ADR, ODR, e-mediation & blind negotiation

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Mediation by electronic means, defined as a no adversarial proceedings and alternative dispute resolution is an ADR, Which is also an ODR due to is developed by electronic means. But auto-negotiation is both and yet not mediation. And this is something that does not always appear clearly differentiated, or the scope of the common law and, unfortunately, in the Spanish positive law.

The recent Royal Decree implementing certain aspects of the Law 5/2012 on mediation in civil and commercial , approved by the Council of Ministers of Spain on Friday, December 13, 2013 , would be a good example of this. Although some experts have been pointing in various publications and forums differences that characterize the various forms online, warning of the risks that could creates this conceptual confusion, seem to haven't found an echo in the sensitivity of the Spanish legislature.

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ADR, ODR, e-mediation & blind negotiation

  1. 1. ADR, ODR, e-mediation & blind negotiation ADR, ODR, e-mediación y negociación ciega Página 1 de 5 Article ADR, ODR, e-mediation & blind negotiation Andrés Vázquez December 2013 Last updated 12/27/13 Abstract Mediation by electronic means, defined as a no adversarial proceedings and alternative dispute resolution is an ADR, Which is also an ODR due to is developed by electronic means. But auto-negotiation is both and yet not mediation. And this is something that does not always appear clearly differentiated, or the scope of the common law and, unfortunately, in the Spanish positive law. The recent Royal Decree implementing certain aspects of the Law 5/2012 on mediation in civil and commercial , approved by the Council of Ministers of Spain on Friday, December 13, 2013 , would be a good example of this. Although some experts have been pointing in various publications and forums differences that characterize the various forms online, warning of the risks that could creates this conceptual confusion, seem to haven't found an echo in the sensitivity of the Spanish legislature. Keywords ADR, ODR, mediation, conflict resolution, electronic mediation, online mediation Topic Electronic mediation © Andrés Vázquez López. Esta publicación está bajo una licencia Creative Commons Atribución-NoComercial 3.0 España Madrid, December 2013 131227avlpress
  2. 2. ADR, ODR, e-mediation & blind negotiation ADR, ODR, e-mediación y negociación ciega Página 2 de 5 Since the Greek philosophers debated whether the concepts in their linguistic expression names, aptly represented reality, much has been discussed about the appropriateness or not of terminological designations. Online mechanisms that have been implemented worldwide for alternative dispute resolution procedures cover characteristics, and different conceptual profiles, where the borders - sometimes extremely subtle - exist and determine their legal status . Mediation by electronic means, defined as a no adversarial proceedings and alternative dispute resolution is an ADR, Which is also an ODR due to is developed by electronic means. But autonegotiation is both and yet not mediation. And this is something that does not always appear clearly differentiated, or the scope of the common law and, unfortunately, in the Spanish positive law. The recent Royal Decree implementing certain aspects of the Law 5/2012 on mediation in civil and commercial, (http://www.boe.es/boe/dias/2013/12/27/pdfs/BOE-A-2013-13647.pdf) approved by the Council of Ministers of Spain on Friday, December 13, 2013, would be a good example of this. Although some experts (1) have been pointing in various publications and forums differences that characterize the various forms online, warning of the risks that could creates this conceptual confusion, seem to haven't found an echo in the sensitivity of the Spanish legislature. Either, the excessive euphoria or the criticism, with which it has received from some quarters regulations may also be subject to various qualifications. An underground and apparent struggle between those who indulge in the confusing use of terminology of electronic mediation, in the broad and general sense conferred by regulation adopted now, and those who seek to defend the conceptual distinction between different types of online dispute resolution establishing a line between ODR and electronic mediation, you may end up confusing rather than clarifying the scenario in which we find ourselves. _____________________________ (1) Conforti Franco, El proceso simplificado de mediación por medios electrónicos ¿es mediación? The simplified electronic mediation process does mediation? Acuerdo Justo, Alicante, 2013. http://www.acuerdojusto.com/Descargas/Proceso%20simplificado.pdf Quintana Amparo, ”Moreover, with this simplified method, how mediators can legitimize the parties? How are the interests and needs of them please? ... most closely resembles the payment process to a real mediation" Mediar online: aspectos prácticos desde la perspectiva del mediador, pages, 32-37, Iuris, Madrid, October 2013. http://cienxcienpersonas.files.wordpress.com/2013/11/entrevista.pdf# © Andrés Vázquez López. Esta publicación está bajo una licencia Creative Commons Atribución-NoComercial 3.0 España Madrid, December 2013 131227avlpress
  3. 3. ADR, ODR, e-mediation & blind negotiation ADR, ODR, e-mediación y negociación ciega Página 3 de 5 The focus should not be to confront the e-mediation with a mode that best intentions - supposing that success - the Spanish legislature has been called "simplified procedure for mediation by electronic means", referred to as the ODR mode negotiation, assisted or not by mediators, claims amount to less than 600 euros. Some service providers will use the terminology, which the legislature provides naturalization under that name is as anecdotal as inevitable, since it relies on the existing rule that gives coverage. Report it unwise of the designation of an automatic trading and simplified electronic mediation questioning the legal or technological safety of that ODR mode, designed primarily for debt recovery small claims, appealing to the risk of failure in the confidentiality or security of identity, seems unjustified. Putting this in question is, in practice, the ODR question everything. And not only this. Is operating legally challenge