Business Law: Online Dispute Resolution Campaign Plan

Value Goal: To develop a strategic plan and academic analysis for an alternative, online-based dispute resolution campaign designed to support small businesses in legal disputes with larger competitors. The project integrated the three pillars of business law, Strategy, Law, and Ethics, to ensure both practical effectiveness and ethical grounding.

Strategy:

When designing strategies that allow small businesses to succeed against their larger competitors in online dispute resolution, the plan's components are eerily similar to small business counterparts in the physical business realm. A business's success in bolstering its chances of “besting” a competitor in online dispute resolution is multifaceted and exceedingly complex. The sheer potential size of some larger competitors, potentially as large as some countries, gives them access to a high-priced legal and technical edge. The many components of designing a social media strategy for a successful dispute resolution campaign fall under two significant umbrellas in strategy design: Brand Strategy and Procedural/Operations Strategy.

Brand Strategy:

One of the glaring challenges associated with online dispute resolution lies in one of its arguably most advantageous aspects. The falling cost of accessing the internet means that the platform for ODR is highly accessible. However, this also means that strategies of and the online disputes themselves are very much handled in a public forum rather than the private confines of a legal office.  Much like in the many dealings of traditional brick and mortar businesses, social media strategies that hope to succeed against major brand opponents should focus on bolstering the brand image of the small business and endearing it to its consumers.

One striking opportunity online dispute resolution present is the empowerment it offers to small businesses. The decreasing cost of the internet has made the ODR platform highly accessible, leveling the playing field. However, this also means that strategies and disputes are previously handled in a public forum, like traditional brick-and-mortar businesses. To succeed against primary brand opponents, small companies can bolster their brand image and endear themselves to consumers, just as they would in a physical setting.

Successful customer engagement strategies endear consumers to a company, with the most successful forms of engagement producing armies of die-hard fans, sometimes referred to as "net promoters" in the marketing lifecycle, who will rally to a small business's aid in the case of legal troubles. "Market Basket," a popular northern grocery store, succeeded in this strategy when the company faced a highly public legal dispute as a divisive board ousted the company's long-time and beloved CEO. Market Basket's CEO's strategy of building meaningful engagement with stakeholders led to the board's reversal of his firing decision when countless employees, suppliers, and customers struck in solidarity as a show of their support. (LeBow College of Business, 2019)

• Content Quality - Brands seeking to endear customers to their companies

should focus on content quality that highlights the positive aspects of the brand

image that customers may rally behind in a dispute. This generally refers to

posting relevant topics that consumers are passionate about. However, in today’s

hyper-competitive advertising space, this also means making sure that messages

can be heard by those who are intended to listen to them. As the “Making Waves

on Twitter” case suggests, creating unique content that engages new followers is

enough to spark a conversation. It can help increase the visibility of a topic or

brand.

• Corporate Actions - Increasingly, many businesses have created successful

customer engagement strategies based on their ability to provide excellent and

visible customer service. Companies such as Amazon or recently Stanley

Drinkware, known for their superb “customer first mentality” create loyal

supporter bases by promoting their commitment to stakeholders. Social media

strategies seeking to endear supporters can do so by leveraging customer

testimonials, promoting their intra-community engagement such as volunteerism,

or sharing stories regarding their commitment to shared causes such as

environmental stewardship or championing employee rights.

• Community Building - Brands looking to increase customer engagement often

turn to creative measures to create large groups of supporters. Communitycentric

brands engage in activities that help people meet their needs rather than

directly market products. Typical forms of community building have grown

dramatically in popularity as the internet has cut the costs of creating meaningful

communities and allowed brands to meet customers' needs better. Examples

include online forums and groups, trade shows or events, or subscription services such as Walmart’s new “Walmart Plus.” (PwC., 2022)

Procedural/Operations:

The above points represent strategy components that businesses may undertake to properly leverage a community of supporters who may rally behind their cause in the event of a dispute. However, it is important to note that operational and procedural components of strategy have the ability to either support or undermine a small business’s media campaign’s ability to succeed against larger competitors. Operational considerations involve the processes and institutions put in place by the small business to increase the effectiveness of its campaign and safeguard it from additional unwarranted risk.

• Legal Team - One of the most valuable efforts that small businesses can

undertake to create highly successful social media campaigns against larger

competitors is to understand where it is appropriate to involve professional legal

help. A litany of areas of law covers small businesses who engage with online

communities and the introduction of global business further complicates the

space. Depending on the nature of the risks involved and the areas in which a

small business operates, sourcing professional legal help may be advised. Legal

professionals may help craft messaging to ensure that it complies with the law,

ensure the validity of dispute resolution forums, and provide other safeguards to

businesses engaging in ODR.

