Abstract
随着现代信息通信技术特别是互联网、电子商务的飞速发展，一种新的贸易方式应运而生。一方面，电子商务可以给一个国家的经济带来无限的活力，另一方面，它不可避免地会引起大量的在线纠纷。这些争端往往价值不大、跨国家或跨区域、主体虚拟，使得传统的解决方法在解决这些争端时显得不足。为了满足电子商务从业人员提出的高效、有效的纠纷解决要求，发达国家将替代性纠纷解决与信息通信技术相结合的在线纠纷解决付诸实践。在线调解作为ODR方案的一种重要形式，在实践中得到了广泛的应用。本文对网络调解机制进行了研究，并对其在我国的未来发展提出了建议。
With the rapid development of modern information and communication technologies, particularly the Internet, e-commerce, a new trading mode has emerged. On the one hand, e-commerce can bring unlimited vitality to a country's economy, on the other hand, it inevitably causes large amounts of online disputes. These disputes are often small in value, transnational or trans-regional and virtual in subject, thus making traditional resolution inadequate in resolving them. In order to meet the demands of e-commerce practitioners the presence of an efficient and effective dispute resolution, developed countries put Online Dispute Resolution into practice, which is a combination of alternative dispute resolutions and information and communication technologies. As an important form of ODR scheme, online mediation has been widely used in practice. This paper studies online mediation mechanism and tries to put forward suggestions on its future development in China.
本文分为三个部分。本文的第一部分是在线调解的一般介绍。在线调解与传统调解基本相同，而在线调解是以互联网技术为补充的传统调解，是在线调解。因此，它具有高科技、经济性、灵活性和全球性。在线调解最早出现在20世纪60年代，现在正进入组织阶段。网络调解最初是应用于电子商务纠纷的一种调解方式，但随着其自身的发展，网络调解已被应用于许多非商业领域。
This paper can be pided into three parts. The first part of the paper is a general introduction of online mediation. Online mediation and traditional mediation are essentially the same, while online mediation is traditional mediation supplemented with Internet technologies and is conducted online. Therefore, it is high-tech, economic, flexible and global. Online mediation first appeared in the 1960s and it is now entering an organizational phase. At the very beginning, online mediation is applied to e-commerce disputes, however, with the development of the mechanism itself, it has been applied to many non-commercial fields nowadays.
本文第二部分考察了国际上一些典型的在线调解机构及其实践。美国和欧盟处于在线调解领域的前沿，成功建立了广场贸易、莫德里亚、Juripax等多个有影响力的在线调解平台。在线调解已成为世界性的必然趋势。国际惯例也为我们提供了丰富的经验，例如，在线调解服务提供商应具备充分的案例、合理的收费、社会的支持等。
The second part of the paper observes a few international typical online mediation providers and their practices. The United States and the European Union are in the forefront of the online mediation field, they have successfully established several influential online mediation platforms such as Square Trade, Modria, Juripax and so on. Online mediation has become an inevitable trend worldwide. International practices have also offered us abundant experience, for example, online mediation providers should have adequate cases, reasonable charges, supports from the society, etc.
The third part of the paper analyzes the advantages and disadvantages of online第三部分分析了网络技术的优缺点
调解以及如何解决当前的问题。利用在线调解解决纠纷既节省了成本，又有效，避免了复杂的司法问题。虽然在线调解在许多方面都具有优越性，但它也有许多缺点，即非个人性、潜在的不可访问性、语言障碍、保密性、执行调解协议的困难等。如果我们想在我们的网站中开发在线调解，我们必须努力克服它的缺点。因此，我们应该确立发展在线调解的最低标准，加强纠纷解决、现代信息和通信技术的合作，规范在线调解参与者的行为。
mediation and how to resolve its current problems. Using online mediation to resolve disputes is cost-saving, efficient and can avoid complex jurisdiction issues. While online mediation is superior in many ways, it also has many disadvantages, namely impersonal, potentially inaccessible, language obstacles, confidentiality concern difficulty in performing mediation agreements and so on. If we want to develop online mediation in our we must strive to overcome its disadvantages. Therefore, we should establish the minimum standard of developing online mediation, strengthen cooperation on dispute resolution, modern information and communication technologies and regulate the behaviors of online mediation participants.
