Replies to This Discussion

Permalink Reply by Colin Rule on October 24, 2010 at 4:03pm

Welcome to all Cyberweek attendees! We're looking forward to an excellent discussion on ODR and Ethics this week. Our plan is to build on to the progress we made last year during Cyberweek, as well as the two excellent sessions held at the ABA meetings in April and August. We've recently drafted an article for Dispute Resolution Magazine on ODR Ethics (you can review a draft of that article here) and just convened a one-day colloquium on the topic at Seattle University School of Law. This topic is more timely and relevant than ever, and we're eager to continue to progress in our understanding of it during this Cyberweek. Please do not hesitate to post an introductory message to say a little bit about yourself and your interest in this topic.

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Permalink Reply by Daniel Rainey on October 25, 2010 at 12:19pm

Hello, Colin. I read your ethics article and found it, as usual, to be informative and useful. If you've no objection, I'll share it with my ODR class coming up at SMU. Actually, one of the sections in your article harked back to the piece that Alma Jadallah and I wrote for the Cairo ODR converence about how the system itself can be biased.

Anyway, one of the things I think of most often when it comes to ODR ethics has to do with how much the third party understands exactly what happens to information shared online, and how well the third party communicates that understanding to the parties. How secure is secure? How confidential is confidential? What happens to the material when the session is over? It is pretty easy to understand and explain what you are going to do with your paper notes in a traditional f2f session - not so simple when it comes to online work.

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Permalink Reply by Colin Rule on October 25, 2010 at 1:14pm

Thanks, Dan -- yes, feel free to share it. Hopefully the editors at DR Magazine won't be mad I shared the PDF of the page proofs prior to publication... such is the way of the internet. And appropriate to this topic! :)

I agree with you that confidentiality (and perceptions of appropriate confidentiality) are much more nuanced online than they are face to face. I think there are online cultural norms evolving around what is and isn't approrpriate to share, and understanding of those norms is very spotty in our transitional age (transitioning from f2f only to mixed f2f-and-online). The younger generation just seems to understand on an intuitive level that something shared over twitter is public knowledge, something shared on facebook is quasi-public, and something shared on IM is private... but many in the older generation don't get these sublte distinctions. That can be a big challenge to an online neutral who is receiving information through various channels... f2f, email, IM, online discussion threads, and online caucus spaces. What can you share and with whom? It's trickier than it used to be.

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Permalink Reply by Eric Cissell on October 25, 2010 at 1:33pm

Hi Colin-

Your previous comment, "...The younger generation just seems to understand on an intuitive level that something shared over twitter is public knowledge, something shared on Facebook is quasi-public, and something shared on IM is private..." was enlightening. I never paid much attention to the nuances of confidentiality online before; but, I am familiar with the unwritten rules as you outlined them. It is interesting to know that this may not be understood by all generations.

Thinking out loud, what are your thoughts on conflict of interest relating to online neutrals and social networking sites? In other words, do 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?

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Permalink Reply by Kaitlyn Mulligan on October 25, 2010 at 2:13pm

Hi Colin,
While I agree with you that younger generations do seem to understand that what is posted on the Internet is public, I do not know that they really understand the repercussions of those public postings. While IM conversations can be perceived as private, since it is on the Internet, is it really that private? What is to stop someone participating in that mediation from taking what was typed and broadcasting it on the Internet? As Daniel said, "how secure is secure?"

On the other side of this, I think that younger generations are more likely to participate in ODR because they have grown up in an online environment. Perhaps, as you said, the nuances of what is and is not appropriate to share could easily be developed by this generation to set standards for the rest of us. Thanks for your article - I found it very interesting.

Colin Rule said:

Thanks, Dan -- yes, feel free to share it. Hopefully the editors at DR Magazine won't be mad I shared the PDF of the page proofs prior to publication... such is the way of the internet. And appropriate to this topic! :)

I agree with you that confidentiality (and perceptions of appropriate confidentiality) are much more nuanced online than they are face to face. I think there are online cultural norms evolving around what is and isn't approrpriate to share, and understanding of those norms is very spotty in our transitional age (transitioning from f2f only to mixed f2f-and-online). The younger generation just seems to understand on an intuitive level that something shared over twitter is public knowledge, something shared on facebook is quasi-public, and something shared on IM is private... but many in the older generation don't get these sublte distinctions. That can be a big challenge to an online neutral who is receiving information through various channels... f2f, email, IM, online discussion threads, and online caucus spaces. What can you share and with whom? It's trickier than it used to be.

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Permalink Reply by Adam Jacob Schlusler on October 25, 2010 at 3:49pm

Hi, Colin. I really enjoyed your article. I found the discussion on impartiality particularly interesting, especially the possibility of ODR systems substituting the mediators impartiality capacity for a balanced capacity. You explained that, "[u]nder this scenario, the mediator would not be impartial but would be balancing the communication between the parties, potentially helping create a more legitimate process because it appears more fair and objective."

