Reviving the ‘new handshake’ in the wake of a pandemic

Authors

  • Amy J. Schmitz University of Missouri School of Law

DOI:

https://doi.org/10.1558/mtp.18586

Keywords:

online dispute resolution (ODR), COVID-19, e-commerce, consumer empowerment, A2J, remedies

Abstract

It is often assumed that companies and consumers are on opposing ‘teams’. In reality, however, consumers and companies enjoy more commonalities than contradictions. Both benefit when deals go well and disputes are resolved quickly and cheaply. The problem is that face-toface dispute resolution can be costly in terms of time and money, and even dangerous in these times of COVID-19. Furthermore, getting lawyers is generally impractical and overly expensive in consumer cases. The solution is a well-designed online dispute resolution (ODR) system that harnesses business and consumer commonalities, and creates a win–win for all stakeholders in e-commerce disputes. That is not to say that ODR is the ‘be all and end all’ for e-commerce disputes. All ODR is not fair and efficient. Furthermore, the digital divide remains a concern and the internet undoubtedly generates vulnerabilities for consumers, but it also creates opportunities for consumer empowerment. The time is right to take advantage of those opportunities, and create a unified ODR system that provides fast and fair resolutions worldwide. This article discusses ideas for such a system to create a ‘new handshake’ that inspires trust in e-commerce.

Author Biography

Amy J. Schmitz, University of Missouri School of Law

Professor Amy J. Schmitz joined the University of Missouri School of Law and the Center for Dispute Resolution as the Elwood L. Thomas Missouri Endowed Professor of Law in 2016. Previously she was a professor at the University of Colorado School of Law for over 16 years. Prior to teaching, Professor Schmitz practised law with large law firms in Seattle and Minneapolis, and served as a law clerk for the US Court of Appeals for the 8th Circuit. She serves on the Association of American Law Schools Executive Committee on Commercial and Consumer Law, was an external scientific fellow of the Max Planck Institute Luxembourg, and is a researcher with the ACT Project exploring AI and ODR at the Cyberjustice Lab. She also has taught in France, South Africa and England, and has been an expert and liaison for the United Nations working group seeking to create a global ODR mechanism (UNCITRAL WG III). Professor Schmitz has published over 50 articles in law journals and books.

References

Amy J. Schmitz and Colin Rule, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection (American Bar Association Section on Dispute Resolution, 2017).

Ibid.

Amy J. Schmitz, Access to Consumer Remedies in the Squeaky Wheel System, 39 Pepperdine L. Rev. 279–366 (2012).

Emma Fletcher, Pandemic Purchases Lead to Record Reports of Unreceived Goods, FTC: Consumer Protection Data Spotlight (1 July 2020, 10:00 AM), www.ftc.gov/news-events/blogs/data-spotlight/2020/07/pandemic-purchases-lead-record-reports-unreceived-goods.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid. Currently, the FTC recommends purchasing any online items with a credit card because a consumer may be able to successfully dispute a charge for an un-received item. The FTC has stated that this is a global problem, given that the internet gives international sellers and consumers an opportunity to interact.

See Amy J. Schmitz, Drive-Thru’ Arbitration in the Digital Age: Empowering Consumers Through Binding ODR, 62 Baylor L. Rev. 178, 180–240 (2010); Llewellyn Joseph Gibbons, Creating a Market for Justice; a Market Incentive Solution to Regulating the Playing Field: Judicial Deference, Judicial Review, Due Process, and Fair Play in Online Consumer Arbitration, 23 Nw. J. Int’l L. and Bus. 1, 3 (2002); Philippe Gilliéron, From Face-to-Face to Screen-to-Screen: Real Hope or True Fallacy?, 23 Ohio St. J. on Disp. Resol. 301, 308–10 (2008); Haitham A. Haloush and Bashar H. Malkawi, Internet Characteristics and Online Alternative Dispute Resolution, 13 Harv. Negot. L. Rev. 327, 327–9 (2008).

See generally, Schmitz and Rule, The New Handshake.

John Koetsier, COVID-19 Accelerated E-Commerce Growth ‘4 to 6 Years’, Forbes (12 June 2020, 10:43 PM), www.forbes.com/sites/johnkoetsier/2020/06/12/COVID-19-accelerated-e-commerce-growth-4-to-6-years/#5067b7d6600f.

Ibid.

Ibid. US retailers’ online year-over-year revenue growth was up 68% in mid-April 2020. As of 21 April 2020, there was a 129% year-over-year growth in US and Canadian e-commerce orders. Louis Columbus, How COVID-19 is Transforming E-Commerce, Forbes (28 April 2020, 12:10 PM), www.forbes.com/sites/louiscolumbus/2020/04/28/how-COVID-19-is-transforming-e-commerce/#6097ade83544.

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Ibid.

Ibid.

Emily A. Vogels, From virtual parties to ordering food, how Americans are using the Internet during COVID-19, Pew Research Center (30 April 2020), www.pewresearch.org/fact-tank/2020/04/30/from-virtual-parties-to-ordering-food-how-americans-are-using-the-internet-during-COVID-19.

