Ethics in ODR
Colin Rule
Colin Rule is Director of Online Dispute Resolution for PayPal. He is currently Co-Chair of the Advisory Board for the National Center for Technology and Dispute Resolution, and is the author of Online Dispute Resolution for Business, published by Jossey-Bass in September 2002.
Replies to This Discussion
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Permalink Reply by Noam Ebner on
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Hi all!
To touch in on Susan’s and Macllelan’s comments on balancing (and, to a lesser extent, this connects to Bill’s comment on One Shot vs. Repeat players) – ODR brings new variables into the room differentiating between participants, which we need to be aware of. “Access to technology” can differentiate between participants from, say, Europe and remote areas in Africa; it can also differentiate between two participants fron the US – one of whom is on the road and participate from Internet cafés. Another ‘new’ example of communication differences is simply typing speed: In synchronous chat, people who type faster are simply more likely to swing a conversation their way. So (beyond urging online mediators to learn to type really fast), if ‘balance’ is seen as an important ethical issue, we need to keep an eye on how these things (and other ‘new’ elements of online interactions) throw mediation processes out of balance.
Maclellan Swan said:In my opinion, there can be a fine line between balancing and impartiality. It is important in some respects to balance, like when Susan mentions helping even out technological imbalances. An example of this is InternetBar's PeaceTones Initiative (peacetones.org) This is focused on persons in underdeveloped nations and conflict zones, where access to technology is not always possible. ODR is very important in this process to keep all involved parties content. A mediating company in this relationship should feel ethically responsible to allow equal access to technological resources to ensure a fair dispute resolution process. Basically, a mediator should be aware of technological imbalances and attempt, without sacrificing impartiality for the issue at hand, to rectify the imbalance
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Permalink Reply by Susan Nauss Exon on
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I want to throw out a new thought. How many of you mediate ODR disputes other than the eBay consumer types? I am thinking about big, meaty disputes such as breach of contract, employment disputes, etc. where a lot is at stake and emotions may be running high. What type of platform do you use for these disputes? Thus far, most of the comments seem to be focusing on typing over the Internet. If no visuals are used, how does the mediator open up communication channels to encourage the participants to share personal, confidential information? In other words, how can the mediator engender trust and rapport so that the participants feel comfortable enough to share information about their underlying interests and provide something that the mediator can use to help the parties craft a resolution? I mention these questions because if the mediator cannot establish trust and rapport in an ODR setting, how does that affect party self-determination, quality of the process, and perhaps the mediator's competence?
I want to throw out these types of ethical concerns and ask if any others come to mind because most of the discussions I have seen during Cyberweek 2009 and thus far in 2010 relate to confidentiality, impartiality, costs, and conflicts of interest.
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Just a suggestion Susan -
There are already three other forums in cyberweek focusing on topics very close to the one you raised: Online communication and trust, Online Communication, Apology and Forgiveness and Online Communication, Culture and Diversity.
I'd suggest that in this forum, instead of focusing on how trust and meaningful conversations can be formed (as you framed it, "...how can the mediator engender trust and rapport so that the participants feel comfortable enough to share information about their underlying interests and provide something that the mediator can use to help the parties craft a resolution?"), we should focus here on your second question - the ethical implications of a low-trust environment and of superficial, adversarial communication, or as you framed it: "If the mediator cannot establish trust and rapport in an ODR setting, how does that affect party self-determination, quality of the process, and perhaps the mediator's competence?"
[Your forum, of course :-) I'm just suggesting we do our best to avoid having partial conversations going on across a nymber of different areas]
Noam
Susan Nauss Exon said:I want to throw out a new thought. How many of you mediate ODR disputes other than the eBay consumer types? I am thinking about big, meaty disputes such as breach of contract, employment disputes, etc. where a lot is at stake and emotions may be running high. What type of platform do you use for these disputes? Thus far, most of the comments seem to be focusing on typing over the Internet. If no visuals are used, how does the mediator open up communication channels to encourage the participants to share personal, confidential information? In other words, how can the mediator engender trust and rapport so that the participants feel comfortable enough to share information about their underlying interests and provide something that the mediator can use to help the parties craft a resolution? I mention these questions because if the mediator cannot establish trust and rapport in an ODR setting, how does that affect party self-determination, quality of the process, and perhaps the mediator's competence?
