Mayhew-Hite Report Reflections on Technology & Dispute Resolution: Highlights from Panel at 2016 Ohio State Journal on Dispute Resolution Symposium
Disclaimer: The following article has been reviewed by the Mayhew-Hite Editor. Articles published in the Mayhew-Hite Report do not undergo the same rigorous accuracy check or editing process as articles published in the print edition of the Ohio State Journal on Dispute Resolution.
Katrina June Lee*
ODR is the future of ADR.[i]
Holograms will be part of dispute resolution.[ii]
There is no A in ODR.[iii]
When you buy a product that was made and shipped from China, any dispute over that product will cross boundaries. How does that work?[iv]
These pronouncements represent the ambitious reach of the Technology & Dispute Resolution panel at the 2016 Ohio State Journal on Dispute Resolution Symposium. This essay will present highlights and ideas from the spirited panel discussion.
Stars in the Online Dispute Resolution (ODR) field, the panelists were Susan Nauss Exon, a professor at The University of La Verne College of Law and an expert on ethics in dispute resolution; Professor Ethan Katsch, professor emeritus at the University of Massachusetts and widely recognized as the founder of the field of online dispute resolution; David Larson, a senior fellow at Mitchell Hamline’s Dispute Resolution Institute and an expert on technology mediated dispute resolution; and Colin Rule, co-founder and COO of ODR provider Modria and formerly Director of ODR for eBay and PayPal. I served as the moderator.
The panel emphasized the growing presence of ODR, its role in increasing access to justice, and the many ethical implications that arise from ODR.
The evolution of ODR.
Katsch and Rule gave a historical overview of ODR. Their 2016 South Carolina Law Review article What We Know and Need to Know About Online Dispute Resolution covers similar ground.[v] As parties began conducting business on the internet, the need for ODR became apparent.[vi] Parties were transacting from different parts of the world and had never met.[vii][viii] Resolving disputes offline was usually not feasible.[ix] In early forms of ODR, a human mediator and disputants interacted via email.[x] Gradually, ODR has shifted considerably to a process that relies heavily on machine intelligence and not on a third-party facilitator.[xi] Machine intelligence has opened the door to increased online dispute prevention.[xii] (This phenomenon gave rise to another acronym in the field of dispute resolution, ODP.) Data analytics allows machines to note patterns in dispute resolution and greatly increase the quality of any ODR.[xiii]
The Fourth Party and the Fifth Party.
The increasingly significant role of technology in ODR gave rise to the concept of technology as the “Fourth Party.” The Fourth Party can replace the human third party by helping disputants discover common interests and arrive at outcomes acceptable to all disputants.[xiv] Or, the Fourth Party can help, enhance or complement the facilitator or decision-maker.[xv] The Fifth Party is used to describe the designers and service providers of the technology.[xvi]
Participation in quick, accessible ODR results in satisfied users who come back to do more business.
In 2010, eBay and PayPal conducted a study that looked at the actions of users after they participated in ODR.[xvii] Rule shared that some users trust a machine more than they trust a human third-party neutral. The most “meaningful lesson” of the study, and perhaps the most counter-intuitive, was that, win or lose, disputants returned to the eBay platform after participating in a quick, accessible ODR process.[xviii] Buyers who decreased their activity after participating in ODR had experienced an ODR process that took more than 6 weeks.[xix]
Access to Justice.
Every panelist agreed that ODR has a large access to justice component. ODR is not limited to private company retail sites. Modria provides ODR technology for a number of government platforms set up by agencies seeking to increase transparency and access. Rule conducted a brief “show ‘n’ tell” demonstration on the presentation screen. For example, taxpayers wondering about filing a tax appeal can go to the Ohio Board of Tax Appeals (Ohio BTA) Resolution Center here. Modria powers the Ohio BTA online Resolution Center. A user can start with the “Online Appeal Guide,” designed to help people “make informed decisions about whether to file an appeal with the Ohio Board of Tax Appeals, and to provide transparency to the filing process.”[xx] Similar to how an eBay user might encounter and answer a number of questions online about a transaction she is unhappy about, an Ohio BTA website user seeking guidance can answer a number of questions online and receive information instantly about the costs and timing of a possible appeal.
Exon gave a brief preview of her article Ethics and Online Dispute Resolution: From Evolution to Revolution.[xxi] Exon reviewed the Model Standards of Conduct for Mediators, explaining that they are the principal set of standards for mediators and were developed pre-ODR. The Model Standards are comprised of these nine topics: self-determination, impartiality, conflicts of interest, competence, confidentiality, quality of the process, advertising and solicitation, fees and other charges, and advancement of mediation practice. The National Center for Technology and Dispute Resolution then issued the Online Dispute Resolution Standards of Practice, followed by the Ethical Principles for Online Dispute Resolution.
Exon focused on the Standards of Practice and reviewed the seven proposed principles on which they are based: accessibility, affordability, transparency, fairness, innovation and relevance, third parties, and general recommendations. Exon advocated for dialogue to take place regarding efforts to revise the Model Standards to apply to virtual mediation.
The panelists also discussed the tension between confidentiality and transparency in the ODR context. Larson challenged the audience to consider if “convenience should trump trust” in any new ethical rules that apply to ODR.[xxii]
ODR is the future. Get involved.
Panelists encouraged law students in the audience to get involved in the ODR field. So much is happening so fast, and the implications for user experience and access to justice are potentially enormous. For example, Exon forecast that holograms will be part of the ODR process. Rule predicted that ODR will eventually be used for $100 billion disputes. He enthusiastically pronounced, “ODR is the future of ADR. There is no A in ODR.”[xxiii]
* Associate Clinical Professor of Law, The Ohio State University Moritz College of Law. The author is grateful to Susan Nauss Exon, Ethan Katsch, David Larson, and Colin Rule for their contributions to the November 4, 2016 panel discussed in this article and the field of online dispute resolution.
[i] Colin Rule, Technology & Dispute Resolution panel, Ohio State Journal on Dispute Resolution Symposium, Nov. 4, 2016, Columbus, Ohio.
[ii] Susan Nauss Exon, Technology & Dispute Resolution panel, Ohio State Journal on Dispute Resolution Symposium, Nov. 4, 2016, Columbus, Ohio.
[iii] Rule, supra note 1.
[v] Ethan Katsch & Colin Rule, What We Know and Need to Know About Online Dispute Resolution, 67 S.C. L. Rev. 329 (2016).
[ix] Id. at 329-30.
[x] Id. at 330.
[xiv] Id. at 331.
[xvi] Exon, supra note 2.
[xvii] Id. at 334-35.
[xx] Ohio Board of Tax Appeals, https://ohio-bta.modria.com/resources/ohio-bta-diagnosis/strongcase.html (last visited Dec. 12, 2016).
[xxi] Susan Nauss Exon, Ethics and Online Dispute Resolution: From Evolution to Revolution, 32 Ohio St. J. on Disp. Resol. (forthcoming Apr. 2017).
[xxii] David Larson, Technology & Dispute Resolution panel, Ohio State Journal on Dispute Resolution Symposium, Nov. 4, 2016, Columbus, Ohio.
[xxiii] Rule, supra note 1.