Users of ODR must have a feeling of trust and security in the system.
“Trust” has deep roots in dispute resolution, and stretching it to include technological aspects has strained its meaning somewhat. Likewise, “Security” has deep roots in the field of computing and online communications, but applying it to issues in dispute resolution requires some refining. We believe there are four categories of trust as it relates to Online Dispute Resolution (ODR).
For more interesting articles about key issues for the success of dispute resolution methods; Key Issues for Successful Online Mediation.
The following article was extracted from the Hamline University’s School of Law’s Journal of Public Law and Policy – Volume 36 – Issue 2 – Fairness, Trust and Security in Online Dispute Resolution, by Noam Ebner and John Zeleznikow.
1. ODR as a Trust Provider/Facilitator
Incorporating ODR into systems such as e-commerce is expected to raise consumers’ level of trust in the system. The continuing development of the internet, from a financial perspective, has always depended on the success of e-commerce.
This, in turn, is absolutely dependent on trust. Colin Rule’s statement summarizes this fragile condition,
“Transactions require trust, and the internet is woefully lacking in trust.”
2. User’s Trust in ODR
ODR must be marketed. Its technology must be constructed so that the public will trust it as an efficient and effective way of managing their disputes. This is no small challenge. All forms of ADR have, historically, encountered public distrust at one point or another.
In our experience, conducting these processes online often kindles strong distrust even from practitioners of ADR. Many view dispute resolution as a process requiring warmth and human interaction. Professionals may find it hard to imagine that internet communication – seen as cold and distance-creating – could support the process.
There is no reason to expect higher levels of trust amongst the general public. As a field, ODR must convince users that they can trust that technology will be used benevolently or, at least, in a neutral manner. Practitioners must convince the user that the technology will:
a). will not fail or freeze-up
b). will be able to support their dispute
c). will be competent in performing as promised
d). will not involve time or costs beyond what the consumer envisions
e). will be, in general, user-friendly
3. Interpersonal Trust
Parties utilizing ODR experience many areas of distrust. There is a level of distrust inherent in most conflict situations. There is also distrust between parties and between the parties and their neutral. All of these are triggered by the nature of online communication and of the online environment.
4. Trust in Content Offered by the System
If an ODR system is going to provide advice about dispute resolution norms (such as the outcomes of similar cases, information regarding the legal or marketplace norms affecting the dispute, or likely court outcomes), how can trust in the advice be enhanced? Untrusted advice will not have the effect the system was designed to encourage.
If the system is going to advise about trade-offs or optimizing agreements, how can we ensure a sufficient degree of trust in the processes? If the system is going to provide an outcome (such as the result of an automated blind bidding or an automated decision on whether the type of claim raised is legitimate or is actionable in the first place,) how do we enhance users’ trust in these outcomes?
Obviously, a powerful connection exists between users’ trust in the content and the degree to which the system is perceived as “fair.” This demonstrates the need for close examination of these concepts and the ways they interact in ODR systems.
Security in Online Dispute Resolution
Similar to the term “trust,” “security” has applications in the world of computer science as well as in ADR. The world of computing has always been interested in protecting systems and data from malfeasant access. As the internet developed, new forms of threats to systems and data have emerged, resulting in a never-ending cycle of security measures and breaches.
In traditional mediation, the term “security” might be related to information security, such as confidentiality or privilege (which the law often grants to protect mediation conversations, documents, and testimony from making its way into the courtroom).
In addition, the term security might denote a sense of wellbeing and comfort. This might span “emotional security,” where parties feel safe, in competent hands, dealing with a neutral they can trust.
They feel protected from their counterparty’s abuse. It might also be related to physical security – in the sense that the setting and the ground rules are designed to prevent things from getting out of hand (e.g., in situations where violence is/has been an issue).
As these worlds converge in the practice of ODR, it is important to separate different connotations of the term. We have developed a framework for differentiating between the four types of security:
Get up to speed on ODR in Online Dispute Resolution: The Future of Justice
1. Information Security:
This is the security of the ODR process in terms of protecting parties’ information from being shared by outsiders. Included are familiar dispute resolution issues such as a mediator’s duty to keep what she learns to herself, parties’ contracting with each other to keep a process confidential, and the legal notion of privilege, protecting information from being uncovered by parties or judges in the course of a legal process.
2. Data Security:
This focuses on the protections set in place around the communication channels, the software, the servers, and any hardware used for ODR. Such protection aims to prevent external people from hacking the system and obtaining non-public information, whether this is directly related to a dispute or not. Additionally, focusing on this aspect of security would suggest internal limitations be in place ensuring that parties or their neutrals cannot access areas or information they are not allowed to view (e.g., protecting a conversation held in a private caucus chat room between one party and a mediator from being viewable by the other party).
3. Personal Security:
Here, security is providing safe and clearly defined processes to protect users from actual harm, whether physical or emotional. In ODR, the risk of physical harm is reduced because of the parties’ physical separation. ODR can serve an important function in providing ADR services in cases where there is the potential for domestic violence. For this reason, we have noted that some disputants want to use ODR but prefer not to utilize available video conferencing. The reduced social presence of their counterparty, it seems, lends to an enhanced sense of personal security on an emotional level.
4. System Security:
System security is the degree to which users feel confident that the ODR service they are using – the technological platform or its human operators – is not utilizing their information, participation, behavior, or data in any way. Specific uses that a user might be concerned about or might certainly like to be consulted about might include:
- using their data without permission;
- using data in ways they might not like;
- data mining for any purposes;
- learning about conflict behavior (beyond what is needed to service their dispute)
- Learning about bargaining behavior (beyond what is needed to service their dispute);
- learning about typing speed, time spent on particular pages, or advertisement-clicking preferences and;
- any other use of data.
To become a more mature domain, Online Dispute Resolution (like its older sibling Alternative Dispute Resolution) needs to develop theoretical models as well as implement practical solutions. Prevalent amongst these theoretical issues are the concepts of fairness, trust, and security in ODR. We have noted that for ODR systems to be considered fair, we must ensure that such systems are transparent, give advice about the shadow of the law and alternatives to negotiation, as well as provide some degree of transparency.