I want to throw out these types of ethical concerns and ask if any others come to mind because most of the discussions I have seen during Cyberweek 2009 and thus far in 2010 relate to confidentiality, impartiality, costs, and conflicts of interest.
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Great suggestion, Noam. And, yes I want to focus on the ethical angle.
Susan
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Permalink Reply by Jeff Aresty on
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HI
My name is Jeff Aresty. I will be presenting a webinar tonight with Ruha Devanesan on Internet Bar's MicroJustice initiatives. My perspective is that the developing world may very well lead the charge in ODR adoption. The stakeholders in the developed world include regulators who are raising many objections to innovation because of privacy and confidentiality concerns. Most will argue 'necessarily so'. The developing world, as de Soto points out, has a limited access legal system. Thus, alternatives to justice in these settings, including mobile telephony access to online justice systems, will not have much regulatory oversight. That doesn't mean that ethical issues disappear; it just means that innovators will have a clear playing field, and ethical values will have to be incorporated in the system designs.
One topic which has to be addressed in a global setting is the cross-cultural capability of the mediator. Many IT based mediation settings will require not only technological competency, but also cross-cultural fluency. Internet Bar hosted cross-cultural expert Jane Smith's assessment tool last year, and, is pleased to do so again this year. Based on the cross-cultural best practices chapter she wrote for the ABA Guide to International Business Negotiations, you can take the assessment, http://adrhub.com/forum/topics/lisimba-simulation-an, and get both feedback and a free copy of her chapter by doing so. She is running a blog during Cyberweek as well.
The other issue I would like to add that regulators are looking at is the use of third part services where most online mediations will take place. An article on the ethical issues which lawyers face in using any such third party service can be seen here:
http://www.abanet.org/media/youraba/201010/article11.html
Jeff Aresty
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Permalink Reply by Matthew J Starman on
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In this case, I'm not sure that f2f and Online mediators are very different. Each have a affinity for building a clientele of sorts. That being said, it would be diffilcult for either to avoid "repeat" customers. Is it much different than having a company or group of lawyers that prefers you to mediate their problems? Regardless one must be aware of the affects of each on the mediation, both f2f and online.
In both worlds, one may also use social networking to advance their work (E.I @MeD8This) I have also seen mediation groups on facebook that ask people to "like" them. This is definitely a fine line for neutrals to walk.
Leah Wing said:Great discussion, Colin and company!
I wanted to build on the comments Eric Cissell made which also raised great questions about 'neutrality.'
He asked us about if "online neutrals have to be more careful who they befriend, or become contacts with, on various social networking sites such as LinkedIn, Facebook in order to avoid the perception of a conflict of interest? Great question! It makes me wonder about our assumptions within the field for f2f intervenors--that they will be 'non-connected' and therefore neutral. That is the dominant expectation in some cultures but not all. So, as ODR gives us exponentially more access to handling disputes across cultures online, what will be the ethical dilemmas raised when some assume that intervenors can be 'connected' to parties and others do not?
Leah
(Leah Wing, U. of Massachusetts, Amherst, USA)
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I want to add some additional information to the Facebook discussion. I checked with a colleague of mine who also is interested in whether mediators should “friend” lawyers and others who may then appear in a mediation with that person. My colleague has done some research regarding judges and I understand a Florida ethics opinion says a judge cannot "friend" lawyers on Facebook if the lawyers may appear before the judge. On the other hand, a South Carolina opinion states that a magistrate judge may be a member of Facebook and have "friends" who are law enforcement officers and employees of the magistrate's office, as long as they don't discuss anything related to the judge's position as magistrate. Apparently, the South Carolina opinion did not address the specific question raised in the Florida opinion.