• Processes - Just as important as having the relevant legal advice to guide

company decisions in social media strategy is having processes in place to

reduce risk and maximize stakeholder sentiment. One such process highly

recommended is to employ impartial parties to review posts and gauge their

impact before going public. Brands should also take care to consistently and

transparently post, especially in the wake of a potential conflict and to have

documented plans in place concerning an internet-based crisis. Popular drug

brand Tylenol avoided crisis and public dissent due to the transparent and

speedy responses from its home office following a nationwide recall as bottles of

the drug were laced with Arsenic. (Jonhson & Johnson, 2022)

• Platform Specific Considerations - As businesses are navigating creating

successful social strategies in support of ODR efforts, it is important that

strategies account for the significant differences that exist within various

platforms. Social media platforms may have specific terms of service that govern

posts by businesses or may likewise contain their own dispute resolution

platforms. At the very least, businesses should be careful to properly leverage

different social media platforms to best communicate their message. For

instance, it is unlikely that a lengthy and complex legal issue would be best

addressed directly within Twitter's limited character count and instead should

direct readers to spaces where a message can be more clearly delivered.

Law

Within the confines of the law pillar, small businesses engaging in effective online dispute resolution strategies must evaluate many considerations. The article titled "Crowdsourced Online Dispute Resolution" (CODR) by Daniel Dimov was referenced to research critical points in ensuring that dispute resolution tactics exhibit features that promote "procedural fairness," including a framework for evaluating the fairness of dispute resolution techniques that we present in our strategies.

According to the National Judicial College, procedural fairness refers to the perceived fairness of a dispute resolution system by those who encounter dispute resolution tactics. Conventionally, this refers to the process in which courts provide "a fair and impartial forum," according to the Michigan court system, and is a practice that can quickly adapt to new dispute resolution systems coming to light in the digital age. Aside from the obvious duties in any legal system in the United States to be fair and as free from bias as possible to be recognized as legitimate, research shows that higher levels of procedural fairness can lead to higher levels of acceptance and perception of the system and even greater compliance with entities findings.

The points surrounding procedural fairness affect the strategies we employ and provide a general framework to evaluate tactics to ensure that they are fair and thus increase the general acceptance of our methods and their outcomes. (National Center for State Courts, 2022) However, many laws and regulations cover components of a successful ODR campaign. Of the relevant legal considerations in evaluating proposed strategies for effective online resolution, adherence to consumer protection laws may be the most glaring overarching legal concept to be mindful of. As mentioned above, one of the most effective components of an effective ODR campaign for small businesses will involve covered activities such as engaging with the public, customers, stakeholders, and promotional advertising. 

According to Cornell Law School, consumer protection laws are a body of state and federal laws protecting consumers against deceptive or fraudulent business practices. Governed by the Federal Trade Commission, these laws provide that claims made on the internet must be free from deception, and someone must substantiate claims. In the strategies posed above, our small business clients must refrain from making untrue claims about their product or service and that of competitors to remain compliant with the FTC Act. For instance, in the Kale vs. Chick-Fil-A example, it would be incorrect to falsely allege that Chick-Fil-A chicken causes cancer or erroneously regard that the company uses child labor, even in instances where this may bolster public opinion in favor of the smaller entity. (Consumer Protection Cornell Laws, n.d.)

Similar to consumer protection concerns, another area of law that overarches the problems addressed in ODR is that of Security, Data Protection, and Privacy Laws—codified into law in the form of a litany of individual acts and decrees, which protect the privacy rights of consumers with many provisions extending into the online realm in a variety of forms. As discussed in Daniel Dimov's article, the security and privacy of individuals remain a top concern for the ODR system's legitimacy, and it provides a framework in which we must evaluate strategies proposed to a small business to stay by the law.

For example, the Health Insurance Portability and Accountability Act (HIPAA) provides "privacy protection for health information in the United States while allowing more protective state laws to continue in force." It is important to note that protected health information is broadly defined and thus constitutes a significant challenge for businesses looking to remain in compliance with the law. When a company operates within the confines of the law regarding privacy, a small business strategy should refrain from divulging protected or private information of individuals even if those claims may garner positive sentiment to one's case or otherwise be considered evidence against a larger competitor.

For an over-simplified example, a strategy advising a small business to publish the confidential medical records of consumers who experienced adverse health consequences after utilizing a competitor's product or service could be disastrous. Similar forms of privacy protection covered by codified law and regulation exist for various covered entities. For example, the Children's Online Privacy Protection Act aims to protect children's private personal data, and the Right to Financial Privacy Act covers the confidentiality of personal financial records. (U.S. Privacy Laws, n.d.)

