ODR2016: Our Mindfulness Moment at the Peace Palace

As the ODR industry prepares to gather for its fifteenth annual meeting of the minds in the Hague, Netherlands, we do so at a time when the future of technology-enabled dispute resolution appears very bright.  Governments are embracing (and in some cases mandating) ODR as an effective tool; ODR-specific business are emerging and growing faster than ever; and better and more powerful tools are becoming available for individuals, consumers, businesses, and the courts.  But during these halcyon days, it is more important not to forget where we have come from, and, perhaps more importantly, where it is we want to go.

As I recently wrote with several colleagues, “[t]he problem for the legal community is that these changes will happen whether we help shape them or not.  All users of the Internet acting together will begin to define organic norms for online interaction as they continue to communicate, trade and sign agreements.  The justice layer will form on its own.  If we want to do more than witness the process unfold, we must consciously and actively build the justice layer of the Internet.”  In other words, we need to be the change we envision.  And, in our time together at the Peace Palace as we embrace the potential for a peaceful world and a future embodied by relationships that foster a more mindful and empathetic civilization, we must rise to the challenge not only for ourselves, and our industry, but for the world as a whole.

Mindfulness, or the practice of being aware of the present moment, has been all the rage in Silicon Valley for a few years now, with many of the largest tech companies integrating its practices into their workplace cultures.  As I approach ODR 2016, here are a few of the mindfulness moments on my mind:

1We are not alone in this journey – but know the intentions of your partner.  The ODR community has grown significantly, and although many of the same faces from the first conferences will be in attendance at the Hague, there are many who have never attended, but nevertheless are doing work which directly correlates with our own.

One of the most obvious connections is with the artificial intelligence field, with an example being Facebook’s recent implementation of chatbots onto its Messenger platform.  Although chatbots are not a new phenomenon, the technology is quite significant for the ODR field, and its application to a platform as ubiquitous as Facebook has vast implications.  The technology, which takes your personal information as well as all of the knowledge of the internet and applies natural language processing, AI, and human assistance as necessary, has the potential to be, as Facebook hopes, a personal shopper or customer service representative for one of its many advertisers.  For many of us, however, ceding the territory of personal choice as to what we see and experience to corporate developers, is something that should be a choice, not a given. Will we continue to use new technologies without thinking about anything more than the convenience their use brings to our lives?

At  the last year’s  ODR 2015 at Pace University Law School, I had the chance to meet Doc and Joyce Searls, and start a conversation about shifting the balance of power from corporations who presently have the power to shape and decide what technologies we use, to all of us.  I teach a course in Global Cyberlaw, and, the first lesson of my class is that the “Terms of Service” that corporations ask us to “click” and “accept” shift our power of choice from all of us to them.  We do this intentionally, because it is convenient, and we want to use their technology.  But it certainly isn’t a “mindful” choice.  Because we are the same population who complain about the invasions of privacy and surveillance that accompany “mindless” clicks and accepts that result in the aggregation of huge data mine stores about us attract hackers from all corners of the earth.

For the ODR field, we could work to shape this new technology.  It could be our opportunity to make the new technologies such as “chatbots” our personal advocates.  Chatbots, and related technologies could provide every citizen with information relevant to their dispute, advising  them of  their rights, and suggesting potential opportunities for compromise.  The developers of these sorts of tools may not know about the work of ODR2016, but they should, and we should strive to work with them in the future.

2. We must learn from the failings of the old.  Replicating systems of yonder years into the digital world is not changing the system.  It is saving trees.  One example that is mind boggling is the almost 20 years it has taken for e-filing to make its way to the courts.   And yet, e-filing is still a relatively new phenomenon in many US state courts.  Far from transformational, e-filing is just connecting a fast electronic pipe to the brick and mortar courthouse.  Though the filing has been digitized, access to the courthouse itself has not changed.   In the US, the World Justice Project rankings have dropped the US down to 21st in world rankings for access to justice.  And, this ranking only reflects access to formal justice systems such as courts and other government institutions.  Most people don’t think of ‘justice’ in this way.  In fact, the American Bar Foundation points out in a recent research study that 75% of Americans with justiciable concerns don’t even reach out to lawyers, courts, and government as the first stop to address their concerns.

