Without access to secure, trusted, and fair online dispute resolution systems, consumers would be reluctant to purchase products over the World Wide Web, whether from eBay, Amazon, low-cost airlines, or other companies.
In integrative negotiation, fairness might be considered meeting the interests of all parties involved equally. Thus, those parties will most likely express an interest in “being treated fairly.” In distributive negotiation, where one party gains only if the other party loses something, one of the parties involved might offer to split things down the middle – fairly. Both integrative and distributive negotiation tend not to focus on an objective legal measure of “fairness” – that is, legal justice
For more on ODR and justice, Is ODR “Online Dispute Resolution” the future of justice ?. and What is the Most Efficient and Fair Platform for Online Dispute Resolution?
When is legal fairness in negotiations the most important?
We cannot live without “things.” Neither can we live without family or employment, two of the most important things that cannot be held in one’s hand. When these two are involved negotiation and legal fairness are very important.
In Australian Family Law, the child’s interests are considered paramount, so the interests of the parents are negligible in negotiations between them. Similarly, in employment
law, individual bargaining between employers and employees might lead to basic needs and rights, such as recreation leave and sick leave, being whittled away. In both cases, parties have restricting standards of “fairness” imposed on them by law and the courts, limiting their negotiation range.
What would a judge say?
The question, “What would a judge do in the case?” is always looming over parties involved in ODR and other out-of-court negotiation sessions. This is how legal norms find their way into negotiation sessions. And it is not only the threat of a judicial decision that can shape the rules of negotiation. There are also the standards legitimized by the law or society and not only by one party’s say-so.
From integrative negotiation principles negotiation was formed. Principled negotiation focuses on the main interests of both parties and uses those to lead the negotiations. It decides issues based on their merits rather than through a haggling process focused on what each side says it will or will not do.
In this same vein, Mnookin and Kornhauser introduced the notion of bargaining in the shadow of the trial (or law). For example, in the case of divorce law, they contended that the legal rights of each party are bargaining chips that can affect the settlement outcomes.
Outcome Fairness vs. Procedural Fairness
The role of fairness and justice in negotiation and other ADR processes is complex. Fairness can include several different aspects, but the biggest divide is between distributive (or outcome) fairness and procedural fairness. Add the internet into the mix, and these complexities are compounded.
One challenge with adding “legally just” elements into ODR systems is the notion that ODR systems, by their nature, lean toward trans-jurisdictional situations and interactions. Of course, Negotiation Support Systems created for particular situations/jurisdictions (such as for Australian Family Law) can be more easily calibrated in this regard. This means that specific parameters can be pre-set according to law, and topics requiring resolution under the law can be designated as mandatory fields in the system.
On the other hand, contexts or marketplaces where there is no generally applicable set of legal norms might greatly benefit from the development of such measures, or, at the very least, principles for the construction of negotiation support systems. Alternatively, these
marketplaces could benefit from creating dispute systems designs that resemble legal “justness” and “fairness.”
3 Important Factors in Fair Negotiations
Zeleznikow and Bellucci (2012) thoroughly examined various domains, including international conflicts, family law, and sentencing and plea bargaining. And they developed a set of important factors that should be incorporated into “fair” negotiation support processes and tools. They are:
- Transparency – For a negotiation to be fair, it is essential to understand – and, if necessary, replicate – the process in which decisions are made. In this way, unfairly negotiated decisions can be examined, and if necessary, be altered.
- Highlighting and clarifying the shadow of the law – In legal contexts, awareness of the probable outcomes of litigation provides parties with guideposts or norms for the commencement of negotiations. So, bargaining in the shadow of the law provides standards for adhering to legally just and fair norms. It provides disputants with advice about likely court outcomes by incorporating such advice in negotiation support systems that help support fairness. In non-legal contexts and contexts where multiple legal norms compete and clash, which norms cast this shadow? Without answering this question, we suggest that considering it and, if possible, providing parties with a set of rules that will determine outcomes might promote a sense of fairness.
- Limited discovery – Even when the negotiation process is transparent, it can still be flawed if there is a failure to disclose vital information. Discovery processes increase settlements and decrease trials by organizing the voluntary exchange of information. This benefit is often lost in a negotiation, especially if important information is not disclosed, or even worse, hidden.
As we have seen, fairness is a concept that parties have come to expect in ORD – not only in areas such as family law. ODR is essential to every aspect of day-to-day interactions. One might conclude that without access to secure, trusted, and fair online dispute resolution systems, consumers would be reluctant to purchase products over the World Wide Web, whether from eBay, Amazon, low-cost airlines, or other companies. Lacking trust in their counterpart or the neutral assisting them, individuals might not participate in a mediation process. Wary of insecure communications platforms, they may refrain from disclosures that could quickly be resolved. conflicts. Further, concerned that a technological platform is programmed to be unfair to them, they may not accept its advice. Hence, to advance the field of ODR, we need to consider and develop issues of fairness, trust, and security.