1        Introduction

1. Throughout the course of history, human communities began to solve their disputes privately, but those primitive types of conflict resolution often involved the use of force and violence. As modern societies evolved, conflict resolution shifted from a totally private matter to a state activity. The turning point might be identified with the evolution of civil procedure in Roman Law, when the state absorbed almost entirely the task of resolving disputes. In time, separation of powers led to the organization of the judiciary, a branch of state activities that was meant to be the sole locus of dispute resolution.
2. Nevertheless, this was not enough to make private resolution of disputes vanish. Still in medieval times, even before nation-states started to be organized, even some rather primitive legal systems provided parties with several dispute resolution procedures that were very similar to contemporary ones, allowing litigants to move from adjudicative to cooperative methods as the conflict required.^[1] Therefore one can see a pendulum swing between systems in which dispute resolution is predominantly public or private.
3. However, in the last century, and especially in the past few decades, the study of dispute resolution began to increase the number of sophisticated private mechanisms of conflict-solving. The so-called Alternative Dispute Resolution (ADR) was a concept developed since the late 1970s^[2], and roughly embraces not only consensual proceedings such as negotiation, mediation, conciliation, but also other types of adversarial adjudicative procedures such as arbitration. In fact, studies related to the theory of conflicts identify possible solutions for disputes by way of two major groups of mechanisms. Some are depicted as adversarial, such as litigation and arbitration, others have a more collaborative functioning, as for example negotiation, mediation or conciliation.
4. Indeed ADR is a wide concept that encompasses forms of adjudication − for example, arbitration − in which the decree of a third-party (the arbitrator) will determine the outcome of the dispute, but it also covers consensual methods of conflict resolution by which the parties themselves try to find a solution for the dispute, such as negotiation, mediation, conciliation, etc.^[3] Even though all of them could fit into the category of ADR, our focus in this segment will be on the consensual methods of dispute resolution.
5. Conflict resolutions do not have to be necessarily associated with a war, a duel, or a fight, and are not always supposed to be painful and stressful. That image might be misleading even in court litigation but seems to be more wrong when private dispute resolution is taken into account. Private means of dispute resolution emphasize party self-determination, with a more harmonious participation of the interested stakeholders in solving the conflict.^[4] 
6. Thus, consensual dispute resolution assumes the parties to the dispute are better suited to respond to their own needs and should be the protagonists of conflict-solving. There are many advantages that stem from that assumption. Indeed, several studies showed that the empowerment of parties in private ordering provides personal development, fosters creative problem-solving, enables the continuity of co-operation between business partners (which could produce future economic benefits)^[5], and speaks in favor of a peaceful solution of disputes (ne cives ad arma veniant). In this context, ADR is viewed as a means of incrementing communication between the parties, strengthening interpersonal relationships and ultimately contributing to peace building and cohesion of social bonds.^[6] On the other side, consensual dispute resolutions involve parties directly in a less formal and more comprehensible procedure than those provided for in court litigation. In addition to that, participation makes the involved parties feel responsible for the outcome^[7] and therefore more keen to comply with the terms of the agreement.
7. On the other hand, boosted by the access to justice movement, the development of ADR was also part of the search for a more adequate civil justice, incrementing quality and quantity of paths to dispute resolution, instruments to respond to social conflicts that any legal system should provide to the citizens. In this context, ADR appeared as a way to enhance diversity and efficiency in dispute managing.^[8] So the evolution of ADR was in part the legacy of the search for a more efficient and fair dispute resolution system, creating incentives for better access to justice through consensual solutions.^[9]
8. Nevertheless, in many jurisdictions, the development of new forms of dispute resolution was a result of a desperate need to reduce the work overload of the judiciary. After years of litigation explosion, parties and States started seeking alternatives to deal with the long delays experimented by litigants that brought their conflicts to trial. Taking disputes to ADR impacts the justice system by reducing the number of pending cases in court litigation, relieving the pressure over court hearings' calendar, and ultimately leading to lower overall costs of dispute resolution, which is important as a public policy to alleviate the judiciary budget. Therefore, improving access to justice was not the sole argument justifying ADR implementation.^[10] ADR appeared sometimes as a means to rationalize the scarce resources of court litigation, reducing the burdens that the explosion of caseload caused for the judiciary worldwide.^[11] Undoubtfully, all over the globe, judges are overloaded, and promoting ADR could reduce the workflow of claims that were being channelled to courts.^[12]
9. But the ADR movement was also a response to the inefficiency experimented in court litigation due to the rigidity of its bureaucracy. From the parties' perspective, ADR would provide an escape route from the existing formalities of court procedures, providing a more flexible and amenable framework, adaptable procedures that were more suitable to that specific conflict, and which could also solve the dispute not only in less time but also with lower costs.
10. And after some decades since the strengthening of this movement towards the consensualization of dispute resolution, the development of ADR made these mechanisms quite common in most jurisdictions, both in common law and civil law.^[13]

2        Characteristics of Consensual Dispute Resolution Procedures

11. Some main features are often pointed out as typical to consensual dispute resolution procedures.
12. First, they are usually non-coersive. Parties must accept to submit themselves to ADR. Even those jurisdictions that provide for mediation/conciliation sessions as mandatory requirements to file a lawsuit in court do not oblige the parties to remain indefinitely in those proceedings. It usually is a matter of voluntarily submitting oneself to consensual attempts of conflict solving. In some jurisdictions, as we shall see in later sections, mandatory ADR exist, but usually parties are obligated to negotiate in good faith and to appear at least to one joint session of negotiation.^[14]
13. Another feature of ADRs is orality. Most negotiation, mediation and conciliation proceedings entail to some extent oral sessions in which parties to the dispute, their lawyers or agents appear in person for direct interaction.^[15] Orality makes the procedure more human, and also permits the negotiators to explore paralinguistic signals of non-verbal communication.^[16] 
14. In addition, legal scholars often speak of informality as a characteristic of consensual dispute resolution procedures. Informality relates not only to the flexibility of the proceedings, but also to the attitude that parties and their representatives should have in their mutual interplay. This is relevant to foster a natural, relaxed and comfortable environment, deemed essential to reach settlement.
15. Another very important feature of ADR is confidentiality.^[17] In fact, confidentiality does not apply to all ADR mechanisms, especially when used by judges or court officials (see below). But in mediation, for example, confidentiality is understood to be the basis for trust building (the confidence that parties have in the third-person aiding the negotiation) and is essential to present a discussion environment in which the parties feel secure to speak their minds, to express freely their concerns and beliefs, and to debate about the proposals of the counter-parties. If those discussions were to be always public, one could observe a chilling-effect, with the parties avoiding to disclose their positions. Indeed, privacy and confidentiality in dispute resolution procedures have always been at the basis of the parties' choice over the method of dispute resolution.^[18]
16. Neutrality or impartiality of negotiators, mediators and conciliators is also a paramount feature, even if not essential to all types of ADR.^[19]Impartiality is relevant to warrant equality between parties and to avoid the unbalancing forces that could make some disputants prevail by imposing their will to the others. The search for a neutral conductor aims at preventing not only an undue influence over the outcome, but also to preserve the relationships between the involved parties.  
17. From another angle, ADR is usually a matter of private autonomy^[20], so one of its key aspects is that ADR is a result of joint consensus. Some scholars argue that freedom of contract, which is a fundamental principle in most legal systems, places the rights of the individuals at the centre of the legal activity, and from that legal norm follow the principles of party autonomy and party disposition, empowering persons to shape dispute resolution methods and their formalities.^[21] Indeed, regardless of a unified normative framework, in most jurisdictions the general legal background for the requirements and enforceability of ADR agreements is the general law of contract.^[22]
18. Depending on voluntary agreements, ADR often apply to disposable legal relationships. Therefore in most legal systems one can find limits as to the possibilities of the application of ADR to conflicts involving labour law, consumer protection, antitrust cases, rights of vulnerable or uncapable persons, inheritance, cases involving civil aspects of criminal offenses, and cases in which the counterpart lives abroad or cannot be located.^[23] The general assumption is that in these fields the legal rights involved are not always disposable or parties are not equal and the negotiation interactions do not guarantee informed consent.
19. Another consequence of the voluntary aspect of ADR is that they usually cannot be imposed on unwilling disputants. In this sense, many legal systems choose not to allow legal norms to create obstacles to a person initiating a lawsuit before the judiciary. In these jurisdictions, attempts to enforce mandatory ADR prior to accessing courts is usually interpreted as violating the right to access to justice.^[24] Thus the choice to submit oneself to litigation is often based on freedom of contract. There must be a willful agreement by which the parties consensually shift the locus of the dispute resolution from the regular court proceeding to some other alternative more suitable to their needs. This can appear as a necessary first step of negotiations prior to commencing an adversarial proceeding, or as a total exclusion of courts altogether (as in arbitration). Due to this interpretation of the principle of access to justice, in many legal systems statutory rules cannot prevent parties from going straight to court. People involved in a conflict have the right to seek judiciary relief whenever unable to solve the dispute themselves. Therefore, in several jurisdictions, mediation eg, cannot be imposed as a previous and necessary step to filing a lawsuit in court.
20. However, if the parties to an agreement willingly establish ADR as the means to solve conflicts that might arise from the contract, those clauses are deemed valid because they represent a result of self-determination. For example, agreements to mediate (clauses that set forth a mediation procedure to which parties have to attend prior to litigation or arbitration) are admissible because they reflect the disputants' private autonomy.^[25]
21. Other jurisdictions have taken a different path of making mediation or conciliation procedures a mandatory requirement, a first step that parties have to take prior to going to court. Those legal systems depart from the idea that in dispute resolution, settlement-type procedures should be attempted first, with adjudication − especially court litigation − being the last resort (ultima ratio). So, jurisdictions provide for a specific requirement for the lawsuits to be admissible before the judiciary: parties must present evidence of having previously engaged in mediation/conciliation procedures in order for their claims to be heard in court. This is the case of the regulation of the European Union (and most national jurisdictions of that juridical space)^[26] and of some legal systems in Latin America.^[27]
22. The underlying premise of this approach is that a pending lawsuit at the judiciary is not submitted to the interests of the parties, confined to their sphere of legal rights. Each lawsuit burdens the judiciary and therefore imposes costs that are beared by the whole society in a scenario of scarce funds in the public budget. In light of this economic concern, many jurisdictions have begun to reframe the principle of access to justice.^[28] In this perspective, if several possible dispute resolution settings are offered to the parties to solve their dispute, the option between amicable, consensual methods or adjudication procedures should not only be a matter of personal convenience, but rather an institutional choice, supported by policies of underlying public interests.^[29]

3        ‘Alternative’ or ‘Adequate’? Integration between Procedures and Dispute Resolution Design. The ‘multi-door courthouse’ and Its Different Sub-systems.