This is our opportunity to think creatively to solve the problems that have plagued our courts for years and have deprived those most in need of assistance in finding what is fair.  This is also an opportunity to change the culture and outside perceptions of lawyers, judges, and the courts.  For too long, the law has been perceived, both rightly and wrongly, as a tool of the haves, and a means of subjugation of the have nots.

To change this perception will require very difficult choices, most notably with regards to sourcing resources for further research and development.  If ODR systems are developed (or paid for) by the very entities which have a stake in the outcomes, how will the public perceive these systems?  Or in a worst case scenario, will we be merely creating modern contracts of adhesion or rigged binding arbitration clauses with digital procedures added for good measure?  But if the resources of interested parties are not used, will these systems ever be built to scale?  I suspect that a middle ground will be necessary, one which emphasizes the importance of established best practices and standards, independent neutrals and regulators, and transparency in design and outcomes.

3. Technology alone is not the answer.  Rule of Law is not an algorithm.  The efficiencies and economies of scale of technology are undeniable, but the human touch is irreplaceable.  For all the bots and lines of code, there is no comparison to an empathetic ear, the patience of reassuring counsel, or the tone of a reproaching or sympathetic judge.  I am not so naive to think that if large-scale dispute resolution systems are to be implemented, less direct human interaction will be required, but to the degree that we do not accept this as a given, and that we constantly strive to deliver tools and resources that cater to our humanity and uniqueness, the better off, and more successful, this industry will be.

InternetBar.org Institute, Inc.  19 April 2016
Photo: World Wide Web  by Ai.Comput’In [Creative Commons Attribution-NonCommercial-NoDerivs]


Nigeria and Online Dispute Resolution

One of the earliest letters I received from Nigeria (before the Internet – postage/envelope/letter inside/a “real” signature) invited me to help out an individual there who was a relative of a prince and had a very substantial bank account in New York, but they could not access the funds there (millions of dollars) without my help. Hmmm….

Nigeria has had a reputation for scammers for a long time. The Internet gave these scammers new fuel and new ways to catch people in their lair. These scammers are sophisticated and the reason they don’t give up is because it works. Nevertheless, the reputation that has befallen Nigeria is not one that should be allowed to perpetuate. I remember the first time I met my good friend from Lagos, attorney Ayo Kusamotu, on a phone call and we talked about a legal problem regarding trademarks and online dispute resolution for a long time. He suddenly interrupted me to say “thank you.” I asked him “for what?” And he said “for not bringing up the Nigerian scammers.”

It never occurred to me to bring up scamming – it is everywhere and it shouldn’t be attributed to one country or another. Ijeoma Ononogbu, another Nigerian colleague of mine, began her recent presentation on the state of justice in the African Union during Cyberweek, and she pointed out that Nigeria has adopted a broad based cybersecurity initiative designed to increase trust for online commerce; an absolute prerequisite for its growth. And last week, yet another colleague from Lagos, Morenike Obi-Farinde LL.M, FCIArb (UK), (founder of www.e-consumersolve.com), organized a first ever training program between InternetBar.org Institute and the Nigerian Bar Association on the use of practical technology techniques for online dispute resolution. Led by IBO board member Dan Rainey, there were 41 attendees.

Scamming may be endemic to the Internet – but building the foundation of trust to overcome it is in the genes of my Nigerian attorney friends. Transformation is in their hands, and they are doing great works.

To read more about Jeff Aresty, click here.


Responding to online complaints lands a lawyer an 18 month suspension

 James C. Underhill Jr., an attorney in Colorado, has found himself in hot water after a fee dispute with clients went wrong.
A married couple that retained the lawyer’s services claimed that the fee collection that Mr. Underhill enforced was not what they had all verbally agreed to. When Mr. Underhill insisted on this new structure of payment, the couple left the lawyer and posted negative reviews for him on a review site.

Instead of taking it in stride, or countering the negative reviews with positive ones, Mr. Underhill struck back. As their lawyer, Mr. Underhill was privy to private conversations and information over the course of representing the couple. He used this information to publicly shame the couple in postings on the internet. He then sued the couple for defamation. When he lost his first suit, he waged a second one claiming that the couple had made other defamatory complaints about him on the internet.

