taken significant steps internally to define a field‐wide approach to these issues.

Although the field may not have generated organizational structures and field‐wide policies and norms, it has not ignored these topics. To begin to create internal systems, ODR could logically begin by looking at its internal discussions of governance.

In his discussion of the state of regulation in ODR, Rafal Morek (2006) identified four sources of regulation: law, norms, market, and technology. He suggested that norms set by the practitioner community could form part of the normative framework of ODR. It is not clear how these norms are to be set or identified, however.

In 2009, the Advisory Committee of the National Center for Technology and Dispute Resolution at the University of Massachusetts, Amherst, an academic center dedicated to supporting the development of technology to improve conflict resolution practice, drafted its ODR Standards of Practice, intending to provide “guidelines for practice across the spectrum of ODR” (National Center for Technology and Dispute Resolution 2009). These guidelines address such important issues as fairness, transparency, and confidentiality. They recognize that the field of ODR operates across many domains, legal jurisdictions, and technological platforms, and therefore “these recommended Standards of Practice must be considered as principles, and not necessarily as individual operational frameworks” (National Center for Technology and Dispute Resolution 2009: 1)

As far as we know, however, since the publication of these standards little has been done to internalize them into the field's practices and infrastructure. In our review of U.S. and Canadian ODR websites discussed above, we were unable to find a single reference to these standards. A further review of the ODR literature revealed the guidelines were mentioned in only a handful of relevant articles. Apparently, these standards have not yet had the widespread, significant, impact on the field that they were intended to have. The ODR Standards of Practice nonetheless remains an important document, one which could serve, at the very least, as an agenda for conversation on the issues it covers. This document has since been updated and expanded by another document developed by the National Center for Technology and Dispute Resolution entitled “Ethical Principles for Online Dispute Resolution” (Wing 2016).

Other actors and authors in the field have explored additional elements of governance that require much deeper and wider consideration. For any of these ideas to have practical impact, all these issues need to be discussed with a focus on decision making and operationalization.

First and foremost amongst these issues is ethics, which indeed seems to have received the most attention thus far. Ethics is often the subject of panels and discussion forums at the ODR International Forum and Cyberweek conferences, the two annual gatherings of the field, as well as at more traditional dispute resolution conferences.¹⁰ In addition, it has been addressed in a number of articles and book chapters (Cole and Blankley 2006; DeMars et al. 2010; Shackelford and Raymond 2014; Rainey 2014a, 2014b, 2015; Sole 2015; Rule 2016). Some of these articles and discussions have examined ethics in ODR generally; others have explored the ethics of particular types of practice (e.g., Sole 2015), or the ethics of particular ODR systems or the technology underlying them (e.g., Shackelford and Raymond 2014).

Another issue that is likely to be central to any discussion of governance is accreditation, which also relates to issues of training and qualifications. Melissa Conley Tyler and Jackie Bornstein (2006) explored previous efforts in this area, and suggested four models that ODR accreditation schemes could follow:

• incorporation of ODR into current ADR practitioner accreditation systems,

• independent, separate accreditation of ODR practitioners,

• accreditation of specialist ODR skills as an add‐on to ADR accreditation, and

• accrediting the agencies that accredit individual ODR practitioners.

Another relevant topic is the validity and quality of the software being developed. The more sophisticated software used for ODR involves game theory–based systems that provide useful advice with regard to trade‐offs (Brams and Taylor 1996; Thiessen and McMahon 2000). Such systems are mathematically based, so as long as users can clearly define their utility functions formal mathematical proofs are provided to indicate the value of the proffered advice. Such systems include Smartsettle and Fair Outcomes, both of which now offer commercial products that have been appropriately evaluated.

In a previous article, we have called for the ODR field to address issues of fairness, trust, and security in ODR. Dealing with these issues is a priority for potential external regulators; it is also a logical next step in terms of field development. We wrote (Ebner and Zeleznikow 2015: 84):

Ruha Devanesan and Jeff Aresty (2012) explored the need for transparency, impartiality and independence, compliance with outcomes, due process, and other governance‐related issues, primarily through a justice‐focused perspective.

Finally, several authors have delved into governance issues in specific practice areas in ODR, for example, e‐mediation of divorce disputes or divorce disputes involving domestic violence (see Lavi 2015a, 2015b).

