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Does Online Video Dispute Resolution Work?
Online Dispute Resolution - some thoughts

Online Dispute Resolution - some thoughts - by James Sproles
“Information Technology provides opportunities to facilitate communication and so assist in prevention and management of disputes… and to complement, or substitute for, traditional face to face interventions.” [1]

There has been a great deal written over the last ten years or so about the usefulness of internet videoconferencing as a tool for conflict resolution. This discussion has ranged from the potential use of the method in mediating family disputes to international jurisdiction and border conflict issues. The last ten years have seen an increasing, but limited, take-up of such methods by courts, tribunals, and other government agencies who offer Alternative Dispute Resolution (ADR) services .

Recent technical advances, and cost reductions in multi-party videoconferencing due to economy of scale in online communications mean that the utility of such technology has significantly improved in the last few years. The availability of this technology has become far more widespread than at any time since the advent of computers. This paper describes videoconference mediation, and argues that this process has a strong claim to a prominent place in the toolbox of ADR practitioner.

What is videoconferencing?
Videoconferencing is defined at www.businessdictionary.com as a “two way, real-time transmission of audio and video signals between specialized devices or computers at two or more locations via satellite (wireless), or over a network such as a Local Area Network (LAN) or the Internet”
Skype and other free computer software packages recently began to offer multiple-party videoconferencing, whereas in the past specialised and expensive software, hardware, and infrastructure access were required to achieve this aim. These software packages have also recently demonstrated significant improvements in their amenity by way of webcam imaging with higher picture definition and frame-rate capacities. High Definition web-cameras that allow the subject to be seen with clarity and sharpness on a television-sized screen rather than only a pop-up box on a computer monitor screen, are now common and affordable. These improvements are also due faster and higher-capacity broadband networks that can carry multiples feeds of high-definition video and audio, which will only improve further with the creation of the National Broadband Network (NBN) currently being rolled out in Australia.
It may well be that Krause’s prediction will soon come to pass, when he said:
“We often talk about how once high-quality videoconferencing becomes widespread, you can’t hold ODR back...Nobody would sit in the courthouse if they could leverage technology to settle from home.”[2]
Stages of Development of ODR

Online Dispute Resolution (ODR) is a subset of ADR, and is a broad category in its own right. Any mediation, arbitration, or wider category of dispute resolution process that involves a component of electronic communication sits somewhere on the ODR spectrum. The definition of ODR runs widely to education, training, research, evaluation[3], and even negotiation assistance tools[4].

In 2001 Katsch and Rivkin[5] describe the use of online processes as having moved through a “hobbyist” phase, through “experimental” and into an “entrepreneurial” phase. The "hobbyist" phase was described as where individual enthusiasts started work on ODR, often without any formal backing. The "experimental" phase was described as where foundations and international bodies funded academics and non-profit organisations to develop and run pilot programs. The "entrepreneurial" phase was described as where organisations launched private online ADR sites on a commercial basis.

In 2003 Conley-Tyler and Bretherton[6] described ODR as having moved into an “institutional” phase which finds the technology being embraced by courts, tribunals and other mediation providers throughout Australia and the Western World.[7]

Proliferation

Conley-Tyler found that in 2006, 149 ODR services had been launched worldwide on the internet[8]. Whilst this number is superficially seems impressive it must be remembered that such a number of sites and services is small in the context of the possible and potential market for ODR generally. Also, these sites do not necessarily provide the type of videoconference mediation that this paper discusses, as the definition of ODR runs much wider, as previously discussed. This relative paucity of providers offering mediation via videoconference remains despite Conley-Tyler’s study finding in 2003[9] that
…more than 70 per cent of respondents would be willing to consider online ADR both for general disputes and for disputes with an online company,
and, most importantly for repeat business and reputation-building for the process, that 80 per cent who had tried it would use the service again[10].

Economics

Coinciding with this increasing amenity and usefulness is an emergent imperative in many businesses and governments, due to increasingly difficult economic times and environmental awareness, to reduce travel costs, travel time, and carbon emissions, videoconferencing is likely to become a de rigueur manner of doing business generally rather than the curiosity or novelty it has been in the past.

