Community Engagement and ODR: How Does it Fit?  

Moderated by Jeff Aresty

 

Online Dispute Resolution technology has entered the mainstream of the global community shaping technology-facilitated access to justice. But because of its name - Online Dispute Resolution (ODR) - the twin visions of virtual courts and online alternative dispute resolution - are the ones most commonly thought of as the primary access to justice tools of ODR. There are many who feel that these limited visions shortchange ODR’s potential. And, that it is up to the global community to make sure to nurture opportunities to use ODR technology in myriad community building settings. Describing alternatives uses and the obstacles that will be faced by the use of innovative dispute resolution technologies by governments in the 21st century to enable all who are interested in providing access to justice – including mediators, lawyers, government officials, NGOs, peacebuilders and citizens, is the purpose of this discussion forum.

For example, as deficits grow and tax revenues dwindle, governments are being forced to make difficult decisions on which services and functions are necessary, which are expendable, and which are superfluous. At the same time, citizens and businesses are demanding more access to information, easier forms of communication, and greater efficiencies in government’s role as intermediary to consensus building and dispute resolution.

Technology’s ability to meet the needs of both citizens and government is obvious. However, with varying degrees of citizen capacity and resources, The following questions arise:

  • Which technologies are best suited?
  • Will citizens without high-speed access to the internet ultimately have less ability to engage with government or partake in its services?
  • How do we address the access and knowledge divide?
  • Are virtual service channels and remote engagement sufficient replacements to old fashioned town halls and courthouses?
  • How can costly and inefficient in-person traditional government forums be replicated or replaced for the digital age?
  • Should they be?
  • Are technology-mediated dispute resolution systems an organic evolution of our times or a fiscal necessity?
  • The potentials for ODR also extend to the fields of e-governance and e-diplomacy, and to potentially brand new uses for the next billions – those in developing nations soon to enter digital society. How should ODR processes and technologies be adapted to accommodate the next billions?

 

 Moderator Bio:

Jeffrey M. Aresty is a Massachusetts lawyer who has practiced international business and cyberlaw for 35 years. During that time, he first joined and then helped lead a global online network of lawyers in 35 countries, founded a new media company that distributes interactive web-based training for building and sustaining trusted online communities, and led the founding of a virtual bar association (www.internetbar.org). Jeff teaches courses on international development and online dispute resolution and cyberlaw at several universities as an adjunct professor, including the University of Massachusetts (Amherst), Bentley University, Boston University, and SMU. He has written several chapters in a textbook on cyberlaw and written chapters in textbooks on online dispute resolution and mobile technology and conflict management on furthering justice in the developing world. In his volunteer bar work, Jeff has run educational programs, published numerous articles and edited books, and led projects and committees promoting (1) the use of technology in the transformation of the practice of law, and (2) the role of cross-cultural training in international business and e-commerce.

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Larry Schooler is running another forum during this Cyberweek which covers some of the topics that we are looking at.  So as not to replicate his forum's great content which is focusing on how governments are using technology to engage citizens, I offer you the chance to see how we at Internet Bar Organization have used technology to create an online community of artists and fans to help build new opportunities, new ways to access justice.  Here is a blog post from the World Justice's "Justice Rising" blog to get the ideas flowing.  http://worldjusticeproject.org/blog/arts-culture-and-rule-law

 

As you read it, keep in mind - and think about - and write about - is this a model that can be replicated to engage communities around shared interests and new ways of interaction?   There will be a PeaceTones webinar on Friday led by IBO's executive director, Ruha Devanesan.

 

 

Rule of law is, at its core, founded in respect of our fellow human beings. As human beings, we are inherently expressive of our personal and communal histories and traditions.  The ability to communicate our unique cultural histories reinforces individuals' abilities to empathize with each other, thereby ensuring equality among peoples and that all are held equal before the eyes of justice.  When human empathy breaks down, or is overridden by other interests (political and economic, for example), it is often artistic expression and communication that reminds people of our common humanity, and brings us together once again in mutual respect.  The rule of law, equally, should afford society the freedom to engage in this important dialogue and protect the intellectual property of culture makers.  We believe in this symbiosis between law, culture, and peaceful coexistence.

