Discussion Forum: Game Changing Entry Barriers to ODR

ODR has not been static over the past few ways – and neither have the barriers associated with getting involved in the field.

 

In this forum, we invite you to relate to the following topics:

  • What issues have traditionally been cited, by practitioners and in the ODR literature, as barriers facing practitioners considering practicing ODR or incorporating it into their existing practice?
  • Do all these barriers still pertain today? What changes in the technological, commercial or legal landscape may have lowered or rendered moot some of these ‘old’ barriers?
  • What ‘new’ barriers might face practitioners considering beginning an ODR practice today – and are there any other barriers that we can foresee arising in the future?
  • How might these ‘new’ and ‘future’ barriers be surmounted?

Moderator Bios:

 

Dan Rainey

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 // Member, Board of Directors, Northern Virginia Mediation Service (NVMS)//Chief of Staff, National Mediation Board.

 

Noam Ebner

Noam Ebner is a professor at the Werner Institute at Creighton University’s School of Law, where he chairs the online graduate program in Negotiation and Conflict Resolution. Previously, he has taught and trained in the fields of mediation and negotiation in a dozen countries around the world, as well as practicing as an attorney and a mediator.

Noam’s research interests include negotiation pedagogy, trust and its role in dispute resolution, and Online Dispute Resolution. His work on these and other topics can be found at ssrn.com/author=425153 . Noam can be contacted at NoamEbner@creighton.edu

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As a way to get the discussion started, let me offer some observations about the nature of barriers into the use of ODR technology, and how I think things have changed over the past few years.

Based on my experience, the first barrier to moving the use of ODR technology out from e-commerce to “normal” ADR practice was (and still is to some degree) the attitudes of ADR practitioners.  I can’t count the number of times I’ve heard, “well, it may work for eBay, but it will never work for the kind of mediation I do.”  In fact, I heard almost that exact phrase from a very well known mediator just a couple of months ago.  That barrier, I think, is coming down.  We now have graduating from universities around the world and entering the work force the first generation of students who were born in 1992 and after, and who have never lived in a world without the commercial Internet.  When I say that if people can shop online, bank online, and find partners to marry online, and that these digital natives will not understand why they can’t deal with ADR practitioners online, the digital natives just smile and nod their heads.  The rest of us should take note.  This is the group from which our colleagues are going to be emerging.

A second barrier has been the lack of affordable ODR platforms available to sole practitioners or small firms.  There have been a few attempts to create this type of tool.  Graham Ross offered The Mediation Room more than a decade ago, and there were others in the ODR space early on, but the cost of programming and hosting them was so high, and the volume of practitioners and parties using them was so low, that they were economically not viable.  This barrier, I think, is also coming down.  There are still “big” platforms targeting e-commerce and other high volume case loads (Modria.com, Youstice, etc.), but we are beginning to see some more affordable, less volume dependent platforms that will make access to viable ODR platforms a reality for sole practitioners and small firms.  One of those platforms, Trochd, is being demonstrated on Tuesday of this year’s CyberWeek. 

So, I think what this means for barriers to ODR is that the situation is changing for the better, at least for the two barriers I’ve identified.  Noam and the participants in this forum may disagree with my comments, and that would make for a fun discussion, but I’d also like to hear from everyone about barriers that you think are still in place, and perhaps some we haven’t hit yet.

Since you've put it all so well, Dan, I prefer to leave the playing field here open and not cramp it with a load of my own thoughts (although these are bubbling to come out!).

I'll just piggyback off your last comment at this point, and note that another barrier that seemed to lie ahead of practitioners wanting to enter ODR had always been the question of 'How can I ensure security, which will clearly be very important to people?' I'm not sure, a few years of Internet later, that this concern is a salient as it used to be... I'd like to hear people's thoughts on that, as well.

I'm confused by the concerns regarding security. Do ODR systems hold sensitive data that could not be protected by standard encryption, logins and passwords?

Many ODR systems do hold proprietary, personal, and sensitive information.  As to whether standard encryption, logins, and passwords are adequate protection - I think that depends on what you think is "adequate."  Systems that hold personal information for me have been hacked five times in the past year - none of the systems were ODR systems, but they used the same security that ODR sites might use.  In some ways I think we make too much out of the info security issues.  Willie Sutton, a noted bank robber, once was asked by a judge, "why do you continue to rob banks?"  Sutton responded, "because that's where the money is."  Large retailers, government organizations, and other places where useful personal data reside are, for hackers, "where the money is."  They will continue to be compromised.  Will hackers target ODR sites where a small number of individuals exchange only marginally useful information?  Probably not. 

Right. And, looking at that from an entry barriers perspective - this would seem to suggest that providers could operate without worrying that they will be required/requested to commit to extreme - and extremely expensive - security measures. 

Mediators have a file cabinet in their office, with all sorts of information. Some of them might keep it locked. I'd assume, that most do not have a state of the art safe embedded in the floor of their office with a weight-detecting, retina-scanning alarm system.  And their clients do not expect it of them. Something to do with the online environment had users, and providers, very security-minded and this certainly affects decisions about whether to get into it or not. I think this psychological state of affairs may have changed on both sides. Make sense?

I think you are correct in saying that the psych state re security has and is changing.  I would argue that we (those of us who use the Internet a lot) have always talked about security more than we have really worried about security.  Can my info be compromised when I buy airline tickets, do my banking, etc.?  Sure.  Do I do it anyway?  Sure.  Do I express concern over data security?  Sure.  Does that slow down my use of the Internet?  Not so far.

You make an excellent point! An ODR creator has to build security into their product but how much? Users state that security is very important but at the same time, users will continue using a product even if it is insecure.