I like how you touched on the potential liability held by mediators providing information and advice, and their obligation of accuracy. I'm concerned that a mediator acting to balance communication by assisting a party with their presentation, and providing information and advice, might actually seem extremely unfair to a party not being assisted by the mediator? I also wonder whether "balance" would be a subjective determination by a mediator? If so, does this model present concerns over the level of control possessed by a mediator? Finally, I am concerned that under this system, biased mediators have too much affect on the process, and may be able to create the results they see as proper. Then again, I may just be a cynical 3L!

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Permalink Reply by Daniel Rainey on October 25, 2010 at 5:21pm

It may be that younger users of the Internet understand the relative "public" status of messages sent in various ways, but I had something a little different in mind. In "normal" f2f mediation (and I guess I'm thinking of workplace or family or labor-management mostly) it is usual for the mediator to declare that he or she will not maintain notes of the session, that information generated in the session will not be shared, etc. If we've been talking to each other and I've been keeping notes on a legal pad or on flip charts, it's not so hard for me to fulfill my promise to keep that information from showing up outside the mediation context. However, if I'm using any number of online platforms, even ones that I have a license for and which require passwords, etc., it's harder for me to definitively state that the parties' communication won't show up somewhere else. In terms of ethics, I think it is incumbent on the third party to be very clear to the parties what can and cannot be guaranteed in terms of absolute privacy regarding their communication.

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Permalink Reply by Bill Warters on October 25, 2010 at 5:40pm

Hi folks. Glad to be part of another Cyberweek! As per Colin's suggestion for a brief introduction: I'm a faculty member at Wayne State University in Detroit, teaching in our Master of Arts in Dispute Resolution Program. I've been involved in the conflict resolution field since around 1980 and have always been intrigued with the kinds of comparative work done by folks writing in places like the Law and Society Review journal where we are invited to compare law (or ODR in this case) in theory with law (or ODR) in practice and see how local customs, time constraints, power relations, or politics influences what actually happens "on the ground/on the screen". Along these lines, I think the issue of One Shot vs Repeat Players is a topic worth considering with relation to Ethics. 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?

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Permalink Reply by Susan Nauss Exon on October 25, 2010 at 6:05pm

Hi everyone. I am teaming up with Colin for this ODR & Ethics thread. I am a Professor of Law at the University of La Verne College of Law in Ontario, California. More importantly, I am Co-Chair of the Ethics Committee for the ABA Section of Dispute Resolution. This is our second year in which the Ethics Committee is collaborating with the ODR Committee to generate discussion.

I want to respond to Adam Schlusler's concerns about a mediator providing a balanced approach as I wrote the majority of the article about impartiality. I think there is both subjectivity and objectivity involved if a mediator attempts to balance the power between the parties. There's subjectivity in determining who may need help. On the other hand, there's objectivity if the mediator focuses on a balanced approach and outcome rather than helping one person or another. Ultimately, the mediator wants to ensure a durable agreement if one is reached. If one party rolls over just to end the dispute and may not be adequately informed, shouldn't the mediator balance the communication process to ensure that the party really understands what he or she is doing? Doesn't this help to reinforce the notion of party self-determination? And in the end, doesn't this help to create a durable agreement? I don't think this makes the mediator biased because if the mediator was, he or she should withdraw.

The larger question is whether a mediator should help one party who is not as adept at technology as the other. So is balancing OK rather than being impartial?

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Permalink Reply by Karina Tarapore on October 25, 2010 at 8:23pm

Hello Everyone. As an introduction, I am currently a second year student at the University of La Verne College of Law, and was recently exposed to the area of Alternative Dispute Resolution through a Mediation Ethics Seminar I am enrolled in. The class recently held a discussion about the field of ODR, and I was fascinated to learn about this budding area of dispute resolution. Although there are many ethical implications involved with it, I would have to agree with what was discussed above, regarding the younger generation having a better understanding of the concept, that discussions shared over the internet will forever be on the world wide web. For the next generation of mediators to have this almost intuitive understanding of the internet and its permanency, is a really positive direction for ODR to be taking. I also agree with Colin's comment that there are online cultural norms that have been developing and if all those who are involved in ODR work become familiar with these norms, then perhaps far fewer ethical issues will arise in the future.

I believe that ODR is a very exciting phenomenon and just like anything else, it will take some time for ADR professionals to familiarize themselves with the ethical considerations that can potentially impact the process. I feel that one of the best ways to go about advancing the field, would perhaps be to have Model Standards of conduct, such as those outlined for mediators who conduct face to face mediations, but instead gear them towards the potential online ethical issues that could arise. However, I am sure there has already been substantial movement in this direction, but because I have only recently been exposed to the field I am unaware of what guidelines are in place to prevent certain indiscretions from taking place (such as breach of confidentiality, or impartial communications). I am glad to be a part of Cyberweek this year, and any insight into this area and its progress would be of value to me in my studies.
Thanks!

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Permalink Reply by Leah Wing on October 25, 2010 at 10:25pm

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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Permalink Reply by Susan Nauss Exon on October 26, 2010 at 12:15am

Leah commented about potential mediator conflict of interest as a result of social networkworking contacts and stated: "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?" This is a great area to discuss. Does this dovetail into what Karina queried whether we should adopt a new set of ethical standards to apply to an online practice. Will a new set of standards help alleviate cultural differences?

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