Although the efforts we have listed here provide building blocks, clearly ODR would benefit from a more organized discussion of such issues than has yet taken place. We suggest several reasons why the field has yet to engage more fully with the topic of ODR governance.

Few people begin their professional dispute resolution activity in ODR. Many who arrive to this field are affiliated with one or more other fields, and therefore may feel less need for membership in an internal, separate organization. Practitioners with their roots in ADR, beginning to practice online, still see themselves as practicing ADR; why, they might ask, should mediation be organized any other way, just because it is online? Lawyers are bound by legal governance, information technologists by their own conventions, and so on. The need for separate, distinct, governance might not be obvious or seem pressing.

A relevant aspect of the field is its entrepreneurial nature. Such start‐ups are often understaffed and focus most on meeting demand and attracting clients, with less emphasis on building field‐wide infrastructures. Also, as the field has developed and expanded, practice areas and target clients have diversified, which also presents conceptual challenges to creating and implementing governance.

It is difficult to pinpoint the moment when a young field gains sufficient internal cohesion, collaboration, and identity to address governance issues. We suggest, however, that two decades following its initial awakening, ODR is ready for governance.

Indicators of maturity include the field's first comprehensive textbook, a first‐class resource that required from its authors a high degree of collaboration, a willingness to serve and steward the field, and engagement with big‐picture thinking about online dispute resolution. External bodies have begun to value ODR (such as those reflected in the EU directive and in British Columbia's Civil Tribunals), which suggests not only a belief that these entities see technology as helpful, but also that there is a sufficient underlying body of expertise, in theory and in practice, to help such innovations endure. And at the International Forum on ODR held at Pace Law School in New York in June 2015, ODR scholar Mohamed Abdel Wahab suggested that the time had come for the ODR field to organize internally and set standards for ODR practice.

All this, we suggest, indicates that the field is indeed ripe for internal organizing, a process that should begin with reflection and discussion. The ODR field does not now have any governance “fires to put out,” which diminishes urgency and supports a thoughtful process. We are unfamiliar with any current rumors circulating — let alone recent actual cases — of shady practices, underqualified practitioners, or consumer harm.¹¹ The environment in the ODR field seems to be cooperative, supportive, and open, and the enthusiastic engagement of the field's founders and early adopters endures. To us, these conditions suggest that the ODR community may be disposed to consider and discuss governance. One reason for urgency, however, is the probability that external agencies will impose governance on corners of the ODR field before the field has considered its own preferences — having this discussion sooner may indeed be preferable to having it later.

What should be the focus of such a process? We suggest that before initiating any governance structure, the ODR field should consider different potential governance models. But first and foremost, the ODR community should weigh the pros and cons of instituting any form of governance at all. Although we have already stated that, without internal governance, the field faces a greater risk that external bodies will impose their rules on the field (or areas within it), we nonetheless believe that before you can determine how to do something well you must first determine whether to do it at all.

A no‐governance state of affairs creates a variety of challenges and risks for both practitioners and clients. Such risks could also threaten the field's reputation, and consequently its growth.

In a field with no governance, standards and norms either do not exist or are relativistic, subjective, flexible, less visible, and less binding. They are more likely to be applied by inside players in a self‐serving manner, which can reduce potential users’ confidence about whether they should trust ODR to resolve their dispute or to develop their company's dispute system design. A lack of governance reduces users’ trust, sense of security, and confidence that the dispute resolution process is fair, which are all key factors in their decisions to use ODR and will help determine the field's overall success (Ebner and Zeleznikow 2015).

Governance endows service providers with evidence of legitimacy, which is arguably more critical given the suspicions that many people harbor toward online activity. Whereas individual neutrals may feel confident in the legitimacy granted by the governance structures of off‐line practice (e.g., bar membership, court mediation certification, arbitration association training), not all ODR professionals will have such affiliations.

Finally, a lack of clear standards and operational norms could inhibit cooperation between ODR service providers and the existing institutionalized dispute systems operated by courts, municipalities, e‐commerce vendors, schools, communities, and so forth.

Beyond utilitarian considerations lie moral and ethical risks: the possibility that without governance ODR activity may cause harm. A service provider could harm people intentionally, if non‐maliciously, by, for example, sharing client data unsuitably, or by trying to curry favor with a repeat client at the expense of a one‐time participant. It could create a system tailored to provide favorable outcomes to one type of party at the expense of another — without parties knowing that the dice were loaded from the start. Such examples represent just the tip of the iceberg of potentially harmful acts.