By way of analogy, therefore, it seems that a mediator should not “friend” potential participants who will hire mediator to conduct a mediation. The Model Standards of Conduct talk about not only a conflict of interest but the appearance of a conflict involving past or present, personal or professional relationships. This scenario sure seems to fit the bill.
I'd like to hear more from others.
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On Susan's last, regarding Facebook, I'll add on that it's not only (important!) issues of impartiality or perceived impartiality that are at stake here, but also a grey area regarding information.
When you are friends with someone on Facebook, you learn all sorts of things about them - often more than you want or need to know... If you know something about a party, can you bring that into a mediation conversation? Can you not bring it in, if avoiding it makes you an accomplice to an unethical act?
(a twist on the old classic ethical dilemma: a husband posted his status on Facebook 'Kickin' back, after doin' something all on my own to give me a gr8 financial future'. A month later, in mediation, nothing of the sort emerges, and he denies having any assets set aside or financial capability whatsoever - and insists on low to no alimpny payments).
Does a posting on Facebook, assuming the other party is not a friend of the posting party, fall under the same general rules as info shared in a caucus? Should the mediator simply ignore it - as perhaps we understood it out of context? And so on.
This might give evaluative mediators a lot of good material to work with, but not necessarily material they should work with. Other types of mediators would probably find it gets them into multiple binds.
I've certainly had Facebook come up in mediations before (the now-usual issues of parties keeping track of each other via their postings, or of parties' infidelity reflected/initiated through their postings) but never have I friended or been friended by a party or former party. I can imagine that the issue of being pre-friended by someone whom I may later meet in the room is a trickier question. Should I stop accepting invitations from acquaintances who are lawyers? From acquaintances who fight a lot?
Has anybody run into this, in practice?
Susan Nauss Exon said:I want to add some additional information to the Facebook discussion. I checked with a colleague of mine who also is interested in whether mediators should “friend” lawyers and others who may then appear in a mediation with that person. My colleague has done some research regarding judges and I understand a Florida ethics opinion says a judge cannot "friend" lawyers on Facebook if the lawyers may appear before the judge. On the other hand, a South Carolina opinion states that a magistrate judge may be a member of Facebook and have "friends" who are law enforcement officers and employees of the magistrate's office, as long as they don't discuss anything related to the judge's position as magistrate. Apparently, the South Carolina opinion did not address the specific question raised in the Florida opinion.
By way of analogy, therefore, it seems that a mediator should not “friend” potential participants who will hire mediator to conduct a mediation. The Model Standards of Conduct talk about not only a conflict of interest but the appearance of a conflict involving past or present, personal or professional relationships. This scenario sure seems to fit the bill.
I'd like to hear more from others.
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Permalink Reply by Graham Ross on
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Bill Warters said:. Marc Galanter's famous article "Why the Haves Come Out Ahead" argued that repeat players, those who use a system like the courts or arbitration develop relationships and knowledge and leverage that is not available to the first time or "One Shot" user. I wonder if this dynamic also plays out in ODR spaces? If so, where would we see the effects of it, and how might we guard against disadvantaging the "newbie" or non-institutional player? I'm going to think about it a bit and see if I can come back with a more concrete example, but perhaps others might have one that could serve as a working example of the problem?
Colin's paper quotes some thoughts from myself on the problem. What I had in mind at the time, and which I can offer as an example, was an experience in which I spent a week in 2001 running a pilot ODR for an insurance company using the first platform I had developed - WeCanSettle. This was a blind bidding system. It no longer operates as I left to go down the asynchronous text type ODR route with TheMediationRoom.com (Colin - if your paper is still in draft please amend the name of my platform from TheClaimRoom.com to TheMediationRoom.com which is the name we use now to differentiate ourselves from the claim farming companies). The insurance company gave us some cases and I had the task of ringing up the claimant lawyers to invite them to participate. Fat chance! can't believe, as a lawyer myself, I was that naive. The first lesson for any claimant lawyer is never trust any procedural suggestion of the insurer. There was the one solicitor,however, who was interested but after explaining, and ensuring he trusted that the insurer could not 'see' any bids he made, he expressed a very real concern that it was like a friend inviting him to play a game in which the friend was an expert. Yes he would but not for money. It might be easy to learn how to operate the technology but he rightly took the view that it would take experience to learn how to negotiate with the bidding in a way that provided a level playing field with those with more experience.