any business conducted electronically. Something that is far sympathize with the reality of daily practice in trade, banking, relations with the public administration and, in general, the whole dynamic of the legal - economic business online. The problem, in my opinion, is not in how it regulates the so-called "simplified procedure of mediation" in Spain, whose security assurances or legal - information -are not inferior to other operational e-business network. Less if we consider its scope. Not even his unfortunate semantics. The real problem is that, after entering the e-Mediation in Law 5 /2012, of July 6 , mediation in civil and commercial matters, (http://www.boe.es/boe/dias/2012/07/07/pdfs/BOE-A-2012-9112.pdf) only developed the well -de- delimited scenario assumptions Article 24.2 mainly referenced to the small claims. However it has been ignoring the broad stage Article 24.1, leaving in limbo the other potential uses of electronic mediation for other assumptions. It has missed then an excellent opportunity. Something particularly disconcerting, especially when you consider that was working for over a year, in the draft of a draft Royal Decree amending the development of mediation by electronic means (https://www.dropbox.com/s/m9oo56a29a9ubzt/ProyectoMediacionmedioselectronicos.pdf) in which are extensively regulated, the characteristics of the process and requirements to be followed by other forms of electronic mediation that currently are lacking specific regulations detailing . © Andrés Vázquez López. Esta publicación está bajo una licencia Creative Commons Atribución-NoComercial 3.0 España Madrid, December 2013 131227avlpress
  4. 4. ADR, ODR, e-mediation & blind negotiation ADR, ODR, e-mediación y negociación ciega Página 4 de 5 The incorporation of ICT in ADR proceedings, notwithstanding that the same may be developed in whole or in part as wisely allow the Spanish legislation, electronically online, in an inclusive and transversal view of technology “assumed as separating two different air between ADR & ODR, will tend to disappear in the near future, leading to the ADR field alone and only work because the technology will form an intrinsic part of the activity if any distinctions”, as Alberto Elisavetsky forecast also on its recent article, "Conflict Resolution in the Twenty-First Century." (http://www.mediate.com/articles/ElisavetskyA2.cfm) A general trend of opinion agrees consider interdisciplinary comediation by conducting the process by mediators with different professional backgrounds of origin, as the best and most complete option for developing most mediation procedures, opening the spectrum stage of the conflict and reinforce it with a comprehensive vision quantitatively richer experiences that provide greater variety of perceptions. In my opinion, to the extent that we can consider the integration of technology in the arrangements online and in person "face to face" as an addition to the procedure that - in his capacity as fourth or fifth part - as a hybrid co-mediation, in which the mediator or mediators are aided ICT tools, contextualize its function more rationally. Moreover, the incorporation of ICTs to mediation don't have to limited his experienced only the models already used. The challenge is to integrate them into platforms that can melt, while adding technological innovations, incorporating specific software that offers intelligent mediator support in areas such as negotiation, image reading, interpretation and management of emotions, etc. Allowing the proceedings with the help of these tools, regardless of the mode -traditional classroom or online- mediation, or other ADR procedure. Teachers Karim Benyekhlef and Nicolas Vermeys in legal online magazine "Slaw Canada's online legal magazine", (http://www.slaw.ca/2013/11/25/cybercourts-odr-and-cyberjustice-what-does-it-allmean/comment-page-1/#comment-939223) advocated a conceptualization of ODR as "the integration of information technology and communication in judicial and resolution processes conflicts" in the same line of thought. © Andrés Vázquez López. Esta publicación está bajo una licencia Creative Commons Atribución-NoComercial 3.0 España Madrid, December 2013 131227avlpress
  5. 5. ADR, ODR, e-mediation & blind negotiation ADR, ODR, e-mediación y negociaci ciega ción negociación Página 5 de 5 The Spanish legislature with the Law 5/2012 on mediation in civil and commercial matters, with vision opened this way. With the approval of this recent development regulations December 13, seems to have touched the brake pedal, leaving the medium to address the regulation of online mediation. In addition to performing unnecessary contribution to the conceptual confusion. unnecessary Madrid, December 2013 Andrés Vázquez López is Mediator. Postgraduate Specialist in Intercultural Mediation and Immigration, expert postgraduate in civil and commercial Mediation, Fam Mediation and Family Master in Mediation. He studied law at the Universities of Santiago de Compostela (USC) and National University of Distance Education (UNED) in Madrid, and post-graduate studies at the latter university. His career as well as his entrepreneur period has been linked to companies in the ICT entrepreneur sector in the 90s, and recently has been working as independent consultant in Corporate Communications and Social Media Digital. As an expert in mediation electronically and ODR has participated in international conferences and projects to implement mediation virtual platforms for ational online conflict resolution and university training programs for mediators in e mediation. e-mediation. He is a member of the European Association of Mediators (AEM) (http://www.aemediacion.com www.aemediacion.com) http://about.me/andresvazquezlopez Madrid, diciembre de 2013 Esta obra está bajo la licencia Re Reconocimiento-NoComercial-SinObraDerivada 3.0 España de SinObraDerivada Creative Commons. Se permite la copia, distribución y comunicación pública siempre y cuando se cite al autor y la fuente y el uso concreto no tenga finalidad comercial. La licencia completa se puede consultar en: http://creativecommons.org/licenses/by-nc-nd/3.0/es/deed.es onsultar nd/3.0/es/deed.es © Andrés Vázquez López. Esta publicación está bajo una licencia Creative Commons Atrib Atribución-NoComercial 3.0 España Madrid, December 2013 131227avlpress

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