23. The adjective ‘alternative’ may not be the most precise term to qualify these methods of conflict-solving understood as ADR. On the one hand, the word ‘alternative’ relies on the assumption that the standard form of dispute resolution would be litigation, and every other instrument would be an alternative to courts. But nowadays one can see that many disputes should not be taken to the judiciary because there is a better suited locus to solve them.^[30]
24. Therefore, in recent times, legal scholars have begun to speak not of ‘alternative’, but of ‘adequate’ or ‘effective’ dispute resolution methods. The underlying idea is to search for the most suitable means of conflict-solving.^[31] The choice of the proper dispute resolution mechanism must take into account the appropriateness of a method for a particular dispute. This analysis should consider, among others, the following factors: (a) the nature of the dispute and the merits of the case; (b) a prognosis of success of the negotiations for an amicable solution, which can be measured by the previous use of other settlement methods and the effectiveness of the attempts to reach an understanding; (c) if the projected delays in opting for alternative dispute resolution would be harmful to the projected outcomes; (d) whether the costs either of court proceedings or of alternative dispute resolution would be too high.^[32]
25. Regardless of those factors, if a dispute resolution procedure is supposed to be adequate rather than seen as an ‘alternative’ to litigation, it would be consistent to conclude that these mechanisms should be understood as complementary to each other.^[33] Thus they must be integrated, forming what is thought to be a ‘multi-door’ system.^[34] The image of the atrium of a courthouse with many doors is descriptive of a model by which the legal system offers the individuals diverse paths to solve their disputes, each one of them suitable to some types of cases, and all of them capable of combining to one another.^[35] Litigation should therefore not be considered as a 'primary' dispute resolution procedure, but rather conceived as one option among many others.
26. This brings us to another topic that reflects a major trend, which is the design of dispute resolution mechanisms.^[36] Parties can come together and contractually define procedures and instruments that fit the profile of their conflict, sometimes mixing techniques and features of other ADRs, or even creating new forms of procedures.^[37] In some jurisdictions, parties can even choose litigation and then consensually shape the rules and formalities of court proceedings. This particular tendency relates to another important topic, that of the ‘procedural agreements’, allowed to variable extent, in many countries (see below).
27. In this context of multiple procedures and tools of consensual dispute resolution, there is no general preference in favor of a certain ADR method over the others.^[38] And in jurisdictions in which the disputants are not obligated to search for ADR before going to court, it seems fair to say that there is also no priority of ADR over litigation. In the absence of a systemic preference, the question is always of adequacy/suitability.
28. From another perspective, because of the historical evolution of consensual dispute resolution procedures, and the fact that they emerged as an alternative to courts, they are usually seen as of private initiative, carried out in collaborative proceedings, whereas litigation would be of public nature, conducted in adversarial procedures.
29. But this rather extremist view approached conflict-solving from a one-sided angle, whether public or private, either performed by state officials or only by the parties themselves. One could think of a more balanced picture of both private and public procedures of conflict-solving intertwined.^[39] In this combination, maybe dispute resolution procedures should be looked at from the outset as ‘dispute resolution systems’ or ‘sub-systems’ which are in many ways interlinked and dependent on one another.
30. Indeed, on the one hand, private forms of ADR frequently need courts' authority, otherwise they would be non-binding.^[40] If the outcomes of ADR proceedings are not enforceable by courts, the absence of effective enforcement mechanisms of the agreements obtained in ADR could be harmful in terms of legal certainty and legal security (predictability).^[41] 
31. In addition to that, courts themselves began to offer ADR services, state-run procedures of a more collaborative structure, insourcing ADR into one of the several ‘tracks’ or ‘services’ that a person could encounter in a ‘menu’ of dispute resolution mechanisms provided by the judiciary.^[42] The most prominent example are court-connected or court-annexed mediation procedures (see below). This is a format that responded to the ideal of a true multidoor courthouse, with several instruments of dispute resolution ‘under the same roof’.^[43] One example is the judicial settlement conference, in which judges themselves act as facilitators to the negotiation.^[44]
32. As we can see, nowadays dispute resolution systems are not ‘pure and simple’, but rather mixed or hybrid. Therefore, a legal system committed to dispute resolution should also embrace forms of ADR services provided by public bodies or courts. In the same sense, state-run consensual dispute resolution should also be encompassed by the definition of ADR.^[45] With those characteristics in mind, maybe ADR should not be seen as ‘escape routes’ or as remedies to litigation's inefficiencies after all, but rather as ‘added value’, established in order to enhance the variety and effectiveness of the dispute resolution responses in a given legal system.^[46]

4        Dispute Systems Design and the Consensualization of Dispute Resolution. Consensual Decision Making. Procedural Agreements and Contracts.

33. Dispute systems design (DSD) can be defined as the activity of the disputants of tailoring the architecture of the dispute resolution setting, adapting the existing frameworks to their concrete needs and to the characteristics of the dispute in hand.
34. Dispute systems design aims at helping people, organizations and society as a whole to solve disputes in an efficient manner, channelling efforts into productive activities while avoiding waste of time and resources in unproductive ones.^[47] The goal is to find adequate instruments because not every tool fits every dispute.^[48] 
35. As mentioned above, in early stages of the development of the subject in theory and in practice, ADR was seen as a solely private enterprise. In this perspective, whenever applied to ADR, dispute systems design was an activity that should define out-of-court ADR settings. But in time, as highlighted in the previous section, courts have begun to implement ADR services combined with the traditional structures of litigation.
36. Following this trend, the idea of a party-driven procedure, based on voluntary agreements of the interested parties, gained at least two other interesting and promising perspectives, both of them reaching similar results by the use of different approaches.
37. A first approach is to foster consensualization by way of joint applications or joint requests of the parties. The disputants agree upon certain aspects of the procedure and submit their consensual proposal to the court. The agreement is not binding or enforceable as a contract, so judges can decide otherwise. However, in most juridictions, courts will not only consider but also tend to respect the agreement and implement the desired outcome. This idea is consistent with the consolidated efforts to foster participative case management and also with the so called ‘principle of cooperation’, a growing trend in many jurisdictions from which a collaborative model of civil litigation could be built, a procedural setting in which judges and parties share responsibilities for interpreting and applying the normative framework of procedural law to produce fair outcomes by way of court proceedings that unfold in a timely manner and with lower costs.
38. The second tendency that can be seen in terms of consensual instruments for dispute systems design is the empowerment of parties to shape dispute resolution proceedings within court litigation by way of the so-called ‘procedural agreements’ or ‘procedural contracts’, the possibility for the disputants to determine the rules of court litigation procedures in a contract or legal transaction. The contractually stipulated rules derogate statutory default provisions and ultimately establish the formalities of court procedures.^[49] Indeed, in a growing number of legal systems, those negotiated rules are deemed to be valid legal norms, binding and enforceable by the court, so judges must apply the proceeding as designed by the parties if there is no other public or third-party interest that suggests otherwise.^[50]
39. Although in many jurisdictions the idea of an inflexible court procedure, conducted and defined solely by legislators and judges still dominates legal scholarship and case-law, procedural agreements have been a trend for quite some time in several legal systems, reflecting a contemporary ‘alternative’ to traditional court litigation, without representing a flight from the judiciary.^[51] The alternative here relies on the flexibility of the proceeding, which can be adapted by the parties in order to make litigation better suited to their needs and to the substantive rights in play.
40. Moreover, in more or less intense fashion, these forms of consensualization of civil litigation − either by joint applications and consensual decision-making or by a contractually-designed procedure − question the assumption that ‘private’ and ‘public’ dispute resolution systems are two worlds apart. On the contrary, flexibilization and adaptation can be promoted within court litigation and with active engagement and participation of the disputants.^[52] Dispute systems design allows parties to project, plan and influence the design of their dispute resolution method not only away and apart from the judiciary but embedded with court proceedings.
41. Nevertheless, neither party autonomy nor joint requests provide litigants to the same freedom they have in designing out-of-court procedural settings (either arbitration or other consensual ADR procedures). Since the negotiated or agreed rules are meant to govern court litigation, issues of public policy must be taken into account. In most jurisdictions, courts' powers to decide on joint applications or to control the procedural agreements tend to be more intense than to control contracts in general because the effects of procedural agreements can impact state activities performed in the public interests of an efficient administration of justice. Therefore the intensity of oversight over these consensual outcomes in litigation is usually higher than the control courts exert over other out-of-court ADR agreements.^[53] There are several variations on the standards and grounds for invalidity, ranging from abuse or fraud, uncapability or vulnerability of one of the parties (unbalancing powers to negotiate or agreed outcomes in detriment of weaker parties) to transfer of negative externalities to the judiciary (eg, extraordinary costs or burdens).^[54]

5        Dispute Resolution Sub-systems and Their Interplay

42. From the perspective set forth in the previous sections, if dispute resolution systems or sub-systems are somehow intertwined in hybrid forms within the legal system (both of private and public nature), one of the major challenges for the following years is to map: (i) how these methods interplay; (ii) if and when the choice for one of them creates impediments for the use of another procedure; and (ii) how a dispute resolution method can act in support of others.
43. For example, agreements to mediate pose temporary obstacles for the parties to go to court; courts themselves play an important role in ADR, not only in providing state-run ADR (eg, court-annexed mediation), but also when they are called to ensure the effectiveness of ADR (for example, claims in aid of arbitration, anti-suit injunctions, enforcement of procedural contracts, enforcement of arbitral awards or settlements obtained in mediation/conciliation proceedings).
44. Indeed, ADR has to be somehow linked to the legal system of public enforcement. If courts do not enforce mediation-obtained agreements and arbitral awards, these methods of dispute resolution would be ineffective.^[55] On the other side, the public machinery of justice is still needed to avoid unequal bargaining power and prevent unjust settlements and agreements in detriment of weaker parties. This is the case, for example, in consumer disputes.^[56] So maybe ADR should not be seen as an alternative or rival to litigation, but rather understood as partners in effective dispute resolution.

6        Types of Consensual Dispute Resolution Procedures

45. It is not always easy to describe the differences between types of ADR procedures. Because of their procedural flexibility, statutory frameworks vary intensely among legal systems, as do the roles and functions of the involved persons and many other aspects. Nevertheless, some basic concepts and important issues may be raised here, even as a general overview.

6.1        Negotiation

46. Negotiation is part of our day-to-day life,^[57] and its usage for solving problems in human communities dates back to Antiquity.^[58] Furthermore, negotiation is a concept that is not necessarily directed to conflict-solving.        But when referring to the dynamics related to a dispute, negotiation can be defined as the method through which the parties to a conflict try to reach a compromise,^[59] an interaction among several agents to achieve an agreement.
47. Negotiation is often mentioned as one of the main types of alternative dispute resolution, but is also present at many other ADR schemes as a phase or step, and therefore some scholars do not include negotiation as an autonomous means of dispute resolution, but rather as a stage of other ADR settings.
48. Depending on the kind of negotiation, there are different dynamics that guide the procedure, and diverse techniques are used. From that perspective, negotiation can be driven by legal positions or by legal interests. Legal position-oriented negotiation often focuses on goals, and the behaviour of the negotiator is concentrated on getting to those goals with minimum effort of time and cost. The closer the outcome is to the pre-established goals, the better the results. This is a very competitive and often depicted as egocentric approach to negotiation, in which the objective of the parties is simply to win. So, this type of negotiation applies more aggressive methods of communication, exploring fears and concerns to persuade the other parties. On the other hand, interest-based negotiation respects an ideal of satisfying one’s own interests but without disconsidering the interests of the others involved. The goal is to solve the problem, to terminate the dispute, thus it aims at understanding the underlying necessities of every player in search for common grounds. It is a more cooperative approach to negotiation, applying integrative forms of communication without necessary confrontation.^[60]
49. Nowadays legal scholars admit that both attitudes may intertwine in negotiation. Negotiators can be cooperative and still aim for the optimal result. Therefore, a mixed approach is not only possible, but in some contexts might even be desirable.^[61]
50. When it comes to analyzing who are the persons involved, parties can negotiate on their own or they can count on the help of a professional trained in negotiation skills (so-called assisted negotiation).
51. In relation to the types of disputes to which negotiation might be efficient and adequate, one must remember that in almost every conflict, in court or outside the judiciary, negotiation is often present. But when we think of negotiation as an alternative to prevent the dispute from escalating to court confrontation and to avoid unnecessary burdens, it appears to be most effective in cases in which the parties maintain a good relationship and can discuss the issues objectively and peacefully.