Finally, it is of the utmost importance to recognize that online disputes are more often occurring on a global scale compared to more traditional forms of dispute resolution. Because of the wide-reaching capabilities of the World Wide Web and increasingly low costs to access Internet services, the connected business world often includes many international transactions and interactions. Even businesses that specifically refrain from international business may find their company dealings intertwined abroad through social media and campaigns.

It is important to remember that different regions and cultures may have varying regulations or legal systems. Some customs may even dictate differences in what is truly considered "fair," "legal," or "ethical." One of the most well-known examples comes from the GDPR of Europe, hailed as one of the world's strictest privacy and security laws. The GDPR enacts heavy penalties for violations and applies to any business that processes the personal data of EU citizens or offers goods or services to them. It is essential to be mindful of the potential for these types of conflict to occur in the global arena in which businesses operate. (Wolford, B., 2020)

Ethics

In providing an online dispute resolution strategy which allows small businesses to adequately leverage themselves against more formidable adversaries there are several ethical considerations to be mindful of. In the context of our strategies, building ethics into online dispute resolution provides fundamental principles that ensure transparency, trust, and fairness in parties interactions. While many considerations of the Ethic’s pillar overlap or parallel areas of law, ethics concerns reach much further than legal guidelines.

There is also cause to believe that businesses behaving ethically may benefit far more than in simply maintaining pure conscience. Much research indicates that more ethical businesses tend to outperform less ethical businesses. A nearly twenty yearlong study comparing the world’s most ethical companies (WME Index) to U.S. Large Cap. companies Index showed that most ethical companies tend to outperform their less ethical counterparts, with the gap reaching nearly 11% in 2019.

Thus, the focus on ethical considerations regarding strategy design may, quite literally, pay back in dividends. CODR certainly represents a viable strategy for resolving conflict in many instances. However ethical considerations must be accounted for to ensure that the system is fair for all whom it may impact. (Bettwy, 2009)

Ethical Dilemma:

The National Center for Technology and Dispute Resolution which specializes in the support and sustainability of IT applications and resources for better understanding and managing online conflict outlines various ethical concerns involved in ODR, many of which applying to the crowdsourcing of online dispute resolution. Adherence to these overarching ethical values while balancing the cost effective, speedy, accessible, and informal nature that makes ODR efforts so attractive represents the primary ethical dilemma at play.

Stakeholders:

The primary stakeholders to be considered in evaluating the ethical nature of crowdsourcing are: 1. The disputants (the parties directly involved in the dispute) 2. The mediating bodies, crowdsourced groups, or decision makers who participate in the resolution process (for example, an online arbitrator or body of appointed decision makers) 3. The aggregate online community (other online parties who are not directly involved in the dispute) and 4. The platforms or services utilized to broker or host the resolution process.

Ethical Considerations per Stakeholder Group

Accessible

The accessible ethical principle when analyzed in relation to its effect on CODR campaigns highlights the importance of ensuring that all stakeholders can effectively participate and access the necessary information, resources, and platforms that the dispute resolution medium provides for. For example, relating to disputants, this principle asserts that ODR mechanisms should ensure that all parties of interest regardless of individual characteristics can fully participate and effectively represent their own interests. Likewise, in respect to the broad group of internet users, this principle also implies that ODR mechanisms can hear from and consider the collective whole along with their own unique positions. Platforms and services used in ODR also benefit from this consideration as collective feedback from sources such as advisory panels or surveys may help improve the platform or increase the potential knowledge base for users.

Considerations to ensure accessibility:

Allow for mechanisms to assist potentially marginalized or under privileged parties to ensure processes are accessible to all. Enable protocol such as multilingual support and comply with internet accessibility guidelines such as the Web Content Accessibility Guidelines, in order to ensure that tools are accessible to those with disabilities. Ensure that procedural documents are technically well-written and easy to understand.

Equal and Fair

Similar to the points addressed by perpetuating ethical alignment through accessible policies, the equality considerations provide that ODR mechanisms must treat all participants with an equal amount of respect and dignity and must provide for proper due process without bias. The International Council for Online Dispute Resolution describes that ethical ODR processes furthermore, “must seek to enable often silenced or marginalized groups” and that “bias must be proactively avoided in all processes and contexts. For example, if a process unfairly disadvantages clients with lesser resources or silences minority opinions its ethical basis may be called into question. This same sentiment applies to the broader internet community in relation to minority opinions being silenced by CODR processes, as described by Daniel Dimov in his article “Crowdsourced Online Dispute Resolution”. (Daniel Dimov, 2017)

Considerations to ensure equality and fairness:

Provide training and development resources to decision making bodies or entities to ensure that they are prepared adequately to fairly decide cases. Create and employ resources specifically designed to benefit minority parties such as affordable legal resources and aid. Test and measure the performance of ODR mechanisms against a variety of populations to ensure that they are procedurally and practically fair. Solicit feedback and opinions for correction from minority groups to ensure that their interests are equally represented and to correct inequalities.