1 Introduction
Inevitably disputes occurs between man and man. Ways of resolutions need to actively seek to resolve disputes. Professor Frank Sander and Professor Stephen Goldberg in their early academic papers about the dispute resolution pointed out, in order to efficiently resolve dispute (Märker, 2001), the judge and the parties should select corresponding resolution mechanisms that perfectly matched the dispute as far as possible when they choose resolution mechanisms to resolve dispute. Nowadays, the increasingly persity of demands of people, which make the non-litigious dispute resolution mediation become a prime choice of parties to resolve the dispute (Riquelme, 2016).
Internet intervention in the dispute resolution makes the problem more complex and interesting. Rapid development of Internet economy has spawned countless online disputes (Iandoli, 2016). The inherent characteristics of cyberspace, such as global, virtual and autonomy,have been put forward new requirements for traditional dispute resolution. Traditional off-line ways of resolving disputes in the face of emerging online disputes appear a series of problems, such as expensive, regions difference, language barrier, jurisdiction conflict, unclear application of law and difficulties in implementing (Shin, 2016). The sweeping of online dispute makes people need a new way of dispute resolution, so online dispute resolution (ODR) come into being (Benrazavi, 2015).
Online mediation is an important form of online dispute resolution (ODR) and is widely implemented by many ODR providers. Online mediation doesn’t break away from the nature of traditional mediation, but it also formed unique features in cyberspace. Online mediation mainly applied on e-commerce disputes, but in recent years, with the development of online mediation mechanism, its scope of application gradually breakthrough business disputes, and also began to benefit the offline dispute resolution (Sun, 2015). Therefore, the broad development of online mediation mechanism has a broad, optimistic prospect.
Though online mediation is an important form of online dispute resolution, but in China, the research on online dispute resolution focuses on online arbitration and the research on alternative dispute resolution of traditional mediation method. Few scholars specialize in the online mediation (Tilman, 2016). There are no online mediation books, only a few of the articles, or some research on online dispute resolution mechanisms referred online mediation. So it is necessary to take the initiative to carry out a prospective study on online mediation to promote the development of the industry and relevant law documents, so as to meet the practical requirements for the development of the network economy and promote the development of industrialization of China's online mediation (Lavi, 2016).
2 Comparison of China's online/offline analysis
2.1 The basic situation of Chinese online mediation
For online mediation, we can’t ignore the word "mediation", therefore, in order to understand the meaning of online mediation, you have to have a clear and precise definition for "mediation". Mediation can be an excellence contribution that Chinese nation made for human society (Gonçalves, 2016). Chinese has always insisted on the thought of "Harmonious Is Precious” and to reflect on judicial is using mediation in solving civil disputes, so in China and other eastern nations, mediation has been exists many century ago and showed its unique disputes solution value in continuous development (Cortés, 2016).
In the mid of 1990s, with the widespread of a new communication way - Internet, ODR (Online dispute resolution) gradually developed into a corresponding mechanism for the Internet dispute. As an important form of ADR mediation and modern infiltration of the Internet, the online mediation becomes an important form of ODR.
Online mediation is new form of traditional mediation from network space. It’s defined as a unique e-commerce disputes solution way at the beginning, but with development of information technology and online mediation mechanism, online mediation mechanism has breakthrough e-commerce disputes and gradually extended it’s dispute resolution scope to all social fields (Gaëlle 2016). In order to grasp the exact meaning of online mediation, you must jump the bound of e-commerce disputes.