I can also see an argument that the professional ethics of the lawyers would demand that they did not participate in new techniques in which they had not been properly trained. You cannot practice without demonstrating skill in legal work so why should it be any different when putting the client at risk of a technology created binding settlement.
The ethical issue would seem to be whether all ODR providers should ensure that a level of training and practice, not just in which keys to press to navigate the system but in the techniques and skills to use, is available before permitting anyone to make use of the system. We do this in the sense that no mediator is permitted use of TheMediationRoom.com without going through our e-learning course in ODR (largely inspired by a wish on our part to help mediators achieve a good result and thus have a good experience to tell the world about and also ,of course, to sell the course - new version now available at www.odrtraining.com! ) but I am wondering whether we should provide a cut down version for the participants (cut down in that they do not need to learn mediator techniques such as developing trust etc but should have the benefit of lessons in how best to negotiate)
That suggestion may seem a little OTT for simple text based systems as opposed to technology assisted negotiation and aribitration, but I have seen lessons developing from the cases I have taken of how a party to a dispute can better conduct themselves.
Colin - well done to yourself and your colleagues with an excellent paper, which I think has opened up a key subject which should be developed further within the ODR community. The ODR technology has developed but we now need to develop the broader environment in which it can deliver and strong and clear ethical guidelines that are seen to be followed will, as part of that environment, reinforce the value of ODR and thus help promote its uptake .
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Another example to consider in relation to another ethical issue- conflict. The Small Claims Court in England and Wales (cases up to £5,000 value) employ a team of mediators and offer free mediation in all cases. Now the background is that, despite a policy of successive administrations to make the courts self-funded, the revenue from fees only pays 80% of the cost of running the courts. The main burden is,of course the cost of a judge hearing those cases which do not settle.
The Government wants more mediation to reduce the burden on the courts (but currently does not yet support mandatory mediation - albeit a leak last week from a 2011 report suggests they may wish to introduce a form of it in family cases - load of ethical issues for family ODR that someone might like to run with - Susanna Jani are you on this Forum?) and publish the very successful performance of the mediation team so its reasonable to assume the mediators may feel pressure to succeed . This comes within ODR for two reasons - we have run a pilot with the court using our platform but also they now settle most of their cases with telephone mediation (lets not drift here into the debate on what is ODR) .
Given the financial interest in the organisation employing the mediators for them to have success for purposes other than the interests of the parties, does that suggest that courts should not offer an ODR service (and of course this point applies equally to in-person mediation) unless the mediators, as in many courts, are independent and not salaried by the court? I can see this extended to ODR systems paid for by the court, ie the pilot we did.
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Permalink Reply by Pablo Cortes on
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Hi everyone,
This is a great discussion. I only have two brief points to make in relation to ODR and ethics.
Following Graham’s last comment, I believe that the use of telephone mediation as a preliminary stage to the Small Claims Courts has already experienced some success. I am thinking in particular the pilot project carried out in Manchester (UK) which registered a success rate of around 80%. However, it seems that in some cases it lead to some type of misrepresentation. Just imagine receiving a phone call from the court house with a court mediator saying that it would be best to settle, and somehow implying that the judge will not be too impressed if parties do not manage to reach an agreement. Someone could ask: would you rather see these settled cases moving forward to the trial? Is it justified, though?
Also, I enjoyed reading Colin’s et al article. The point that struck me the most is the section of costs and ODR. It made me wonder how little due process would be ethically justified in order to attain cost-efficient ODR processes.
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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? How can the ODR and Ethics communities push for global training of mediators who want to practice in an ODR environment?
Second, Graham, you state, "The ODR technology has developed but we now need to develop the broader environment in which it can deliver and strong and clear ethical guidelines that are seen to be followed will, as part of that environment, reinforce the value of ODR and thus help promote its uptake." 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.
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