Alternatives to the Current Justice Process

Alternatives to the Current Justice Process Online Mediation in Non-commercial Contexts Ben Householder, Todd Melton, Heidi Slaw

Background • What is online dispute resolution (ODR)? • Tool for use in dispute resolution • Types of ODR • Arbitration • Automated negotiation (“blind bidding”) • Negotiation support systems • Mediation

Response to Critiques ofOnline Mediation • Text-only is too limiting • Participants might not feel constrained • Users can adapt to limitations of the medium • The “digital divide” • “Have-nots” can opt against online mediation • Some “have-nots” are technically skilled • Face-to-face mediation has similar problems

Unique Attributes &Advantages of Online Forums • Freedom from body language • Ambiguous or negative behavior has no effect • Distance • Comfort to less-aggressive parties • Time delay of text communication • Compose more reasoned responses • Prevent interruptions • Require closer attention to communication • Anonymity • Overcome potential biases - mediator or party

Two Examples • Family • Avoid confrontation, communication problems • Employment • Counter effects of unequal status

There are Many ODR Websites • Examples: • Cybersettle • SettlementOnline • clickNsettle • OneAccord • Internet Neutral • Square Trade • WebMediate

How the Websites Differ • The Purpose of the Websites • Some websites just act as a “venue” and an alternative to in person meeting • Humans still make the ultimate decision; the internet just provides an alternative venue for the decision making process • Other websites do more • Websites not only offer a different mode than in person meetings. Also resolve the issue for you. (The fully automated systems – i.e. Cybersettle)

How the Websites Differ (contd) • Services They Offer • Some sites offer full range of services • Allows a person to exhaust all of their ADR options at one site (WebMediate claims to be the only site that offers all ADR services in one spot) • Some sites only offer negotiation services. • If the negotiation is not successfully completed on the website, the person can still resolve the case through other ADR methods; however, will not be able to continue with that same case at that particular site.

Pros and Cons of Cyber-Mediation • PROS • Saves money • No traveling costs (and the issue may not even be big enough to pay for the traveling costs) • Savings in attorneys fees • No need for long distance phone calls • Discussion Thoughts: Some people may think that a person is more likely to make hasty pressured decisions when mediating/negotiating online (because generally anything done on the internet is done at a faster pace, ect.) However, with online mediation/negotiation a person can respond at his own pace in emails, ect. and a person doesn’t have the extra intimidation factor of the opposing person staring him down. Whereas, with traditional face to face mediation/negotiation, a person feels pressure in several ways: being on the “attorneys clock” (time = money) and also may be intimidated by the person’s opponent.

Pros and Cons of Cyber-Mediation (contd) • PROS (contd) • Convenient • Less scheduling difficulties (because emails, ect. can be responded to at any time, within reason) • Also, the mediator can communicate with an individual party while the parties are simultaneously communicating with each other. (no wasted time where one party is waiting for another party to discuss something privately with the mediator.)

Pros and Cons of Cyber-Mediation (contd) • PROS (contd) • Prevents and sidesteps jurisdictional issues • Issue is sidestepped because individuals bind themselves through an agreement when dealing with online sites

Pros and Cons of Cyber-Mediation (contd) • CONS • May stifle creative negotiating • With automated sites such as Cybersettle, parties are ONLY dealing with numbers. • This leaves no room for creative solutions that may not necessarily involve dollar amounts. • Not a “one stop shop” • Sites like Cybersettle are deceiving because: • A person can not possibly go through the entire negotiating process online at a fully automated site like Cybersettle because Cybersettle only allows situations where the only issue at controversy is the dollar amount. When this is the only issue, there likely needs to be prior communications agreeing on the liability, ect. which cannot be done through this site.

Pros and Cons of Cyber-Mediation (contd) • CONS (contd) • Impersonal • Part of the point of mediation in the first place is to air grievances and people may have more difficulty “airing” their emotions via the internet • Also, it is harder to empathize with the opposing party when communicating over the internet. (People empathize better if they are face to face and can actually see the other person’s emotions, mannerisms, and facial expressions.) • Hard to detect “tone” through online interactions (may be hard to determine if the person is being genuine)

Pros and Cons of Cyber-Mediation (contd) • CONS (contd) • Impersonal (contd) • Mediator may have more difficulty maintaining control over the parties when mediation is done online

Pros and Cons of Cyber-Mediation (contd) • CONS (contd) • Accessibility • Not everyone may have frequent or even any access at all to computers • Not everyone is computer literate and not being so may be a disadvantage when the other person IS computer literate (people may focus too much on operating the computer than focusing on the matter at hand) • Confidentiality Issues

Globalization of ADR • Thinking about the World as a single marketplace in which political, legal and economic distinctions begin to blur.

