The Ethical Considerations of Technology in the Dispute Resolution Process
There has been a well-documented movement toward alternative dispute resolution (ADR) and away from traditional litigation through courts in the United States and around the world. A more recent phenomenon is the marriage of technology to ADR, creating the field of online dispute resolution (ODR). Increasingly, both public- and private-sector actors are moving towards ODR to resolve disputes.
As ODR becomes more widespread, justice institutions are beginning to incorporate wider use of technology. Technology is being used for common tasks, such as document submission and retrieval services, and in less common tasks such as video evidence and negations communication platforms. Yet, the newest technology is going well beyond common usage and is expanding in areas such as: automated negation and the use of highly sophisticated algorithms that perform both simple and highly complex and potentially decision influencing functions.
The use of these various technologies within a justice system demands we begin to re-examine some of our prior assumptions and oldest traditions and to consider if anything must be done differently as technology takes on a greater- and potentially influencing- role.
Moderator Bios:
Anjanette (Angie) Raymond is an Assistant Professor in the Department of Business Law and Ethics, at the Kelley School of Business, Indiana University, and an Adjunct Assistant Professor of Law at Maurer Law School (Indiana). She is currently a Visiting Fellow in International Commercial Law at the Centre for Commercial Law Studies, Queen Mary, University of London as well as a Professor in the International Business Law Program at the University of Navarra, Spain. Angie has written widely in both international arbitration and international commercial law in such publications as the Harvard Negotiation Law Review, Michigan journal of International law, Northwestern Journal of Technology and Intellectual Property, and the American Review of International Arbitration. Angie is currently an invited member of the United Nations Commission on International Trade Law Online Dispute Resolution Working Group, Non-Governmental Organization (Institute of International Commercial Law (IICL))) and was the former research assistant to the US delegate to UNCITRAL and the Reporter for the revision of the sales and leases articles of the Uniform Commercial Code.
Daniel Rainey is Principal in Holistic Solutions, Inc. (HSI), and Fourth Party Solutions Corp. (4PS) // Member, Board of Directors, InternetBar.Org (IBO) // Member, Board of Advisors, Modria.com // Fellow of the National Center for Technology and Dispute Resolution // Adjunct member of the graduate faculty in dispute resolution at Creighton University, Dominican University and Southern Methodist University // Member, Editorial Board, Conflict Resolution Quarterly // Editor-In-Chief, The International Journal of Online Dispute Resolution // Chief of Staff, National Mediation Board
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Replies to This Discussion
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Permalink Reply by Angie Raymond on
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Hello All
I agree with Jeff and the other posted comments- I must write, I am not a fan of replicating the prior inadequacies of our justice system in the online world. I do not want to entertain the creation of a mere communication platform- i.e. the new telephone, with a video capture mode- what a waste of technology. We have a chance to challenge prior assumptions about what justice looks like, about our need to be face-to-face, about our need to have a person as a mediator/arbitrator/ judge. Yes, privacy is an issue- but let’s pretend that the perfect secure system can be designed. What prior notions of justice can we re-examine and what issues do we face?
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Permalink Reply by Daniel Rainey on
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I understand Jeff's position about the traditional justice system, and I agree with him - the traditional justice system is broken. But even if we turned the justice system (meaning the traditional courts and legal processes) on its ear overnight, some one will be doing some thing with some parties using some system, online or otherwise - talking about an appropriate set of ethical guidelines for those somebodys and somthings seems a game worth the candle to me.
Jeffrey Aresty said:It seems that the ethics issue will attract a great deal of attention - but in the end, it is incredible to me how we are dancing around the real issue of transformational change in the way disputes will be resolved. The ethics rules are generally nonbinding model rules, best practices, statements of principle which are 'soft' law - nonenforceable statements of principles that are designed to build trust in the process by garnering adherents). Except for the NCTDR ODR principles, all the others are designed for a paper based process that occurs face to face.
Earlier today, in a webinar, Susan Exon talked about the ABA 2020 Commission on Ethics, and suggested that we need to take an evolutionary approach to ethics rule adaptations, as suggested by the American Bar Association. If the ethics rules are going to be the place where the debate over face to face vs online dispute resolution is going to occur, nothing short of revolution has to be the order. Connor Dillard nailed it - mediation is moving from 'no record' to a permanent electronic record. Susan identified the numerous areas where an online mediation has to address ethical concerns because the process is different. But until enough mediators go online and leave face to face for the era we are leaving behind, ODR and ethics will just be a theoretical discussion.
