Creating Technology for Social Change

Liveblogging #ODR2015: Considering ODR in the Dispute Resolution Paradigm and Its Impact on Lawyers


I’m here at the #ODR2015 conference at Pace Law School. ODR2015 is the annual meeting of the Online Dispute Resolution Forum, an international assembly of lawyers, mediators, technologists, and others who care about technology and dispute resolution. It is cohosted by the National Center for Technology and Dispute Resolution, where I am a fellow.

This liveblog represents a best-efforts account, not a direct transcript, of the lecture, presentation, and/or panel.

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The opening lecture of ODR2015 is delivered by Richard Susskind, an independent author, speaker, and adviser to law firms, in-house legal departments, judiciaries, and governments around the world. He is President of the Society for Computers and Law, IT Adviser to the Lord Chief Justice of England and Wales, Chair of the Advisory Board of the Oxford Internet Institute, and Chair of the ODR Advisory Group of the Civil Justice Council.

Susskind begins by saying that, though he has been long been introduced as an expert, he now sees himself as more of a generalist in law and technology since there are now so many subspecialties than there were when he started.

Susskind notes that he last addressed this group in 2007, at the 5th ODR conference, and since then there has been a real change in attitude. There are 4 stages of acceptance in ODR, he says: nonsense, perversity, triviality, and obviousness, and since 2007 the idea that technology and dispute resolution have a shared and intertwined future has moved from the first to the fourth.

Susskind throws up a picture of Wayne Gretzky with his famous quote that to be a skilled hockey player means to skate to not where the puck is, but to where the puck is going to be. Susskind asks where the technology (and the disputes!) are going to be in 2020. He tells the story of a Black and Decker training course where new executives are presented with a picture of a power drill and asked if that is what B&D sells. After they agree, they are shown a picture of a hole in the wall and said no, what we sell is this, because this is what our customers want: not the tool, but the end result. Susskind says that lawyers, judges, mediators exist for social purposes, but we need to rethink the tools by which we achieve those purposes, and be open to new configurations, institutions, and strategies.

In England and Wales, Susskind says, almost all dispute resolution systems are too costly, slow, forbidding, unintelligible, and combative, and are ‘out of step’ with the sorts of systems that citizens are accustomed to encountering in other modes of life. What sense does it make, Susskind asks, to have something bad happen, and 8 months later assemble in a wood paneled room surrounded by people wearing wigs and have to pay 10x the original cost just to have it ‘resolved’?

In 1996, Susskind wrote a book about the legal profession and technology where he predicted that lawyers would one day communicate by email with the clients. For this, he was censured by the law and society association in England, and told that he ought not speak in public lest he do damage to their profession. 20 years on, it has become obvious that electronic communication (for certain subjects, in certain contexts) has become indispensable to the legal profession, as have other modes of, e.g., electronic research.

Susskind runs through a litany of examples of technological progress, from semiconductors to cellphones to Twitter to IBM’s Watson. He describes a new, hyperrealistic form of teleconferencing he’s tested at Oracle wherein he found himself offering a (virtual) colleague (actual) tea. And the incredible thing to keep in mind, says Susskind, is that those kinds of mediating technologies are right now the worst they will be going forward. Susskind offers another 20 year prediction: that, by 2035, for most people and most legal problems, the solution will just be to sit down in front of “Watson for law” for a chat and resolution. And that Watson, Susskind predicts, will not only have the ‘knowledge’ of the one that competed on Jeopardy, but the affective intelligence to offer the kind of emotional counseling and support that a lawyer or mediator (in principle) provides. However improbable this seems, Susskind sugggests, it is far more likely than the status quo continuing for another few decades.

Susskind quotes a famous story from Kafka, which has served as a shibboleth for dispute resolution for decades (and was in the introduction to your author’s undergraduate textbook in the field of legal studies):

Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in later on. “It is possible,” says the gatekeeper, “but not now”…

Susskind argues that many dispute resolution professionals conceive of justice primarily as access to an adequate remedy (be it retributive, restorative, etc). But, he asks, couldn’t a theory of justice also contemplate the prevention (or preemptive deescalation) of disputes in the first place? He likens this to putting a fence at the top of the cliff rather than an ambulance at the bottom.

Susskind turns his lecture to the subject of his present work: new ways to provide online dispute resolution for low value civil claims (less than 25k pounds in fines) in the UK. He recently coauthored a report with a group including Lord Dyson, Master of the Rolls, which he views as ‘the first word, not the last word,’ on the subject. He notes that the fact that the ‘first word’ is so long is a symptom: he quotes Dyson that “any system that has a 2000 page user guide has got a problem.”

Their report recommended the establishment of an ‘online court’ that would offer several types of services, varying by time, cost, and type of facilitators (e.g. judges, arbitrators, ombuds, etc), as well as an evaluative system that would help citizens understand their rights and obligations and range of outcomes. The model relies on a typology of three types of dispute resolution: adversarial disputes, inquisitorial disputes, and dispute avoidance. The next step in the project is to identify and model categories of cases that are more or less amenable to online dispute resolution.

Susskind closes with a quotation by Alan Kay that “the best way to predict the future is to invent it.” While he is sometimes described (to his chagrin) as a futurist, Susskind says that he doesn’t see the future, he just works on the projects and processes that might help a specific future be realized (as with the report with Lord Dyson). He enjoins the attendees of the conference to continue the hard work of realizing the fairer, faster modes of justice enabled by new technologies.