Melbourne Law School - Theses

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Author: Tan, Vivi Julita × Subject: Consumer protection ×

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    Online Dispute Resolution and Consumer Disputes in Australia: Dispute System Design Analysis
    Tan, Vivi Julita ( 2023-11)
    Online dispute resolution (‘ODR’) first originated as a response to the e-commerce phenomenon and is now widely accepted and implemented in many jurisdictions. The COVID-19 pandemic has undoubtedly been a major catalyst in the wider adoption of ODR systems to resolve different types of disputes. Although ODR was initially more prominent in private dispute resolution, for example being used by PayPal or eBay for resolving disputes with customers and suppliers, it has now extended to public sector entities, including to judicial institutions. Courts and tribunals are increasingly using various types of ODR systems to provide more flexible and efficient dispute resolution processes. Given the uptake in such systems, there is a need to shift attention away from the analysis of whether or not to adopt ODR systems towards how best to design such systems. Additionally, much analysis of ODR has focused on commercial disputes, not differentiating consumer disputes, or dealing with this latter category only fleetingly. This thesis focuses squarely on the question of whether and how an ODR system might be designed to provide consumers with an avenue to resolve disputes and obtain redress in a fair and efficient manner. It moreover focuses on the use of ODR by courts and tribunals, as opposed to the use of such systems by suppliers or businesses. In this thesis, I argue that ODR does offer opportunities for resolving consumer disputes. However, more sustained attention needs to be given to the principles that should govern the design of ODR systems. Good design is essential to ensure that ODR is appropriate for the context of consumer disputes, fulfils its intended objectives in this unique context, provides a high-quality alternative for consumers to the traditional and offline court processes, and maintains its legitimacy among its consumer users. Such focus on system design necessitates a shift in attention from analysing whether or not courts and tribunals should adopt an ODR system towards how best to design such systems to ensure they are normatively compelling and contextually appropriate given their inevitable adoption. The system design approach is also consistent with the conceptualisation of access to justice as entailing both accessibility (access to courts) and fairness in the legal process itself. The approach, moreover, recognises and respects the unique demands of consumer dispute resolution. Consumer disputes are typically characterised by significant inequalities of bargaining power, information asymmetry and hurdles to access to courts. Yet importantly, under legislation, consumers are often provided with immutable rights that temper the traditional rigour of commercial contracting. Therefore, this thesis seeks to investigate how an ODR system designed for resolving consumer disputes in courts and tribunals fits with the structure and requirements of civil justice in the unique context of consumer protection, and the rule of law in a democratic society.