Daniel and Noam, great content so far.

As a person born in 1990, I an definitely say that I fall into this new category of a digital native. My generation does see online as the natural progression, and as such we are a lot less reluctant to try online versions of services that were traditionally offered in person. 

First, Noam, you made an excellent point about security. I think that this is a huge barrier to surmount. My generation is now entering the professional world and we enter everything under the assumption that anything that we do online will, at some point, not be secure or secret anymore. It seems that tech companies are fighting a huge battle with security. Whether it be governments, bad actors, or accidental release of information, many of us do not feel that our information is well protected. I tend to police heavily what is posted on my Facebook because I just am not sure what will happen. I know that I keep my information private, but what about my extended network? One picture posted by a friend who does not police their Facebook privacy could ruin my future...

However, one thing that i am very surprised I am not more cautious about is my email. I definitely do not feel as concerned about my email as I do with my Facebook. I always think that my Facebook could be hacked and there could be some leak of data, but I somehow always feel secure with my email. I think it has to do with the fact that it is very personalized. Everything in my email is directed towards me, and as such, I feel that it is more personal and therefore more private. With Facebook, everyone is posting things for everyone else to see, and to me that makes it feel less secure to me. Overcoming this security barrier is very difficult, but I think we have to solve it with perceived security. The real security of something is technologically is limited to what tech is available at the time, and there is not too much that can be done about that. But to keep users active and comfortable we need a perception of absolute security. This to me means personalization. Obvious ads make a service feel less secure, so none of that, but making it feel like every piece of content is directed exactly to you and yo alone will help with a feeling of security.

Another barrier I can see is the increased demand for computing power. Websites these days may not look especially complex, but try using a computer from the early 2000s to access many of these services, and they will be much slower. It is important that to give full access to these services that they are light and simple. Additionally, in the webinar last night from Glen Rowdon, he talked about the number of people who depend on mobile access for their internet. An increasing number of individuals are using mobile devices exclusively to access content on the Internet, so a lightweight mobile version is also imperative. These individuals are not always browsing using the latest smartphones, many are using phones that are 3-4 years old, and as such they have less power and speed, so lightweight is also key.

Hiya Maclellan, great to see you here! 

Isn't it funny, how we've all come to trust our own inboxes? It's not just you and I, but decisionmakers as well. I came across this yesterday, serendipitously, as I was thinking about your post: 

"Approximately 46 per cent of IT managers said their business spends less than $10,000 per year on email security.

The survey also found that 19 per cent of IT managers were unaware how much their organisation spends on email security each year. Fifty nine per cent of respondents estimated that their organisation spends less than $20,000 per year on email management, archiving and recovery."

http://www.computerworld.com.au/article/588055/it-managers-refuse-p... 

I think that some of this has to do with just getting used to things (you don't worry too much about someone stealing your physical mail either, although that certainly happens), and some of this has to do with the hype about security moving away from email and focusing on Facebook, mobile operating system, and the like.

I find your point on computing power an interesting complementary point to bandwidth issues. Considering this, it would seem to make sense not to utilize every cutting-edge possibility out there, but rather to aim backwards a couple of years - even more, depending on your target audience in a geographical sense. On the other hand - people often report their sense of trust in a website/provider being influenced by how the site looks; even run of the mill users seem able to identify 'kind of oldish' website designs, even if they can't explain quite how. 

To bring this back to entry barriers:

On the one hand, perhaps aiming backwards a few years can lower entry barriers - as there is no need to be current with top-of-the-line tech or to hire someone who is. On the other, how could you then enhance the user encounter with the service so that s/he is not worried about the credibility of an online provider who is not state-of-the-art with regards to the online?

Security is really important to me and to any client I have. Often, because I work 100% virtually, I defer to clients' intranet systems to keep them comfortable in terms of control and security, but during this conference I am gaining confidence in exploring something like trochd for my work.

That said, it seems for me the barrier is in my client base, largely being accustomed to doing things one way - or being hesitant to starting a process that requires them to learn a new interface. Much like there's a collective groan across my small-business network when Microsoft releases a new and improved version with its inevitable rocky transition, my clients groan at the thought I'd ask them to do anything more: My role is to make their lives easier.

Sometimes I wonder if, the more I am drawn to ODR, I move into a closer partnership with some big entity that is already past the barriers I face and/or just join such a place if I just decide to transfer skills and not complicate my marketing and outreach. Honestly, it is a vexing issue to see what is the inevitable and often better future but struggle with places disinclined to taking that leap.

I'd love to know if you see individual mediators, as they move online, making decisions to shift the locus of their work just to enjoy the online environment and its virtues?

 

Maybe it's just my unusual experience, but I don't really think we have to join forces with larger organizations to take advantage of a lot of ODR opportunities.  I have always been a proponent of finding a solid app and staying with it, even in the face of "newer and better" apps coming along, as long as the one I'm comfortable with still does what I need it to do.  There is a learning curve for clients, but, again in my weird experience, they are really the first to "get it" regarding the added value of being able to work online, so they run through the learning curve pretty quickly.  I don't think we think about security enough, really, but it is now the case that it is possible for even sole practitioners to take advantage of the platforms offered by Google or Amazon, all of which have security that is better than I can set up myself on a local network.  It' been a long day and I realize I'm rambling here a bit, but to directly respond to you last question, yes, I do see individual mediators shifting their work - and I see it happening at an increasing pace as digital natives become not just our clients, but our colleagues.

You stated that there were several ODR tools available but these were not widely adopted by practitioners and parties. Can you give any reasons why the adoption was so low? What were the negatives for sole practitioners that they did not use ODR more widely?

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