Disputes are part of the everyday life of organizations. There are studies that show that corporate top management devotes between 30% and 42% of their time to conflict resolution. These are situations involving disagreements between partners, employees, suppliers, among others.
The occurrence of disputes is also a frequent occurrence in the context of consumer relations. In this area, especially with the development of the Internet and the increase in the flow of transactions on the lineyear, there was a significant increase in the number of unresolved situations, which causes increasing concern of companies and the Government.
There are millions of complaints registered every year on platforms like Reclame Aqui and with consumer protection agencies across the country. Some of these problems, which remain unsolved, generate the millions of lawsuits that reach the judiciary each year, making consumerism one of the three most demanding issues in all courts today.
Mediation has often been highlighted as an effective way to prevent and resolve this type of conflict, with the intervention of a neutral and qualified third party to facilitate communication and create an environment conducive to agreement.
At the same time, efforts have been made to combine the appropriate methods with new technological tools, to make the resolution of these disputes somewhat more economical and scalable, capable of handling the vast amount of disputes in this area. Such initiatives eventually got a name online dispute resolution – DOCTOR.
On the other hand, there are also concerns about how such systems are developed, especially regarding their accessibility and neutrality, since the algorithms used in them software are generally not publicly known.
From these discussions, public and private institutions issued several recommendations and statements inside and outside Brazil on the subject.
Some of the main documents on this issue are the Recommendations of the Organization for Economic Co-operation and Development – OECD on the settlement of consumer disputes.
To begin with, it is worth recalling the Guidelines for Consumer Protection in the Context of Electronic Commerce, developed in 1999 and updated in 2016. Their main purpose is to ensure that the consumer who purchases on the line no less protected than those who make the purchase in person.
The document states that consumers must have access to efficient, fair, simple and transparent mechanisms for quick resolution of disputes, without unnecessary costs. To this end, mechanisms must be offered for conflict resolution outside the judiciary.
In addition, regarding ODR tools, it clarifies that they must be developed objectively, impartially and consistently, regardless of who bears the costs of the platform.
In July 2007, the OECD Council adopted the Recommendation on the Settlement of Consumer Disputes. The document was created after checking that consumers still have resistance to the market on the line for doubts about the way to resolve disputes.
According to the Recommendation, dispute resolution mechanisms for consumers:
- They cannot impose a cost that is disproportionate to the value of the claim;
- They should be designed to be accessible and easy to use without the need for a representative or assistance, as far as possible;
- There must be clear and understandable information on how to start the procedure, as well as an estimate of costs and duration;
- These may include procedures involving the active intervention of a neutral third party to facilitate dispute resolution.
It is also important to mention the technical notes about Online dispute resolution UNCITRAL, designed with a greater focus on cross-border business transactions.
After recognizing that ODR mechanisms can help the parties to resolve the dispute in a simple, fast and safe way, they set a series of recommendations based on the principles of impartiality, independence, efficiency, proper procedure, fair procedure, accountability and transparency.
Among them we single out the following:
- Adoption of policies to identify and resolve conflict of interest situations;
- Implementation of policies for the selection and training of experts who will work on the platform;
- A procedure based on the express and informed consent of the parties;
- The ability for the platform administrator to appoint a neutral third party to help resolve the dispute;
- The system must be structured in a way that guarantees data security.
At the national level, this topic is also receiving increasing attention. It is worth mentioning, for example, the statements published during the II conference on the prevention and out-of-court settlement of disputes of the Federal Council for the Judiciary, held in August 2021, which had as one of its axes the topic “new forms of conflict resolution and new technologies”.
Regarding the subject of this analysis, we single out the following claims:
STATEMENT 144 – It is recommended to adopt the free system Online Dispute Resolution (ODR) e-commerce mediation platforms to resolve conflicts between their users, as an alternative to consumer-supplier disputes.
STATEMENT 156 – ODR platforms, private or public, shall strive, whenever possible, to meet digital accessibility criteria for groups that may be marginalized by the digital divide, such as compatibility with technological means of enabling access for persons with disabilities.
STATEMENT 159 – It is recommended that platforms for online dispute resolution have a user-centered design, with protection of personal data, as a way to encourage their use and increase the parties’ trust in the use of technology.
STATEMENT 179 – In order for a digital platform or other means of remote communication to be considered mediation or conciliation, the procedure must meet the legal requirements for such forms of conflict resolution.
It should be noted that there is alignment between the aforementioned statements and international guidelines, especially regarding the price, availability and security of these platforms, so that they can represent an effective instrument for exercising rights and access to justice. .
Statement 179 also emphasizes the need to respect all legal conditions for mediation or conciliation, among which are the neutrality and appropriate training of these experts, as well as respect for the confidentiality of the conciliation process.
This concern is based on the fact that in Brazil there are still companies that, claiming to develop mediation, end up acting as real negotiators, acting in defense of the interests of only one of the parties or even in a similar way to collection companies, without any concern for proper use mechanism.
Therefore, it is necessary to pay attention to the existence of solutions and procedures that cannot even be effectively considered as mediation, which calls into question the legal validity of agreements concluded in this way, and at the same time moves away from the purpose for which mediation was developed.