Of course, such moral hazard imposes its own utilitarian dangers. Such bad behavior on the part of individual players could threaten the reputation of the entire field. The field of arbitration has recently experienced a similar threat following a series of investigatory articles in the New York Times that questioned the fairness of the process.¹² Some of the issues raised in the series (e.g., use of arbitration contracts to deny claimants their day in court, and preference shown to repeat players) could easily replicate themselves in ODR practice. Should a similar exposé find fault with ODR practice, the field might hear calls for immediate enhanced and visible governance, and work to bar the barn door after the horse has galloped away, which seldom leads to the best decisions.

Even if none of these issues arise, however, and all ODR providers operate with integrity and the best of intentions, parties may still confront the risk of unintentional negligence. Should an ODR provider be sued for inadequate performance (i.e., malpractice), the industry's lack of reasonable performance standards would emerge as an issue, and the court, rather than ODR experts, could be put in the position of establishing precedent as to what constitutes reasonable practice. Hard cases make bad law, as the saying goes, but so can easy cases. The novelty and technological complexity of the field increase the likelihood that a judge, through lack of understanding, could set a weak, ineffective, or even destructive precedent. As case law accumulates, governments might see further reason to intervene and regulate ODR service provision. At each step in such a process, the field's governance would then be developed externally, diminishing the ability of ODR professionals to control their own destinies. In short, we believe it is likely that if we do not discuss governance, someone else will.

Creating, implementing, and accepting governance, in any field, involves designing limitations. While such limitations are well intended and are usually imposed with the best interests of the field and those it seeks to serve in mind, they are nonetheless constraining. Setting professional standards can lead practitioners to gravitate toward rote behavioral norms, which can stifle innovation and creativity, because exploration beyond such norms can entail professional risk

Another downside of governance in any professional field is that it creates barriers to entry. Whatever these entry barriers may be (e.g. practitioner training, service provider financing, system operator insurance), they are likely to hinder and reduce participation.

New governance rules and their enforcing bodies may prove to be redundant — the concerns they seek to address may already be addressed by existing entities. Moreover, some practitioners will find themselves under the jurisdiction of more than one such governing body (e.g., a lawyer‐mediator may find herself accountable to legal, ADR, and ODR entities), and such bodies may have conflicting, as well as redundant, norms.

Internally organizing any field incurs administrative expenses, which can effectively raise the costs of participation for both providers and customers. For providers, such expenses could limit participation and entry to the field. For customers, they can diminish the incentive to use such services.

Finally, the development of the form of governance structures is often accompanied by power struggles and conflict. The process is seldom easy.

Assuming that, after weighing the pros and cons, the ODR field chooses to begin the governance process, the next question becomes: how practical is such an undertaking?.

As we've already mentioned, even defining and delineating the contours of the ODR field presents enormous challenges. One of these is the vast amount of ODR‐like activity taking place outside the scope of what might generally be recognized to be ODR. To clarify, one way to capture the field's scope might be to include the activities of those who either directly and overtly engage and identify with the field, external projects that are conducted in consultation with such identified members of the field, and services offered that are clearly within the field's purview, even if those providers do not specifically identify themselves as working in ODR. For example, a neutral offering mediation services through Skype is arguably engaging in ODR even if her website describes these as mediation services rather than as online dispute resolution.

We suggest, however, that a much greater amount of ODR‐like activities goes on beyond these boundaries. An immeasurable amount of dispute resolution activity takes place over the Internet, conducted by people, companies, and industries who have never heard of ODR, or whose approach to dealing with conflict has little to do with any of the field's dispute resolution foundations. These efforts might be labeled “customer service,” “reputation management,” or “customer experience enhancement,” for example, but they are, in essence, negotiation and dispute resolution work conducted online. In this sense, many large corporations conduct ODR operations. For example, airlines engage frequently with passengers through social media (Sachs 2014), as do smaller businesses—either directly, or through third‐party platforms such as Yelp, TripAdvisor, or OwnerListens. In these activities, parties do not describe themselves as negotiating or mediating (or even as disputing and conflicting), nor do their resolution processes typically adhere to ADR frameworks. And yet, one could argue that they perform the functions of online dispute resolution.¹³

Once one accepts that premise, one must also consider what constitutes an ODR “platform.” These certainly include dedicated, tailored services such as those offered by Modria and Smartsettle, but some might argue they could also include platforms intended for general communication that are sometimes specifically used for online mediation or negotiation such as Skype or Zoom.¹⁴ For example, governance might designate criteria for what constitutes professionally acceptable platforms for conducting an online mediation — in terms of allowing both parties to speak or to be seen, protecting security, and so on. In addition, platforms through which businesses manage disputes among their users, such as Twitter, TripAdvisor, Yelp, and Facebook could arguably be included.