6.2        Mediation

52. Despite the several variations in defining mediation, it is possible to identify a common core.^[62] Mediation is a consensual type of ADR based on the voluntary participation of the parties, performed with the assistance of one or multiple neutral intermediaries – the mediator(s) – that lack the authority to impose a solution upon the parties and are in charge of facilitating communication between them, with the goal of making parties themselves be involved in and responsible for achieving a solution for their dispute.^[63]
53. Mediation can be performed either in or out-of-court,^[64] but there has been an intense debate on whether it could be performed by judges.^[65] Most legal systems do not admit judges as protagonists of mediation, and the decline of this role of the judge has been noted in many jurisdictions since the 1970s.^[66]
54. However, following the idea of a ‘multi-door courthouse’, many legal systems began to organize what is known as court-annexed or court-connected mediation.^[67] In this scenario, one of the major debates in legal scholarship nowadays is whether judges themselves or other court officials should take active roles in mediation.^[68]
55. One of the risks of inserting mediation into courts is the possible contamination that consensual procedures might suffer from the usual confrontation and dualistic approach of litigation settings.^[69] Court-annexed or court-connected mediation is deemed inappropriate, for example, because parties could refrain – by fear or concern – from speaking their minds if they know that the judge will be the one to adjudicate the dispute if it comes to trial.^[70] So it would not be advisable that the judge assigned to adjudicate the case would act also as a mediator in the same matter. This conclusion is consistent with the concept of mediation adopted early in this section, which excludes any adjudicative powers of the mediator. Therefore, any attempts made by the judge of the case to drive parties into settlement could only fit into the category of conciliation, but not mediation. Nevertheless, our definition encompasses mediation performed by judiciary civil servants and/or judges who are not responsible for adjudicating the matter.^[71] 
56. Anyway, acknowledging that mediation can in some legal systems be performed by court-run structures allows us to classify mediation, when it comes to the public or private nature of the service provided, in private mediation (whenever performed by private entities or persons); court-connected or court-annexed mediation (which is coordinated with court proceedings and can be institutionally detached from the judiciary); and judicial mediation, related directly to litigation, performed in courthouses and by the judge or staff personnel of the judiciary.^[72]
57. Another issue related to the core definition of mediation is confidentiality, a characteristic many legal scholars argue to be essential to mediation. However, although confidentiality is frequently seen in mediation, it does not seem to be an essential feature of this type of ADR. The utility of confidentiality relies on the idea of guaranteeing an environment free from the fears that parties might have of revealing information that could prove to harm their positions should the case end up in future litigation. To avoid that outcome, many legal systems provide for exclusionary rules and exceptions that permit those involved in mediation to refuse to reveal information in future court procedures. But confidentiality in mediation does not exclude the possibility of private information exchange between the mediator and just one of the involved parties (meeting usually called caucus), information that shall be used only if convenient to control the flow of communication and convey sensitive data.
58. In legal literature, mediation is often seen as the most prominent form of ADR, usually applicable for any legal relationship to which the parties can dispose of. Examples of cases in which mediation is suitable are those involving contracts for goods and services and landlord-tenant issues. Factors that should be taken into account when referring a case to mediation are, among others: if a speedy solution is desired; if an outcome other than that possible via court ruling is desirable; the importance of confidential treatment of the subject-matter; if there are more people involved in the conflict than just the parties present in the proceedings, etc.
59. On the other hand, some subject-matters are not amenable or are at least regarded as inappropriate for mediation, like those involving uncapable people and victims of intra-family violence. Legal systems take different approaches as to permitting mediation of labour rights and inheritance issues.^[73] 
60. Among the several subject-matters that can indeed be dealt with in mediation, are those disputes related to ‘coexistential legal relationships’^[74], especially those in family matters or in legal issues involving relatives, neighbours, friends and any other long-term relationship.^[75] While adjudication tends to distance itself from the parties, mediation targets the social conflict, exploring the parties' life backgrounds. Therefore, departing from the ideal of a ‘mending justice’, mediation appears as the dispute resolution method that provides a better understanding of the conflict, since the emergence of a dispute does not have to represent a full rupture in the relationship between the parties, but rather a topical and temporary disturbance.^[76] Thus mediation provides longstanding solutions that seem essential in these cases.
61. The mediator does not have adjudicatory powers for any decision-making. Therefore, the mediator should act as a neutral subject to the dispute. For the purpose of brokering a settlement, the mediator should facilitate and encourage the parties to move towards an agreement, but should not propose outcomes or comment on the merits.^[77] The role of the mediator is to induce mutual trust and to remind parties that negotiation can be cooperative, fomenting an understanding that will enable parties themselves to come up with a solution.^[78] The mediator should lead parties to a consensual solution, investigating the underlying interests and stimulating the parties to find their options to put an end to the dispute.^[79]
62. Contrary to trial courts, where judges ascertain facts and combine them with legal rules, rendering authoritative decisions on the merits, mediation does not intend to produce rule-type determination to parties’ behaviour. Mediation is conflict-oriented, directed to persons, and aims at resolving the conflict in a peaceful manner. It is very different from litigation, which is ‘rights-oriented’ and works with adversarial frameworks. Nevertheless, mediation can be very effective in dispute resolution, even if not imposed by any person in a position of ‘authority’.^[80]
63. Indeed, mediation has several advantages if compared to litigation and to other types of ADR. It can lead to faster resolution with fewer costs while reducing the huge overload that burdens the judiciary.^[81] Fewer cases that would end up in court would lead to fewer trials and less congestion of court hearing's calendars, giving judges more time to devote to cases that could not be resolved amicably and thus require their attention.
64. There are different kinds of mediation. The procedure can be conducted by a formerly established mediation chamber or center (institutional mediation), or the parties can appoint mediator(s) to act at a single case (ad hoc mediation). Some legal systems only admit voluntary mediation, others provide for mandatory mediation. In most jurisdictions, mediation can be carried out both previously and simultaneously (in parallel or incidental) to court procedures.
65. It is accurate to say that most of the researched jurisdictions have statutory provisions regulating mediation. In Europe, there has been a long-time tradition involving mediation, and the regulation of the procedure dates back to the 1990s. In the French legal system, mediation was introduced by courts in the 1960s before being validated by the Cour de cassation in 1993 as a kind of conciliation (Art 21 Code of Civil Procedure) and then specifically inserted in the CPC in 1996 (Art 131-1). In England, one of the overriding objectives of the Civil Procedure Rules of 1999 was to encourage the parties to use an alternative dispute resolution procedure, and mediation has developed strongly since then. Statutory provisions permit the court to refer the case to the mediation service when the judge deems it appropriate.^[82] Germany enacted in 1999 Gesetz zur Förderung der außergerichtlichen Streitbeilegung (statutory provisions for the promotion of alternative dispute resolution) and in 2012 Mediationsgesetz (the Mediation Act) was approved. The Austrian regulation (Mediation in Civil Matters Act or Zivilrechts-Mediations-Gesetz) came into force in 2004. In Spain, Ley 5/2012 de Mediación en Asuntos Civiles y Mercantiles (the Mediation Statute for Civil and Commercial Matters) was approved in 2012. In Italy, the first Mediation Act of 2010 was pronounced unconstitutional by a decision of the Corte costituzionale (Constitutional Court) of 2012, and the current regulation (following statutory provisions of 2013), established a mandatory meeting between parties and the mediator to analyse if there is a prospect of successful mediation proceedings. But the statute also provides that the judge can compel parties to pursue mediation either on public or private mediation services.^[83]
66. In Latin America, the developments in regulation were only observed since the mid 2000s.^[84] Comprehensive regulations exist in Brazil, Argentina, Chile, Equador and Nicaragua.^[85] In other legal systems to this day there is no regulation for mediation whatsoever.^[86]
67. Regardless of these existing normative provisions, jurisdictions around the world adopt very different approaches as to the regulation of mediation, with visible cultural and institutional differences.^[87] Some choose to regulate only a general framework, leaving more room for the parties to design and control the proceedings. Other legal systems have detailed norms on procedures, formal requirements, the role of the mediator, the effects of the agreements and settlements obtained in mediation, the intensity of judicial control and even a discipline of educational requirements and professional obligations of accredited mediators.^[88]
68. Since mediation frequently relies on the consensus of the interested parties, most legal systems require the personal presence of the parties during the mediation sessions, with few exceptions, for example, if the parties’ residence is far away from the sessions' venue, in which case they can be represented by a lawyer.^[89] 
69. Engagement of parties in mediation also varies. Some legal systems such as England and Wales, France, The Netherlands, Singapore, etc, adopt only voluntary mediation, understanding that compelling parties to mediate would be inconsistent with the voluntary nature of the mediation procedure. Those jurisdictions provide opt-out rules, therefore parties are free to step out whenever they want without any court supervision,^[90] and there is no consequence for the parties for not engaging in mediation proceedings.^[91] 
70. Other legal systems admit that the judge can mandate that the parties attend to   mediation sessions, even if one or all of them are reluctant to do so. In other jurisdictions, parties can only be ordered to present themselves to a mediator to be informed of the aims and procedures available.^[92] The design of mandatory mediation varies across the globe, with several different approaches to regulation.^[93] Sometimes mandatory mediation exists for every kind of dispute, but other legal systems limit it to a certain type of cases or under a particular claim value. In respect to the initiative to begin procedures, variations in regulation reveal different approaches, from compelling orders to mediate to party-controlled initiation.^[94] 
71. Court mandated mediation is practiced in several legal systems, such as the USA (federal courts), Australia (federal courts), India, China, Japan,^[95] Italy,^[96] and some countries in Latin America.^[97] In those legal systems, mediation is usually determined by the judge, who refers to mediation as a dispute that has already reached the courts,^[98] assigning to private mediators the task of facilitating the process.^[99]
72. Some scholars are optimistic about mandatory mediation and argue that it might be useful to overcome information asymmetries and as a form of integrating the courts into the mediation process. Some also say that providing mediation as a pre-condition to litigate in court reduces the costs of judiciary activities, promotes speedy resolution of conflicts,^[100] and might be useful in cases in which parties are simply not aware of mediation possibilities or are not familiar with the costs of the judicial litigation procedures. Nevertheless, some empirical studies showed that voluntary or nudged court mediation have more efficiency and higher percentage of settlement, than mandatory mediation.^[101]
73. In other jurisdictions, if not by means of court orders, judges at least ‘recommend’ that parties should search for mediation. These recommendations are not binding, but act as convincing foments to an amicable resolution.^[102] 
74. Some other legal systems constrain parties to participate in mediation (compulsory attendance to court-annexed mediation sessions), limiting the grounds not to attend to mediation sessions, or establishing adverse consequences (costs and fines/sanctions)^[103] for unjustifiable refusal to participate.^[104] Nevertheless, parties would only be obligated to attend and negotiate in good faith, since there is no legal duty obligating them to reach settlement.^[105] 
75. Many legal systems do not have an extensive regulation on agreements to mediate (those establishing previous mediation as a requirement to litigating in court). Some of the exceptions are Poland,^[106] Brazil,^[107] Bosnia and Herzegovina.^[108] 
76. As to the formalities of the agreement, some jurisdictions require written form for the mediation agreement to be enforceable.^[109] Some others admit that an oral agreement would be binding and enforceable. Most legal systems derive the consequences of non-compliance to the agreement from the general provisions of both substantive and procedural law, following that litigation or arbitration procedures should be dismissed, and/or attribution to the non-compliant party of costs of adversarial proceedings. In France, case-law established that agreements to mediate are prima facie enforceable, and parties must proceed to mediation before exploring any other options to dispute resolution, such as arbitration or litigation.^[110] This seems to be also the case in Germany, where claims cannot be filed in court before the attendance of the parties to a mediation session.^[111]
77. As for enforcement of the agreements obtained in mediation, and the judicial control over the procedure, regulations are also very different. In most jurisdictions, however, once settlement is reached, it is enforceable without any need for ratification or court approval,^[112] and there is little or no room for judicial discretion or oversight about the procedure designed by the parties.^[113] Some legal systems require the approval of the agreement in court,^[114] and others give agreements similar enforceability effects as every other contract or legal transaction. If the agreements obtained in mediation are ratified in court (either as a requirement for their validity or voluntarily taken to the judge by the parties), these agreements usually have similar effects as court rulings (‘consent judgment’).^[115]

6.3        Conciliation

78. Conciliation is the method of dispute resolution through which parties count on a third person, called conciliator, who acts as a facilitator helping the parties do reach settlement. Although there is intense debate on the issue, it is the general understanding in some legal systems that conciliators could have a more active role than the mediator. Dealing with the conflict objectively, they would be allowed to suggest possible outcomes.^[116] 
79. This type of dispute resolution procedure is suitable to conflicts in which the parties do not have a long-lasting relationship (vg episodical commercial trades, traffic accident cases, sport, energy, intellectual property, insurance, or medical disputes). Conciliation may also be applicable to cases where the legal rights in play cannot be waived or disposed of by the parties in total, thus sometimes conciliation can take place when disputes that cannot be solved in mediation.
80. Expressly provided for in statutory norms in most jurisdictions,^[117] conciliation is possible during court proceedings or outside the judiciary and can usually be conducted by the parties themselves or with the aid of a third person.
81. Unlike mediation, most jurisdictions admit conciliations led by the judge and/or by court officials.^[118] This is the case in Italy and Croatia,^[119] in Japan (whose legal system has a longtime tradition of conciliation conducted both in and out-of-court^[120]), and also in some jurisdictions in Latin America.^[121]
82. As for the judge's control over conciliation, when performed out of court, agreements obtained in conciliation are usually binding and enforceable, and in some jurisdictions, whenever negotiated in court during judicial proceedings, settlements obtained in conciliation procedures have the force of a consent judgment and are subject to res iudicata rules.^[122]

6.4        Other Types of ADR

83. As highlighted before, the most debated consensual types of ADR are negotiation, mediation and conciliation. But the attention drawn to these methods does not entail a complete list and does not represent an exhaustive typology. In fact, there is a large variety of other consensual dispute resolution procedures that are also grouped under the label of ADR in many jurisdictions, such as mini-trial, binding advice, ombudsman procedures, early neutral evaluation, expert opinion, dispute boards, collaborative law and several other variants.^[123] 
84. In the comparative perspective, different legal systems take variable approaches in regulating these other ADR procedures, and most of them do not present a common normative framework. ADR settings are usually flexible and there is a very thin line separating different procedures. For that reason, sometimes it is hard to find a functional equivalent to compare, which makes it difficult to describe most of them as a unique conceptual phenomenon.^[124] Anyway, due to the importance that some of them have acquired both in theory and in practice, a few general remarks might be useful.

