Replies to This Discussion

Permalink Reply by Graham Ross on October 27, 2010 at 5:05pm

Susan Nauss Exon said:

Thanks for all of your thoughtful comments, everyone. I am really enjoying the discussions. Graham, I am so happy to hear that you provide some sort of e-training to mediators. Can you explain what you do?

The course is at www.odrtraining.com - there is a reading section followed by some simple tests and then a live roleplay online mediation It covers all types of ODR systems not just our own platform. The subjects covered are:-

* What is Online Dispute Resolution and what systems are operational now?
* Opinions on ODR.
* The 'pros' and 'cons' of ODR.
* The hurdles and drivers of ODR.
* How to develop trust online.
* Procedures and techniques of ODR.
* Anonymous brainstorming.
* Time Management in ODR.
* Adapting discourse for the online environment.
* Partial ODR as preparation for in-person ADR.

This course has been taken by over 100 individual mediators in over 15 countries as well as by a number of organisations including the Chamber of Arbitration of Milan and the MInistry of Justice in England (for training of court mediators in the Small Claims Court).

This statement brings us back to several suggestions from yesterday in which people are hinting at creating separate ethical standards for ODR mediations. Would anyone care to elaborate? In particular, should confidentiality be handled differently than F2F situations? Should mediator impartiality be changed to allow a balancing process? Should rules of mediator competence be more explicit for an ODR platform? Theseare a few ideas to keep the dialogue open. I welcome further discussions.

Interesting question raised, Susan. Let me have a go at thinking up some ODR specific ethics, or standards, that are additional to the standard ones affecting all mediators How about:-


* that you will not place any undue pressure on any party to participate online

* that you will not use ODR unless you are satisfied that both parties, and all representatives, have full and free access to appropriate technology and that they all declare sufficient levels of IT competence

* that, apart from emergencies, you will not take undue advantage of the ease of online access to the system, to advance the mediation whilst in an inappropriate,distraction filled, environment, eg by web browsing by phone whilst at a restaurant (objective is to ensure you are always properly focused when mediating)

* that you will take all reasonable measures of care to protect the confidentiality of the discussions , eg if using email, you will never press SEND until you have checked the recipient's address is correct (eg Outlook;s predictive text tool has not selected a different person albeit with the same first name)

* that you will take appropriate measures to ensure there is no risk of the discussions being seen by those outside the mediation (eg by leaving email or an ODR platform open and logged in whilst away from your work station)

* that you will ensure all persons are familiar with the ODR system being used before commencing the mediation and that they have taken appropriate training

* that you will provide details (email, phone ) for direct contact from the parties other than via the ODR platform

* that you will disclose any income you receive through the use of the platform which is other than what you have been paid by the parties

* that you ensure that the ODR system providers offer direct IT support to each of the parties and their representatives

* that you should seekout a basic understanding of the environment in which the technology operates and who hosts it and how. The parties will trust that you are using a system that they can rely on as appropriate given the confidentiality of the mediation and thus the mediator should make the effort that such trust is not misplaced



any more anybody?

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Permalink Reply by Colin Rule on October 27, 2010 at 6:12pm

Wow, this is a great discussion, everyone -- thanks for the wonderful contributions! And let me hasten to point out that the article was a joint effort between Kim and Jo and Susan and me, so don't give me any more than 25% of the credit... also, I wish all our pictures were at the top of this forum, because we're jointly facilitating this discussion. But fortunately you guys seem pretty easy to facilitate...

I liked Eric's observations about the complex relationship between ODR and social networking, as well as Leah and Susan's elaborations on the challenges. Matthew, I agree with you that some mediators are using social networks to market their business, which definitely introduces downstream complexities around later providing services. I think back to a case where an online mediator was Googling their parties and learning about unrelated cases/accusations... what about neutrals being biased by statements made by parties on their facebook/twitter accounts? Or causes that the party may have liked, or politicians they've friended? It's a difficult thing to not learn about some of these things when connected to people on the internet these days. And in the information vaccuum of text-based interaction these small data points could gain outsized influence in the mind of the neutral.