Artists have the potential to shape and restructure society.  Artists can be changemakers and activists.  Their work can serve as a catalyst for the community, engaging both community members and third parties to reexamine current regimes.  At PeaceTones, we work with artists for these very reasons.  Our aim is to work towards a society in which artists are rewarded not only for their entertainment value, but also for their contributions to the stabilization of their societies, the denouncement of unjust or unfair practices by those in power, and therefore to rule of law in their own, indirectly effective ways.

The PeaceTones model is unique and our mission is simple: empower the arts to empower communities.  A PeaceTones project begins by making a geographic determination of where we believe a project would have the greatest impact.  This includes looking at countries that have experienced recent destabilizing events, including natural disasters and violent conflicts.  We then reach out to our network of fellow non-profits across the world and analyze where a PeaceTones project will have the greatest resonance and opportunity for success.  The communities we work in, therefore, have a great amount of potential in terms of large youth populations, amazing histories and a rich cultural and artistic community, burgeoning access to technology, but deeply entrenched poverty as well.  The legal and political infrastructure is often fraught with nepotism and corruption, leading to a great deal of disenfranchisement of the public with its leaders and the inability of the law to address individual disputes or harm, and the use of law by the socially and politically powerful against the weak.

We partner with various organizations in these communities to put together workshops on legal rights and internet-based tools artists can use to promote their music and messages.  The aim of our workshops is to teach basic tools that can be easily translatable across many fields.  The Internet and technology have opened up global access to music.  Through the Internet, there is potential to reimagine the entire music industry as one that favors the artist instead of the label, that gives weight to the role of the innovator (the artist) and his or her community as the central pieces in putting together a musical work (whether it be tangible or downloadable album) and accordingly attributes income from that album in the same way.

Working with local partners, we hold legal and marketing workshops for local artists. Topics range from basic contracts and intellectual property law to social networking and getting your music on iTunes and Amazon.  We also inform students on local resources (e.g. legal aid).  Workshops involve games, role-playing, and stories to create an engaging and non-threatening learning environment.  We use a contest format for our projects as an incentive for workshop participation and practical application of tools learned, as well as a way to engage audiences around the world in the process of selecting our next PeaceTones musicians.  The contest is held through Facebook, thus encouraging our musicians to put into practice the promotional tools we teach in our workshops. Contest winners record an album with PeaceTones and become PeaceTones ambassadors.  PeaceTones then distributes these albums, returning ninety percent of the albums profits to the artist. We also require that the artist contribute some percentage of these earnings to a community development organization, thereby creating a model for grassroots philanthropy.

PeaceTones then works with the artists to market the album both within their home country and internationally.  The end products are an arts community with a greater sense of legal empowerment and marketing skills using technology, a large group of artists that have been given international recognition through the PeaceTones contest, and a PeaceTones ambassador that has launched a music career, received financial compensation for their talent, and is able to contribute to their community in a meaningful, sustained way.

Our experience with engagement has been extremely positive.  Our first initiative was in Sierra Leone, a country that has had significant internal strife and that exhibits almost all of the characteristics listed above.  Our following project was in the favelas of Recife, Brazil.  This experience was highly concentrated with young people.  Growing up, they were intimately familiar with violence, drugs, and poverty, but with PeaceTones’ help, they have built a music studio to express themselves rather than resorting to the violent culture which was around them.  We then began a project in Balan, a remote village in Haiti with a vibrant musical community.  We initially planned to move to a different country following Balan, but following the Haitian earthquake of January 2010, we held another PeaceTones initiative in Port-au-Prince, which has been our most successful yet in terms of participation, publicity, and results for the artists themselves.  Currently, we are in the beginning stages of a project in Kibera, Kenya.

 

In general, I am very interested in social activism.  Therefore, the idea of combining social activism with the growing field of social media is incredibly fascinating.  It seems that it allows for quick access to a lot of people, and it seems that it is easy to create groups.  These facts lead me to think about the recent civil protestors during "Occupy Wall Street".  The "Occupy Wall Street"  movement seemed to use social media and online communication fairly successfully. 

 

I think that my concern with online dispute resolution, is the same as everyone else's that there is a great deal of non-attribution comments and often a difficulty of communication, because the medium is remote and removed. 