Transparency

Much like the law pillar analysis suggests, one of the most prominent ethical considerations relates to the key concept of transparency. In respect to creating an online dispute resolution campaign, the concept of transparency is far reaching. Disputants or other parties that may rely on the validity of the ODR process should be able to expect clear and honest information regarding the dispute resolution process itself including the steps involved and projected timelines or any applicable fees or costs.

Additionally, disputants should be made aware of how decisions are concluded as well as what options are available to them should they disagree with a decision. The National Center for Technology and Dispute Resolution further defines this transparency as ensuring “All reasonable efforts are taken to make transparent the true purposes, risks, and legal obligations”, inclusive of informed consent for those taking part in the process. Furthermore, other stakeholder parties are also ethically owed a duty of transparency. For instance, mediators, arbitrators, or other decision-makers should disclose any relevant biases as well as inherent biases created by a specific platform utilized. Along similar lines, the broader public also deserves a sense of transparency to be able to ensure that the findings of an ODR are in fact fair and to be accepted as legitimate.

The case can also be made that proprietors of the tools used in CODR are also owed a duty of transparency to shield their own company assets and allow them full disclosure into their own risks of the cases involved. The same principles apply regarding the general accountability of ODR platforms themselves, in ensuring that they are auditable and equitable in their use. (ODR, 2022)

Considerations To Ensure Transparency:

Provide proper documentation regarding the process, procedures and nature of decision making to users of the ODR mechanism as well as the general public and decision-making bodies. FAQ’s or informational documents are commonly utilized, low-cost options that allow for the quick transparent dissemination of processes and answer questions to ensure accessibility. Allow mediating bodies to disclose conflicts of interest or affiliations and enable mechanisms to challenge conflicts of interest, such as appeals or reviews.

Confidential and Secure

Just as transparency of data which others should have access to is a key consideration in evaluating the ethical alignment of ODR processes, equally important is the safeguarding of confidential or private information. Confidentiality refers to the general safekeeping of sensitive information whereas security focuses on the management of risks to protect from data breaches or unwarranted disclosure. Even when not specifically protected by areas of the law, disputants involved in ODR preceding expect that their personal information and private details of their disputes will be kept confidential. Mediating parties or crowdsourced groups must ensure that they maintain this confidentiality to maintain the overall legitimacy of their roles. Likewise, the broader online community also expects legitimate platforms and processes to uphold the highest standards of confidentiality.

Considerations To Ensure Confidentiality and Security:

Ensure ODR mechanisms have proper access controls and employ ethically sound procedures for handling sensitive or privileged data. Educate participants involved with the mechanism regarding the importance and best practices for safekeeping sensitive data. Develop appropriate response plans to account for potential breaches of data security including engagement with the community in the event of a breach.

Strategy Decision Based on Ethical Considerations

In conclusion, the ideal strategy in designing an effective ODR campaign is best represented as a harmonious blend of brand strategy along with operational controls and processes. Brand strategy allows small businesses to leverage their own societal goodwill and ethically sound operations to motivate audiences in support of their cause. Operational controls protect businesses from legal or ethical missteps and allow small businesses to better manage risks associated with complex legal disputes.

To ensure the overall effectiveness of this blended strategy it is also paramount to align it within overarching legal and ethical considerations. Legally, the scarcity of codified regulation surrounding ODR makes the platform a far less regulated outlet to handle disputes. Still, there are many areas of law that must be considered when implementing an ODR campaign. Small businesses and platforms considered must comply with data privacy regulations such as the GDPR or platform specific terms of service. 

Ethically, the campaign should be mindful of the significant considerations that fall outside the confines of the law but still represent a general duty owed to various stakeholders. Many of these ethical concerns have been previously addressed by various organizations such as the National Center for Technology and Dispute resolution. These themes encompass concepts such as transparency, fairness, confidentiality, security, and accessibility.

The strategic blend of these elements represents a robust ODR strategy that enables small businesses to properly position themselves against formidable opponents as well as resolve disputes efficiently and effectively. Further, the strategy considerations mentioned above serve to enhance brand reputation and foster significant customer loyalty. Holistic approaches such as those mentioned above ensure that ODR campaigns are legally compliant, ethically sound, and can drive sustained success in the digital age.

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