Kaitlyn, I agree with you that the younger generation often presumes online communications are private when they may not be. How many times have we seen a teenager generate scandalous content intended only for her online friends only to see it later go viral, creating huge issues for all involved? Cyberbullying is the easiest example, which can have tragic consequences. But the very definition of privacy may be changing under our feet. The younger generation isn't going to disconnect -- if anything they seem to be accellerating their desire to broadcast their every thought and action. We may just have to get more comfortable with voluntarily diminished privacy and settle for combating unintentional privacy violations (e.g. the suite of tools and settings being released by Facebook).

Maclellan, you hit on a key point when you describe the incentive for platform providers to get revenue from selling information gleaned from their ODR processes... I suspect many online business types feel this is OK so long as the data is anonymized. Everyone is looking for a workable business model. Plus we don't even understand all the ways our clicks are monetized through online advertising, etc. That said, this is no where to be found in our existing ethical standards in ADR. So Susan, I would definitely include something about selling data, even aggregate anonymized data, in our new standards.

Bill is also dead on in pointing out the repeat player phenomenon... perfectly balanced and transparent ODR systems designed with the best of intentions can still be functionally unfair if one side uses the system all the time and the other side uses it only once or twice. On PayPal we have a dynamic where most disputes are filed by buyers who go through the process only once or twice every couple years, but sellers go through hundreds of times a month. Sellers naturally know the rules better, the timelines, and they have a large data set of previous cases where they can figure out what kinds of responses will maximize their chance of victory -- buyers usually don't have any of that. So we need to design systems that are proactively structured to minimize gaming from repeat players.

We used to talk a lot about "digital divide" issues in ODR; now that's not as common, as mobile phones have democratized technology somewhat. Now the innovation is happening in the developing world, with relatively simple cell phones. But Noam's point is well taken... we need to think about all types of imbalances, not just technical ones. Typing speed, comfort with technology, bandwidth, even language fluency -- all of these are valid concerns. It also ties in with Jeff's cultural concerns. We can't build one platform and just presume everyone will access it and use it the same way. It may be we need to build a centralized core process that can be accessed through a variety of channels, from web browsers to phone to even paper based.

I also worry about well-designed ODR processes being used as additional hoops to dissuade complainants from pursuing redress. Mediation can be valuable, but if you make it mandatory and require the parties to spend a week doing it, functionally a good number of people are just going to get frustrated and quit -- which may be the actual objective of the organization contracting out the management of the system. I think Pablo's phone-based platform sounds great, but it needs to be very lightweight, and parties have to be able to exit it whenever they like to minimize the risk that it will become just another frustrating delay/hurdle for people to endure in order to get justice.

Finally, I'm sympathetic to the training idea -- probably better for neutrals and ODR platform providers than parties. But contextual help content and pre-dispute process guides are important for parties as well. It's just a matter of threading the needle between enough information and too much, and mandatory process steps vs. voluntary. I think we need to think about ethics for ODR platform designers/administrators, ethics for ODR neutrals, and even ethics for parties. Each are quite different. And there are good ethical standards docs out there for ODR... maybe we should harmonize and combine them before we kick off another list of standards from scratch.

Thanks, everyone! This conversation is very engaging, and it's exceeding my expectations in terms of richness and quality of thought.

rah

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Permalink Reply by Bill Warters on October 27, 2010 at 9:31pm

Graham Ross's list of ODR specific best practice ideas/ethics is really great in terms of thinking about things that can go wrong and being prepared to avoid them whenever possible. One article that I like that covers a good bit of the ground we are discussing is one published in Conflict Resolution Quarterly by David Syme. David takes the list of knowledge, skills and ethics suggested for mediators by the Australian National Alternative Dispute Resolution Advisory Council (NADRAC) and begins to see how they would be extended to online contexts. Seems like a good list to me, and as Colin suggests, we don't have to start from scratch on this...