 

In the discussion above regarding, there is a tremendous amount of information presented in favor of the ODR model. And, I believe that this will become a very successful and robust model.  I am just a little concerned that many of the other aspects of community and communication can be lost in the community dialogue when it is online.  There are so many studies which show that a majority of our communication is non-verbal.  How does ODR account for this fact?  Can ODR replicate the important aspects of empathy and connection that are necessary for agreement and consensus? Does anyone think that ODR can actually provide a more accurate record of the events because there is an absence of emotion and influence by others?  The traditional means of communication require so much in the way of verbal ability that in some cases many conflicting voices are lost because the proponent is not a very good public speaker. 

 

I know that music is arguably a non-verbal communication, and there is also literature that shows a lot of information can be transmitted through the medium of music.  It is interesting that the group "PeaceTones" is being shown as a model for this type of engagement because music is just such a medium that might assist in transcending the limits of online communication.  Video and T.V. also seem to be very powerful medium online, so I imagine that this medium will also be as powerful online.  Many of the most important blogs and online discussions involve some sort of video, and the viral online responses begin a discussion about the content and emotion which was instigated by the video.  So, it seems that music and visual media in concert with online mediums are proving important for transmitting information.  The only questions which remain are the questions which address community, empathy, expression, and humanity, as discussed in the above article. 

 

I am hopeful that we can continue to use online media to pursue many of the areas of community dispute, rule of law and peaceful coexistence.

It is good to read about the continued spread and success of the PeaceTones project. I'm interested in hearing more about the connection to the rule of law within a given region where PeaceTones is working and the surrounding community and country. My initial sense is that the law that is being taught (IP law) in most cases would be most visible and applicable in the wealthier markets where the final products of the artists work is being distributed, and where the front-end efforts and training in being legally smart would help the artist avoid being taken advantage of.  This kind of empowerment seems appropriate and encouraging and using music as the gathering point seems likely to draw people in. What I'm curious about is the possible impacts be seen on the local culture of law (or lack thereof) and dispute resolution where the artists live? Is there any "viral" spreading of increased respect or desire for a legally regulated marketplace or community on the ground locally or actual shifts in dispute handling practices? This would be even cooler. I wonder/worry if the project may be designed to prepare the artists for a broader world away from home, rather than changing home into the world they want it to be.  Can you say more about the rule of law aspects? Thanks.

Mike's comments remind me of some of the points that were being made in yesterday's webinar in how to build trust in online environments, specifically focusing on mediation environments. Of course, the challenges which exist to reframe face to face mediations within an online context are both psychological and functional. And yet, the potential to use technologies in ways that are not immediately apparent start with the notion that we have to reframe our own connections to the world around us because technology and demographics are forcing us to do so. Recently, Dan Rainey suggested that I read a new book, NETWORKED (the new social operating system), by Lee Rainie and Barry Wellman. I'm just beginning reading it now - and offer a couple of quotes from the book that are helping me 'reframe' my own thinking: first, "Despite all the attention paid to new gadgets, technology does not determine human behavior; humans determine how technologies are used."; and second, "A different social order has emerged around social networks that are more diverse and less overlapping than those previous groups. The 'networked operating system' gives people new ways to solve problems and meet social needs. It offers more freedom to individuals than people experienced in the past because now they have more room to maneuver and more capacity to act on their own."

In that sense, the music community is a perfect example of how to look at online dispute resolution opportunities. Music law is loaded with rules of law - local, national and international rules abound. And yet, music pirates flout those rules. And, before you decide who is a music pirate, ask yourself whether you've ever copied a song onto a cassette (oh, my age is showing through) and shared it, or, as is described in the cover story of this month's WIRED, you've created a MEGAUPLOAD site and your name is Kimdotcom and the FBI is on your tail. The PeaceTones project recognizes that there is no amount of law or community enforcement mechanism in place that is going to regulate conduct in the music community without a change of norms. But by using internet communication technologies in innovative ways to create new communities based on world music, we give artists in the developing world a chance to get their music out there. We help create opportunity. As Ethan Katsh notes, once you create opportunity for gain, you then create opportunity for disputes. In the early days of PeaceTones, the focus has been on grounding artists in what today's rules say about copyright, what protections they offer, and, then give the artists the tools to get their music out there in the world. And, as our most successful artist to date has all ready experienced, the music pirates have started ripping him off.