If this change transpires, combined with the increasing amenity of the process, I can see no reason why a new breed of videoconference mediators could not seek to take the opportunity that is presented to promote videoconference mediation as not only a equivalent process to face-to face meetings that makes economic and practical sense, but as having tangible benefits over face-to-face meetings in some circumstances.

Potential Criticisms of Videoconference Mediation

Most ODR criticism focussed elsewhere

There has been considerable resistance in the past to ODR processes that involve transfer of online messages only. In the early days of the discussion on 1998 Eisen argued that
“….many mediators believe the online setting presents straightforward challenges that can be readily surmounted. I disagree…it is still too soon to mediate disputes online”. [11]

Eisen’s argument was founded upon the fact that the mediation profession is oriented to “listening and processing oral information…”, and that therefore mediators “would find it largely impossible to translate their skills to the online setting”. Eisen points out that miscommunications are often the root cause of many conflicts, and that since written communication is more vulnerable to misinterpretation than verbal communication, online mediation may actually make a communication breakdown worse.

Eisen’s comments also give us some hints as to some potential criticisms of videoconference mediation;
that videoconference mediation will never be as effective as face-to-face mediation ;
that there are problems in substituting face to face and personal contacts with unfamiliar and difficult to manage video conferencing; and
that it is difficult enough to manage the video conferencing process when dealing with familiar and non controversial subjects let alone emotive and complex issues as found in mediation.

My observation, and that of researchers, is that the progression of time and research has alleviated Eisen’s concerns about ODR generally. Research by Conley-Tyler and Bretherton in 2003[12] found that settlement rates for ODR processes are similar to those when similar matters are mediated in a face-to-face setting.

Videoconference Mediation as the ODR “star performer”

Furthermore, research comparing ODR based on email messaging with on-line conferencing involving synchronous transfer of live audio (on-line voice chat) suggests strongly that the use of videoconference mediation (synchronous audio AND video chat) is even more effective at alleviating Eisen’s concerns that other non-visual and audio based ODR - Conley-Tyler and Raines[13] cite a recent research study[14] finding that synchronous on-line voice chat had a much higher rate of win-win solutions compared to delayed communication via email.

Advantages of Videoconference mediation over face-to-face mediations?
Melamed states:
“If we squint our eyes and bend our ears, we see and hear a world in which audio and video comes to be seamlessly integrated with textual communications. Our online mediation world will become more and more "real," allowing for greater and greater utilization as a means of enhancing and economizing mediation. There will be great gains in terms of increased participant involvement, enhanced quality of consideration and cost savings.” [15]

Avoiding crisis psychology
Young states that, in respect to face-to-face mediation
...Some mediators show concern that cases will not settle unless the parties are locked into an uninterrupted mediation process. ...by waiting until one of the parties ... Admittedly, this practice can work ...and in some circumstances it is essential to reaching agreement because an interruption in the process almost certainly will be the end of it.” [16]
Conversely, Melamed states in respect to ODR:

...The realities of scheduling face to face meetings has also historically resulted in single day sessions being scheduled with, typically, all participants and all attorneys (and sometimes experts) present. Because of the difficulty of scheduling the meeting, the cost, and other "battle mentality" assumptions, this type of civil/commercial mediation often becomes "crisis" like, often limited to a single tense meeting. The Internet, by contrast, allows participants, lawyers and the mediator to move beyond a single crisis mediation session to have a distributed problem solving discussion.”[17]

Melamed is discussing the use of email in an “asynchronous” distributive process of mediating by messages over an extended time, and considers that, given the “crisis” scenario he has commonly experienced, face-to-face mediation is not ideal.

I would submit that the point Melamed makes can be applied in an argument that videoconference mediation is a viable alternative, since a potential exists that some of the “crisis” mentality that he describes can be removed significant degree by allowing various parties to teleconference from their own homes or places of business. This can by enabling people to do so in more comfort and therefore with less incentive to get to a deal that is quick but not optimal, or to get preliminaries out of the way via videoconferencing, allowing the mediation session itself to be quicker and make better use of the time allocated.