In addition, online mediation is inseparably with the network technical support, however, the ever-changing network technology, which to some extent limits our precise definition of online mediation. In my opinion, online mediation consists of the following three aspects (Ye, 2016):
(1)Essentially consistent with traditional mediation, online mediation, is a voluntary choice by the parties in the neutrality of a third party (the mediator), the mediator assists the parties come to a mechanism of dispute resolution agreement. (2) Online mediation happens all online from the beginning of the dispute to the end of resolution which means the Internet is the only platform. (3) Online mediation can resolve the dispute with the help of network technologies, such as e-mail, chat rooms, video conferencing and other means of interaction (Alonso, 2016).
Compared with the traditional mediation, the biggest difference is that online mediation shifted the real world’s physical space into cyberspace. Although online mediation doesn’t break away from the nature of traditional mediation and inherit traditional mediation’s characteristics, it also forms many unique characteristics in the process of self-improvement with the development of information and communication technology. Specifically, online mediation has the following characteristics: high-tech, economy, discipline, flexibility and global (Graham, 2016).
Online mediation mechanism developed with the emergence of ODR, whose history is just more than 10 years, however, compared with the initial stage of development, online mediation mechanisms has undergone significant changes, we can see that from the online mediation’s international practice (Giussani, 2016).
(1) From regional to global. With the globalization of economy, more and more cross-border transaction has brought increasingly transnational disputes, many online mediation service providers break the geographical boundaries to provide services to the world, no longer limited to a specific country or regions, typically is Modria and Juripax. This globalization trend of online mediation is more conducive to promoting the development of e-commerce.
(2) From non-profit to profit. With the maturing of online mediation, online mediation has formed an industry. Nowadays, online mediation has been formed business to charge fees. Profit is another important objective of online mediation except resolving disputes (Gonçalves, 2016).
(3) Supporting from Government and International Organizations. Online mediation as a new way to settle disputes has been gained the favor of businesses and consumers, and affirmed by the governments and international organizations. Such as electronic consumer dispute resolution project received EU support, Austrian Internet surveillance by the Austrian public funds provide financial support, the United Nations Commission on International Trade Law has set up working groups to study ODR, and actively set the ODR's procedure rules. It is from all walks of life affirmation and support, online mediation can be moving in the right direction and progress.
2.2 Comparative analysis of online/offline mediation
2.2.1 The advantages of online mediation
As an important part of the alternative dispute resolution methods, online mediation combined the advantages of traditional alternative dispute resolution methods with itself unique high technical advantages win people’s support and attention (Zhang, 2015).
(1) Cost savings. Compared with the traditional mediation, online mediation provides substantial cost savings for the parties. First of all, in traditional dispute resolution methods, lawyer fees may be the biggest spending, but a lawyer is not necessary in mostly online mediation dispute resolution. Secondly, travel expenses and communication expenses are also a considerable savings. Save costs while saving time and effort.
(2) Convenient procedures and efficiency of dispute resolution. Online mediation broke the limitation of time and geography, the party only need to have a computer with Internet access can apply for disputes, in addition, the online mediation platform is running 24 hours a day, party can apply at any time.
(3)Avoid the complexity of jurisdictional issues. The global network blurred traditional geographical concept, you will face the problem of how to select jurisdiction court if you use traditional of disputes solution way, however, there will no such issue if you select online mediation. Self-discipline is the inherent characteristics of online mediation. It formed an autonomy rules in its development. Parties should default comply with the rules when they select a specific online mediation institutions as this autonomy rules is based on fair justice principles, height transparent and suitable for disputes.
2.2.2 Online mediation issues
(1)The conciliation process non-human
In network disputes, the non-face-to-face exchange can’t express out tones’ changes, volume’s level or bodily gesture, while these non-text exchange often passed out the most real mood and idea. In traditional mediation, the experienced mediator would evaluate the situation according to the bilateralstrength or each party’s certainly and confidence to make the right and fair judgement (Hattotuwa, 2006).
(2) Unable to access the network potential and language barrier
The important feature of online mediation is online, so accessing the Internet is essential, but for some inpiduals, especially those off-line people involved in online dispute mediation, access to the network is difficult issue. In addition, the parties who are not familiar with computer or can’t express their thoughts fluently are at a disadvantage of online mediation. The language barrier is another important issue in multinational e-commerce dispute. Currently, the world's leading online mediation platform are Europe and the United States, so the platform are English language, or Spanish, for parties whose native language is not English, it is clearly at a disadvantage.