6.4.1        Collaborative Law

85. The type of ADR known as collaborative law is a form of assisted negotiation and represents, from a structural perspective, a ‘mediation without mediator’. This method wishes to offer an out-of-court procedure for a peaceful solution of conflicts without the presidency or help of a central figure.^[125]
86. Collaborative law unfolds in a procedure called ‘four-way settlement meetings’, direct negotiations carried out by the involved parties and/or by their attorneys or representatives.^[126] In fact, it does not have to be necessarily an interplay between four subjects because lawyers interact among them and parties often do the same, in what could be depicted as ‘parallel dialogues’.^[127] 
87. In this type of ADR, if the negotiation fails to reach a consensual outcome, parties cannot hire the same lawyers for later stages of litigation or arbitration, and the attorneys who took part in the negotiation have to recuse themselves to defend their clients in court.^[128] This occurs due to the so-called ‘disqualification clause’, which generates incentives to the lawyers to commit themselves to obtain settlement. The disqualification clause also prevents a secret agenda of the parties’ representatives, sometimes hiding conflicts of interests depending on the form of payment of their fees.^[129]
88. In collaborative law settings, the impediment to represent the party in future litigation is the reason why a legal counselor may act simultaneously as a lawyer and as one of the conductors of the negotiation,^[130] functioning as a facilitator who should look for the efficiency and success of the procedure.
89. During the proceedings, parties have to commit to negotiate in good faith^[131] and not to threaten the other parties with a possible lawsuit, because this aggressive behavior tends to undermine cooperation and a peaceful solution, as it can make the conflict escalate (even irrationally). It can also be counter-productive because it consumes resources and increases costs, time and energy of everyone involved.^[132] 
90. Collaborative law procedures have been often used in family law, inheritance disputes, labour conflicts, and commercial/economic cases. Some companies are beginning to adopt this method also to solve in-house disputes.^[133]
91. One major advantage of this type of ADR is the lower cost if compared to mediation. And since the role of the lawyers is different, third-party interests tend to be taken more into consideration (eg, children’s rights in family disputes between married people).^[134]
92. The design of this kind of procedure is defined by agreement of the parties, who can adapt the proceeding to their needs and goals. Therefore, formalities are flexible.
93. Not many legal systems regulate collaborative law in statutory provisions. Although with roots in the common law tradition, clearly inspired by the law and practices in Canada (especially Québec) and the USA, ^[135] this technique has also attracted attention in the civil law tradition.^[136] 
94. One exception to the normative framework seems to be the French legal system, which provides for a ‘covenant for a participative procedure’, an agreement made by the disputants whose solution has not been assigned to a judge or arbitrator yet, by which the parties commit to act jointly to negotiate in good faith the solution of their dispute.^[137] 
95. In France, the covenant for a participative procedure only applies to waivable interests. The agreement has to be signed in written form before the lawsuit is filed, detailing the issues at dispute, the necessary documents for the discussion, and the form through which they will be exchanged between the parties.^[138] Throughout the negotiations, the parties' lawyers must be present to conduct the proceedings.^[139] If parties so want, they can be also assisted by technicians or experts.^[140] Once a settlement is reached, they can choose to take it to the judicial approval.^[141]
96. As long as the proceeding lasts, parties cannot access courts and any claim should be dismissed. Exceptions are cases of urgency or if the counterpart did not comply, refusing to submit oneself to the participative procedure.^[142] In more complex negotiations – those that take longer to come to an end – parties can separate the procedure in stages, between which they are allowed to drop the negotiations and go to court.^[143] Nevertheless, the agreement must have a fixed term, in which the procedure must end. Therefore, it has been called ‘pact of non-agression in a fixed term’.^[144] 
97. The most important difference between the French procédure participative and the methods of collaborative law practiced in the common law circle is the role and duties of the lawyers. In this particular procedure in France, they are allowed to represent the parties in court if the negotiation is unsuccessful.^[145] 
98. Inspired by the French legal system, in 2014 Italy also inserted in statutory law a similar form of lawyer-assisted negotiation. The covenant for assisted negotiation is a consensual arrangement between the parties agreeing to engage in negotiations in good faith and with loyalty. When parties contractually commit themselves to that type of negotiation, they cannot go to court without resorting first to the assisted negotiation procedure.^[146] The agreement to engage in this collaborative negotiation must have written form and the parties have the obligation to keep confidentiality.^[147]

6.4.2        Dispute Boards

99. Dispute boards are panels, committees or counsels created to solve conflicts that might arise from a particular contract. Their members are appointed by an agreement of the interested parties and panels are formed even before the performance of contractual obligations initiates.^[148] A dispute board usually has standing activity (full-term model): they are appointed since the beginning of the works and are on permanent stand-by throughout the entire contract performance.
100. This type of ADR was developed in the USA in the area of construction contracts to avoid the long duration and high costs of judicial lawsuits and the growing complexity and extended duration of arbitration proceedings in this field. Construction and infrastructure were the areas of the emergence of such ADR because those kinds of contracts have complex obligations and long duration to be performed. But dispute boards are nowadays usually set to solve conflicts not only in contracts of infrastructure^[149], but also in cases regarding investments, long-term supply contracts and controversies in complex commercial disputes.
101. Some of the advantages of this type of ADR are the costs (usually lower if compared to arbitration), and also the specialization of board members in the subject-matter. Moreover, since the boards are formed even before the commencement of contract performance, members have familiarity with the specific project and will follow the trade or deal from its closing to the full execution of the contractual obligations.^[150] Thus, whenever called, they can establish dialogue and respond to the controversy very fast, providing solution that allows adequate and prompt contract performance even if some disputed issues need further adjustments, or may turn out to be subject-matter of future arbitration or litigation procedures.^[151] Sometimes upon consultation of the dispute board, the controversial issue does not even escalate into a true dispute,^[152] so this structure is deemed to be very effective also in terms of conflict avoidance.^[153] 
102. The major advantage, though, is the permanent or standing activity of the dispute boards during contract performance. Board members often know the contract very well and, whenever called to solve an issue or point of disagreement, are ready to deliver opinions or decisions for the disputed issues in a timely and cost-effective manner. Therefore, the costs of constantly maintaining the board during the execution of construction, for example, ultimately pay off. Every topic of controversy is solved almost in real time by the board, preventing disputed issues from piling up – which could escalate the conflict – and also avoiding the stay of the contracted obligations.
103. Since the dispute board is constantly on standby, this tends to pressure parties not to take any dispute to the board, but only those with solid grounds, in order not to lose credibility with the panel.
104. Payment-related issues, applicable law, jurisdiction, the proper law of the contract, lex fori debates, evidence admissibility and enforceability are some of the issues usually referred to the dispute board first hand. These issues sometimes would not be taken to arbitration right away, and if so, this could split the conflict into multiple related procedures, which is also seen as inefficient.
105. The structure and competences of dispute boards are highly flexible, and the parties are allowed to choose the format and the duration and proceedings that most fit the (actual or possible) debates over the contract. Dispute boards have a contractual base, and it is up to the parties to provide the kind of control of the board’s conclusions. They can choose, for that purpose, arbitration or litigation, accessible only after the board has issued their opinion or decision. If any lawsuit is filed in court or any arbitration procedure is initiated prior to that, it should be dismissed.
106. The goal of dispute boards is to produce effects ranging from a neutral expert assessment/evaluation and arbitration proceedings. Dispute boards can be designed to make binding decisions (then called dispute adjudication boards - DAB)^[154], or only to make recommendations, publishing non-binding opinions (so-called dispute review boards - DRB)^[155], that can turn into binding determinations if the parties do not present a ‘notice of dissatisfaction’ within a default term.^[156] But the boards can also comulate both activities of recommending and adjudicating (combined dispute boards - CDB)^[157], depending on the powers conferred to the panel by the parties.
107. Note that this is a huge difference between this kind of ADR and mediation/conciliation, because the boards actually issue an opinion (whether binding or not) on the merits of the disputed issue.^[158] In fact, since dispute boards make formal statements and determinations assessing who is right regarding a certain issue of law or fact, their goal is to push into an ideal solution of that dispute, whereas in mediation or conciliation parties might find a common ground in order to settle, renouncing to something they might be entitled to.
108. However, although the dispute boards make determinations as to some disputed issues, even when binding, their decisions are not expected to be enforceable in court as if they were arbitral awards.^[159] In case of non-compliance, after the decision of the board has been rendered, it might still be necessary to resort to arbitration or court litigation.^[160]
109. As previously highlighted, although developed in the common law tradition, other civil law jurisdictions have been adhering to this kind of dispute resolution method, especially after the publication of a specific regulation by the International Chamber of Commerce.^[161]-^[162] 

7        Online Dispute Resolution

110. For decades we assumed that dispute resolution would require face-to-face interactions and personal meetings, whether in or out of court. But with time, the growth of e-commerce brought more and more transactions online, followed by a large number of conflicts and disputes arising from them. Handling and solving those disputes, sometimes involving parties located in different countries, called out for methods of conflict resolution that would respond with speedy, reliable and cost-efficient proceedings. The offline face-to-face litigation procedures and even the more flexible and private traditional alternative dispute resolution instruments could not provide adequate settings. Therefore, platforms of dispute resolution services started to be integrated into online marketplaces. If some disagreement would be originated from a purchase online transaction, for example, computer software would channel that dispute to negotiation, mediation, or other redress options.^[163]
111. This context provided the perfect backdrop for the development of what is understood as online dispute resolution (ODR). The legal debate over the subject began in the 1990s, and the primitive stages of the development of ODR services were dedicated to those legal transactions that appeared solely online.^[164] In this ‘first generation’ of ODR, the goal was to facilitate communications through the Internet,^[165] and the factor that attracted the use of ODR was the type of conflict, usually limited to simple cases of online disputes.
112. More recently, however, ODR began to be employed to offline disputes^[166], not necessarily related to e-commerce and also applied in complex cases. So, the different online dispute resolution tools are now serving a large variety of conflicts, amplifying the range of ODR.
113. The challenge of depicting a comprehensive scenario about ODR is daunting because of a multitude of practices and norms that vary widely around the world and tend to change rapidly as technology advances.^[167] In the following topics, the goal is to elaborate on the concept of ODR, its main characteristics, types and methods, the differences between ODR and traditional ADR instruments, the benefits and disadvantages of ODR, the concerns about procedural fairness and some foreseeable trends for the future.        

