Replies to This Discussion

Permalink Reply by David W. Puckett on October 29, 2012 at 6:21am

Good Morning Cyber Week participants!

One of my primary questions on both enclosed presentation is:  What are some of the barriers and opportunities for mass adoption of of ADR/ODR methods and technology by the Fortune 500 and the US Court System?

This is the area of my research overall and I am attempting to gather as much feedback and suggestions as possible.  

Example:

In Europe today, due to mandates to use mediation in business conflicts, there are companies that are today training Training of middle and upper management in companies on how to leverage and use  ADR methodologies like Mediation and Arbitration?   We don't see a demand for this training in the US today, why?

In US business and in the majority of all contracts of all types that are signed it is almost common place to have a mediation and/or arbitration clause in contracts; So when conflicts or disagreements arise, what happens next?  Is is a common procedure if the conflict can't be resolved quickly, the business managers just give it to legal?   Why are not not seeing companies invest in dispute resolution systems internally?

There are just a few examples of questions that I am seeking your feedback and suggestions.  Enjoy Cyber Week!

Dave

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Permalink Reply by Jeff Aresty on October 29, 2012 at 7:36pm

HI Dave

I think that the legal landscape in the US is changing, but slowly.  Like your slides point out, there is an early adoption phase when new technologies are introduced, but until there is a perceived advantage that matters, change is slow to occur.  I keep thinking of the years that we used cassette players, then Walkmans of all types, to listen to music.  In the beginning, we had media players and the media itself to contend with and then the benefit at best was a dozen songs to listen to.  Then, one day, there was the iPod.  The media and the player were one and the same, and, the number of songs we could listen to rose exponentially.  The music world changed almost overnight.  We aren't there yet with the legal system.  And, I am hard pressed to find the metaphors to music, but I know that they are there.

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Permalink Reply by David W. Puckett on October 30, 2012 at 6:53am

Jeff,

The Ipod analogy is a very unique and rapid technology adoption.   However, I would not agree it applies to dispute resolution systems.   Consider that Ethan, Colin and others began writing and evangelizing about this in the early 2000's more than a decade has past and we are at best in my opinion at the beginning of EARLY ADOPTION phase (some are likely to disagree) as remember Early Adoption can last 3-5 years or more also.   It is not unusual for the Innovator phase of some technology to last 5, 7 and even 10-years.

Technologies like IPods, Pads and PC follow a demand generated adoption common in the hardware business or general entertainment or process electronics.  Demand generation is the very heart of the problem both for ADR, ODR and Dispute Resolution Systems.   It is not that there is not some basic awareness of the available technology, there is just not a demand, or a willingness to change business processes.   Let me give you this example, when Southwest was in transition from a small regional (Southwest carrier) to competing with the major airlines, they did so by implementing and using processes that were unorthodox in the industry at the time.   They did not hook (still have not) to the major Sabre reservation systems, they were the 1st to leverage the internet direct to consumers and they did not follow the hub/spoke model, they turned their plane more rapidly than anyone in the industry.   Imagine, if American Airlines (who his hurting now) was to make a decision to leverage and implement (what would be perceived as radical) dispute resolution processes and online dispute resolution technology?   It is going to take a major or upstart willing to fly against the current models and open dispute resolution to consumers and suppliers.

Realize, I am a GLASS HALF FULL guy!  I am confident and believe it will happen, but beyond the slide in my presentation related to the technology adoption curve, there are others in the presentation that are more applicable, example the slides about how technology is adopted.    The risks associated with what would be perceived as radical business process and technology deployment for ODR, it has to follow a safe and standard pathway!  The large Tier 1 Consultancies will have to be offering consulting services related to ODR and the Blue Chips technology companies will have to be offering ODR solutions before the ball will get rolling.

Lastly, the US would have to almost follow the EU in adopting a requirement to use mediation, you mentioned Apple, consider early on, they were almost giving computers to schools to get the students using the technology early, we have to look at the business schools and law schools via education and business process change to convince business leadership to train mid-upper management in ADR methods.   We know for at least the last decade, in majority of all business contracts (of all types) there is a mediation and arbitration clause.   However, the $64K question is, what happens within the business when a conflict arises?

What this industry needs like the ADR industry (which has been around for more than 4-decades) is educational awareness in business and law schools and MARKETING, MARKETING, MARKETING!   Sorry to my friends (like me) who received they degrees in social science, the conflict resolution programs needs to get into business schools and quality formal programs sold straight to the management levels of corporations.   Like starting a fire, we have to stoke DEMAND!

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Permalink Reply by David W. Puckett on October 30, 2012 at 5:38pm

Those companies that are considering looking to immediately deploy Online Dispute Resolution solutions either internally or leveraging a SaaS or PaaS model, make sure your vendor has SOC1, SOC 2 and even SOC3 certifications.   Those of you tool vendors looking for certification of your solution, please contact a great friend of mine, whose firm has done other reports for people in the ADR/ODR business including ADR-Works and BBB.   Below is her contact information:

Avani Desai, CISA
Chief Marketing & Communications Officer
BrightLine
E:  Avani.Desai@BrightLine.com  |  T:  1-866-254-0000 Ext. 140  |  F:  1-888-550-3611

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Permalink Reply by Jeff Aresty on October 30, 2012 at 6:45pm

You are right that the analogy to iPod doesn't hold in many respects.  Demand for music is different than demand for justice.  There are no shortage of lawsuits, however.  There are no shortage of disputes.  It's just that the justice system doesn' have a convenient way for litigants/parties/citizens to resolve them short of court.  What happens when a system is there that is online, efficient and straightforward? 