Integration of Technology • Today we live in a society that is completely dominated by new technology: • Automatic Teller Machines • Email • Google • Mobile Phones • E-revolution in Business Context • Breaking down national boundaries • Making new connections and communications possible • Example: E-Bay transactions between U.S. and China

Rapid Transfer of Information b/w National and Transnational Actors • Transnational Actors • E-Commerce Traders • Non-Governmental Organizations (NGOs) • Example: International Red Cross (Humanitarian Issues and Development) • Multi-National Corporations • Critics of Globalization • Potential for misuse of power by actors with greater economic strength

Emergence of ODR • Why it emerged • The answer to transnational disputes arising from business transactions • Can also be used to resolve face-to-face transaction disputes • Provides instant access to updated information

Emergence of ODR (contd) • Utility • As of July 2004, 115 ODR services worldwide (all continents) • Wide variability between sites: from 1 case to 1 million • Wide range of disputes • Business to Business • Family Law • Internet and Workplace Disputes • Political Peace Negotiations (Example: Sri Lankan Peace Talks) • Not just dispute resolution, but also dispute prevention

Emergence of ODR (contd) • Term of Art (“ODR”) • Online ADR/Cyber ADR • Highlight the use of internet-based applications in ADR • Automated ADR • Processes that are fully automated and use computer programs or other A.I. instead of humans (Example: Blind bidding and decision-making trees) • E-ADR/eDR • Broader term referring to electronic applications of ADR such as video-conferencing and mobile telephony • Flexible and Developmental • For purposes of this presentation, ODR will be used to encompass all of the above interpretations

Emergence of ODR (contd) • Pros/Cons • Pros • Reduction in travel costs and time required for resolution • Creation of detailed record • Cons • Issues of identity, authenticity, confidentiality, privacy, and accessibility

Revolutionary 4th Party in ODR • Reference to the e-technology impact on traditional ADR • Changes the dynamic of dispute resolutions, creating new opportunities and risks in a borderless forum

Revolutionary 4th Party in ODR (contd) • Examples: • Assisted Negotiation Systems • Use sophisticated “branching” technology to create elaborate decision trees that can help determine the outcome of disputes • System asks user number of questions about the dispute, takes the answers, and then automatically applies the respective law and formulates a conclusion. (This gives both sides to the dispute info on BATNA, which is particularly useful for unrepresented parties.)

Revolutionary 4th Party in ODR (contd) • Examples (contd) • Discussion Threading/Record-Keeping • Allows parties to review statements made by opponents (or themselves) over a period of time, or dealing with a particular theme on a specific date. • Much easier than digging through a pile of papers.

Challenges to Globalization of ADR • Technology must be easily accessible and affordable; potential users must be literate in the ODR technology; and technological systems need to be culturally specific

Challenges to Globalization of ADR (contd) • Culturally Specific • Culture drives people’s values, beliefs, perceptions, and behaviors (Example: Construction project in France between a German and an Egyptian → Laws of Germany and Egypt may conflict; Different interpretations of French terms may cause problems) • As a result, parties from different cultures may enter into contracts where the parties are not in total agreement • ODR can also be seen as a great benefit, a new culture without specific geographical roots, that can put all parties on an even playing field (This is particularly useful where one party is from a more dominant culture (America) and the other is more reserved (Australia).

Challenges to Globalization of ADR (contd) • Global North vs. Global South • In the North, the approach to ODR is PC-dominated, however, due to a lack of technological infrastructure and different social-political context of the South, such an approach may be inappropriate in a global arena. • For a PC-dominated ODR structure, there must be both physical access and meaningful access (computer literacy), and that just is not the case in the South.

Challenges to Globalization of ADR (contd) • Example: • Solomon Islands, Papua New Guinea • Chief of Village was excited about getting a new computer, but he had never actually used one. However, he was convinced that internet access would be beneficial to his village. • Taking into account the complexities of the modern-day computer, this could lead to intra-community conflict, frustration, and disappointment.

Challenges to Globalization of ADR (contd) • Additionally, it can almost be seen as an exercise in futility to introduce a method of solving private economic disputes between Southern citizens where much deeper social-political issues are at stake (such as basic necessities, corruption, and human-rights violations).

Culturally-Inclusive Globalization Process • Currently, alternative e-technology such as community radio and mobile telephony are pervasive in the South, and introducing a Simplified Message Service (SMS) may be more appropriate than PC’s • Example: • Philippines sends/receives 100 million messages per day, and it shows the potential to use mobile phones to link the South into a global ODR system.

Culturally-Inclusive Globalization Process (contd) • The introduction of more intelligent methods, such as software-aided negotiations and video conferencing, can be more of a gradual process in the South, while currently focusing on improving the resources at hand. • Using technologies like EED (electronic direct democracy) and OCT (online conflict transformation) can be used to solve public and political disputes.

Alternatives to the Current Justice Process