(3) The challenge of confidentiality and privacy
Online mediation is supported by Internet technology, so the above problem arising from the inherent openness of the Internet, this openness means that the Internet is filled with insecurity, such as vulnerable to viruses or hacker attacks, leading to information was leaked, stolen, forged, tampered, thus undermining the privacy of online mediation. To be a more effective dispute resolution way in the future, it is necessary for online mediation to have a protection rules for the party’s confidentiality and privacy before the procedure runs to ensure the frank and honest information exchange. Only in this way, the party will be assured to choose online mediation to resolve the dispute.
(4)On-line mediation agreement implement difficult
Online mediation service providers mostly are private company, their right of jurisdiction comes from the party's choice and the of the parties' dispute agreement (Cortes,2008). The mediation agreement is un-enforceability, and only relys on the consciousness of the party to perform. E-business’ globalization feature makes it impossible for the party to confirm the effectiveness and enforceable of the mediation agreement through the judicial process. When it comes to implementation of the property, the virtual nature of the Internet tends to blur of parties and their property’s location which greatly improves the agreement implement difficult.
2.2.3How to deal with online mediation issues
(1)Formulate and improve the online mediation’s minimum requirements. Any kind of dispute resolution wants to have powerful vitality, it must generally acceptable and applied by the community, and such mechanism should follow the most basic conditions.
Modern online dispute resolution (ODR)’s development is supported by many international organizations and international organizations are also actively committed to improve the development of online dispute resolution mechanisms, an important aspect is formulate the minimum requirements for the development of ODR, these international organizations, including the Organization for Economic Cooperation and Development (OCED), the United Nations the European Union and soon. As pioneers of ODR, America is also a leader in the development of the standards making. American Bar Association (ABA Task Force) established e-commerce Special Committee to formulate the minimum requirements to restrain ODR providers, these requirements include open, fair, confidential, efficiency and son on.
(2) Strengthening the exchanges and cooperation for dispute. Credibility symbol comes from the Square Trade site badge mechanism. Enterprises can obtain credibility symbol if they comply with the online mediation guidelines and commit to carry out the results of dispute resolution faithfully. Then the parties can trust the e-commerce company with the credibility symbol. Credibility symbol not only can enhance consumer’s confidence with enterprises, but also can enhance consumers trust with each other. The famous credibility symbol includes the BBB Online, BBB Accredited Business Seal, the European label, Trust UK and so on. These credibility symbols help the affection of online mediation, promote mutual certification of international business and the transnational disputes resolution (Hattotuwa, 2008).
Nowadays, many scholars and international organizations are committed to building a Global ODR System, one of the requirements of Global ODR System is require the ODR service provider to use common language to enable the parties can correct understand operational procedures and use a service to resolve the dispute.
(3) Developing information and communication technology. Information and communication technology is an important support for online mediation’s good running, so the development of online mediation can’t develop without it. As the fourth side of online mediation, network should provide a safety platform for parties’ and mediator’s communicating and resolving disputes, including information’s secure transmission and confidentiality. However, disadvantages of mediation caused by technical problems reduced the party's trust in online mediation. Therefore, to improve technical is an urgent task.
(4) Standardized the behavior of online mediation participants. In terms of macroscopic, the standardized of online mediation can’t separate from government’s guidance, mostly online mediation service are privately, it will have a random chaotic situation without government’s public rights and legal provision’s support. In terms of microcosmic, relative regulation needs to be made for online mediation participants - enterprise, consumer, online mediation agency
3 Online mediation practice in China
3.1 Taobao’s consumer online mediation practice
The Chinese nation has always been known as "a traditional ceremonies" around the world, the idea of “Harmonious Is Precious” also increased people's acceptance of using mediation to resolve the dispute, so mediation has a long history in China. All these provide a solid cultural basis for the development of the online mediation. Different from traditional mediation, online mediation is largely dependent on technology. Modern information technology started late in China, there is a large gap with developed countries, so for the study and application of online mediation dispute resolution, China still in its infancy and have a lot of room to develop.