7.1        Concept of ODR. Traditional ADR and ODR. Private and State-run ODR. ODR and Online Courts

114. There are very different approaches and definitions on the scope and on the types of ODR. What can be considered ODR is one of the most controversial issues in the legal literature related to this subject. Services are diversified and scholars describe ODR as very different tasks, such as online mediation, online arbitration, complaint handling, automated and assisted negotiation, facilitation of information exchange, online settlement conferences etc.
115. Due to this variety, some questions can be raised: in order to qualify a procedure as ODR, would it be necessary that all stages or phases of the proceeding be conducted online? Or would some combination of offline face-to-face procedures with elements of an online platform suffice? Are ODR methods necessarily apart from litigation or can state-run services (funded and provided by the judiciary) be considered as another type of ODR?
116. In this chapter we adopt a wider concept of ODR. A service or procedure may qualify as such if information and communications technology (ICT) provides some kind of assistance in the dispute resolution proceeding, in whichever phase and for at least one of the parties and/or the facilitators (mediator, arbitrator, adjudicator). Therefore, one can define as ODR not only proceedings that are fully automated, but also those services through which technology facilitates to some degree or during some stages a predominantly face-to-face procedure. In this broader sense, ODR is understood as the ‘use of online environments to facilitate communications and dispute resolution’.
117. Indeed, when it comes to dealing with online disputes, parties tend to search for systems that handle the entire proceeding, but for offline disputes, ODR tools can prove to be useful to ameliorate some aspect or phase of the process instead of managing the whole. In fact, traditional face-to-face ADR are borrowing applications from ICT to boost their effectiveness by assisting mediators, conciliators and arbitrators in their traditional procedural settings. In mediation, for example, ODR systems can target one of a few activities that the mediator would perform (brainstorming, prioritizing, options drafting etc), and contribute to a more efficient performance of those tasks.^[168]
118. Another interesting conceptual discussion is whether ODR is another kind of alternative dispute resolution or if it represents a new form of dispute resolution procedure that qualitatively differs from traditional ADR. As we will see in later sections, nowadays it seems inaccurate to assume that ODR is simply analogue to ADR; nor is it always another type of procedure of the same genus. ODR is not simply an online version of well-known ADR schemes.^[169] Sometimes it gains different formats, often hybrid or mixed, in other settings ODR is not a completely new proceeding, but just some tool or instrument to make traditional (online or offline) procedures more efficient.
119. This brings us to another debate, on the private or public nature of ODR. Online dispute resolution mechanisms began to evolve outside the judiciary, in private companies.^[170] And since their origins, ODR procedures were not meant to be a substitute for courts or even to be applied by them; they were created to fill a vacuum of traditional ADR instruments.^[171]
120. But we have seen for quite some time bodies of the judiciary using online forms of procedural justice and implementing them in or out of court.^[172] This movement poses the question of whether these technological features, when applied by public bodies to litigation procedures, would be encompassed by the concept of ODR.
121. Thus, ODR can be competing or complementary to traditional state-run court systems. Its birth in the private sector is due mainly to the fact that in that sphere there were no obstacles in terms of legal norms to prevent the development of such procedures. Nevertheless, the concept of online dispute resolution covers the use of ICT for both alternative dispute resolution and the use of those methods by the judiciary itself. It is a concept that fits into litigation and can be applied to court proceedings. Therefore, it is not correct to depict ODR as solely a private initiative. Both public and private ODR mechanisms have in common the fact that they use technology as a way of providing and exchanging information, which can help resolving conflicts either at the judiciary or at out-of-court settings.^[173] For example, online mediation and conciliation can be performed both out of court and within a judicial procedure, or at least in court-annexed or court-connected online platforms.
122. Indeed, many ODR tools are becoming more and more visible in judicial proceedings in many legal systems, features such as e-filing, video web conferencing, electronic court and case management, virtual courtrooms, etc.^[174] ODR systems contribute to a speedy exchange of documents, pleadings, motions, and fast data registration, making it easier for the court's clerks (judicial secretariats) to verify deadlines.
123. Some jurisdictions provide for ODR for whatever kind of subject matter, others limit ODR to misdemeanours or disputes of low value and little complexity, such as consumer rights, traffic accidents, car and apartment rentals, neighbour rights disputes, etc.
124. In some legal systems, there are courts that function entirely online, the so-called e-courts, cyber courts or online courts, which have been a growing trend for a few years.^[175] Online courts usually have benefits for parties because they reduce delays and costs associated to an offline court case (for example, travel costs). On the other hand, it assists in the resolution of disputes that continue to be submitted to the face-to-face judiciary, since they can offer statistical data and intelligent information management.
125. Furthermore, there is an element of public accountability and social control strongly present in online courts that is not found in alternative dispute resolution methods, at least not in the same manner and intensity. Indeed, judicial decisions are usually public, and judges are subject to constant surveillance by internal affairs and external control bodies. In ADR, on the other hand, the format of a private justice, based on consensus, is not accompanied by the same institutional safeguards to assure those values. Therefore, this is another element that differentiates online courts from other types of ODR and makes state procedures (official and public, even if online) more suitable for solving certain kinds of conflicts.
126. There is also an important sociological aspect that makes online courts beneficial and, often, preferential: judges have high social legitimacy.^[176] As representatives of the state, they are seen as the personification of an institutional power, an impartial and legitimate third party to impose an outcome on the private sphere of the parties.
127. For the parties, e-courts were challenging up until ten years ago, but the amount of usage of online services during the COVID-19 pandemic led to a better understanding of the proceedings and systems, and ultimately to their larger acceptance since it made tech-wary users more confident now than they used to be.
128. Some scholars criticize this movement of a digital justice, saying that a court-provided ODR system would mean that state courts would be establishing an ‘alternative to themselves’. But we should not confront courts and ODR, or ODR and traditional ADR. It is better to oppose ODR to offline dispute resolution instruments. And from the concept of ODR adopted here, both online ADR and online courts are parts of ODR.^[177] 
129. As has been perceived over the years, courts do not always provide services for litigation; they too have a role in consent-based dispute resolution, as we have seen in many jurisdictions with the court-annexed or court-connected mediation and conciliation initiatives.^[178] In the same sense, in the past years many experiments of court annexed ODR schemes have been seen. ODRs are now an asset, a value added to traditional court proceedings.^[179]
130. On the other hand, as the next sections will show, state-run ODR can fill the gaps and reduce problems that private ODR systems still face, such as lack of trust, security, deficit of enforcement, etc.^[180] They can offer services with low impact on public expenditures since budget issues prevent many countries from expanding their judiciary services.^[181] And as courts facilitate settlement, agreements obtained in those proceedings are qualified as ‘consent judgments’ (often after approval or ratification by the judge) and then easier to enforce.^[182] 

7.2        Technology as a ‘Fourth Party’. Is There a Need for a New Theoretical Background?

131. As we have seen, ODR was born to fill gaps of the traditional ADR instruments, adding new features and making old ones more efficient. But the use of ICT to solve disputes poses a question: should technology be only the means, or could it model the shape of procedures? In the end of the day, if ODR is not simply an online version of ADR, could its features structurally transform these methods, calling for a new theoretical background?
132. Some scholars argue that the evolution of ICT created models that are essentially distinct from traditional ADR. ODR would produce a ‘technological shift in dispute resolution, not a merely procedural one’.^[183] In this sense, Katsh and Rifkin referred to technology as the ‘fourth party’ in ODR schemes^[184], as technology would not only assist a neutral third party (mediator, for instance)^[185], but it would also have a role that could impact power allocation between parties and the opportunities that appear for them at the different ODR phases.^[186] 
133. The idea of technology as a ‘fourth party’ stems from the observation that while some ODR systems simply emulate traditional ADR proceedings with online interfaces (a prosaic form of digitization), some other systems actually promote a structural change in the way proceedings are designed, creating a scheme with few similarities to traditional offline ADR.^[187] Technology then would shape the forms of the procedure,^[188] and indeed nowadays there are various services that interfere with written communications, deploy automatic responses to keep parties informed, create impediments for undue and aggressive language, foment brainstorming, schedule meetings and process settlement suggestions.^[189] Language processing systems are used to identify patterns of human language and use them to facilitate problem solving; some other services analyse decisions to illustrate the winning arguments of a case, in order to use that information to push parties to settlement.^[190] Some ICT tools can automatically elaborate motions from pre-established forms, and machine-learning systems predict outcomes, helping parties to make important choices regarding the conflict (for example, choosing the more convenient forum to litigate).^[191]
134. Some other examples might be illustrative. Proceedings conducted in writing usually use text as the main form of communication, but ODR has shifted to the use of images and sound, intuitive graphical representations, profiting from interfaces that look for this visual design. Traditional ADR methods such as mediation were thought to be always performed in the presence of the parties, and mediators were encouraged to ask parties to tell their side of the story in front of each other. So many techniques of mediation were based on listening capacities and were developed to be applied in joint face-to-face sessions. But as we will see in later sections, ODR provides possibilities of asynchronous participation^[192], which promotes intense changes in the ways parties communicate.
135. According to this line of thought, all the features listed above would indicate that technology provides a medium that would never be 100% neutral; the ambience in which communication flows has strong implications on how parties interact, exchange arguments, present documents^[193], and in general, on how people behave and act in a dispute resolution setting.^[194] Conceived as a fourth party, technology would have a very specific role in ODR. Nevertheless, ODR would still be conducted and analysed today by norms created for face-to-face offline dispute resolution, rules that should not always apply online. Therefore, some scholars argue that we need to develop a new set of theories for this reality of non-face-to-face interplay.^[195] And if technology were a new player in this field, legal theory would have to deal with T2T (technology to technology) interactions.
136. This proposal seems hard to concur with since legal relationships are formed only between persons, corporations or incorporeal legal entities. Technology, as we will try to demonstrate, is only the medium, and should not be seen as an independent or autonomous subject of this interaction. Differences between ODR and traditional offline settings of dispute resolution systems can be dealt with by changing day-to-day practices. But in the end of the day, ADR and ODR are in almost every feature pretty much the same activities, only performed through diverse platforms or with the use of different tools.^[196]