A circumstance to consider to which I have already alluded, is where the lomg distances present the videoconference route as an alternative. Parties may be in separate localities, and may wish to avoid the cost, delay, and uncertainty of flying two of the three people to the same locality at the same time

.Alleviating problems of Distance



Examples of where such consideration might arise that are relevant to lower-level disputes include as follows:

- Commercial mediation between small businesses where the commercial parties have disparate places of business and little time to engage in travelling to a mediation [18]

- In various ombudsman-type processes, where a remote customer or employee may submit a complaint against an organisation. Conciliation could be performed via telecon between a Commission representative normally based in Sydney, the organisational representative in Canberra, and the complainant who may be working from any of a number of cities or regional centres.

- Family Court mediations on issues of property settlement or child custody, where one of the former partners has moved interstate and is lacking the financial wherewithal to travel interstate without affecting their ability to provide for themselves or the children.

Increasing comfort of parties to engage in the mediation

Circumstances where the mediation is dealing with matters where there has been or there is a threat of violence, either physical or emotional, may benefit from distance because of the inevitable human stress reactions that come from immediate proximity to threat, which get in the way of careful, considered and rational thought by shutting down or overloading parts of the brain involved in rational thought. Creating physical distance via electronic means may be enough to avoid the activation of a fight-or-flight response in a previously abused and intimidated party to a dispute, thus making the mediation process more productive and worthwhile.

As a more effective alternative to shuttle mediation

Shuttle mediation is normally used when one party refuses to occupy the same room as the other and makes the use of shuttle mediation a precondition of engaging in the process, or the mediator assess that the discomfort produced by having both parties in the same room can get in the way of a desired negotiative agenda to the extent that, despite it’s inherent disadvantages and pitfalls, shuttle mediation gives the best chance of achieving an outcome.

The advantages relating to comfort and avoiding a fight-or-flight response in a previously abused party can also be conveyed by the use of shuttle mediation. Shuttle mediation is recognised as less effective and as a “last resort as it extends the time taken for mediation and is rarely as good as direct communication between the parties”[19]

Shuttle mediation generally requires the parties to be occupying spaces close to each other so that the mediator can move efficiently between parties. The use of videoconference mediation means that it is not necessary for the parties to be separated by any fixed or limited distance to engage in mediation.

However, it is more flexible in this regard than shuttle mediation as it allows a mediation to go ahead on matters where, as I have observed on occasion, one party is sufficiently uncomfortable or scared of the other party that they fear being in same building as the party due to the possibility, however remote, of inadvertent contact before or after the mediation on entering a building, or other contact within the building.

Furthermore, how far is far enough to give the relevant party sufficient distance from the party with whom they cannot bear to be in the same room will vary, from the next room to the next building, to across town, to across the country. All of these needs can be accommodated far more effectively than they can be by shuttle mediation.

In addition, I would submit shuttle mediation has potential to be less effective in seeking resolution than videoconference mediation. Shuttle mediation necessarily involves parties hearing what is said by the other through the message conveyed verbally by the mediator, which unavoidably transits through the mediators own lens of perception and nuance not only in what is said, but how it is said. Alternatively, if the communications between parties in shuttle mediation are by written statements going back and forth they are, as Eisen described in 1998,[20] necessarily more anaemic in emotion and nuance than the spoken word. By seeing the other person on a high-definition video link, their words and the nuances and underlying meaningsscan be perceived much more effectively than without, as well as allowing the person speaking to see the reactions and impact of their words on the other party.

Lessened impact of support people on the process/other party

Videoconference mediation will assist where parties need support people, and increase the effectiveness and utility of such measures to encourage people into the mediation “room”. A disadvantage of introducing support people is that their presence in the room, no matter how much they seek avoid it, will have an influence on both parties to proceedings rather than the intended purpose, being simple silent emotional support for one party. This effect is likely even where the support person complies with all of the requirements placed upon them to avoid speaking let alone advocating, and providing feedback either emotionally of via body language that could distract the parties to the conflict.

With videoconference mediation the support parties can remain invisible, behind the camera. I am not advocating that parties have support people in the room without telling the other person, as any number of events can alert the party on the other end of the line to a hitherto unknown party in the room, potentially derailing the entire mediation due to perceived breach of trust and confidentiality. What I am suggesting, instead, is that parties be made aware of the presence and identity of support people for the other party, but then see them ushered away from the webcam. Human nature will then assist to put these people who are out of sight, out of mind, allowing the mediation to progress naturally and less encumbered by the presence of third parties than would be possible in a face-to-face mediation.