3.1.1 Taobao’s consumer protection mechanism
E-commerce’s an important manifestation of China is the flourishing online shopping, group buying and one of the most representative is Taobao. Taobao was founded in 2003 and have built e-commerce ecosystem in just a few years and from single C2C online markets developed into a variety of e-commerce mode of integrated retail and being the biggest online shopping website in Asia (Gettinger, 2014). In 2013 "double 11" shopping Carnival once again refreshed the sales of 35 billion yuan in sales of this year. From the huge volumes of amount, it’s easy to see the boom Taobao led the development of e-commerce in China and increased the consumers’ trust in e-commerce. The reasons are, on the one hand, with the expansion of Taobao, it can provide products and services that can cover every aspect of consumer’s life and meet consumers' persified demands. On the other hand, Taobao is based on the autonomy and formed a mechanism for consumers to settle disputes safeguard legal rights. Consumers can be assured to buy products. perse services combined with perfect dispute resolution it goes without saying for Taobao's boom.
Taobao's dispute resolution mechanism is targeted to online transaction disputes, belonging to the inner dispute resolution mechanism. Buyer can safeguard their legal rights when they receive the product with shortage, damage, product doesn’t match the description. The basic procedure is: after buyer launched complain, firstly communicate with sellers, if both reach an agreement, seller can ask buyer take back the complaint and carry out the agreement. If can’t reach consistent, buyer can apply for customer service to intervene. Customer service will intervene in seven a days and notify buyer and seller put proof within3 days, as neutral of third party, customer service would verified and mediate the dispute and address the comments in 4 working days after proofing.
This opinion doesn’t have the force of law, but if the seller fails to comply with, he will meet the points penalties, penalty points accumulated to a certain number may result in being expelled from the trading platform. If the buyer fails to perform the results, the seller can also appeal to the online platform provider. Taobao’s consumer service is essentially the use of online mediation dispute resolution mechanisms in internal internet which provide a fair and expeditious solution to the dispute that occurs in Web transaction. In addition, Taobao also has launched a series of consumer protection services, such as fake a compensate 3, return and exchange in 7 days and so on. Sellers are volunteered to join the service. If seller failed to fulfill commitments after accession, Taobao pays to buyers in advance and customer service will be involved in three days to shorten the time of activist. Taobao has developed a complete set of online dispute resolution system.
3.1.2 ADR-Online
In addition to the e-commerce internal dispute solution mechanisms, China also appeared a platform to settle dispute that is built by a third party, namely, specialized online mediation website. Special online mediation agencies at China's development level is still very low, compared to developed countries, these agencies were less influential, but e-commerce internal dispute solution mechanisms sometimes can’t solve the dispute efficiently (Cloke, 2016). The long-term development of e-commerce is inseparable from a professional online dispute settlement institution, therefore, China should focus on the development of specialized online dispute resolution agency.
In 2004, China set up the first dedicated online dispute resolution service providers - China ODR. It mainly uses online mediation and reconciliation program to offer free dispute resolution services, but the influence is very small, but later dropped. China's latest online mediation practice - ADR-Online is built by Beijing Joint Mediation of Business Consulting Company in 2011. ADR-Online is committed to build China's first platform for mediation services to promote mediation, mediation market and the professionalism of mediators.
ADR-Online is a website that consisted by different institution, such as newest institutions Beijing Anbang Logistics Mediation Center, Beijing Insurance Contract Dispute Mediation Committee, Shanghai Commercial Mediation Center, which can provide professional mediation service for the applicant. ADR-Online mediation services runs on the OMS (Online Mediate System) and the whole process is dealt through network. Firstly, parties need to register as a member and log in, then submit the request, the mediator and the parties communicate with OMS and try to bring mediation, OMS are committed to provide fast, secure and efficient mediation service for parties (Hawes, 2013). But because the institutions is just beginning, cooperation is not much enough, online mediation fees and rules also need to be improved and refined, so there are no successful example of online mediation.