Maybe we need to look at a marketplace like real estate condominium disputes, for example.  There, the dispute resolution process is expensive, inefficient, and constantly causing owners of condos headaches.  If an online system were developed that organized all the governance documents and processes in a simple space, I'm sure people would start using it.  We would have to get developers to buy in and force the change. 

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Permalink Reply by David W. Puckett on October 30, 2012 at 8:01pm

Jeff,

 

Again thanks for your 2^nd response to my within my discussion forum, hoping our exchanges span others.     All enterprise technology has to come to life in the various vertical/industry markets in a different ways and models.    Your right, we have conflict all over and different types and categories in all vertical markets.     Your example of Condominium Associations is very appropriate and anyone who has ever lived in a condominium complex or been a member of an owners association knows of the abundance of conflicts.    Additionally, every industry has multiple types of conflict and conflict categories, thus how they each decide to leverage dispute resolution processes and dispute resolution technologies will be different.   In most adoption of technology and new business process, it requires new thought leadership and most Fortune 1000 companies turn to the nations Tier 1 consultancies who today are not currently offering many services in the ADR/ODR space.

 

In my opinion, it much first start with the mind-shift on how business people and people in our government/courts look at conflict overall and then how to cost effectively resolve it.   As you mentioned, the legal industry/profession has had a virtual strangle-hold on conflicts since the beginning of this country and capitalism.  Of course there is an eco-system and economic model built within.    All technology or the successful use of technology begins with pointing out the need for improved business processes, demand for increase efficiencies and driven usually be cost reduction and/or justification, thus comes the Return-on-Investment models for making the investment in new technologies.

 

As a technical evangelist who has seen multiple new technologies enter the market, you first have to examine the marketplace economic mechanisms, capabilities, existing processes and players.      When I speak, I often refer to it as Model of 5, 10 or 20 people competing for part of the same $1.   If it is 5 people/business entities competing within a market, each has the potential to lose 20 cents.   If it is 10 people, each is risking 10 cents and of course 20 people each is looking to protect their nickel of revenue.  Usually, when technology enters it brings about change in the economic model, so some people risk losing their percentage of the $1.    It the same in considering the ADR or ODR industries, so you have to first look within each industry to understand how many entities are competing, what they are offering, what is the technology state, what is to be gained or lost by the people currently in the industry.   This is the most important step and it has to be taken by industry, so then and only then can you develop a plan for entry.

 

In the mid-1990’s I was involved implementing new technology that was perceived by the industry as “racial change” within the Real Estate industry.  Realtors, Brokers and consumers were looking to the web for real estate listing information.    The web was a natural technology for the Real Estate industry, yet the web itself theoretically threatened to radically change the economic and operational delivery model of professional real estate services.  Prior to the web, if a person wanted to find a house or information on a house for sale, they basically had to call a Realtor.   The information was first in Multiple Listing books and later available on realtor only computer systems.   The Realtors controlled all the data/information and provided the infrastructure for the complete beginning to end transaction of the real estate sale.  When the web first came into the industry, several of the mega-brokers were scared to put the address of the house on the web, they feared if they gave that one piece of information, the consumer would bypass the Realtor and Broker and then go direct to the seller and consummate the transaction of purchase without using a Realtor industry.   This was not a technology issue; it was a business process issue.  Consumers demanded the information, the technology was increasing and low cost and the industry could not stop it.

 

Again, it was multiple business entities trying to protect “HOW IT HAS BEEN FOR YEARS” and felt technology was a threat initially.   Also each mega broker company wanted to address and leverage this new technology as a competitive advantage initially.    Now, almost 20-years later consumers can go and get detailed Google Earth views of prospective properties, view multiple high quality pictures, demographics, tax values and of course the address and even the sellers names and contact information via tax record.   However, now 20+ years later, are still the same number of mega brokers and real estate offices and 95% of the transactions are still consummate within the industry.    The industry over time, matched technology empowerment, revised business processes and the industry now relies heavily on the internet and various technologies.  It was technology improvements and consumer demand that drove this change!

 

I could go on for paragraphs, but when I speak about Alternative Dispute Resolution which has been around for more than 4-decades in some form or another and we have seen ADR uses expand, more in the last decade than the previous 3.  In my opinion the industry made a major mistake by choosing the word, “Alternative”.   The legal industry perceived it as just that an ALTERNATIVE.  The single word challenged or threatened the existing economic model and industry players.   We are not going to see demand for Online Dispute Resolution or Dispute Systems technology, regardless of the progression of technology without addressing the demand equation and that again will be done industry by industry.    The most significant driver today will be economics, the new economy may in itself generate demand within all industries, but it is going to require that mind-shift in lower/middle and upper management.   Companies have to prepare and change their processes and the competitive landscape of their industries (like the Real Estate example above).   This is also going to require massive training to enable demand and new business models and processes.   In this industry, like most the technology is the easy part!

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Permalink Reply by David W. Puckett on October 31, 2012 at 6:25am

I would love some comments and thoughts about the cultural aspects of dispute system design.   I have read so much about the internet being its own culture or that systems for dispute system design are basically culture-less?  I don't agree, I think much thought has to go into the the design and then some of the same rules of interaction applies in dispute resolution related to culture as if you were in the same room.

Love some of your thoughts on this subject!

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