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Stages of the ODR Platform

Stages of the ODR Platform

What’s the next phase of the ODR platform?

 

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Our user, maybe they’ve attempted to resolve, maybe they haven’t. In any event, they have decided to carry it forward into the next phase of the Civil Resolution Tribunal, and that next phase is an online negotiation, so what they will do is invite the other party. It will be an ordinary type of notice process, giving notice to the other party that this dispute is going forward in the Civil Resolution Tribunal. The next phase that will happen is a negotiation between the parties. But what the idea here is, again, one of the design principles, is we asked our user to do all of this work in the prior step, going through the Solution Explorer.

 

We’ve diagnosed that problem. We’ve given them some specific information about it. We’ve also really put some structure around the dispute, so what we want to do, and the way we are designing the system, is so that gets pushed forward into the online negotiation phase.

 

Rather than start with a blank slate where they are just out there on their own, saying whatever. We understand that when people are in disputes, they can go on very long sort of rants, say all kinds of things that are not necessarily relevant or going to help them resolve the dispute. Instead, we’ve designed it so that they’ll have this structure around the dispute and they will carry that forward.

 

That will form the basis of the negotiation with the other party or with the other parties in the dispute. We will encourage them to negotiate on the basis of, it’s a Strata property dispute with a fine issue, sort of thing. That’s what we will ask them to talk about. The more typical ADR language would be “These are the issues.” We are helping them identify the issues that they are going to have to negotiate around. That’s what happens.

 

Next, we envision that the negotiation phase will be a relatively short process. It’s not going to be very intense. We recognise that the responding parties might not participate, so we are designing around that idea.

 

Our goal here is to take the cream of cases out of the system that don’t need to go further along. There is a percentage of cases, albeit maybe a small percentage of cases, that just need a little nudge and they will resolve. So here is where we want that to happen.

 

Maybe the respondents weren’t willing to engage outside the system with this letter that they got from this other party, and now they are thinking, “Wow, this person’s serious, and I see now we’ve got a chance to resolve this by agreement. Okay, I’ll give it a shot.” They might resolve some issues. They might resolve all the issues at that phase.

 

Carrying on from there, if that doesn’t resolve the dispute entirely, the next phase in the tribunal is case management. “Case management” is a very broad term that we’ve given to a phase that is meant to be very, very flexible. It’s meant to be the one-stop shop where much of the magic happens at the tribunal. We kind of split it up into two main thrusts.

 

The first thrust is having a neutral from the tribunal, that’s a case manager, come on and work with the parties to see if they can facilitate a resolution. This is going to look very much like a mediation. It will be about working through some of these issues that were carried forward from the Solution Explorer, through negotiation, and into the case management phase. Working through to see if we can resolve some or all of them by agreeing.

 

If that isn’t possible, if we don’t resolve the dispute in its entirety, then the case management phase turns to its other thrust which is preparing the dispute for an adjudication. We don’t want to just let the parties head off into adjudication and start over entirely. We want the adjudication to be as streamlined and as focused as possible.

 

The case manager will work with the parties to ensure that the issues are well-defined, that the evidence that they’re going to need in the adjudication is ready to go, that if there is going to be any witnesses, that they are all ready to go, and all of these sorts of things. To, again, help ensure that that dispute is as prepared as we can get it before we send it into an adjudication, and that is the last phase of the tribunal.

 

It is the adjudication. It is not a case manager anymore. It’s now gone to a tribunal member, again, in British Columbia, our administrative tribunal equivalent of a judge. A tribunal member will look at the dispute and they will resolve it by a decision. The decision will be enforceable as if it were an order of the courts of British Columbia, so the parties can enforce that way. But if we do our jobs right, if the system is working, very, very few cases will make it through to adjudication and most of them will be resolved by agreement.

About the mediator

Darin Thompson Profile Pic

Darin Thompson is a lawyer with the Ministry of Justice in British Columbia, Canada. He currently serves as the Acting Legal Officer for the BC Civil Resolution Tribunal, a new, fully online tribunal that will begin operations in 2015, handling small claims and condominium disputes. He has helped to initiate multiple projects using Online Dispute Resolution and is a member of the Canadian delegation to the United Nations Working Group on ODR. ... View Mediator