This state of affairs, in which a great deal of ODR‐related activity happens outside of the scope of the ODR‐identifying field, raises significant governance challenges. A field‐initiated approach to governance would seem to require some shared sense of identification with the field, its potential, and purposes. What could bring these external, non‐identifying players to the table, and what might bring them to share the necessary sense of identification? It could diminish the impact of governance should such external players choose not to participate. One risk for the smaller universe of ODR players is that the limitations of governance could then place them at a competitive disadvantage.

We can envision several different models of potential ODR governance. One might build on Morek's (2006) suggestions for regulation of ODR. A second might build on Lawrence Lessig's (1999) model of modalities of cyber regulation, including standards for technological architecture, law, the market, and policymaking; Scott Shackelford and Anjanette Raymond have applied some elements of this model to ODR (2014).

It would seem likely that no one ODR stakeholder — policymakers, governments, jurisdictions, service providers, or practitioners — is likely to make the sole decision with regard to ODR governance. Indeed, multiple decisions may be made by multiple players at multiple levels, and the end result could well be what Shackelford and Raymond (2014) have dubbed “polycentric governance.”

Alternatively, the field would do well to consider, internally, what model of governance might serve it best. This would provide default coverage of issues not externally regulated; it would also diminish the amount of “open spaces” (e.g., unregulated issues) that can invite the intervention of external policymakers. We suggest the field consider four very general approaches.

This model would recognize ODR as a free‐market activity, and not one that any central body of practitioners chooses to regulate. In this model, actor's norms would be regulated by externally imposed laws; the less external regulation, or the weaker its enforcement, the stronger would be the impact of market forces on actors’ activity.

This model would recognize that normative, ethical behavior is preferable for all, but would choose not to engage with or monitor individual actors’ activities in this regard. A central voluntary entity would recommend best practices, ethical standards, or competency baselines and invite anybody identifying with the field to conform to them. Such compliance would be completely voluntary, with the recommended norms having no binding force, and without a monitoring body or enforcement measures. Compliance would be subjectively self‐enforced — each member entity would determine whether it was complying with the standards.

This model would create structures and organizations to set practice standards, create accreditation schemes, conduct monitoring of practitioners, and enforce compliance. This could follow a guild or association model in which elected representatives interact with external stakeholders to advance policies seen as beneficial to the field, to limit the activity of actors unidentified with the organized field, and to advance the field's status to that of an independent profession.

This model would recognize that the field is best organized from the outside. Individual actors in the field could provide expertise to external bodies directly or indirectly regulating ODR activity, and the field as a whole could seek greater external engagement that could increase ODR's adoption and institutionalization across a wide range of industries, jurisdictions, and contexts. Under this model, the field would not seek to create internal structures, promote standards, or create qualifications, independent of these external contexts.

Additional approaches are, of course, possible. We pose these four basic and common models to provoke discussion because they are simple, their pros and cons are easily discerned, and they are available as models in other fields. Also, two or more of these basic models could be adopted to create a hybrid model, which could be necessary to manage the field's extreme complexity.

For the sake of manageability, we have somewhat downplayed the field's complexity here. Governance deliberations must, however, come to terms with the polylithic, dispersed, and richly eclectic nature of ODR.¹⁵

A picture of the full complexity of ODR governance emerges most clearly when we ask the question: to what, and to whom, will it apply? Online dispute resolution is many things to many people. To begin, we list four basic jurisdictional arenas.

One approach to ODR governance would seek to categorize the activities or processes that comprise the field. An initial list might include online mediation, online arbitration, online (unofficial) court‐like processes, online (official) courts and tribunals, and online negotiation, although we are sure that other processes could be added.