In the webinar, Susan and Kristen both mentioned that as members of the justice profession we have a duty to increase access to justice. Does anyone really believe that we are doing a good job with that in the US today? We are here during Cyberweek to see how technology can help. But until we address the fact that the justice system is broken, and, it is our obligation to fix it, access to justice isn't going to get any better. Technology is a partial answer, but a trusted process based on new rules is what is needed.
All the metrics and research reports show that access to justice is available for those who can afford it, and for few others; and, that fact alone creates power imbalances that all mediators should strive to correct. An American Bar Foundation research report issued this summer took that notion one step further saying that most Americans don't even know a justifiable problem when they experience it (mortgage defaults, disability claims, evictions, custody battles); in other words, 70% of people just try to solve problems on their own, not even knowing that there is legal or other justice help available! Everything else is available on a cell phone - why not the justice system?
If ethics debates are just going to 'evolve' to a embrace a new system; it won't work. ODR has been around for 15 years all ready - this is nothing new. NCTDR worked on ethics rules for ODR almost a decade ago - but the justice market evolves slowly. TOO SLOWLY. Markets for cases that can benefit from technology exist, not just eBay and Paypal - all kinds of cases (all those that were mentioned in the aforementioned ABF report, for example) - until we actually go after these cases and design new systems to solve old justice problems, with revolutionary new ethics rules in hand (sure, based on the values inherent in the old ethics rules) , what's going to change?
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Permalink Reply by Jeffrey Aresty on
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Angie asks what we have to reexamine as a requirement of the ethical rules. As one of the respondents pointed out, millennials are very aware that a digital trail exists for anything that happens online, and I can definitely attest to that - as the millennials I work with tell me so. My questions is, for those ADR professionals who do not have experience working in online dispute resolution environments, what do they need to have in place to feel secure that they are mediating correctly using new technology? I know the old way was that in face to face mediations, all records are tossed except for the agreement to mediate and the settlement agreement if the parties settle. So ODR is a sea change in the management of documents. How can someone who has never mediated online before trust in their own competence to mediate securely in this online environment?
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Hello Jeff and Others
I agree- we have to work to become more inclusive while not disenfranchising our already existing experts. Technology opens the doors to great educational opportunities as well as opportunities to open up the justice system. I believe the first steps are to ensure that we encourage use, teach and provide ongoing support for use and build platforms that make it hard to commit a large scale failure. We also have to consider all forms of technology- not just the internet and web based platforms. There is no reason, as speech recognition improves- that we should not be able to use cell phones and apps to interact with platforms. I think we both agree- it is long time that we stop merely recreating already existing institutions and instead use our newest resources to resolve disputes in new ways- but we will never be successful if we lose our long standing experts.
Jeffrey Aresty said:Angie asks what we have to reexamine as a requirement of the ethical rules. As one of the respondents pointed out, millennials are very aware that a digital trail exists for anything that happens online, and I can definitely attest to that - as the millennials I work with tell me so. My questions is, for those ADR professionals who do not have experience working in online dispute resolution environments, what do they need to have in place to feel secure that they are mediating correctly using new technology? I know the old way was that in face to face mediations, all records are tossed except for the agreement to mediate and the settlement agreement if the parties settle. So ODR is a sea change in the management of documents. How can someone who has never mediated online before trust in their own competence to mediate securely in this online environment?
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Hello All
I am curious, do people believe that ODR ethics includes the need to ensure ethical platform/website design?
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Permalink Reply by Dale Sharpe Jenkins on
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The conversation regarding cyber security and data breach so far has been centered on the topic of ODR ethics. I wonder if adding to the discussion the liabilities imposed upon organizations regarding the handling of confidential information may be useful in further developing some understanding of best practices for handling confidential data. Information security poses challenges and risks for the consumer as well as the ODR platform and practitioner. Standards and best practices established to help with cyber liability seem to be ones that can equally benefit the consumer. I’ll be discussing cyber liability from a risk management perspective along with some recommended best practices in a webinar tomorrow. I think protection from cyber criminals places the platform, practitioner and client on the same side and therefore what is done to protect one protects all.
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Thanks for adding that aspect!
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Technological advancement has clearly paved the way for more opportunities and opened the door to more people than ever to participate in the justice system. Despite these deviations from long established norms occurring in a relatively small timeframe, a few posts have alluded to the need to do more. A push has been made to think even further outside the box and utilize even more technologies other than internet and web-based platforms. Applying use of our smart phones and the plethora of app possibilities is an exciting prospect, but reasons do exist for tempering the push for more. So much insecurity and vulnerability already exists with the platforms currently in-place, which is particularly unsettling in the context of justice systems or dispute resolution. I think before a push toward new uses of technology in this field can occur more assurance is needed for potential users in the areas of identification verification, personal information security, confidentiality/paper trail (as previously discussed), etc. Once a certain level of security sets in, norms have been established, and a general comfort with technology and ODR takes hold among the public, then the flood of new applications and uses will emerge.