So what does all this mean for the rule of law? For Wanito (our Haitian music genius!), he has told his fans through Facebook and other means that they should buy his music from legitimate sources. And, he is working to create a culture in the music community that PeaceTones is building, that supporting artists is necessary. I know this is what copyright rules are meant to foster. But they aren't working. And, they didn't work in Haiti to permit Wanito to sell anything. Instead, internet communication technologies gave Wanito the chance to NETWORK and to build a personal social network where he can teach his young fans that the norms of the relationship between innovator/creator/musician and his audience need order and respect. How this leads to a proper resolution with those members of the music community who steal his music remains to be seen. But I doubt anyone will say that the music laws as they exist today do much more than create a random enforcement system.

We are in a stage of legal development where we can create new communities with new norms.

Jeff - Thank you for your comments.  I have never participated in an online dispute resolution nor have I even participated in blogging sites.  This is all quite new to me, so I am inspired by your comments and the potential of this medium.

I will definitely plan to order a copy of the book NETWORKED. 

Your comments and quotes from the book reminded me of the principles of hierarchical versus flattened leadership and structures.  There are some times when a flattened less hierarchical leadership paradigm is better and there are times, arguably, when hierarchy is better.  Or, does technology by its own means and medium demand flattened leadership architecture, and is this most desirable?  Many scholars, that I have read, argue that flatter organizations are profoundly more effective in industries like software development that require fast, immediate solutions and real time problems solving.  These same scholars also say that some industries where tradition, rules, and structure are important then hierarchy may be preferred.  Based on your initial article, I am now trying to think through a comparison of leadership styles and which might be more effective in these various contexts.  I would be interested in your ideas on leadership in the ODR environment. 

Also, I appreciated your comment about gain and dispute as necessary partners in social struggle.  This reminded me of our ongoing debate about socialism and capitalism, but I was quickly halted by my reflections on our human history which is replete with disputes which were not generated by capital.  So, I broadened my use of the term “gain”, and I asked myself if you, as the writer, intentionally used the word “gain” to address any imbalance in power between persons or groups that could or may be taken advantage of in a manner that might cause “gain” by one party.  The next question I asked myself was whether gain was always associated with loss.  The famed author Steven Covey posits the notion of a “win-win”.  The idea where both persons achieve some measurable gain, I believe is a hallmark of social progress, but I have also had professors cajole me - stating that the principles of progress demand that there must be winners and losers. 

From this premise, I believe Bill’s comment (from above) about the Rule of Law is very important.  Can the rule of law be created, discussed, and enforced via these emerging social medium, and if so how do we proceed and what do we lose or gain.  Jeff, if your premise is correct that “gains and losses lead to dispute” then we are surely headed toward some big disputes as ADR and ODR begin to gain ground and speed, because this new exciting medium for conflict resolution is approaching take-off velocity.  In this transition some people stand to gain and others may lose.  Do you agree?

On a side note, I really enjoy Wired Magazine, and I actually may subscribe again next year because of your comment about that magazine and its cover.  It reminded me that they are actually quite avant-guard, and that this magazine tries diligently to stay “ahead of the curve”. 

Hierarchy or flattened leadership models is something I haven't thought too much about.  But reflecting on my own experience in working in a virtual organization, it seems that gaining consensus is critical - more of a flattened approach.  But there are times when the team just wants a decision, and, the leader has to step up.  Leadership roles can vary at times as to who does the 'stepping up';  but that can be predetermined.  Leaders in one area of the organization may not lead in other areas.  But certainly internet communications generally offer more chances for input and consensus building than face to face environments.

As to rule of law issues - I'm at an Innovating Justice program in the Hague right now, and that was a topic of discussion today.  The issue that has arisen is a debate between traditional methods of governance which both limit participation and limit dissemination of information about rule of law issues, and open governance.  It's more of an academic debate about which is a better approach.  But when you use technologies that allow for complete transparency, then citizens are owed much more, both in terms of information sharing and participation.  At least that's what I think.  We aren't there yet.

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