Closing the gap between videoconference mediation and face-to-face mediation

Pyser and Figallo[21] sum up my view that the broad challenge for online mediation is no different from face-to-face mediation - how to create an environment and process in which the parties feel safe, are encouraged to discuss their concerns, and are able to negotiate a fair resolution. Whilst the challenges are the same, the online medium is a slightly different tool than the face-to-face process with its own advantages and disadvantages.

The disadvantageous differences, I would submit, narrow even further when you consider videoconference mediation, and much can be done to render the gap negligible if at all.

Innovation to close the gap

Advances and novel ways to achieve the aims of ADR are being devised, trialled, and implemented all the time by imaginative practitioners to find ways to close any gap between the effectiveness of face-to face-mediation and videoconference mediation, and to turn challenges into opportunities.

For instance, videoconference mediation can be applied in novel ways in order that it parallel and replicate the psychological experience of commitment and engagement with a face-to-face process. An example of this can be seen in a web-based Family Law mediation service in Queensland[22] that, rather than asking parties to “log on” to what looks like a software program, provides a password-protected “Mediation Room”[23] for parties to “enter”. In my opinion, the application of this concept would have a psychological effect more approaching that of entering a room in real life than “logging on”, and an attendant commitment to the process that a positive act of engagement such as this action entails.

Personal Engagement - Dealing with emotion

Other forms of ODR are problematic when it comes to reading and dealing with various emotions. As Raines states:
“The anonymity of the on-line medium makes people feel safer expressing strong emotions than they do in the face-to-face environment. It is also likely, however, that because body language is absent in the on-line environment, communicators feel a need to use strong language to communicate explicitly emotion that in-person would be implicitly conveyed through eye contact, sighs, cold stares, and so on.”[24]

The difference between videoconference mediation and these other forms of ODR is that these issues, if not completely solved, are at least mitigated largely by the instant-feedback and visual nature of videoconference mediation.

Personal Engagement - Freedom to disengage

It could be argued that since a party will usually feel freer to walk away from a camera than they would be if they were required to walk away from party personally by leaving the room in order to disengage, that commitment to mediation will therefore prove more tenuous.

However, I submit that, done properly, this element can be used to empower parties. If the mediator reinforces and validates the use of such action to temporarily disengage where a party feels the need to do so, it can be promoted and described to parties as a “slow release valve” and as an accepted and useful feature of the videoconference mediation process to avoid any “pressure cooker” situation that would otherwise arise, where the blowing of such a “pressure cooker” would result in a walkout that was permanent and irretrievable.

Mediator - Party Rapport
Melamed states:
...Without rapport, the mediator has nothing. … At least at present, face-to-face meetings take place in a richer sensory environment. The rapport building capacity of the face-to-face environment, and also of a phone conference call, is important for the online mediator to note.
Melamed the goes on to describe a way to mitigate any impediment to this all-important rapport in ODR processes:
... For the mediator who wants to do as much as possible online, an initial face-to-face meeting or phone conference call will add “feeling” to online discussions and is then also available as may be helpful as the online mediation progresses.[25]
Interestingly, Melamed recommends that, in order to mitigate any deficiency in rapport caused by the nature of ODR processes, telephone calls could be made between the parties and the mediator.
Therefore, I believe that the concerns expressed by Melamed would prove largely moot if applied to a process for which videoconferencing was the backbone, combined with face-to-face meetings and private videoconferences between the mediator and the parties to develop rapport as and if needed.
Neutrality and Impartiality
Astor talks of the great difficulty in maintaining mediator neutrality, particularly when intervening in power imbalances. She quotes Robb and Rifkin in that “…mediators assert neutrality but intervene, or, alternatively, feel constrained by neutrality and so refrain from intervening to assist a fair process and fair outcome”.
Astor continues to say that, on the other hand …”Where mediators fail to deal with power imbalances, those power imbalances are reproduced”[26].
The question that could be posited here is, would videoconference mediation make the “double bind”, as Astor describes it, tighter or looser?
I would suggest that being at the other end of a webcam, by definition, makes it impossible to impose a physical presence where necessary, for example where a party who needs to be disciplined, corrected, or denied free rein in the process. However, this format presents no impediment to imposing a process-based, rule-based or psychological presence.
In most circumstances the mediator will be the convener and controller of a videoconference, and thus will have the power and discretion to stop one party communicating with the other fully or partially and almost instantly, either by muting sound or shutting off video instantly- in effect, calling instant private sessions. This is an additional power granted to a videoconference mediator of which a face-to face mediator could only dream - the power to instantly create a process and rule-based effect in a cool, calm, and impartial manner that would otherwise require the employment of assertive techniques that either carry a risk of being ineffective, or eliciting consternation from the affected party that may endanger their perception of mediator neutrality and impartiality.