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Permalink Reply by Susan Nauss Exon on
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I want to reply to Jeffrey Aresty's comments posted on Tuesday about the need to be revolutionary rather than evolutionary as we develop online ethics. I believe that an online neutral must still adhere to the traditional ethical requirements of party self-determination, confidentiality, impartiality, quality of the process, etc. Yet, adherence to these standards takes on a new meaning within the ODR environment, thus we see the need for these standards to evolve. The discussion here in this thread regarding confidentiality is a good example of the evolutionary process. On the other hand, if we seek to develop ethical standards to apply to others besides neutrals, some may interpret this to be revolutionary. Others may opine it is evolutionary. Semantics aside, modifications to traditional ethical standards are needed for ODR. We have a foundation from which to begin our journey.
Jeffrey Aresty:
Earlier today, in a webinar, Susan Exon talked about the ABA 2020 Commission on Ethics, and suggested that we need to take an evolutionary approach to ethics rule adaptations, as suggested by the American Bar Association. If the ethics rules are going to be the place where the debate over face to face vs online dispute resolution is going to occur, nothing short of revolution has to be the order. Connor Dillard nailed it - mediation is moving from 'no record' to a permanent electronic record. Susan identified the numerous areas where an online mediation has to address ethical concerns because the process is different. But until enough mediators go online and leave face to face for the era we are leaving behind, ODR and ethics will just be a theoretical discussion.
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Susan raises an interesting point for us to consider. There is little regarding ethics that is required in traditional mediation of disputing parties--the focus is really upon the third party. When we look at the landscape of digital communication and ODR, how does it change the breadth and depth of what we might be asking of disputing parties, institutions, and others? For example, aren't we expanding the definition of who we are trying to develop ethical standards for and if we took note of best practices from the environmental and public policy dispute resolution arena--we would need to be in conversation with those other constituencies to help develop these standards together. What are some effective ways we might do this?
Susan Nauss Exon said:I want to reply to Jeffrey Aresty's comments posted on Tuesday about the need to be revolutionary rather than evolutionary as we develop online ethics. I believe that an online neutral must still adhere to the traditional ethical requirements of party self-determination, confidentiality, impartiality, quality of the process, etc. Yet, adherence to these standards takes on a new meaning within the ODR environment, thus we see the need for these standards to evolve. The discussion here in this thread regarding confidentiality is a good example of the evolutionary process. On the other hand, if we seek to develop ethical standards to apply to others besides neutrals, some may interpret this to be revolutionary. Others may opine it is evolutionary. Semantics aside, modifications to traditional ethical standards are needed for ODR. We have a foundation from which to begin our journey.
Jeffrey Aresty:
Earlier today, in a webinar, Susan Exon talked about the ABA 2020 Commission on Ethics, and suggested that we need to take an evolutionary approach to ethics rule adaptations, as suggested by the American Bar Association. If the ethics rules are going to be the place where the debate over face to face vs online dispute resolution is going to occur, nothing short of revolution has to be the order. Connor Dillard nailed it - mediation is moving from 'no record' to a permanent electronic record. Susan identified the numerous areas where an online mediation has to address ethical concerns because the process is different. But until enough mediators go online and leave face to face for the era we are leaving behind, ODR and ethics will just be a theoretical discussion.
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I agree. In many ways we will need to rethink ethics as it applies to a wider spectrum of parties and even the ethical principles that should govern the technology itself. I think it is important to understand that the newest platforms will be more than mere communications- it is very likely that at least part of the dispute will be handled through the use of nothing more than technology. I am not expecting that no human interaction will occur (any time soon- at least) but I do think a large chunk of early dispute development will be handled without a person. In that instance, what guidelines will be used to ensure the technology is designed and responding without issues that create ethical dilemmas- and who or what guides how disputants interact at that early stage, especially when no person is watching?
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It is a new world for ethics - I've just suggested that we start the development of ethics standards within the National Center for Technology and Dispute Resolution by debating whether we should have three sets of interrelated standards, one for practitioners, one for platforms, and one for developers. That may not be the best way to go, but it seems to me that there are overlapping questions and some unique questions for each "group."
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