Conflict Resolution|systems design

ODR Adds Arrows to the Quiver — ABA DR II

Continuing the series of reports from the ABA Dispute Resolution Section, Colin Rule, Ethan Katsh, Jeff Aresty and Daniel Rainey offered a panel on “Building an Online Justice System: ODR and the Courts.” 

Colin Rule said he was attracted not to the algorithmic powers of technology and the internet, but rather its promise to interact in, and facilitate, human-to-human communications. He spoke via Skype from Ohio, where he is working with courts to assist the resolution of cases. His company is working with other governments to assist the resolution of property tax assessments, tax challenges, and other high-volume, low-value streams of disputes. He noted that case management and problem diagnosis are strengths of technology, quite apart from resolution processes such as negotiation, mediation and arbitration. He said he’d innovated in devising platforms for online processes, but that the challenge now was to provide tools to community, corporate and government users so that they can build tools themselves. It is utilization of technology to leverage case management and other service provision, not replacing mediators in individual cases.

Dan Rainey differentiated between access to justice and access to courts or to judicial processes. For example, private justice through online arbitration addresses and satisfies the justice expectations of the parties in many instances. The National Mediation Board receives 5000 cases a year, and must maintain the level of services in a restricted budgetary environment. It has to do with better ways to handle information, and better communication channels. The Board’s web site has a “knowledge store” that is easily accessed and features a searchable data base of decades of arbitration awards. This data assists parties in drafting arbitration documents, and be informed on the outcome of similar claims. The goal is to permit anyone who can do research in the Board’s office, to do that work anywhere. An example of communication channels is the “Arbitrator Workspace,” a single portal for arbitrators to manage cases. Traditional arbitrations are still conducted, but are far more informed. Submissions and awards can be made online, and synchronous technology like web video platforms that allow hearings to be held without travel. As a result, the Board is handling more cases for less money. About 30% of hearings are being done online, and 100% of awards are submitted online.

Jeff Aresty noted that, as long as law is jurisdictionally based, the law itself will pose obstacles to access to justice in a multi-jurisdictional world. By way of example of “non-jurisdictional” thinking, a billion users of EBay all agree to a single usage agreement, abide by it, and enjoy the protection of a voluntarily policed marketplace. So, he suggests, the Rule of Law in cyberspace can benefit business, sociopolitical and individual interests, only as long as they collaborate. He proposed a paradigm shift away from dispute resolution and into preventive law, where digital identities, online contractual rights, and an ability not only to identify but to predict disputes and create a “digital multi-door courthouse” to address them at a very early stage. Using the concept of “dispute resolution” and attaching the word “online” in front of it is an inadequate understanding of the implications of collaborative economies and leverages human-to-human communications.

The skepticism I have about ODR is differently seated than many others’.  Supplying disputants with accurate data in a timely way often has little to do with dispute resolution.  People do not make dispute resolution decisions based on data, or even on perceived advantage.  Disputes are laden with emotional and moral attributes, and decision-making in the field of conflict is prone to familiar psychological errors such as cognitive barriers and professional overconfidence that do not appear as decisively in other aspects of management such as interest rate hedging or inventory control.  Conflict is sloppier and, when accepted for what it is, defies pure reason.  So once again, we find that ODR is a blessing in small-value large-volume claims, but more problematic in matters in which someone has something at stakre that they regard as both material and implicating the “rightness” their own behavior.

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