Replies to This Discussion

Permalink Reply by Graham Ross on October 26, 2011 at 5:58pm

Interesting news item in UK yesterday about Trip Advisor being sued for claiming a positive review was possibly manipulated by the hotel itself. See http://www.dailymail.co.uk/news/article-2053221/Hotelier-sues-TripA...

 

We hear about hotels complaining about false reviews and TA doing nothing about it,but here we have significant damage to reputation caused by TA itself posting a red flag without declaring the evidence.

 

If the incidence of false/unfair reviews continue to rise at the current rate, and orgs like TA do not encourage fair and just ODR systems to resolve review disputes (like Colin's ReviewRef) then will the public eventually  simply come to assume that no review should be relied upon? I think this is a strong possibility  and that this alone is a powerful reason why sites with review elements should quickly start to incorporate neutral ODR.

 

 

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Permalink Reply by Bill Warters on October 26, 2011 at 11:40pm

I'm not sure if this forum is a good place to post this, but this summer I became familiar with the Microjustice Initiative research program at Tilburg University. I liked the model of 5 tasks that an effective dispute system should accomplish to help parties manage disputes fairly and effectively. It does't go directly to the topic of reputation, but it does touch on justice and fairness, so perhaps 2 out of 3 is good enough?  Are people familiar with this model, and if so, have you got any thoughts about it's applicability to ODR system design? It seems to me that it tries to create a container within which the parties can do the work they need to do, and also provide incentives to move the parties toward fair and collaborative processes and away from exploitive ones. Do ODR systems already have all these elements, or does it point out gaps we should be thinking about.  To dig a little deeper, check out the working paper where this table comes from located at http://ssrn.com/abstract=1334619

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Permalink Reply by Daniel Rainey on October 27, 2011 at 6:32am

I don't know whether the classic IBB/ADR model fits within this chart, or whether this chart fits within the IBB/ADR model, but both are handy for conceptualizing a process that, implicitly or explicitly, drives much of the work that Global North 3rd parties do.  I don't have a problem with either, but both rely, for example, on the "meet, talk, etc." progression that works well in some cultures and in some cases.  I would suggest that for ODR development we need to keep in mind processes that may not rely on Rational Actor models/theories (like this chart and the IBB process), but rely instead on models and theories based on culture and/or needs.

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Permalink Reply by Graham Ross on October 27, 2011 at 10:23am

Bill

2 and 3 are not commonly used in ADR generally let alone ODR.  As to 2, most judges and barristers/court advocates who become mediators, don't practice Interest Based Mediation/negotiation but simply see the process as attempting to pre-empt how a  court would decide the dispute on the narrower base of the law whatever the true commercial and personal interests of the parties. ODR systems that offer online mediaiton mostly allow the neutrals to apply their existing skills and approaches and do not force them into different methods.

 

However  Family Winner, Asset Divider and SmartSettle  do allow true interests to play a significant part (since the outcomes result from requiring the parties to asses their priorities) and FW/AD also apply specific rules to distribute fairness equally as under item 3.

 

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Permalink Reply by Nic Norton on October 28, 2011 at 12:33pm

Law and order on the internet today seem to hearken to the American Wild West of the Nineteenth Century.  That is, laws are enforced sparingly and those with power get what they want by the gun.  This has many applications on the internet – especially for those situations in which an alleged “wrong” does not violate any specific law, while still causing very real damage.  The lack of accountability on the internet allows tech-savvy groups to bring even the most powerful corporations to their knees.  However, this is not to say that individual powers are bad, just that individuals may feel more comfortable seeking redress for any perceived wrongs through these modern channels rather than waiting on the court system for months or even years.  Sometimes fairness is nothing more or less than hurting the other party as much as you’ve been hurt – this is the basis for retributive theory in criminal law that dominated criminal punishment for centuries.  Thankfully, these battles are now over reputation and not physical features.

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Permalink Reply by Dee Head on October 28, 2011 at 2:59pm

Each time I come upon this subject my question is how do we control the balance of the online mediation, without specific rules in place to control them, like in our legal system.  I guess this is my dilemma with the whole ODR situation, because I keep coming back to this with each new approach to it.

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Permalink Reply by Bill Warters on October 28, 2011 at 3:17pm

Hi Graham,

I am surprised somewhat by your assessment that tasks 2 and 3 from the Microjustice model aren't happening much in ADR, much less ODR. We should be all about providing channels of communication and assistance to support integrative bargaining and fair assessments. However, I do recognize the drift toward evaluative mediation/arbitration and settlement conference type meetings that pass for mediation. Jacqueline Nolan-Haley kind of sums it up in her 2010 working paper (and soon to be 2012 Harvard Neg Law Review article) entitled Mediation: The "New Arbitration" You can view it here - 

http://ssrn.com/abstract=1713928   

From the abstract - Mediation once offered disputing parties a refuge from the courts. Today it offers them a surrogate for arbitration. As lawyers become increasingly involved representing parties in mediation, the boundaries between mediation and arbitration are blurring. Lawyers generally control the mediation process, considering it the functional equivalent of a private judicial settlement conference. Legal mediation has taken on many of the features traditionally associated with arbitration—adversarial posturing by attorneys in the name of zealous advocacy, adjudication by third party neutrals, and the practice of mediator evaluation. While mediation advances toward an arbitration model, arbitration is becoming the “new litigation.”