7.3        Types of ODR. E-negotiation, E-mediation and E-arbitration

137. ODR schemes and techniques vary a lot according to the role that technology plays.
138. Abdel Wahab talks about three categories. Technology-based ODR would be fully-fledge applications of technology to solve disputes; technology-assisted ODR mechanisms are those in which ICT is used to provide a secure and adequate means for communication and information exchange; and technology-facilitated online dispute prevention (ODP) focuses on enhancing trust and avoiding conflicts.^[197]
139. From another angle, Rabinovich-Einy and Katsh talk about two principal domains of ODR: tools and systems. When talking about tools, one wants to look at ODR as instruments to facilitate both online and offline dispute resolution. In this sense, ODR is not peculiar, but only provides support systems to other dispute resolution schemes. On the other hand, if the focus is on systems, ODR also includes tools, but those are used in a coordinated manner within a close setting, a whole environment for dispute resolution that can be used by a larger number of users in a regular basis.^[198]
140. Moreover, when it comes to specifying the different types of ODR, the most commonly referred are: e-negotiation, e-mediation, e-arbitration.
141. E-negotiation is a type of ODR that encompasses any type of online transactions and agreements and is applied to a wide range of cases, from e-commerce to international peace treaties.^[199]
142. Some divide e-negotiation into two major groups. On one side, automated negotiation is made through online platforms without any human third party.^[200] Assisted negotiation, on the other hand, is technology being used to improve communication of the involved parties but structured to use the assistance of a third party whenever needed.^[201]
143. The most important advantages of e-negotiation are simplification and cost-efficiency. In face-to-face negotiations, procedures require coordination between all stakeholders, and sometimes complex arrangements of communication and meetings. E-negotiation reduces the operational costs of conventional negotiation procedures, profiting from asynchronous communication and with little use of experts, thus generating results in less time.^[202]
144. The existing e-negotiations systems are very diversified, but most of them manage preferences and options and order the relationship between all the issues in play, assisting parties to clarify their needs and objectives, rationally evaluating proposals.
145. Indeed, many e-negotiation procedures begin by making parties set the important issues and indicate what their preferences are. The service organizes priorities and helps parties to focus on what really matters to them instead of hampering negotiation on issues that are not so relevant. Then the ODR system requests inputs to evaluate their relative importance in that dispute. In many e-negotiation systems, during different stages parties are asked to allocate points (from 10 up to 100, for example) on the importance of the issues under discussion. The points scale is used to encourage trade-offs rather than bargaining for as much as one could. The system ranks the issues with value, linking with the users’ desire for that particular good or issue. Then each party can set a bargaining range for each issue, specifying outcomes that are optimal or bad, provided that each one expects the result to fit into those limits.^[203] 
146. In the first steps of the negotiation, these ODR systems exchange optimistic proposals, usually better than the ‘realistic’ outcomes that the parties in fact expect to obtain in the end. With clarified interests and pondering the importance of that issue for each of the parties, e-negotiation systems project possible trade-offs and compensations, according to calculated parties' satisfaction with those outcomes, generating an optimal solution for all of them.^[204]
147. As one can see, e-negotiation has advanced as a form of dealing with preferences and allowing trade-offs to happen in a speedier way with fewer costs. With weighed issues and pondered preferences, e-negotiation systems try to reduce confrontation among the involved parties. Their algorithms create representations of parties' preferences, and sometimes generate packages (bundled positions on disputed issues), based on information given by each party, but often kept hidden from the opposing parties. This information known only by the ODR system permits a faster resolution because negotiation does not get stuck on fragments of the discussion and parties do not loose time in solving issues that do not really matter.
148. Another advantage of e-negotiation is the increase in time management. In conventional offline face-to-face negotiation, especially the more complex ones, disputes involve many issues and both facilitators and decision makers usually have to deal with each one at a time, which causes organizational burdens, longer delays and higher costs. With e-negotiation, issues can be tackled in parallel tracks and even simultaneously.
149. Another well-known ODR type is e-mediation, which normally presents fewer differences from the offline face-to-face mediation procedures. The most relevant difference of online mediation is that the interaction between the parties takes place fully (a whole virtual environment) or partially through ICT tools.^[205]
150. In the past years, e-mediation has become useful to large corporations with offices spread out across the globe, especially when dealing with workplace mediation of disputes among co-workers.^[206]
151. Legal scholars observe that some mediation practices that were sometimes seen in offline mediation are not used in e-mediation. For example, co-mediation is not very common online, maybe because of the facilities of asynchronous communication, but there is nothing particular to e-mediation that prohibits that practice or that would speak against it.^[207]
152. Another type of ODR is e-arbitration, referred to as a quick and cost-effective procedure for dispute resolution, with greater levels of accessibility and efficient case management.^[208] In e-arbitration, ICT is mainly used as a tool to facilitate interaction. There does not seem to be a very different shape of e-arbitration if compared to traditional offline arbitration. Practical concerns are not very hard to deal with, usually related to technical issues such as computer systems compatibility, document formatting, customization for electronic search, online hearings that have to be attended by people in different time zones around the world, integrity/security of communications and the protection/authentication of exchanged documents.
153. However, two major problems seem to be hampering the development of e-arbitration so far. The first one is that in many cases arbitration clauses are inserted in adhesion or boilerplate contracts as pre-established clauses (general standard terms and conditions of the contract), which is usually understood as not imposable on the adherent party. The other problem is the variety of legal norms that would apply when we are facing e-commerce deals between parties from diverse jurisdictions. In online transactions, many times people are residents from different countries and live far apart from each other, which makes arbitration clauses difficult to enforce, sometimes with issues related to the applicable law.
154. The alternative to avoid those problems has been the use of non-binding arbitration. However, although less formal, non-binding arbitration is harder to execute and enforce, which is more time-consuming and generates extra costs.^[209]

7.4        Benefits and Disadvantages of ICT Applied to Dispute Resolution

155. There are several advantages of applying technology to the resolution methods of civil disputes.         
156. One of the major features is accessibility. With an increase in connectivity to broadband and wireless networks, communications all over the globe are available at the click of a button. People can access platforms from wherever they are and whenever they want.^[210] Therefore, with greater access to technology, access to justice would be strengthened.
157. Related to that is an enormous cost reduction. Indeed, ODR provides for communications at very low rates,^[211] so these online instruments present themselves as cost-efficient methods to deal with disputes.^[212] ODR also permits self-representation from the interested parties, what reduces costs of hiring lawyers and paying their fee and allows parties to negotiate and mediate outside of regular business hours (because they do not have to go to sessions in person). On one side, this reduction of costs is important for the parties, since they do not have to miss work, have low transportation and childcare related expenses^[213], and do not need to pay for attorney representation, which is especially important in simple or small-value disputes, when costs often play a major role.^[214] But it is also much relevant from the point of view of the judiciary administration. In fact, in a scenario in which most countries have a strangled budget to apply to their judiciary services, migrating to the digital environment provides an economy of resources.^[215] In fact, as the number of procedures grows exponentially, courts would have to deal with them either by hiring more employees (judges, clerks and staff) or by investing in technology. The use of ICT allows judiciaries to reduce the number of civil servants located in each court or chamber, or at least redirect them to other activities, since much of the bureaucratic procedural formalities that used to be performed by those persons could be solved automatically by the online systems.
158. ODR also present alternatives to storage capacity. For both parties and providers of dispute resolution methods, instead of having in custody tons of paper, terabytes of data can be stored with reasonable security in less space.
159. Another advantage of ODR procedures relates to the duration of the proceedings. ODR instruments usually provide a rapid flow of information and solve disputes faster, and so appear to be more adequate to the speed of online transactions, which cannot always be matched by the duration and rhythm of court litigation^[216] and even of traditional ADR. Therefore, ODR contributes to reduce the delay and length of dispute resolution proceedings.^[217]
160. On the other hand, one of the major features that characterize ODR is the higher level of asynchronous communication provided, which allows time and opportunity for parties to craft responses, reframe messages and slow down the pace of negotiation or mediation, therefore permitting a more precise expression of questions, issues and comments. This prevents the procedure from getting out of control, for example negotiations escalating with pressure, anger or threats. In this sense, some scholars argue against the use of chat-type interactions (such as instant messaging with real time synchronous communication) because the third-party − a mediator, for instance −, would feel pressured and rushed to find a solution, with difficulties of containing and channelling the flow of information.^[218] 
161. From another angle, whenever distance was an obstacle for dispute resolution, ODR is nowadays one of the best alternatives. Technology shrinks the world, reduces distances, what is relevant in cases in which travel is impossible or cost prohibitive.^[219] ODR makes problems regarding distance and displacement fade away, and the outcome is economy in travel costs and acceleration in conflict resolution.^[220] Indeed ODR provides for logistical facilitation, allowing easy contact and interaction among people from different parts of the world, and is very useful in cross-border disputes (consumer transactions, for instance), because avoids recurrent problems such as conflict of laws and lack of effective cooperation between public enforcement bodies.^[221] 
162. Nevertheless, it is important to highlight that sometimes dispute resolution depends on distance, whenever there is risk of promoting face-to-face dialogue, cases to which parties might be in physical danger or psychological hazard if they were to gather together present in the same discussion environment (eg, domicile violence).
163. From another perspective, ODR foments in many ways the participation of interested stakeholders in dispute resolution procedures.
164. ODR usually permits self-representation, and therefore positions parties themselves are the protagonists of conflict solving, which contributes to a peaceful restoration of the social interlinks that were disturbed by the dispute. Compared to an adjudicated decision rendered by the judge, in procedures conducted by trial lawyers, solutions that are agreed upon in proceedings with direct interaction of the parties better serve the ideal of a ‘mending justice’.^[222]
165. ODR instruments also allow the participation of a large volume of parties, even simultaneously, which could speak in favour of their use in collective actions and other types of multi-party proceedings, in order to coordinate case management and the participation of all interested stakeholders.
166. In all these cases, ODR offers interaction for people and groups to intervene directly, and for many litigants who would never otherwise have the opportunity to participate, therefore fostering a better application of the right to be heard and access to justice.
167. Some other features of ODR level the stakes between the parties whenever there is an unbalanced power between them. This happens because ODR usually creates a less aggressive locus of easier communication and fewer formalities, spaces of equal dialogue and interaction.^[223] For vulnerable populations, groups or minorities, who could face biases and obstacles whenever present in court^[224], online proceedings seem to work as a ‘blind’ technique and have the potential to be more successful than other approaches to address bias.^[225] In the same sense, ODR fosters a more symmetric interaction between parties positioned in a hierarchy-based relation (such as employer/employee, or supervisors/subordinates etc).
168. Still related to equality in procedure, when it comes to cross-border disputes, ODR also provides for few or no opportunities of forum selection, which usually benefits repeat-players, large corporations and more wealthy litigants that have branches all over the world and can plan litigation more strategically.
169. Moreover, ODR ultimately adds convenience to dispute resolution. Even when parties are close to each other, or when there is no inequality or vulnerability issues, ODR facilitates their contact and interaction. Communication devices became cheaper and with great portability and mobility; electronic softwares and platforms run from desktop to laptops and smartphones apps.
170. Thus, as we can see, accessibility, equality, cost-efficiency, speed, improved participation, are some of the many benefits that stem from adopting ODR. But there are also many disadvantages of using ICT to resolve conflicts.
171. First of all, dispute resolution depends on communication between the interested parties. And in online interactions, people communicate and behave differently in many ways. On one side, there may be increased contentiousness, the observation that many people feel apt to ‘lash out at each other’ when they are online^[226], whereas face-to-face interactions tend to constrain aggressive behaviour to a certain extent. On the other hand, without personal encounters, the task of mediators and conciliators faces other types of hardship. Sometimes procedures lack contextual cues, even non-verbal forms of communication, often grasped by mediators/negotiators in face-to-face interactions.^[227]
172. Online interactions also pose a sense of mutual invisibility or anonymity because of its faceless legal relationships. This hardens trust building and confidence in compliance with the agreements that might be reached. In fact, trust building is a facilitator to the resolution of conflicts, with a strong role in the intensity in which certain key activities develop in conflict-solving procedures, such as cooperation, information exchange and effectiveness of negotiator's skills. So, it is accurate to say that the level of trust and distrust shapes the conflict dynamics.
173. And those forms of faceless communication in online procedures can also take way identity attributes of the parties (such as age, gender and race). This characteristic of ODR might reinforce the existing structural tendencies towards disparity and unequal treatment of some groups.^[228]
174. Another aspect to be considered is that personal face-to-face interaction is warmer and closer, while e-communication is more distant, cold and impersonal. In disputes in which parties trust each other, empathy, generosity, rapport are often seen, and foster a more cooperative attitude to integrative outcomes, while distrust, on the other hand, can propel defensive, contentious or competitive behaviour, triggering attitudes such as threats, attacks, or making parties withhold information and lock themselves in negotiation positions difficult to withdraw from.^[229] Videoconferences can be palliative but not entirely replace in-person communication.
175. Physical distance also creates a sense of separation, which diminishes identification with others; online procedures lack in immediacy and empathy. This is why e-mediation is usually not the first choice of ODR (in an online environment, e-mediation usually follows assisted online negotiation) whereas mediation is quite often the first choice when dealing with offline dispute resolution.^[230]
176. From another perspective, ODR presents problems related to privacy and security. Safe legal transactions still depend on several of these factors; false identities, privacy issues and confidentiality concerns for all stakeholders (providers, arbitrators/mediators/negotiators, parties, etc) call for the use of encryption technologies, digital signatures, invisible digital watermarks, firewalls, biometrics, and the like, in order to prevent manipulation of information and illicit access to restricted or secret documents.
177. Regarding this issue, legal systems have to be aware of the need for regulation; normative recognition of e-documents and e-signatures is paramount to provide legal security for the use of those electronic methods for guaranteeing privacy, integrity and authenticity. Without unified norms or at least a common normative background that would set parameters for the validity and authenticity of digital signatures, for the storage, publicity, confidentiality, data protection, transmission and sharing of documents, etc, many ODR initiatives might be held back because of lower trust levels.
178. Language is also an issue because many ODR providers do not offer services in many languages. This is the reason why some scholars refer to ‘shared idiom’ as one precondition for the use of ODR,^[231] and some studies highlighted a few years ago the reluctance of service providers to offer operational platforms in languages other than English.^[232] This concern is particularly important when dealing with cross-lingual operations, especially when conflicts involve parties in different parts of the globe.^[233] An adequate online translation service might eliminate this obstacle or reduce impact on the parties' interaction.
179. There are also cultural barriers. In ODR all parties must be familiarized and comfortable with technology.^[234] Many generations are still not used to solving disputes online; especially in developing countries, some people are not comfortable with these platforms and do not trust private entities to be in charge of the procedure. This is not an easy problem to tackle. Of course, a new environment usually needs cultural change. But some precautionary actions might be useful to make parties more comfortable with the platform, such as demonstrations, simulations for users' training, a site tour or written tutorials, a ‘frequently asked questions’ section, language information, clarification on time zones of the online sessions, technical support, and a clear set of ground rules for participation (also ethical standards, such as a netiquette). All of this can reduce user barriers.