Keeping pace: On-line technology and ADR services by David Syme
Conflict Resolution Quarterly
Volume 23, Issue 3, pages 343–357, Spring 2006
http://onlinelibrary.wiley.com/doi/10.1002/crq.142/abstract

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Permalink Reply by Jeff Aresty on October 28, 2010 at 7:58pm

I just want to point out that the ODR/Ethics conversations occurs in the context of a regulatory environment where it is presumed that there is access to a justice system. This is not the case in most of the developing world. That is where Internet Bar Organization and our PeaceTones and Internet Silk Road initiatives are based. This is a laboratory for experimentation on the role of ethics in the creation of online justice systems since regulatory restrictions based on the rule of law (as distinct from government power) are limited. I don't doubt the power of governments to restrict access to technology, but in many cases, it will not be in their interest to do so. Also, it is almost impossible for governments to stop the use of mobile telephones which are rapidly becoming the access point to the cloud and the services which will reside there. So for anyone who wants to 'seed' the ethical frame of reference into the emerging online justice system, please offer some thoughts over on http://adrhub.com/forum/topics/peacebuilding-via-odr !!!

ps - I asked Colin if he would post there, so I'm just shamelessly promoting our little projects - and we really do think that building an ethical frame into online justice systems is very important.

ja

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Permalink Reply by Karina Tarapore on October 29, 2010 at 3:52pm

In reference to the above discussion, regarding whether it is OK to help balance out any inequalities when it comes to understanding the technology being used. I would have to agree, that ensuring all parties are able to use the technology in the most effective way possible, does not violate impartiality.

In fact, i would say, that if there were separate standards governing ODR, it should perhaps be an additional duty of the mediator, to be sure all parties are able to use the technology, this would go to maintaining the quality of the process. In today's advancing technological society, those who are more familiar with new products and systems, are fairly understanding of the fact that there are many people who are not comfortable using technology at all. And any participant in a mediation, is unlikely to find that the mediator is acting impartially, if they needed to assist the other party in understanding how to use the technology.

If one party is not as adept in using technology as the other party, that could result in a serious disadvantage for that one party, and therefore could take away from the confidence that individual has in the process of mediation.

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Permalink Reply by Alejandro Montano on October 29, 2010 at 6:09pm

Hello, My name is Alex Montano i am a student at Umass and this topic has created a lot of great discussion. In response to the above post, i also questioned how an online presence could regulate between two different people in two different countries where the rules and laws of those respective countries could be drastically different. Problems could arise out of this not to mention if the 3rd party is not seen at all. Also i feel that those who are more technologically advanced carry a big advantage because they probably schemed the "victim" initially in the first place due to their technological deficiencies. This topic is truly intriguing and i will follow how ODR evolves in the upcoming future.

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Permalink Reply by Sang Le on October 29, 2010 at 11:34pm

Hello everyone! My name is Sang Le and I am a student attending UMass. I have read this article, and many aspects of it intrigues me as well as the discussion in this forum section. One of the many interesting points of this article is the ethical concerns of the ODR process, confidentiality. While I was reading the article, questions that were asked were "should I really concern myself with how my information and data would be kept confidential?, how third parties are involved, and how important is it to each user?" The article brings up the point that "data that can be extracted from ODR processes can be immensely valuable, far more valuable than data pulled from face-to-face processes." (9) As browsing through the discussion, I now understand how problematic and a hassle dealing with material data sent online as compared to face-to-face real time involvements.

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Permalink Reply by Susan Nauss Exon on October 30, 2010 at 8:31am

Thanks everyone for an enlightening week of discussion. I will be part of a panel discussion regarding ethics and ODR at the ABA Dispute Resolution Section annual conference to be held in Denver, Colorado next April. I will be sure to include many of the topics in our discussion.

Also, several of the most recent responses query how to regulate ODR among parties from different countries. If a platform is set up in which all parties have to agree to participate, sort of the choice of law type of provision, then the parties essentially have entered into a contract to participate and agree to abide by whatever rules and regulations are in place for that process. I guess that's where a new set of ODR ethical standards come into play. Food for thought. And, there have been lots of helpful ideas on this subject.

Thanks again everyone. Colin, is there a way to continue this dialogue after cyberweek?

Susan

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