I think this is a bad trend, and not one that we want ODR to replicate. Perhaps because there is not a clear law to fall under the shadow of, ODR has a chance to be much more flexible and collaborative. Perhaps the American Wild West internet Nic describes above isn't so bad for innovators.

Graham Ross said:

Bill

2 and 3 are not commonly used in ADR generally let alone ODR.  As to 2, most judges and barristers/court advocates who become mediators, don't practice Interest Based Mediation/negotiation but simply see the process as attempting to pre-empt how a  court would decide the dispute on the narrower base of the law whatever the true commercial and personal interests of the parties. ODR systems that offer online mediaiton mostly allow the neutrals to apply their existing skills and approaches and do not force them into different methods.

However  Family Winner, Asset Divider and SmartSettle  do allow true interests to play a significant part (since the outcomes result from requiring the parties to asses their priorities) and FW/AD also apply specific rules to distribute fairness equally as under item 3.

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Permalink Reply by Joel J. Fulton on October 28, 2011 at 4:34pm

Nice post, Nic. I also had the wild west in mind while reading through this topic. It is true those with specialized knowledge of the online realm can access seemingly unchecked power. They take justice into their own hands. Place that same individual in a courtroom, in the physical presence of authority figures who possess great wisdom and judicial experience, and the power dynamics are reversed.

If ODR standards of justice and fairness were to truly reflect the culture of the internet, those standards would need to address the internet user's desire to escape from traditional, offline standards. My feeling is internet standards require an entirely brand new concept, and would likely not resemble offline standards. It is difficult to quantify, but let me give a couple examples relating to reputation and accountability.

When we speak of online culture, I see general trends of devolving principals. Old school ideals of truth and integrity, important values in civilization, particularly within the legal system, have become fractured and ultimately sacrificed. One example that stands out to me is the new era of sensationalistic journalism we live in. We have come to the point where it is commonplace for the headlines of the day to lack factual support, or even attempt to reference a trusted spokesperson. Let's say a given story rips a person's reputation, while containing only strands of truth. Often there are no noticeable consequences. And it gets worse. The same story is re-hashed and recycled through other online mediums. Sources are not confirmed. Non-stories are stories, and rumor and innuendo are at a premium. Today, the online audience is not interested in truth. It wants to be entertained. And it's as if this online media engine continues to detach itself further from reality, because that is what readers want.

Also problematic, I believe, is our reliance on social-networking as lived experience. Now, I do not want to generalize. There are many fascinating advantages to social-networking, including the rapid sharing of information that is valuable. However, I think it is safe to say, for many of the same reasons I have mentioned, there is a lower standard for human behavior online. I think people act as if no one is watching and often fail to think about how they are perceived by others. (now I will somehow try to connect this to the actual topic!).

Therefore, if ODR wants parties to choose an online jurisdiction over a local court, these are some of the issues that need addressing. There needs to be an understanding that this is real interaction. ODR provides benefits of reduced cost, increased speed, and perhaps increased participation, but it can't come off as casual or allow anyone to think this is a separate justice track that won't require the best from them.

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Permalink Reply by Graham Ross on October 29, 2011 at 4:19am

Bill,look at  three separate streams of ODR :

(1) using online technology as a communication platform for mediation. In this stream, the precise mode of mediation will depend largely on the practices adopted within in-person mediation by the mediator. Some adopt true integrative mediation others just treat it as  a way of settling the claim whatever the true interests of the parties. Here 'win-win' becomes more 'part win-part lose' . ODR does not change the habits of the mediator. If it has any impact it is that, in trying to apply mediation to low value disputes for which mediation might not otherwise be available, the fee and time available to the mediator is very small and this itself makes true integrative (interest based) mediation less appropriate - good example was the former Square Trade system.

(2) The expert analysis system such as Family Winner, Asset Divider and SmartSettle - that use the technology to help identify the true interests of the parties. This is the one area in which the microjustice standards are applied but these systems are least used to date.

(3) Using systems of fourth party ODR ( eg blind bidding)  or crowdsourcing (eg www.communitycourts.com and www.theinternetombudsman.com) . Whilst these are the current growth areas for ODR, for primairly cost- benefit purposes,  none cover mediation and thus are not systems for which the microjustice standards apply. 

Making systems that are cost proportionate, as really required in ODR,  make it very difficult to deliver integrative negotiation as a norm within ODR.  

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Permalink Reply by Colin Rule on October 29, 2011 at 11:27am

I appreciate all the thoughtful contributions, everyone!  Thanks for participating in the discussion this week.  This has been quite a stimulating exchange, and it's planted a lot of seeds in my mind.  Stay tuned for more on all these topics...

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Permalink Reply by Starlette Merkson on October 29, 2011 at 7:30pm

That is a great question Bill. I also agree that justice includes compensation for a wrongdoing and not just the ligitimacy that comes with a positive ruling.  Unless there were measures in place to make sure I was compensated if wronged in an online transaction, I would not consider that just I woice nor would I take the risk of purchasing itmes online. I would say this is one of  the main reasons less computer savvy folks shy away from online purchases. It is the fear of being swindled and having nothing be done about it.

Bill Warters said:

Interesting topic. One question that comes to mind for me is whether ODR systems that don't control an escrow account for payments (like eBay/PayPal) between the disputants and thus don't have obvious enforcement mechanisms can ever really serve the cause of justice? I think the answer is yes, but I'm interested to hear other people's thoughts. Doesn't justice require a way to push the more powerful or misbehaving parties to comply with standards of fairness?

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