Today and tomorrow I’ll be liveblogging from the 2013 Online Dispute Resolution Conference in Montreal. As with all liveblogs, this is a best-efforts summary of the panel; all insights are the panelists, and any errors are my own.
The next panel is The Side Effects of ODR Technology on ADR Processes, moderated by Ethan Katsh, featuring Jean-Francois Roberge, Bill Warters, and Orna Rabinovich–Einy.
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Jean-Francois begins by discussing “Providing Access to Justice through JDR and ODR: A Comparative Research Project.” Access to justice has been a major issue for over 30 years in Canada – characterized as “the greatest challenge” to the Canadian judicial system by its former Chief Justice. ADR/ODR is seen as a potential way to improve access to justice by the Canadian Bar Association and a variety of important national institutions.
Yet in practice there is little empirical research about the effectiveness of ADR. There is a high settlement rate in Canada, where provinces have their own legal traditions and resolution procedures. Overall, there is great satisfaction in ADR: 85% among litigants and 95% among lawyers in voluntary ADR settlements. ADR is 75% faster than trial; one year of court’s civil trial capacity is accomplished in 25% the time by ADR. It’s also 66% cheaper than a trial. What more can we know?
Jean-Francois is leading a project to measure access to justice delivered by ADR from the litigant’s perspective by how well it delivers a quality of justice that meets their expectations of fairness. In 2013-2014, they will be partnering with the Quebec Trial Courts to measure ADR effectiveness through surveys delivered to litigants and lawyers. In 2014-2015, they will be partnering with the Quebec Court for the Online Dispute Resolution of small claims to adapt the same surveys to ODR litigants.
The asks litigants about their satisfaction with:
* OUTCOME: Assessing their experience by its its distributitive and/or restorative allotments
* PROCEDURE: Assessing their experience by how informative, transparent, and (positvely) personable they found the process
Through the study Jean-Francois hopes to gain detailed knowledge of litigant needs from their perspective, which can then be used to inform policymakers and information architects to design better sociotechnical systems for mediating disputes both on and offline. He also hopes that their results, while culturally situated, will provide a dataset by which the Canadian experience can be compared against experiences in other countries.
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Bill, the Director of Wayne State University’s Master of Arts in Dispute Resolution Program, says he will give a “very different” talk about “networked individualism”, a way of understanding “how we live now” with its implications for ADR and ODR. He has posted his slides here.
Warters ties “networked individualism” to a book by Lee Rainie and Barry Wellman. Rainie and Wellman argue (according to Warters) that we are seeing three major shifts in social organization: from groups to social networks; towards a personalized and differentiated Internet; and an always-accessible, often mobile communicative environment. As a result, people have less emphasis on group membership; social ties and events are organized around the individual, rather than around institutions like family or neighborhoods or workplaces; and persons, rather than places, are the main node around which social interactions are organized.
(ed note: I disagree with almost all of these assertions, but trust Warters to be characterizing Rainie and Wellman accurately)
Warters now begins discussing Moore’s Mediator types. Social network mediators are respected, known to both parties, and thought to be fair. Authorative mediators has power over both mediators, wants to stay within parameters, guides parties towards something acceptable to both parties. Independent mediators – a favorite in the North American context – have no relationship with parties and are assumed to be neutral. Which of these styles will we adopt for ODR, in which contexts, with what effects?
Warters has begun looking at Twitter as a lens to study ADR processes. He used ContextMiner.org to scrape the top 100 tweets per day which feature “Peer Mediation” (which he wryly notes is not tweeted that often). Gathered 421 days of about 7,000 unique tweets. Read all 7,000 tweets and began categorizing them. Warters shares a few interesting tweets, as well as some simple text clouds and sentiment analysis.
Warters argues, based on his readings of tweets, that peer mediation is associated with a few critical themes: struggles over the right forum; who mediates the problems of peer mediation?; mediation being “weak” as opposed to more confrontational forms; impact of back-channel comments on social media on the mediation process itself. Twitter ethnographies provide unique insight into the perspectives of teens in peer mediation and can and should guide the design and implementation of such systems.
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Concluding is Orna Rabinovich–Einy, a fellow of the Haifa Forum of Law and Society, the Haifa Center for Law and Technology, and the National Center for Information Technology and Dispute Resolution at UMass, Amherst. For many years she thoguht of ODR as a domain which was limited in scope. But now she’s come to realize (and advocate) that it can be expanded and reinvented as necessary to be useful in all sorts of applications. ODR provides a provocation for ADR folks to go back to the beginning, rethink their assumptions, and start fresh on some of the toughest problems.
Orna notes that the Internet and ADR were both originally seen as epistemic breaks from the physical world and formal law respectively. Yet over the last decade it has become clear that both are products of their predecessors and mix ceaselessly with them.
The tension point right now for continued innovation in ODR is the theoretical apparatus (and institutionalized professionals) which guided ADR and are now stalling roughly against the broad, distributed potential of ODR. Many entities have an entry point into the ODR space, and ODR sites are now being used to adjudicate disputes which arose in the physical world, further blurring the longtime digital dualist divide.
One of the questions we have to ask ourselves is: what does the disputing landscape look like when we live in a digital society? Is there still a dispute resolution pyramid (where disputes escalate or die off) or do the efficiencies and affordances of ODR expand and flatten the landscape of disputes? Do the vertical procedural silos of arbitration, mediation, and so forth still make sense with the capabilities of ODR? Perhaps ODR will grow to look at different problems, powered by different people, with different perspectives, than traditional, professionalized, formal (if still alternatiive) ADR historically has.
Orna discusses ODR’s promise for dispute prevention. Dispute prevention was never more than a side goal for ADR because of scarce information and costly interaction, and if it was addressed it was most often delegated to the disputants themselves. And it’s hard to capture and measure both the design inputs and subjective outputs of ADR beyond surveys. Yet ODR’s capability to be designed to model different forms and capture data could change all of this.
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Ethan Katsh notes that a better title of the talk may have been “The Unintended Consequences of ODR.” For example, as Orna mentioned, these systems often gather large amounts of data as a byproduct of their design. ADR processes often tried to avoid gathering these data out of privacy concerns but now it seems to be ubiquitous.
The session ran long, so there were no questions.