I’m here at the ODR2014 conference. ODR2014 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.
The livestream is here. What follows is a best efforts summary of the session.
Colin introduces Jason Gershowitz, Senior Collaborative Technology Associate at the strategic communications and collaboration firm Kearns & West (and former wilderness camp counselor), and Scott Fulton, Former General Counsel of the United States Environmental Protection Agency, who are here to talk about ODR and the environment.
Scott starts by saying he’s not tech guy, he’s an environmental lawyer, but he’s been peripherally affiliated with various ODR folks for many years and he’s happy to contribute the conference. He offers to provide some context on the possibilities of ODR in environmental disputes.
The ‘old world’ of environmental disputes, Scott says, was “all about what the government has done or has not done” and those regulations which it promulgated and policed. These processes are slow-moving, resource-intensive, and reactive. He contrasts this against an emerging ‘new world,’ animated by a general sense that governments are failing at implementing their preferred environmental regimes and as such basic environmental protections are not realized. The reality, Scott says, is usually that the “people who are the lowest run on the economic ladder are on the highest rung of the pollution latter,” and countries (including America) continue to struggle with this distributive injustice. Meanwhile, there has been a rise of private governance, by which companies set (and nominally strive to meet) certain goals for being ‘green.’ The battles now are definitional, Scott says, about what constitutes ‘greenness,’ who has standing to file a dispute, etc, and public relational, for which social media constitutes one of the most important fronts. Brand conscious companies are aware of how quickly a local problem can metastasize into a global reputation dilemma.
Among the disputes Scott sees in this arena are conflicts about ‘greenwashing,’ unresolved civil penalty claims, and community access to public and private environmental data. Scott has been theorizing a “Better Environment Through Community Information” (BETCI) project, which would deploy distributed, citizen-owned air/water sensors and develop systems which aggregate, distill, and push these data to interested receptors for this last point.
Next up is Jason, who is interested in thinking about how technology can be deployed to help resolve conflicts of the kind Scott has outlined. How can faster exchanges of better information help raise awareness about and expedite the resolution of environmental conflicts as compared to, say, the long and fraught fight over classifying something as a Superfund site?
Jason says mediators are used to thinking of themselves as ‘neutral,’ but as he looks to building out systems which capture and publish environmental data to help resolve these disputes, it’s an increasingly untenable position to take, since which information they make more or less available will have an effect on the dispute as such. He also acknowledges that the algorithmic processes which collect and model environmental data are not themselves neutral, echoing Kate Crawford’s insights about what she calls “the hidden biases of big data.”
The key, for him, is to have the stakeholders come together and agree to design on which data ought to be used, the agreement of which becomes the basis for the neutrality claim. “This type of buy-in is worth its weight in gold.” The hard work of the mediator is actually in the design of the claim structure, because negotiating what is legitimate and what is not is actually what allows for the conflict to be resolved later.