Ask An Expert: Mark Appel

Mark Appel, an independent international Arbitrator, Mediator, Consultant and Trainer, discusses online dispute resolution (ODR), cybersecurity and the impact of technology on the dispute resolution process.

What is your role, when did you first become interested in ODR?

My current role is Mediator/Arbitrator with ArbDB Chambers, London, but for 30 + years I was an Executive at the American Arbitration Association and its International Centre for Dispute Resolution (ICDR), leaving ICDR in 2015 as Senior VP, EMEA. One of my roles there was to serve as a process consultant to corporations, public bodies and ADR provider organisations. I became thoroughly familiar with ODR a little over 10 years ago while assisting the creation of an online dispute resolution tool for manufacturers and suppliers. The pilot project involved GE Oil and Gas and its’ suppliers.

How do you think technology will impact dispute resolution in the next 5-10 years?

ODR will become part of the common fabric of public and private dispute resolution, providing access to justice for smaller claims and process efficiency for larger claims.

It’s no secret that commerce is global (think supply chains). ODR provides an efficient, economic and safe environment for resolving a multitude of disputes for parties who are geographically diverse. The economics are compelling, so much so that ODR really is more of a need than an option.

Could ODR transform the way dispute resolution is conducted?

ODR allows parties to resolve disputes where they live and work, without requiring the time and expense of travel. Too many individuals and companies abandon legitimate grievances rather than pursue them because of anticipated costs of travel, accommodation and hearing facilities. Access to a pool of trained, expert online arbitrators and mediators significantly increases the quality of justice by allowing the adjudicator/mediator to work in ‘cybertime’ from the comfort of their office or home. I have talked in the past about ODR arbitrators taking evidence in their pyjamas.

Truth be told, ODR is still in its infancy. Courts and ADR providers are using ODR to address issues framed by current approaches to justice, so, by way of example, filing and information exchange. ODR has the capacity to change the way we think about justice, providing us with new models we have not even contemplated to date.

Are there certain disputes particularly suited to ODR?

I have watched with interest the ongoing scientific debate about the value of witness testimony and the reliability of memory. It seems our civil law colleagues may have realised an important issue in emphasising the importance of documentary evidence.  ODR works particularly well in fact-based disputes where the documents can be posted safely online.

How are judiciaries reacting to the potential of ODR and digitalisation trends?

Entire ODR court dockets, from filing to case management to decision, are becoming commonplace in courts. Virtual courtrooms are now a reality. Austria and Singapore, to name two leading jurisdictions, seem to have committed substantial resources to ODR development. This is one case where private ADR institutions, with a few notable exceptions, seem to be lagging behind their Judicial colleagues. Too many ADR provider organisations have yet to move beyond a ‘hobbyist’ approach to ODR.

What are the potential challenges for ODR?

Cybersecurity will of course be a continuing issue, whether concerning the identity of participants or the integrity and protection of documents and databases. To be successful, ODR needs to be easy, as easy as picking up a telephone, manual file and pencil. Arbitrator and mediator ethics and competency are critical elements of trust in the process. In that regard, as well as others, ADR thought leaders and provider organisations will suggest and  provide needed, useful safeguards.

What role can ODR play in triggering a change in the culture and practice of dispute resolution?

ODR, like ADR before it, needs to be mainstreamed.  Whether it’s judicial education, civil procedure or access to justice, ODR needs to be part of the conversation.

Mark will be speaking at the upcoming Equal Access to Information & Justice – Online Dispute Resolution (ODR) 2017 Conference in Paris on the 12-13 June.

Interviewed by Natasha Mellersh.

Mark Appel has nearly 40 years of global arbitration and mediation experience, having served in both executive and senior executive positions at the American Arbitration Association (AAA) and International Centre for Dispute Resolution (ICDR), leaving ICDR/AAA as Senior Vice President, EMEA in December of 2015. An experienced mediator and mediator trainer, Mark is a founding, now honorary, Director of the International Mediation Institute.  

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