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.
The first panel is Cyberjustice as a Resource for Developing Countires?, chaired by Harold Épineuse, featuring Maria Mercedes Albornoz (via Skype from Mexico), Valentin Callipel, and Carlos Gregorio.
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Valentin, who is a project leader at the Cyberjustice Lab [LINK] here at the University of Montreal, leads off. He asks whether cyberjustice can be used to foster public justice administration in developing countries and why we should pay attention to the “risks of digital colonization.”
He begins with the example of India. Nearly 70% of Indian prisoners have never been convicted of any crime nor given a trial, Valentin says. Nor has recent growth in developing countries been seen by their own citizens to improve public justice. It is essential to provide the access to justice to citizens of developing countries, but in practice, even despite rising wealth, many barriers remain. Valentin asks whether cyberjustice can help solve these problems in the OHADA countries?
But first, what is cyberjustice? Valentin defines it as the integration of information and communication technologies to judicial or extrajudicial dispute resolution processes. It relies on the idea that software can assist in the performance of many juridical functions. The Cyberjustice Laboratory here at the University of Montreal is a crossdisciplinary laboratory devoted to the study and production of such technologies. The idea is to develop a “delivery science” which shifts the focus from what justice to deliver to how to deliver it.
For example, in many of the OHADA countries, there is a tradition of civil law, which relies heavily on paper. This turns out to be a huge cost sink: the administration of justice can account for up to half of the average citizen’s income! Even eliminating simple things like unnecessary printing and photocopying can save significant amounts of money, and it is much easier to reduce the number of records than it is to increase the number of judges.
Alternative dispute resolution (ADR) can constitute a more accessible, affordable mode of resolution than litigation in Uganda, Valentin says, and has a better grounding in the community since it can often be conducted in local languages and aligned with local traditions. Online dispute resolution (ODR), defined as ADR facilitated by ICT, can assist certain forms of resolution at large scale with low cost. The ideal is to “provide a simple and flexible tool to facilitate the resolution of disputes,” but the manifestations of this ideal must align with the specific characteristics of particular countries, communities, and so forth. “The lack of techno-legal and socio-legal pre-inquiries often result in the failings” of well-intentioned ODR projects, Valentin says (ed note: sounds a lot like a call for more codesign!).
Valentin opens the question of m-justice, by which he means mobile-justice; ODR facilitated through mobile platforms. Mobile phones – usually “feature phones” – are widespread in Africa. Relatively few cyberjustice initiatives have inquired whether or not they can be “compatible with the African techno and sociolegal context,” including these simple phones. Are there ICT interventions which can be implemented on and through such platforms to help mediate disputes directly between individuals?
Such interventions are further complicated, Valentin notes, by the oral traditions which obtain in the social and legal practices of OHADA nations. This poses a particular problem for ODR, which seeks to eliminate the oral tradition entirely, and which may indeed be incompatible with the important social roles played by human mediators. Valentin concludes with a call for further research into the sociological and technological conditions of particular communities to help see what interventions might be intelligible, acceptable, and acceptable to citizens in developing countries.
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Maria shares insights from a paper she coauthored with Professor Nuria González Martín entitled Feasibility Analysis of Online Dispute Resolution in Developing Countries. Unfortunately, her Skype connection was inconsistent, and I was unable to understand most of her presentation. However, the paper from which she was reading is linked above, should you wish to read it yourself.
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Carlos, who has a background in judicial statistics, continues the discussion of ODR in Argentina, where he is a professor. He shares some matrices of judicial roles and caseloads developed by Dory Reiling from court IT systems in Europe. He will be focusing on boxes 2 and 4.
For example, personal injury claims, which sit in box II, constituted 35% of the caseload of judges in Argentina by 1990. In order to make the adjudication of personal injury claims more efficient, there needs to be more information (to make them more certain) and more dialogue (to move them from judgment to settlement).
Carlos begins sharing data from decades of personal injury claims in Argentina. But although Argentina began using computer-facilitated adjudication in 1991, large amounts of the data from these processes have since become unavailable, because the legal officials running the systems retired and their public repositories were not maintained! This oversight underscores the need for thoughtful information architecture and making such data publicly and freely accessible to lawyers, mediators, and policymakers as they try to write policy and mediate disputes.
Carlos identifies three challenges for personal injury ODR in Argentina:
* To publish amounts agreed in personal injury settlements
* To use text-engineering software to increase the number of precedents available online and reduce costs (move to the user the cost of identifying precedents)
* To integrate a “bareme” (not sure of translation – perhaps this?) that proposes only one amount in a settlement
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Q: This Argentinian system is fascinating. Do you have any timeline for implementation? This shows that solutions are actually possible for making life easier for everyone involved in the dispute resolution process.
Carlos: Yes, absolutely. I am working in the judicial system, and absolutely there is a possibility for actual implementation.
Q: I noticed that Carlos’ matrices mapped very closely to the workers compensation structure in America. Have you thought about applying your system to this, where users could tradeoff some uncertainty about damages for greater predictability?
Carlos: We’ve solved our problems. Our problems are not about reliability, but costs to the judicial system. Would have to start from a different dataset and framework to change to workers compensation, but certainly possible.