Technology is insinuating itself into every area of our lives, changing our notions of how global society should operate, and how we resolve disputes will be no different.
ODR, like ADR, is a range of processes. ODR is a how not a what.
Most dispute resolution processes will likely migrate online, and ODR will be relevant to almost every kind of dispute. Professor Frank Sander’s concept of the multi-door courthouse is an apt model for ODR systems designers because online processes can offer a nearly infinite range of “doors” customized for nearly every kind of dispute. In addition, Professor Sander’s suggestion that ADR providers “fit the forum to the fuss” is also particularly relevant to ODR since there are both more “fusses” and more “forums” in the online environment, necessitating a wider range of redress processes to handle the broader spectrum of potential issues.
You may also find this interesting, Trust and Security in Online Dispute Resolution.
More Disputes
The demand for ODR comes mainly from the growth of online disputes, such as from eCommerce transactions or “on-demand economy” disputes that cannot be managed face-to-face. There is also likely an increasingly inadequate supply of mediators and arbitrators as the numbers of disputes increase and where face-to-face options might be available, but the disputes involve low values.
The following assertions contain a number of hypotheses about the growth in the number and range of disputes. The first assertion is verified largely by what we know about eCommerce disputes. Still, at least some of the other assertions in the list represent untested hypotheses and provide a framework for future research.
- The number of disputes increases whenever transactions and relationships increase.
- The more novel the activity, the greater the likelihood of disputes. The first iteration of an innovative product or activity rarely anticipates all the disputes it will generate.
- The more valuable the item or issue in question, the more likely it is a problem or grievance will turn into a dispute.
- The more data that is collected, processed, and communicated, the more opportunities for disputes. The more data that is collected, the more bad data there is.
- Speed and time pressures lead to disputes. If value is likely to erode quickly, as is often the case with technology, pressure to protect and aggressively extend its value increases.
- Increased complexity in relationships and systems creates more opportunities for disputes. In the words of computer scientist Peter Neumann, “Complex systems break in complex ways.” When informing shareholders about a federal investigation of problems in correcting errors, Experian stated, “We might fail to comply with international, federal, regional, provincial, state or other jurisdictional regulations, due to their complexity, frequent changes or inconsistent application and interpretation.”
- The easier it is to complain (by filling out an online form or sending an email), the more disputes there will be.
- The lack of transparency in algorithms leads to disputes.
- The less attention given to preventing disputes, the more disputes there will be.
More on causes of disputes in construction: 8 Examples of Small Disputes in big Construction.
More Forums
Alongside the challenge of more disputes is the opportunity for developing more and novel avenues for resolving disputes. “More” does not simply mean a larger selection of what is already in existence. “More,” in this context, translates into the adoption of digital tools and systems that provide solutions to problems (small and large). And it is the use of information technologies in new ways that anticipate and prevent disputes.
By generating more disputes, technology has made access to injustice easy. Technology also presents opportunities to develop new forms and formats that facilitate access to justice. While some private companies may resist providing data about numbers or types of disputes handled, all have some incentive to provide information about the processes they employ to handle disputes. Facebook, for example, provides a series of screenshots of the process one can use to file a complaint.
The increasing number of ODR companies and governmental entities are also likely to post descriptions of their systems. There has recently been a growth spurt of ventures that are either already in operation or in various stages of development. They are all likely to serve as data sources. These include the following:
- Private firms: Modria, Youstice, SmartSettle, Picture it Settled, Mediateitonline.com, NetNeutrals, Virtual Mediation Lab
- The Hague Institute for Innovations in Law (HiiL)
- British Columbia Civil Resolution Tribunal
- UNCITRAL
- EU Directive on ODR
- UK Online Small Claims Court
- Stop Errors in Credit Use and Reporting (SECURE) Act-Proposed legislation in the United States to facilitate error correction in credit reports.
17 Opportunities Distinguishing ODR from ADR
ODR presents so many novel capabilities and opportunities for dispute resolution that it requires a new research agenda to better define its optimal application. Simply applying prior face-to-face models for processes and ethical rules is inadequate.
There are many unanswered questions around ODR, and it will take time to both define the necessary questions and analyze data collected from ODR to determine best practices. While many new research needs will likely become apparent over time, here is an initial list of the issues researchers will need to tackle in the near future to distinguish ODR from traditional ADR practice:
- What will be the dispute systems design in the online environment?
- Models for building trust, convenience, and expertise via technology
- Skills needed for effective ODR service delivery
- Use of data for prevention of disputes when ODR provides much earlier access to disputants in the overall dispute lifecycle
- Similarities and differences between technology-assisted negotiation and mediation
- Areas of overlap between ODR and ADR, including the optimal use of technology inside of a face-to-face dispute resolution process
- Use and role of apology in online processes
- Sense of participation and voice in asynchronous, text-based interactions
- Statistics on the percentage of agreements reached and upheld, especially in comparison to ADR and particular forms of ADR. There is a long-standing statistic that face-to-face mediation leads to agreements in approximately 85-90% of the time. Is online mediation similar? What variables can be isolated in online mediation that can affect the success rate?
- Demographics: What are the demographics of those who are providing ODR? Is ODR replicating the same demographic patterns that ADR has been consistently critiqued for over the past 30 years: mostly white middle-class people providing services, especially when they are volunteers, for lower-income populations, disproportionately urban people of color? Is technology making headway in broadening who is giving and receiving services?
- Breadth of data collection: it should be easier to gather data from a broad range of sectors (family, commercial, criminal, civil, education, environmental, public policy, etc.) and from across the globe. This will provide very useful comparative data. It can also provide a valuable overview of the landscape by types of technology, type of demographic, type of dispute resolution process, etc.
- What types of technologies are being used most (i.e., video conferencing, texting, emailing, mobile phones, chat rooms, etc.)?
- What barriers have people experienced in adopting technology or employing ODR for neutrals, for disputants? Breaking down these categories by demographics such as gender, age, race, ethnicity, language, and – for disputants – being a respondent or complainant, being an individual or a business, etc.
- What types of processes that involve dispute resolution, but are not typically seen as ADR, are increasing in use with the help of technology? One critique of the ADR field, from those external to it, is that there are other professions that handle disputes that have not usually been included in “the ADR profession” but are routinely turned to for handling disputes. This has narrowed the field and the professionalization process. Since ODR provides even more opportunity for inclusion, access, and creativity, it is an opportunity to gather data that would help us learn about who and how people are using technology to resolve or prevent disputes.
- Links between the collection of data in ODR and access to justice
- Transparency in face-to-face processes versus ODR use of algorithms
- How to conduct effective training in ODR, how it differs from ADR training, and whether ADR training should be a prerequisite for ODR practitioners
Conclusion
Looking into the future, it is clear that the lines between ODR and ADR will continue to blur until it is very hard to tell one from the other. Technology is insinuating itself into every area of our lives, changing our notions of how global society should operate, and how we resolve disputes will be no different. Eventually, ODR may be how we resolve most of the problems in our lives, with algorithmic approaches even more trusted than human-powered resolutions.
The only question is how long this transformation will take to play out. The pace of that change will largely be determined by how quickly we can consolidate the lessons learned from ODR projects to date and conduct new research to answer the remaining questions about how ODR can be made most effective. A decade ago, the notion of ODR as the default means of redress for both online and offline disputes sounded like science fiction, but with the pace of technological change, such an assertion now seems most likely.
At some point soon, it may seem obvious that such an outcome was inevitable. Human ingenuity has found solutions to previously insoluble problems for many decades. Now, as we wrestle with the ramifications of a fully and digitally connected world, we face new challenges that were unimaginable a generation ago.
