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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Dear Subscribers,

Good morning! I note that reference in the background information to "...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?"

Based on your theoretical interests, experiences or observations:

1) What kind of prior assumptions need to be revisited?

2) What should be done differently in ADR to traditional approaches in conflict management?

Yours sincerely,

Jen Geary, Dr., LLB., MDE.

That's a pretty big chunk to bite off for one post, so I suspect we'll get at your questions a bit at a time through the week.  But, to start, most of us were taught mediation and facilitation skills based on some principles and assumptions that are grounded in a f2f, paper environment.  For example, our ideas about record keeping, confidentiality, etc., are rooted in the assumption that documents or notes can be purged, except for those agreements we want to keep as a record of agreement.  In an ODR context, particularly in a cloud ODR context, this is questionable.  What most who write about ethics in law and ADR are suggesting is that we at least go back to the canons of ethics that guide us and ask the question, "what does technology change about the way we describe our ethical responsibilities."  For every one of the ethical guidelines under which we work, there is some change.

As we start the week, let me suggest that if you have an interest in ethics you drop in to the webinar at 3:30 pm Eastern today - Susan, Kristin and I will be talking about ethics, how we should approach ethical requirements in light of technology, and what new ethical challenges technology may create for third parties.  If you want to have a look at a brief survey of some of the ethical challenges and changes I see, have a look at my article in this issue of the International Journal of Online Dispute Resolution - IJODR

Hi,

Security and trust must certainly be revisited. In light of hackers, viruses, mean-spirited or vengeful others and different modes that could facilitate Internet leaks and violate other privacy concerns, we must discuss very secure ways to ensure all parties are comfortable to resolve serious, intimate issues within their conflicts with others.

 

From my perspective, it seems like one of the biggest hurdles that exist regarding the advent of electronic communication and alternative dispute resolution or dispute resolution in general, is the issue of the permanence of an electronic record (you will always be able to recover an email or even restore a deleted file) coupled with the issue of client confidentiality. I know that law firms are struggling with the latter issue, asking; "How can we effectively protect our client's confidential information from hackers and adverse parties while at the same time trying to be current with technology in an increasingly electronic world?" For example, specifically, how do concepts like the utilization of the cloud impact client confidentiality and the existence of a permanent record? From my ADR (alternative dispute resolution) course, we've learned that one of the primary advantages of something like mediation is that it facilitates open communication. How are parties expected to be open and candid with each other when they know that anything transmitted electronically could potentially be used against them in the future? No matter how much some may trumpet the possibility of data security, I am skeptical of the reality that this electronically stored or transmitted information is not secure, and that you are always leaving a virtual paper trail regarding any electronic activity.

The discussion of the boundaries and responsibilities regarding confidentiality is an important one since technology clearly raises new risks and risk levels.  This is closely tied to issues of transparency and trust--raising questions about what intervenors need to say about our processes that is different than we say in f2f interventions.  How do we build trust for our processes when their are new vulnerabilities?  I also think that it raises ethical questions for dispute system designers--what responsibility should they take on about creating systems that recognize the need to be transparent about the fact that confidentiality can't be guaranteed?

Brav zeros in on one of the issues that I think is much misunderstood in the ADR world - I strongly argue that information is probably more secure from hacking on a cloud server managed by a good service provider than it is on a locally controlled network or on a drive that is routinely connected to the Internet.  Connor is right that firms are really struggling with this issue, and I think the issue is even bigger than they realize.  Data ownership and use of cloud data for research is going to be "interesting" in the future.

It appears that we all agree that privacy risks are an immediate concern with ODR.  In the last few months we have witnessed a steady stream of retail giants fall prey to security breaches.  I feel that society is adapting to the risk associated with technology.  People continue to use credit cards and debit cards with retailers despite the associated risks.  I feel the same thing with happen with ODR.  People will understand that they are accepting a limited amount of risk to gain an incredible amount of ease and convenance through the use of ODR.

It is probably fair to say that confidentiality, as we used to know it - no longer exists, due to the transparencies of technology.  Also it is prone to being misplaced/lost or shared.

I have been introducing two levels of confidentiality:

- Business level confidentiality (encrypted, couriered documents)

- Personal level confidentiality (emails okay, cell phone calls okay)

Most people are content with Personal Level Confidentiality - it meets their needs and budget. 

The question for me is how to keep a level playing field in Online Dispute Resolution when some of the participants are so big and have greater resources in the negotiating process than other participants.

Krista 

I agree, Richard - and it should be noted that the breaches in security occurred in systems where the bad guys were assured of getting a lot of personal data with one hit (Target, Chase, etc.).

Richard Todd said:

It appears that we all agree that privacy risks are an immediate concern with ODR.  In the last few months we have witnessed a steady stream of retail giants fall prey to security breaches.  I feel that society is adapting to the risk associated with technology.  People continue to use credit cards and debit cards with retailers despite the associated risks.  I feel the same thing with happen with ODR.  People will understand that they are accepting a limited amount of risk to gain an incredible amount of ease and convenance through the use of ODR.

That power imbalance is one that exists in f2f third party work as much as it does online, I think - ultimately one of the things that any ethics guidelines has to address is the degree to which it is the responsibility of the developer to build in accessibility, transparency, and data security in a way that is "level."

Krista Grace Jessacher said:

It is probably fair to say that confidentiality, as we used to know it - no longer exists, due to the transparencies of technology.  Also it is prone to being misplaced/lost or shared.

I have been introducing two levels of confidentiality:

- Business level confidentiality (encrypted, couriered documents)

- Personal level confidentiality (emails okay, cell phone calls okay)

Most people are content with Personal Level Confidentiality - it meets their needs and budget. 

The question for me is how to keep a level playing field in Online Dispute Resolution when some of the participants are so big and have greater resources in the negotiating process than other participants.

Krista 

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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