Though online mediation is the most widely used in ODR, but online mediation development in China is not very mature. By contrast, the online arbitration of Chinese International Trade Arbitration Commission (CIETAC) has a certain scale, especially in the area of domain name dispute. In 2013, CIETAC has been designated as the world's second quick termination settlement agency of domain names procedures. Online arbitration of CIETAC has formed its own rules and made comprehensive provisions for fees and procedures. China Online mediation can learn successful experience from CIETAC.
3.2Practice of Chinese online dispute resolution providers
Through above study of Chinese Online mediation practice, It’s clear to see the gap among China and developed countries. Chinese online mediation practice is in primary stage, the scale and penetration are compared low-end. Problem mainly reflected in weakly concept consciousness, unfair operational procedure and lack of supporting mechanism (Yun, 2012). Following, author will mainly described and analysis its reasons on these three problems. Only fully aware of the problems and their causes in practice can we find a right way to build a set of online mediation mechanism that suits China.
3.2.1 Ideas obstacle
Firstly, China's legal culture affects people's choice for dispute resolution. In case of disputes, people think of ways to solve the problem is litigation, and with the gradual improvement of proceedings and litigation rights has become the mainstream of society. If e-commerce’s online disputes resolved through litigation, you will face many difficulties. With time going on, all these result in public’s crisis of confidence in e-commerce and judicial authority will be challenged.
Secondly, the trusted public authority hinders people's use of online mediation mechanism. For the development of China's Internet industry, the Government has taken the combination of macro-guidance and micro-regulation management mode. For example, many local industrial and commercial issued a series of administrative rules or ways for the implementation of the management of Website according to the Website’s development, such as issued to a qualified site "electronic identity", which is actually improved the public’s trust for public authority.
To some extent, this trusted resource plays a positive role in standardized operation for commercial websites, however, it is detrimental for the formation of self-regulation mechanisms. It enhanced the public perception that judicial is their first choice to settle dispute and is not conducive to the popularity of online mediation mechanism. In addition, the electronic identify has nothing to do with dispute resolution mechanisms, and doesn’t reflect the consumers' rights, but to some extent, It confused the differences of online dispute settlement mechanisms and electronic identify and hindered the public's awareness for online dispute settlement mechanisms.
Thirdly, e-commerce lacks understanding of the online mediation mechanism. Current Chinese online mediation institution have not dovetailed with the specialized e-commerce website, mostly are e-commerce sites settle the dispute by themselves rather than a dedicated online mediation platform for dispute resolution, it is indicated that e-commerce didn’t identify with the Internet dispute settlement mechanisms
3.2.2Operation obstacle
Online mediation’s implementation is based on public’s identity and the key of online mediation mechanism growing count on its running. Chinese online mediation mechanism and online disputes solution mechanism grow out of nothing and still at initial stage. We should focus on how to overcome the obstacles of the operation running to develop Chinese online mediation mechanism
From the substantive point of view, Chinese online dispute settlement mechanisms’ legislation is simple and there are many gaps. Now, the specialized legislation for Chinese e-commerce law is the law on electronic signature. It is actually the requirements for all aspects of e-commerce. In 2016, the Commerce Department issued “guidance for online transactions (provisional)” which state that service providers must establish and improve dispute resolution mechanisms to protect the legitimate rights and interests of consumers (WANG 2010). From a general point of view, current Chinese legislation is insufficient to fully regulate the online mediation mechanisms and provide guidance to the operation of online mediation mechanism. Decentralized and fragmentation law can’t favor the online mediation mechanism.