Conclusion - Opportunities for videoconferencing into the future
With videoconference technology at its current level of maturity, the ways to use this technology to maintain and develop mediation practice is limited only by the imaginations of dedicated practitioners.
As these exciting new technologies unfold, it is foreseeable that more and more effective videoconferencing techniques will have the potential to become de rigueur method of facilitating many types of human business and personal interaction, including one of most natural of human interactions - disputes and dispute resolution.
I have demonstrated that the community of ADR providers has an opportunity to be on the forefront to demonstrate an effective and value-adding application for this technology that encourages both take-up the technology, and take-up of mediation as an avenue of early resort in dispute resolution.
BIBLIOGRAPHY

National Alternative Dispute Resolution Advisory Council Dispute Resolution and Information Technology

Principles for Good Practice (Draft) (March 2002) - Introductory Section

Conley Tyler and McPherson in “Online Dispute Resolution and Family Disputes” Journal of Family Studies Vol 12, No. 2, November 2006

Katsch & Rivkin (2001) Online Dispute Resolution : Resolving Conflicts in Cyberspace (2001) San Francisco” Joey Bass”

Conley Tyler and Bretherton (2003) Research into Online alternative dispute resolution: Exploration Report. Prepared for Department of Justice, Victoria by the International Conflict Resolution Centre, the University of Melbourne,

Conley Tyler, M (2006, March) Evaluating recent developments in online dispute resolution. Paper presented at the Fourth International Forum on ODR, Cairo, Egypt

Melissa Conley Tyler Di Bretherton Who wants online ADR? Report of a needs assessment in Victoria, Australia ADR Bulletin Volume 6 | Number 4 Article 4 August 2003 pg 77

Settling It On the Web New technology, lower costs enable growth of online dispute resolution Posted Oct 1, 2007 12:12 PM CST By Jason Krausehttp://www.abajournal.com/magazine/article/settling_it_on_the_web/

Eisen, J. B. “Are We Ready for Mediation in Cyberspace?” Brigham Young University Law Review, 1998, 1305-1358 pg 1308

Conley-Tyler and Raines - “The Human Face of Online Dispute Resolution” Conflict Resolution Quarterly Vol 23, No. 3, Spring 2006 333-342 page 337

Tan, J., Bretherton, D., and Kennedy, G. “Negotiating Online.” In M. Conley Tyler, E. Katsh, and D. Choi, (eds.), Proceedings of the Third Annual Forum on Online Dispute Resolution.(not accessible at time of writing

James Melamed Mediating on the Internet: Today and Tomorrow http://www.mediate.com/articles/Melamed5.cfm

Young - Online Mediation: Its Uses And Limitations http://www.mediate.com/articles/young4.cfm

Divorce Mediation and the Internet retrieved 29 Nov 10 from http://www.mediate.com/articles/melamed9.cfm

Opie The Economics of ADR: Is ODR the Next Efficiency? Retrieved on 29 Nov 10 from http://www.odr.info/unforum2004/opie.htm

Law Handbook of South Australia, published by the Legal Services Commission of South Australia

The “Listening to the City” online dialogues experience: The impact of the full value conflict. Conflict Resolution Quarterly 21, 381-393 (2004)
Susan S. Raines “Mediating in you Pyjamas” Conflict Resolution Quarterly Volume 23, Issue 3, Spring 2006, Pages: 359-369, page 361
Astor “Mediator Neutrality: making sense of theory and practice” Social and legal Studies 16(2) pp 226