This case(the full decision is posted at the end of the article here) has brought up how the law is affected by technology in a variety of ways. If a client had made a complaint 30 years ago, Mr. Underhill would have been able to expose attorney client information at the state bar. This has been allowed because attorneys must be able to protect their reputation. 30 years ago, this couple’s only way to lodge a complaint would have been by going to the state bar. Now, the result for Mr. Underhill is an 18 month suspension.

In these times, the internet offers a much quicker and more effective way of getting a complaint noticed. The law, unfortunately, has just not caught up with technology yet. In the meantime, lawyers will have to walk a fine line. They must recognize that although they will be judged in a more traditional setting, they have to operate in a world optimized for communication that the law is not able to regulate with the same veracity.

Article via AboveTheLaw, 8 September 2015

Photo: Night Work via Thomas Heylan[Creative Commons Attribution-NonCommercial-NoDerivs]


UK Courts to Develop Internet-Based Dispute Resolution System

Online court proposed to resolve claims of up to £25,000 (The Guardian, 15 Feb 2015) – The UK justice system should receive a radical overhaul for the digital age with the creation of an online court to expand access to justice and resolve claims of up to £25,000, the official body that oversees civil courts has recommended. In a transformative proposal for largely lawyer-free, virtual courtrooms, the civil justice council is calling for an internet-based dispute resolution system to be available within two years. Backed by Lord Dyson, the master of the rolls, who is head of the civil judiciary in England and Wales, the report says existing services – such as eBay’s disagreement negotiation procedure and Cybersettle’s blind-bidding operations – provide prototypes worth studying. The online dispute resolution (ODR) model proposed in the report envisages a three-tier process: evaluation through interactive services and information, negotiation with online “facilitators” and finally, if agreement has not been reached, resolution by a trained judge relying on electronic submissions. Only the judge need be legally qualified. If necessary, telephone hearings could be built into the last stage. Rulings by the online judge would be as enforceable as any courtroom judgment. The report’s principal author, Prof Richard Susskind, who is president of the Society for Computers and Law, said the UK was falling behind other countries that have begun to incorporate online elements into their judicial systems. His recommendations include “automated negotiation” where differences may be resolved “without the intervention of human experts” by relying on blind bidding processes.

 

Provided by MIRLN.

Image courtesy of OTA Photos (Creative Commons) http://bit.ly/1zm0SNx

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Practical Tech Tools

REGISTER NOW

Practical Technology Tools is an experiential course designed to introduce affordable and accessible online dispute resolution (ODR) technology to the practice of alternative dispute resolution (ADR).

Participants will engage in four synchronous, real-time lectures and discussions over a five-week period, with asynchronous forums, wikis, directional study, and instructor interaction.  Students will learn about numerous tested online platforms and tools that can elevate and streamline their current mediation and dispute
resolution practices.  These technologies will concentrate on the functions of an ADR practice that can most easily be adapted to working digitally, including client intake, client narrative, document review and storage, information sharing, brainstorming, and agreement development, drafting, and execution.

Skills targeted by course:

  • Understanding and Assessing Technology: learn about available tools and which are most appropriate  for ADR and your practice
  • Digital Case Management: assess and apply case management skills to information and communication technologies (ICTs)
  • Third Party Skills: anticipate and prepare for how clients will react to and learn to use new platforms and technology tools
  • Ethical Evaluation: analyze and adapt mediation and legal ethics to the use of ICT
  • Technology Integration: dissecting the practicalities of maintaining a face-to-face dispute resolution practice while integrating technology and/or creating your own virtual ADR practice

About the lead instructor:

Daniel_Rainey_headshot_dropDaniel Rainey is one of the leading ODR educators and practitioners in the world. Working with the University of Massachusetts at Amherst, he was one of the first instructors to teach a university ODR course, and has since developed graduate level ODR courses for several universities and dispute resolution centers. He has designed ADR and ODR systems for numerous organizations.

He is a Fellow of the National Center for Technology and Dispute Resolution, a delegate at the UNCITRAL Working Group III on ODR, a member of the ABA Web-based Interdisciplinary Dispute Resolution Environment Task Force, a member of the ABA President-elect’s Technology Initiative, and co-author and editor of the definitive ODR source book, ODR Theory and Practice.