Ibid. See also Mansoor Iqbal, Zoom Revenue and Usage Statistics (2020), BusinessofApps (20 July 2020), www.businessofapps.com/data/zoom-statistics; Ben Keough, The Best Videoconferencing Service, The New York Times (24 June 2020), www.nytimes.com/wirecutter/reviews/best-video-conferencing-service.

See Ethan Katsh and Orna Rabinovitch-Einy, Digital Justice: Technology and the Internet of Disputes (Oxford University Press, 2017).

See Paul Stylianou, Online Dispute Resolution: The Case for a Treaty Between the United States and the European Union in Resolving Cross-Border E-Commerce Disputes, 36 Syracuse J. Int’l L. and Com. 117, 125 (2008).

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Ibid.

Ticket and Minor Infraction Resolution Results: Multiple Courts, Matterhorn, https://getmatterhorn.com/get-results/traffic-court/ticket-minor-infraction-

resolution-results/ (last visited 20 July 2020).

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ODR for Courts Version 2.0, JTC Resource Bulletin, 18 (29 November 2017) www.ncsc.org/__data/assets/pdf_file/0031/18499/2017-12-18-odr-for-courts-

v2-final.pdf.

See Shmuel I. Becher and Tal Z. Zarsky, E-Contract Doctrine 2.0: Standard Form Contracting in the Age of Online User Participation, 14 Mich. Telecomm. and Tech. L. Rev. 303, 309–10 (2008).

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Ibid.

Ibid.

eBay, Ask eBay to Step in and Help for Buyers, www.ebay.com/help/buying/returns-refunds/ask-ebay-step-help-buyers?id=4701 (last visited 1 March 2020).

Ibid.

Ibid.

Ibid.

Amazon, Buyer Dispute Program, https://pay.amazon.com/help/201751580 (last visited 1 March 2020).

Ibid.

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Ibid.

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Ibid.

Facebook, About Disputes and Claim Decisions, www.facebook.com/business/help/1167434420087941?id=353836851981351 (last visited 12 February 2020).

Facebook, Purchase Protection Policies, www.facebook.com/policies/purchase_protection (last visited 12 February 2020).

Ibid.

Ibid.

Facebook, About Disputes and Claim Decisions, www.facebook.com/business/help/1167434420087941?id=353836851981351 (last visited 12 February 2020).

Ibid.

Ibid.

Ibid. If the claim meets the criteria listed in their Purchase Protection Policies, the dispute will be decided in the customer’s favour. However, the business has means to appeal through the portal. Ibid.

Etsy, Terms of Use, www.etsy.com/legal/terms-of-use#disputes (last visited 13 February 2020).

Ibid. Etsy states that they are under no obligation to resolve any dispute and reminds users that they are not making judgements on any legal issues or claims. Users also release Etsy from any claims arising out of disputes with third parties.

Etsy, Cases for Buyers, www.etsy.com/legal/policy/cases-for-buyers/243306189901?ref=list (last visited 13 February 2020).

Etsy, Why Can’t I Open a Case?, https://help.etsy.com/hc/en-us/articles/115015570547?segment=shopping (last visited 13 February 2020).

Etsy, Cases for Buyers, www.etsy.com/legal/policy/cases-for-buyers/243306189901?ref=list (last visited 13 February 2020).

Etsy, Terms of Use: Disputes, www.etsy.com/legal/terms-of-use#disputes (last visited 13 February 2020). If the claim against Etsy does not exceed $10,000 Etsy will pay for filing, administrative, and arbitrator fees, unless the arbitrator finds the claim was frivolous or made with improper intent.

Melisse Stiglich, Utah Online Dispute Resolution Pilot Project, NCSC (December 2017), 1-3 https://ncsc.contentdm.oclc.org/digital/api/collection/adr/id/63/download (last visited 6 November 2019).

Ibid. at 6–7.

Ibid. at 9.

Ibid. at 11.

Ibid.

Ibid.

Paul Embley, NCSC, Presentation at the First Int’l Forum on Online Courts, US Courts and Online Dispute Resolution 13 (3 December 2018), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/761379/US.pdf.

Ibid. at 15.

2019 Best of Utah Awards (6 June 2019) at https://dts.utah.gov/news/2019-best-of-utah-awards-winners (last visited 26 June 2019).

Ibid.

David Solomon, INSIGHT: Virtual Litigation’s Time Has Come, Bloomberg Law (7 April 2020, 3:00am), www.bloomberglaw.com/product/health/document/X8FRFFUC000000?bna_news_filter=true&jcsearch=BNA%2520000001713b28d6e5aff37f6f24540001#jcite.

Ibid.

Ibid.

DE R Fam Ct RCP Rule 79.1

Morenike Obi-Farinde, ODR in Africa: The Emergent Face of Dispute Resolution Post COVID-19, (April 2020), www.mediate.com/articles/obi-odr-africa.cfm.