3.2.3The lack of supporting mechanisms
The implementation of a mechanism requires public recognition, normal operation running and supporting mechanisms protection. The reasons for immature for Chinese online mediation mechanisms are obstacle ideas and systems and imperfect of supporting mechanism. Although many e-commerce websites have introduced activism channels, consumer protection service, credit rating and other supporting mechanisms, but e-commerce website credit system lack effective unified regulating but relies on the industry’s self-discipline. So 100,000 complaints still can be received under the booming of China's e-commerce and high levels of public interest situation
Expert in Chinese e-commerce Research Center for human rights said the root, "e-commerce development lack of corresponding industry supervision regulation and enterprises don’t pay enough attention to online shopping. In addition, consumers are re often in a weak position why they dispute with the sellers. Difficulties of proofing lead to activist failure. If there is no corresponding mechanism to get rid of lack of honesty in e-commerce environment, it will inevitably lead to consumers’ discontent to e-commerce and online dispute settlement mechanisms. All these are conducive to the implementation of online mediation mechanism.
3.3Advice for online mediation development in China
3.3.1 Break down idea obstacle and increase public awareness of the online mediation
Despite online mediation can be used in non-commercial disputes, but online mediation’s development space is e-commerce business. The success of foreign online mediation institutions is attributed to its cooperation with well-known e-commerce website. For example, the cooperation between Trade Square and eBay, Modria is frequently used by eBay and PayPal which makes Trade Square and Modria the famous global online disputes solution platform.
Currently well-known e-commerce websites in China have basically internal dispute resolution mechanisms, but lack of external dispute resolution mechanism. Online mediation can take this opportunity to actively cooperate with them. E-commerce websites can provide enough cases for online mediation service and online mediation service can solve the dispute and maintain e-commerce running normal. The Government should actively promote such cooperation, on the one hand,online dispute resolution agency can be given relevant support and preferential policy, on the other hand, the websites who accept the online mediation service can be encouraged and recognition to expand the online mediation advocacy and lay the foundation for further development and implementation of online mediation mechanism.
3.3.2 Strengthening the self -construction of online mediation mechanism and achieving procedural justice
(1) Regulated and guided online mediation participants behavior
In any dispute settlement procedure, participants are worthy of leading and important role to start and end resolution mechanism. Online mediation is consensual and they played a dispute contract and people's choice, so participants in the role of online mediation is more prominent. It’s necessary to perfect online mediation mechanism with correct participation.
(2)Strengthening the information and communication technology development and innovation
Information and communication technology is an important support and inseparable for online mediation. High-tech medium - Internet can be described as the fourth side of online mediation, it should provide a safety communicating and resolving disputes platform for parties and the mediator, including secure file transfers and confidentiality of information. The advanced technology level of online mediation is in proportion to the application of the mechanism because users tend to like advanced and safety mechanisms.
raditional online mediation service uses email as the primary form of communication, but now more and more online mediation service have begun to explore other communication way except email by upgrading technology. For example, Juripax built forum to make online mediation synchronous communication possible and win user’s like and trusted.. Therefore, Chinese online mediation service should accelerate upgrades and innovative online mediation platform for the use of technology, such as develop and research voice and video frequency. Through the use of e-mail, voice, video and other persified approach to optimization of dispute settlement.
3.3.3 Program design consistent with equity and justice
Although modern online mediation service mostly are private, but regulation of online mediation can’t separated from government guidance, it will have a random chaotic situation without the Government's right and legal support and the most effective ways of government guidance is to make relevant laws and regulations. That’s so-called legality, online mediation should meet legal requirements and regulation.
On one hand, China should established the qualification for online mediation and the legal provisions for the minimum requirements that institutions should follow in order to ensure the quality of online mediation service. On the other hand, States should establish the position of online mediation, recognized the legitimacy of its existence. Thus, the online mediation can give full play to autonomy and self - development under the legitimate name of the law.
In 2010, China confirmed the mediation agreement the judicial confirmation procedure for the first time and it called “the people's mediation law”, in 2012, the new Civil Procedure Act also endorsed this approach and added the mediation agreement confirmation process, a special procedure that the party applying for judicial confirmation of the mediation agreement is enforceable. Therefore, China can try to combine site autonomy rules with judicial confirmation to ensure the enforceable of the online mediation agreement.