Will the field's governance address practitioners? Service provider companies? Systems? Technological platforms?

Is it realistic to apply a single governance approach across a wide range of ODR contexts? Should the same structures govern ODR in court‐connected and non–court‐connected contexts? Should they apply in commercial, family, workplace, and environmental disputes alike?

Online dispute resolution employs a wide variety of technological tools; some are simple, some are much more complex. The role of humans in the process also varies. Some tools may assist a human mediator to bring disputing parties together; others might provide communication support only. Still others might provide more substantive input in the form of settlement through, or optimization of, negotiated agreements. In formulating ODR governance, technology is likely to be a significant issue — and the wide variance of tools make adopting any one approach a challenging notion.

Within each of these jurisdictional categories, of course, are additional levels of complexity, which could also challenge governance.¹⁶

Once jurisdictional issues are settled, the discussion of ODR governance would consider practice issues, including:

• credentialing,

• training,

• continued professional development,

• ethics,

• practice standards,

• advertising and solicitation,

• procedural justice,

• monitoring and supervision,

• compliance and sanctions,

• field representation, and

• advancement of the field.

Figure One illustrates the governance challenges.

Finally, the dimension of time is also relevant. Discussions of governance must take into account the rapid pace of technological development, and of the cultural changes that occur as humans interact with technology and develop social and legal institutions in response to technological change. We recommend that any ODR governance model proactively anticipate that change is likely to be the norm in this field. Such a governance structure should provide stability, but must anticipate inevitable change.

We have largely directed our discussion toward the ODR field. But here we would like to expand that discussion and invite traditional ADR and conflict management stakeholders to participate. We anticipate benefits for both groups.

For the ODR field, the participation of actors from more traditional ADR realms could enhance ODR's legitimacy and mainstreaming generally. In addition, traditional dispute resolvers can impart crucial conflict resolution governance knowledge and experience. Although ODR governance requires addressing new issues, such as those relating to technology, the large majority of issues are not new. Many ADR professionals have deep knowledge of governance, and are experienced in building coalitions — their contribution to the ongoing formation of the ODR field could be invaluable.¹⁷

The benefits of participation in this process for members of the broader conflict resolution field are not as immediately apparent, but we believe they exist. First, ODR is a rapidly growing area of ADR. A single ODR project, the eBay resolution center, currently manages 60 million cases every year, probably more than the number of cases managed by the rest of the ADR field combined. The EU's new legislation has effectively referred all cross‐border consumer disputes to ODR, a move that could soon provide ODR with another staggering number of disputes.

Online dispute resolution could, therefore, be the future of ADR. As time goes on, the public will increasingly discover the benefits of alternative methods of dispute resolution when they encounter dispute resolution, for the first time, in online venues. It seems increasingly likely that any governance decisions made with regards to ODR will affect all areas of ADR at some future point.

The impact of ODR may extend beyond areas currently addressed by traditional ADR scholarship and practice, to such areas as e‐government and social justice. One such connecting initiative involves using ODR to address the needs of self‐represented litigants in court systems around the world. Another directly integrates ODR into the design of new court systems, as court proceedings move online. The evolution of conflict resolution more generally has involved a great deal of sharing among disciplines. Many of the basic assumptions held about interpersonal conflict have their scientific grounding in studies of large‐scale social conflict, for example, and vice versa. Practitioners trained in one area bring their expertise to another, as when a court‐trained mediator volunteers to facilitate a local community forum.

We do not make this observation to undermine the legitimacy of this practice. Rather, we seek to make the point that what happens in one area of the conflict field will eventually have ramifications across the field. Governance decisions made with regard to ODR are likely to eventually ripple out to affect the entire conflict field. Knowing this, we think it would be beneficial for members of the wider conflict field to be involved and engaged in these decisions up front.

The field of online dispute resolution is at an important developmental point, on the cusp of being recognized, adopted, and institutionalized by a number of national and international systems. It is seeing a resurgence of service proliferation and practitioner activity in the private sector. We suggest that ODR, as a field of professional endeavor, is now mature enough and motivated enough to engage in an internal discussion of governance and that the basic building blocks for such an effort already exist. Online dispute resolvers and the entities with which they are associated would benefit from wider, deeper, and more deliberate participation in a conversation about whether to begin a process of creating internal governance, and about how to then create effective and appropriate institutions and norms.