Ibid. An appeals court judge in Kenya recorded his rulings and made them available to parties online. Similarly, in Uganda, some courts continue to meet online for urgent proceedings.

Ibid.

Raphael Minder, Spain’s Courts, Already Strained, Face Crisis as Lockdown Lifts, The New York Times (24 May 2020, updated 26 June 2020), www.nytimes.com/2020/05/25/world/europe/spain-courts-coronavirus.html?searchResultPosition=5.

Ibid. Urgent matters seem to centre on protection of minors.

COVID-19 IP update: impact on litigation (UPDATED), JDSupra (22 June 2020) www.jdsupra.com/legalnews/COVID-19-ip-update-impact-on-litigation-75965.

Ibid.

Essex Court Chambers, Keep Calm and Carry On: How English Civil Courts Have Adapted to Lockdown (29 April 2020), https://essexcourt.com/keep-calm-and-carry-on-how-english-civil-courts-have-adapted-to-lockdown.

Ibid.

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Ibid.

UN Commission on International Trade Law Working Group III, 29th Session, Online Dispute Resolution for Cross-Border Electronic Commerce Transactions: Draft Guidelines, UN Doc A/CN.9/WG.III/WP.128 (24–28 March 2014), http://daccess-dds-ny.un.org/doc/UNDOC/LTD/V14/003/96/PDF/V1400396.pdf?OpenElement.

Noam Ebner and John Zeleznikow, No Sheriff in Town: Governance for Online Dispute Resolution, 2016 Negot. J. 297, 297–310 (2016).

The author was an appointed expert to the Working Group for a meeting during this time.

See Mirèze Philippe, ODR Redress System for Consumer Disputes: Clarifications, UNCITRAL Works and EU Regulation on ODR, 1 Int’l J. Online Disp. Resol. 57 (2014).

Ibid. at 66–67.

Online Dispute Resolution for Cross-Border Electronic Commerce Transactions: Draft Outcome, supra note 160.

European Commission, Online Dispute Resolution, https://ec.europa.eu/consumers/odr/main/?event=main.trader.register#:~:text=The%20European%20Online%20Dispute%20Resolution,to%20quality%20dispute%20resolution%20tools. (last visited 20 July 2020).

Ibid. Parties have 30 days to agree on a dispute resolution body to handle the case.

Ibid. Vendors can only complain against consumers living in Belgium, Germany, Luxemburg or Poland.

European Commission, Trader Statistics, https://ec.europa.eu/consumers/odr/resources/public2/documents/trader_info_stats/ODR_Trader_Info_stat_EN.pdf (last visited 20 July 2020).

Ibid.

European Commission, Leaflet for Traders, https://ec.europa.eu/consumers/odr/resources/public2/documents/leaflet_for_traders/traderleaflet_web_en.pdf (last visited 20 July 2020).

Gabriela R. Szlak, Online Dispute Resolution in Latin America, in ch. 23 Online Dispute Resolution: Theory and Practice 517, 522–25 (Mohamed S. Abdel Wahab, Ethan Katsh and Daniel Rainey eds., 2012).

¿Qué es Concilianet?, Gob.mx, http://concilianet.profeco.gob.mx/Concilianet/comoconciliar.jsp (last visited 21 August 2017).

Szlak, Online Dispute Resolution in Latin America at 525–43. 100 Proveedores Participantes, Gob.mx, http://concilianet.profeco.gob.mx/Concilianet/proveedores_que_concilian.jsp.

Memoria Documental: Conciliación a Través de Medios Electrónicos: Concilianet (2008 a 2012), 23–24 (2012).

Dispute Settlement in the Era of COVID-19 Our ‘New Normal’?, Lexology (26 May 2020), www.lexology.com/library/detail.aspx?g=d7b9e6cb-61bf-4e32-9133-67ae71c13c76.

Ibid.

Ibid.

Virus Pushes ADR Securely Online to a Codified Platform, Law Society Gazette Ireland (17 July 2020), www.lawsociety.ie/gazette/top-stories/covid-pushes-dispute-resolution-securely-online-in-a-codified-web-platform.

Ibid.

Ibid.

COVID-19 IP Update: Impact on Litigation (UPDATED), JDSupra (22 June 2020) www.jdsupra.com/legalnews/COVID-19-ip-update-impact-on-litigation-75965.

Ibid.

Ibid.

COVID-19 IP Update: Impact on Litigation (UPDATED), JDSupra (22 June 2020) www.jdsupra.com/legalnews/COVID-19-ip-update-impact-on-litigation-75965.

Ibid.

Schmitz and Rule, The New Handshake at 95–106.

Ibid. at 95–96.

Ibid. at 96.

Ibid. at 97.

Ibid. at 97–98.

Ibid. at 98.

Ibid.

Published

2020-12-23

How to Cite

Schmitz, A. J. (2020). Reviving the ‘new handshake’ in the wake of a pandemic. Mediation Theory and Practice, 5, 32–54. https://doi.org/10.1558/mtp.18586

Issue

Section

Research Articles