3.3.4 Improve online mediation supporting mechanism to build credibility network
First, make standard of business integrity. Foreign e-commerce sites have established a series of business integrity and published on the Web page to increase consumer confidence in engaging in transactions and enhance the consciousness of businesses to regulate their own behavior to avoid disputes.
Second, establish a unified credibility symbol. Credibility symbol is trade an innovative initiative of Trade Square and now has been used on tens of thousands of websites around the world. Such systems provide support mechanisms for online dispute settlement mechanisms and a safety valve for the protection of consumers’' interests and help consumers judge the reliability of enterprise to choose their trusted company for e-commerce activities.
Thirdly, improve trader feedback and guarantee mechanisms. Trader feedback mechanism refers to the parties in the same transaction can evaluate trading partners’ products, services, and makes the evaluation of this information sharing to refer by both parties. Taobao has now established a sound feedback mechanism, that’s the evaluation of buyers to sellers and buyers and sellers. Each praise can cumulative score, scores reach a certain level will have a corresponding mark, the higher grade marks the better of business products, services, and other superior, so that it can attract more customers to patronize.
But there are also many false evaluations, some sellers even took the liberty to modify negative comments or blatantly written on the home page that don’t accept negative comments. Some buyers sometimes give negative comments irresponsible, so this kind of fraud is quite serious.E-commerce sites also need to further improve and standardize this feedback mechanism.
Guarantee mechanism main including refund, and return. Currently, mostly e-commerce websites have adopted that consumers can require refund or return when commodity or service not qualified. This is not only protected vulnerable consumers’ interests in some degree but also urged enterprises to improve commodity and service quality to reduce trading disputes. So this mechanism need to be more universal and perfect, improve efficiency of refund and return, reduce unnecessary program.
Consumer feedback and guarantee mechanisms actually belonged to the safeguard mechanism of online trading platform, which although can’t eliminate the disputes, but can make online trading integrity and provide guarantee for the further development of online dispute resolution mechanisms.
4 Conclusion
The application and development of modern information and communication technologies has brought challenges to traditional dispute resolution and also contributed to the emerging of online dispute - online dispute resolution (ODR), online mediation is a form of ODR. Unlike traditional mediation, online mediation takes the technical advantages and networked traditional mediation to mediate on internet. Under the environment of Internet, network disputes also spawned online mediation appears, online mediation played a unique role in resolving e-commerce disputes for its own economic, efficient, confrontational weak advantages. Many developed e-commerce countries have begun to set up online mediation to solve the dispute and promote the industrialization of online mediation to boom national e-commerce, society and economy.
In addition, with the development of online mediation, its scope has been out of the range of online dispute, offline and non-commercial disputes has also been involved in the field, such as family disputes, labor disputes, traffic accidents disputes and so on. Online mediation does not only improve efficiency and vibrant of traditional mediation under network environment but also enhance traditional mediation’s adaptability and vitality in the settlement of new disputes.
Online mediation’s motivation comes from efficiency network technology, cost savings and management convenience, but this new way of dispute resolution has also been challenged as there is a certain tension between burgeoning technology and traditional law. As a non-litigious dispute resolution mechanism, in order to obtain the trust of the parties, the procedures must be legitimacy. However, network information security risks, non face-to-face communication, low enforcement of mediation results had an impact on the legitimacy of the procedure, these questions are online mediation must face and solve to obtain a good development. In addition, online mediation still belongs to a spontaneous behavior, there are many uncertainties for its legal status, which are caused by the lack of public awareness and the imperfection mechanism itself. It needs further applications in practice and constantly enhance the credibility and professionalism.
Online mediation started late in China and still in its early stages, but China has also recognized the advantages that online mediation mechanisms take in solving online disputes and traditional dispute and the affection that better online mediation mechanisms take on social harmony and economic development. Although there is still a big gap for Online mediation practice among China with the developed countries, but based on current research and practice, online mediation mechanism will meet the needs of society, exist a long time for its value and become an important indispensable method in dispute settlement mechanism.
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