[1] National Alternative Dispute Resolution Advisory Council Dispute Resolution and Information Technology Principles for Good Practice (Draft) (March 2002) - Introductory Section
[2] Settling It On the Web New technology, lower costs enable growth of online dispute resolution Posted Oct 1, 2007 12:12 PM CST By Jason Krause http://www.abajournal.com/magazine/article/settling_it_on_the_web/
[3] Ibid 1
[4] Conley Tyler and McPherson in “Online Dispute Resolution and Family Disputes” Journal of Family Studies Vol 12, No. 2, November 2006, at pp.173 describes a number of tools including a “parenting scheduling website” and other types of Negotiation Decision assessment tools as part of a “Negotiation Support” range of services
[5] Katsch & Rivkin (2001) Online Dispute Resolution : Resolving Conflicts in Cyberspace (2001) San Francisco” Joey Bass”
[6] Conley Tyler and Bretherton (2003) Research into Online alternative dispute resolution: Exploration Report. Prepared for Department of Justice, Victoria by the International Conflict Resolution Centre, the University of Melbourne,
[7] I have excluded teleconferencing, as distinct from Videoconferencing from consideration, as teleconferencing is already well established in a number of tribunals, e.g. for conciliations run by HREOC, but consideration of videoconferencing is the matter of interest at hand
[8] Conley Tyler, M (2006, March) Evaluating recent developments in online dispute resolution. Paper presented at the Fourth International Forum on ODR, Cairo, Egypt
[9] Who wants online ADR? Report of a needs assessment in Victoria, Australia
Melissa Conley Tyler Di Bretherton ADR Bulletin Volume 6 | Number 4 Article 4 August 2003 pg 77
[10] Ibid 5, Para 24
[11] Eisen, J. B. “Are We Ready for Mediation in Cyberspace?” Brigham Young University Law Review, 1998, 1305-1358 pg 1308
[12] Ibid 7
[13] Conley-Tyler and Raines - “The Human Face of Online Dispute Resolution” Conflict Resolution Quarterly Vol 23, No. 3, Spring 2006 333-342 page 337
[14] Tan, J., Bretherton, D., and Kennedy, G. “Negotiating Online.” In M. Conley Tyler, E. Katsh, and D. Choi, (eds.), Proceedings of the Third Annual Forum on Online Dispute Resolution.(not accessible at time of writing)
[15] James Melamed Mediating on the Internet: Today and Tomorrow http://www.mediate.com/articles/Melamed5.cfm
[16] Young - Online Mediation: Its Uses And Limitations http://www.mediate.com/articles/young4.cfm
[17] Divorce Mediation and the Internet retrieved 29 Nov 10 from http://www.mediate.com/articles/melamed9.cfm
[18] Opie The Economics of ADR: Is ODR the Next Efficiency? Retrieved on 29 Nov 10 from http://www.odr.info/unforum2004/opie.htm

[19] Retrieved 30 Nov 10 from the Law Handbook of South Australia, http://www.lawhandbook.sa.gov.au/ch25s11s04.php published by the Legal Services Commission of South Australia
[20] Ibid 11
[21] The “Listening to the City” online dialogues experience: The impact of the full value conflict. Conflict Resolution Quarterly 21, 381-393 (2004)
[22] http://www.onlinefamilymediation.com.au/ Retrieved on 29 Nov 10
[23] http://www.onlinefamilymediation.com.au/Enter-Online-Mediation-Room.html Retrieved 29 Nov 10
[24] Susan S. Raines - “Mediating in your Pyjamas” Conflict Resolution Quarterly Volume 23, Issue 3, Spring 2006, Pages: 359-369, page 361

[25] Ibid 5
[26] Astor “Mediator Neutrality: making sense of theory and practice” Social and legal Studies 16(2) pp 226
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Recent technical advances, and cost reductions in multi-party videoconferencing due to economy of scale in online communications mean that the utility of such technology has significantly improved in the last few years. The availability of this technology has become far more widespread than at any time since the advent of computers. This paper describes videoconference mediation, and argues that this process has a strong claim to a prominent place in the toolbox of ADR practitioner.

by James Sproles - February, 2012

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There has been a great deal written over the last ten years or so about the usefulness of internet videoconferencing as a tool for conflict resolution. This discussion has ranged from the potential use of the method in mediating family disputes to international jurisdiction and border conflict issues. The last ten years have seen an increasing, but limited, take-up of such methods by courts, tribunals, and other government agencies who offer Alternative Dispute Resolution (ADR) services . 

Source: http://www.jamessproles.net/online-dispute-resolution.php

 

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