7.5        New Skills and Different Approaches

180. In order to avoid those problems, there is no need to reinvent the wheel. And in the last section, some key elements to address them were anticipated.
181. Sometimes it boils down to capacitation of professionals involved, who must develop new skills and techniques. In other aspects, maybe what is needed is a different approach to an old practice rather than the necessity for new tools.
182. First, professionals must reassess their beliefs on what was suitable for offline dispute resolution (eg, traditional ADR), comparing with the singularities of ODR features. For example, mediators and conciliators must acquire technological expertise of message management in online environments. Face-to-face mediators were trained to express themselves orally, with body language; if online mediation is predominantly written, this simply would not be useful or necessary.^[235] Mediators can try to express themselves with other types of communicative symbols and images, such as emoticons, which are contemporary forms of transmitting emotions.^[236] In order to build trust or enhance its levels in ODR, mediators/negotiators can send eg, a welcome video. And they can profit from written forms of asynchronous interaction to control the flow of information, preventing the conflict from escalating. For example, if communications are passed through the mediator/negotiator (some suggest that in online mediation all messages should be sent to the mediator first),^[237] they might be able to reframe aggressive messages (written with a big-size font, all caps or in red colour).
183. An important alert is to understand the differences between synchronous and asynchronous forms of communication. For example, mediators in offline face-to-face procedures were taught to search for what was happening during the sessions; now in ODR they have to be worried about what is going on in-between sessions. Maintaining engagement is challenging, thus one should be alert in keeping up with schedules and preventing dropouts. One possible approach is to establish constant communication with the parties, giving them a sense of ‘presence’ even in asynchronous interactions.^[238]
184. Another relevant concern is that the e-environment cannot diminish the offline possibilities of exercising fundamental guarantees of civil procedure. We must use the technological tools to at least match what the parties would experiment in face-to-face procedures. One of the major concerns regards hearings (whether in litigation or arbitration). In most empirical studies conducted so far, even the ones from the pandemic years of 2020-2021, the majority of analysed hearings took place with no serious technological problems; judges, lawyers, witnesses and parties in general have developed really quickly expertise and skills to deal with videoconferencing tools.^[239] Some examples are: sharing screen to present pictures^[240], posting links to a folder on the chat area to share documents^[241], using the ‘breakout room’ feature to ensure privacy (preventing unauthorized people from hearing conversation subject to privilege) or using the ‘waiting room’ tool for witnesses to wait for the time of their testimony without having to listen to what other witnesses testified to^[242].
185. However, even with the correct use of ICT tools, many people felt as if they were set aside. In order to make participants actually ‘feel present’ in the courtroom, some scholars suggest that the managing judge/presiding arbitrator should use the ‘gallery’ mode instead of the ‘speaker view’ function, preventing people from feeling alone or let out.^[243]

7.6        Dispute Systems Design and ODR

186. As we have seen earlier, dispute systems design (DSD) was the general movement of empowering the parties to establish the architecture of the dispute resolution setting, adapting the existing frameworks to their needs.
187. And as some scholars argue, the use of ICT in DSD represents a big shift in dispute systems design's theory.^[244] Parties and providers can now project the architecture of a dispute resolution scheme, with the applications of ICT, to improve their platforms and adapt the existing services to their needs.
188. A first relevant aspect to be considered is that the type of ODR to be chosen has to be suitable for the kind of dispute at hand. The type and value of the claim are key aspects. Some disputes seem more likely to fit into ODR settings, such as complaint handling in e-commerce cases, low-value disputes between geographically distant parties; or cases in which there are trans-jurisdictional issues, and for those in which choice of law, forum selection or enforcement of court decisions appear to be problematic. Multi-party conflicts can also profit from ODR because of the facilitative features these ICT tools present.
189. On the other hand, some other types of conflicts are not much adequate to be conducted online. The category that quickly comes to mind is related to family law issues, usually in need of closer personal interactions; but we could add conflicts in which there is a greater disparity of power between parties.
190. Even when thinking of ODR not as a whole environment for dispute resolution, but as mere tools to ameliorate traditional offline ADR or court procedures, adequacy is of the essence. In this sense, some features of ICT applied to dispute resolution are more helpful in certain types of traditional ADR. For example, technology-assisted negotiation is more powerful because it allows the system to deal with a large volume of transactions and the information related to them. ODR provides for scale. E-mediation, on the other hand, presents difficulties because many times involves conflicts that tend to require a tailor-made approach, and often call for human intervention, in order to interact with the interested parties.^[245]
191. From another perspective, it might be accurate to assume that ODR systems are more attractive to some parties than to others. For example, creditors are more inclined to adhere to online procedures, but debtors not so much because ODR tends to oversimplify proceedings of defense, limiting allegations.^[246]
192. Culture is a variable that cannot be underestimated in a conflict. The way that people involved in the case understand disputes, hierarchy, power, the value of social norms, the concept of what a fair process means, the perception of risk and often even the necessary timeframe to deal with an issue, every one of those aspects affects the behaviour towards a solution.^[247] And even when silent or latent, culture is an element present in the worldview of parties and interveners/facilitators. Therefore, designers of dispute resolution systems should note that a certain amount of flexibility is essential to build a ‘culture-friendly’ environment for the ODR, preventing this procedure from scaring away potential users.^[248]

7.6.1        Incentives and Prevention of Conflicts

193. Another relevant factor that makes dispute systems design important are the incentives they can generate. In this particular field, some interesting prospects must be highlighted.
194. Some ODR algorithms reward generosity. They are programmed in order to move negotiating parties to zones of acceptance and agreement. The system is programmed to push the more resistant party to accept and the party who was more inclined to give up larger amounts of their complaint or claim would get better settlement deals.
195. Several other ODR incentives relate to the costs of the procedure. If technology continues to reduce costs in negotiation and dispute resolution, it might inhibit party default and change outcomes but generating more incentives for contract performance. Indeed, whenever costs are too high to solve a dispute, parties might settle or accept non-optimal outcomes to avoid the expenditure of time and money, even if they think they might win. But if costs of dispute resolution are low, parties tend to litigate more (or only) on the basis of merits. Questions of who is right and who is entitled to what will control the outcome.^[249] Therefore, reducing the duration and costs of dispute resolution may alter the behaviour of parties to a legal transaction, fomenting performance according to the contract.
196. Another important incentive mechanisms that have been included in many ODR schemes are reputation systems. Nowadays individuals feed reputation systems with their own experience in form of reviews and ratings. If a customer bought a product online and there was any problem, they can inform promptly the seller and try to solve it online; in the end, if consumers had a positive experience, they are likely to post a positive review related to that purchase, and this user-generated content provides positive and negative feedbacks accessible and searchable to all.^[250] So the incentive created by the reputation log pushes the involved parties into the solution of the dispute: buyer's ratings encourage the seller's participation and commitment to problem solving, because the seller wants to prevent negative reviews.
197. With the growth of those reputation systems, the dataset produced by users has enormous utility for the stakeholders to make informed choices. And as these reputation systems evolved, instead of reading hundreds of reviews from random strangers, people can filter them and look up the experience of neighbours, friends, voters of a certain political party, citizens of a specific country, whichever factors they feel appropriate to inform their decisions.^[251]
198. Reputation systems have been embedded in multi-level platforms of ODR services and whenever such a device is in place, it enhances trust and reduces risk.^[252] While revealing the reliability of one player's trading history, it may change the overall perception of contract performance of the other party. Thus, reputation systems add incentives to negotiate on that platform, even if transaction costs are a little higher.^[253] 
199. This brings us to a final topic. Dispute systems design has always developed mechanisms to deal with disputes and try to resolve them once the conflict has arisen. However, in recent years scholars have observed that dispute systems design has been shifting to put emphasis at prevention, not only resolution.^[254] With captology strategies as a background,^[255] dispute systems design started focusing on conflict avoidance instead of dealing with disputes on an ad hoc basis, after the conflict has emerged.^[256] Whereas traditional offline ADR would only focus on solving the case at hand, online dispute prevention (ODP) procedures are aiming at conflict management,^[257] using big data and artificial intelligence to track and identify causes of problems and then apply ICT to avoid disputes.^[258]
200. Conflict prevention generally is supposed to be a good thing, but since online conflict prevention mechanisms are mainly private,^[259] we need to remember that they work on a different basis, and their main objective is not to offer access to justice through a fair procedure.
201. Indeed, due process and access to justice concerns vary a lot from private ODR settings to online courts, and the design of ODR reveals preferences for a set of values instead of others.^[260] In state-run ODR one should consider resources, budget, and the interests of all stakeholders, while in private ODR services, the main goal is usually to generate confidence/trust and engagement.^[261] Many systems operate from a non neutral structure and platforms can induce behaviour if ODR is designed by companies to gather information on the users and project procedural settings that can turn out to be profitable by preventing conflicts from ever arising or at least from ending up in court.^[262] In the end it can turn into a form to manipulate choices and preferences using information obtained by social interaction online.^[263] Therefore, in order for them to be implemented efficiently, regulators have to establish ethical standards and one must take into account factors such as the protection of personal data.

7.6.2        Dispute Systems Design and Procedural Safeguards

202. In designing ODR systems, important concerns relate to the fundamental guarantees of due process. Technology has to advance with ethical boundaries,^[264] and when it comes to designing dispute resolution systems, simply looking for efficiency might not be enough.^[265] One has to ensure what has been called ‘procedural regularity’^[266], weighing other important issues such as access, equality, transparency and accountability of ODR models.^[267]
203. This topic tackles some of those issues, but in general we cannot adopt a fully pessimistic approach, neither foster a naive and unconditional plea in favour of ODR. On one side, technology is not always evil, will not necessarily harm due process and diminish legal rights of vulnerable parties; nor does ODR carry intrinsic violations to the rule of law or to access to justice. In fact, ODR promotes the rule of law and amplifies access to justice while providing a pre-judicial phase of conflict-solving, and also by dealing with low-value disputes with a cost-efficient procedural structure.^[268] On the other hand, one cannot be only optimistic about ICT applied to dispute resolution. ODR violates procedural due process if it imposes proceedings based on a judiciary policy only focused on lowering costs; and it can also hamper access to justice when the online model appears as the sole opportunity for the individual, coercing or compelling people to join due to lack of alternatives. If badly designed, instead of solving access to justice problems, ODR may end up building new and different obstacles.
204. Therefore, technology has to advance with procedural safeguards in dispute resolution systems design. While designing ODR for courts, one has to ensure that alternatives are integrated in a way that preserves procedural fairness.^[269] On the other hand, even when designing out-of-court ODR, many concerns regarding procedural aspects are of the essence.
205. Access to justice has to be dealt with as the human right it represents; so, platforms must continuously be improved to ensure accessibility; providers must present transparent and accessible information about the conditions of use, ethical rules and standards for procedural fairness. ODR systems that establish a whole platform for conflict solving cannot turn into a compulsory e-environment. If the legal system does not provide for an alternative, serious questions about the rule of law and access to justice arise.^[270]
206. Equality is also a major concern and could be violated if stronger parties dominate the proceeding in these platforms, or if parties are vulnerable litigants whose choices are driven by algorithm-predicted outcomes suggesting interpretations of the law that they might be able to challenge in court.^[271] 
207. Simplification and re-structuring of ODR services must involve online support to the parties, written and video tutorials with explanations on the specifics of the proceedings, a helping hand especially important because ODR may promote a true revolution regarding self-representation.^[272] But once again, parties cannot be left alone. Challenges for self-representation online involve aspects such as juridical knowledge and possibilities of participating in proceedings and voluntarily express oneself. If ODR speaks in favour of an effective empowerment of individuals to solve their conflicts on their own, dispute systems must be designed to allow them to make informed choices. And over time it is likely to imagine that individuals might gain a better knowledge of the judicial system and of their legal rights by way of accessing ODR directly,^[273] but only if these systems are designed also to provide them with this information.
208. If parties are not represented by counsel, it is relevant to evaluate if the procedure gives the parties time and opportunities to reflect and to respond accordingly (limited pre-written options and time constraints are to be avoided). The study and practice of choice architecture (how options are presented to users and the impact of this presentation on users' choice) is paramount. One must remember that self-represented litigants frequently lack legal knowledge to handle their case properly, for example to organize legal arguments and transmit them to others.^[274] 
209. Moreover, a key aspect is that the platform, whether text-based or with elements of audio and video, must be accessible to everyone and comfortable for users (eg, elements of visual law may be successfully used to provide friendly dashboards).        
210. Another major concern in terms of procedural equality is digital exclusion or digital illiteracy, the inability to use ICT instruments.^[275] Especially in developing countries, educational and infrastructure problems (number of personal computers and of internet providers, capacity of broadband services, etc) are obstacles against the development of ODR.^[276] People do not have proper training skills to deal with technology, and many do not have the necessary hardware to access these systems. Digital exclusion of citizens raises a very important concern. People must have not only the knowledge, but also the means to use ODR platforms, otherwise there could be an unlawful barrier to access to justice. In fact, preconditions to access ODR are, among others, a regular internet access and computers, as well as the necessary basic skills to navigate through the ODR systems. Therefore, for the progressive implementation of ODR systems, authorities must carry out a strategic plan for digital inclusion, and ODR systems must be user-friendly.^[277] 
211. Furthermore, when speaking of procedural safeguards related to access to justice and due process, one must think of a fair procedure as providing the interested parties with impartiality, voice and consideration of arguments by the deciding authority.^[278]
212. Impartiality means neutrality of those in charge of the proceeding. Dispute systems have to indicate how the procedure works to produce outcomes that are favourable to one of the parties. Voice encompasses the opportunity to express oneself and influence the final outcome. Parties should be able to input information to their best interest. In ODR, it is important that the dispute system design provides the parties with realistic choices, not only customized (pre-given) options. Consideration of parties’ arguments is paramount to prove that they were effectively heard. ODR could be designed so that the system at some point demonstrates that the arguments were considered by presenting a summary of the parties' inputs. If this processing of arguments was made with no human intervention, but only by algorithms or artificial intelligence tools, it may only be acceptable if parties are aware that the proceeding is being carried out by bots, and if some means to contact a human being is provided for during the whole process. So, there must be a constant possibility to channel the dispute to a human third-party, not only when cases involve large sums of money, but also whenever parties ask for it.
213. Some level of state control might be needed, starting from minimal legislation standards or any normative architecture setting principles and guidelines to guarantee procedural fairness.^[279] Governments can also act in other areas, applying and enforcing those norms,^[280] overseeing ODR services, only to accredit private ones that fit certain standards.
214. Funding of ODR services is an important discussion. Most ODR systems are not public, and so far, private funding seems to have driven the evolution of ODR systems. But this can affect what we understand to be a fair dispute resolution scheme within the rule of law.^[281] Some level of transparency have to be in play in order to ensure impartiality and avoid conflicts of interest that might come up when the system provider is funded by one of the involved parties to the dispute.
215. When ODR is linked to courts, whether state run ODR or by partnerships to offer tools to facilitate online or offline litigation, another problem arises, that is if and how ODR procedures are to be related to the proprietary of the technology involved. Since technology systems represent a key factor in helping courts manage multiple cases while reducing their operational costs, providers that offer those services take on a major role in online litigation, even if they have no fidelity to the parties' interests. As Spaulding notices, ‘users of ODR platforms become mere tertiary beneficiaries in this framework, whereas they are in principle the core right holders in the adversary system’.^[282]
216. One could think of other types of arrangements to avoid leaving court ODR technology in the hands of private players. In some jurisdictions, governments have established online platforms that provide different kinds of ODR services free of charge for the parties.^[283] But some studies argue that, if ODR is provided for free, it could encourage frivolous claims; on the other hand, too high rates could prevent people from ever using ODR, which would not be a desirable outcome.
217. Anyway, these are just a few insights on how to ensure procedural safeguards of ODR procedures that might be useful for legislators and dispute systems designers.
218. One final alert is that designers have to be aware of users' needs. The ideal would be to involve users in the design.^[284] But users' participation in DSD should serve at least as an alert for designers to consider their experience.^[285]

7.7        Concluding Remarks on the Future of ODR and How Technology Might Impact Civil Justice

219. Since the beginning of the study of ODR dating back to the 1990s, maybe the biggest fever around the subject could be seen around the 2010s. In the past decade, the development of the topic seems to have stagnated. If at some point many people thought that ODR would absorb great portions of dispute resolution and even several aspects of litigation, with time there was little improvement in theory and the usage of ODR in practice appeared somewhat frustrating.^[286]
220. So, what could we predict for the future? ODR is still today in great measure an extension or a tool to traditional ADR schemes. But in the future, some scholars argue that it could evolve into something quite different. This qualitative differentiation would come from the understanding of technology as the ‘fourth party’.^[287] But even when ODR creates new forms of interaction to a point in which we can see a structural difference in online and offline procedures,^[288] it has to be limited by the normative framework of the rule of law. And as Ebner puts it, ‘technology is only a tool, it should not define practice’.^[289] 
221. One probable scenario is that ODR may grow to be even more useful to the judiciary itself, either by combining online ADR instruments with face-to-face offline litigation, or by merging completely into online courts, especially in judicial proceedings for small claims, in which the costs of establishing and maintaining physical structures is too high, and the human labour resources employed raises budget issues worldwide.
222. From another perspective, legal tech instruments might advance faster in areas in which behaviour is standardized and in which case-law data is abundant, like the management of repetitive claims.^[290] 
223. A predictable future application of ODR is the development of hybrid procedural settings combining elements and schemes of online and offline dispute resolution. Dispute resolution would profit from the benefits of ODR (technological efficiency, accessibility, online support, self-representation, asynchronous communication) but still open to the human necessities of face-to-face interactions in some offline disputes.^[291] These hybrid procedures could be designed as multi-layered structures: after diagnosing the conflict, the system would forward the proceeding to one or another option, first automated e-negotiation, then e-mediation or offline mediation, and if settlement is not obtained, then online arbitration, online courts or even offline traditional courts.^[292] 
224. Furthermore, and this might be one of the major developments in the future, we can see how ODR systems are evolving to contribute not only to how disputes are resolved, but how conflicts can be prevented (ODP).^[293] By targeting problems and identifying the causes of disputes, these instruments could create incentives for change in companies' practices and people's behaviour.^[294] On the other hand, if some of the ODP mechanisms raise concerns as to manipulation of user's choices and illegal use of private information, if well designed they could provide conditions for equal interaction between parties, in the benefit of the most vulnerable by empowering the one shooters (consumers, for example) and giving them more leverage to negotiate.
225. From another angle, technology may modify several aspects of the justice system. For example, in some jurisdictions, some costs of procedure which are associated with the use of ICT have gone up, and it remains unclear whether those costs will fall down in the future.^[295]
226. Moreover, the growth of ODR made some scholars question the importance and role of lawyers in civil justice because of self-representation, and the probable encouragement from courts themselves to more lawyerless litigation (unless compelling reasons to proceed otherwise).^[296] The role of lawyers may also be altered due to the increasing number of tasks assigned to non-jurists (engineers or experts in technology) in dispute systems design.^[297]
227. And technology might also change the role of courts. If previously regarded only as adjudicators, judges can function as facilitators (disseminating information to the parties) and ultimately as designers of a dispute resolution setting. Indeed, Frank Sander's ideal of a ‘multi-door system’ seems to be no longer a task of fitting a dispute into one of several possible procedures and then deal with it. Since ODR provides a wide variety of possible combinations, the ‘muti-door’ system should nowadays be thought as a ‘multi-modal’ system, and instead of referring a case to mediation, the role of the court would be to ‘navigate’ the dispute through different procedural instruments in a mixed setting,^[298] moving from one to the other as circumstances require, also with possibilities to modify the dispute resolution schemes throughout different stages of the conflict.^[299]
228. If this proves to be right, and judicial procedures become faster and more cost-efficient dispute resolution systems with the application of ICT, litigants might be more inclined to initiate claims before courts. In the past, with the prospect of a bureaucratic, slow and inefficient judicial procedure, they might have avoided going to court for adjudication. However, with increment in technology, parties might see judges as facilitators of conflict solving.^[300] This would also have an indirect impact on the role of lawyers, and in the view that people have of the trade-offs involving going to court and resolving disputes through ADR.^[301] 
229. Once again, as technology moves forward, it creates advantages and disadvantages; we cannot see the role of technology neither with full enthusiasm, nor with an unjustifiable scepticism.

ABBREVIATIONS AND ACRONYMS

ADR	Alternative Dispute Resolution
ALI	American Law Institute
Art	Article/Articles
BGH	Bundesgerichtshof (Federal Court of Justice) [Germany]
CDB	Combined Dispute Boards
CEPEJ	Conseil de l'Europe Commission européenne pour l’efficacité de la justice (Council of Europe European Commission for the efficiency of justice)
cf	confer (compare)
ch	chapter
CIDH	Corte Interamericana de Derechos Humanos (Interamerican Court of Human Rights)
CJEU	Court of Justice of the European Union
DAB	Dispute Adjudication Boards
DRB	Dispute Review Boards
DSD	Dispute systems design
ECLI	European Case Law Identifier
ed	editor/editors
edn	edition/editions
eg	exempli gratia (for example)
ELI	European Law Institute
etc	et cetera
EU	European Union
EUR	Euro
ff	following
fn	footnote (external, ie, in other chapters or in citations)
ibid	ibidem (in the same place)
ICT	Information and Communication Technologies
ie	id est (that is)
n	footnote (internal, ie, within the same chapter)
no	number/numbers
ODP	Online Dispute Prevention
ODR	Online Dispute Resolution
para	paragraph/paragraphs
pt	part
Sec	Section/Sections
supp	supplement/supplements
T2T	Technology to Technology
trans/tr	translated, translation/translator
UK	United Kingdom
UNIDROIT	Institut international pour l'unification du droit privé (International Institute for the Unification of Private Law)
US / USA	United States of America
v	versus
vg	verbi gratia
vol	volume/volumes

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LEGISLATION

International/Supranational

European Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes (EU)

European Mediation Directive (Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (EU).

American Convention of Human Rights 1969

International Chamber of Commerce’s Dispute Board Rules (International Chamber of Commerce)

United Nations Convention on International Settlement Agreements resulting from Mediation (UN)

National

Civil Procedure Rules 1999 (England and Wales)

Code of Civil Procedure 1975 (France)

Code of Civil Procedure 1993 (Peru)

Codice di Procedura Civile (Code of Civil Procedure) (Italy)

Código de Processo Civil 2015 (Code of Civil Procedure) (Brazil)

Código General de Proceso 2012 (Code of Civil Procedure) (Colombia)

Código Procesal Civil 2013 (Bolívia)

Construction Business Act 2008 (Japan)

Croatian Conciliation Act 2011

Decreto legislativo n.28/2010 (Legislative Decree n.28/2010) (Italy)

Gesetz zur Förderung der außergerichtlichen Streitbeilegung 1999 (Statutory provisions for the promotion of alternative dispute resolution) (Germany)

Legge n.120/2020 (Statute n.120 of 2020) (Italy)

Legge n.162/2014 (Statute n.162/2014) (Italy)

Lei de Mediação n.13.140/2015 (Mediation Act) (Brazil)

Ley 24.573/1995 (Statute n.24.573 from 1995) (Argentina),

Ley 26.589/2010 (Mediation Act) (Argentina)

Ley 26.872/1997 (Conciliation Act) (Peru)

Ley 5 de Mediación en Asuntos Civiles y Mercantiles 2012 (Mediation Act for Civil and Commercial Matters) (Spain)

Ley n° 640 2001 (Conciliation Act 2001) (Colombia)

Mediation Act 2010 (Italy)

Mediationsgesetz 2012 (Mediation Act) (Germany).

Zivilprozessordnung (Code of Civil Procedure) (Germany)

Zivilrechts-Mediations-Gesetz 2004 (Mediation in Civil Matters Act) (Austria)

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CASES

National

Case n. 00-19.423 (Cour de cassation, France) chambre mixte, 14 Feb. 2003.

---

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