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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Agreed- it will be an amazing time to be in the early stages of these discussions!

One issue that was raised at a few points in Monday’s webinar was the ethics of competency in ODR. I especially appreciated Professor Nauss Exon’s point that even a party’s typing speed can create power imbalances within ODR. One of Professor Blankley’s first points in the webinar involved the importance of self-determination in ODR. I would think that a focus on a party’s self-determination to engage in ODR is absolutely necessary to ensure that ODR does not heighten the power imbalances in the justice system. For example, an earlier post referred to many conflicts that are not resolved in the present justice system. However, I have some skepticism that people facing mortgage defaults and evictions will necessarily have convenient and secure internet access to engage in ODR. For example, in Omaha, public computer access for those without funds for rent or mortgage payments (let alone smartphone service) involves a lengthy trip on an archaic bus service to a library with limited hours—which likely would not provide the security or confidentiality necessary to engage in meaningful ODR processes.

 

The cumulative effect of ODR and other ADR processes, as observed by Professor Nauss Exon, to alleviate court costs and relieve court backlog, will significantly improve many aspects of the justice system. The concept of encouraging parties in online transactions to engage in ODR presents an opportunity to reduce pressure on the justice system: as more transactions move online, more conflicts can ethically be resolved by use of ODR. In contrast, inadequate self-determination of parties involved in conflicts arising from offline transactions could lead to more of the same disconnect with ODR as occurs in the offline justice system. Without adequate self-determination of parties, does ODR put parties without strong digital expertise at a disadvantage, just as the present justice system puts parties without strong legal expertise (or without the funds to pay for such expertise) at a disadvantage? Moreover, are parties who are already disconnected from the traditional offline justice system the same parties who will be disconnected from ODR in the future?

This is a great point in terms of power imbalance - and John's point, I think, makes the underlying assumption, that the current legal process related to eviction or mortgage default, remains unchanged.  The power imbalance has nothing to do with ODR in that sense - the system certainly favors banks at every turn, with a rare exception (robosigning) coming to roost because one attorney took it on his back to find the incredible abuse within the system, bring it to court, and then get the public enforcement mechanisms to 'fine' banks.  All of this doesn't do much for the individuals at the micro level who are losing their houses. Eviction law, of course, is very localized in terms of whether it favors landlords or tenants.  The question for ODR practitioners is how to we CHANGE the system itself, using technology and its power to LEVEL the playing field.

There is no doubt to me that to look at today's justice system, and, to think that it will survive in its present form for the next decade without huge changes, begs the question.  Sure, there will be resistance to change - how many 'digital immigrants' (at least those over the age of 30 who didn't start their lives with tech, but now rely on it) resisted online banking in the beginning, and, now, can't live without it?  Do you deposit your checks by taking pictures of them?  If not, you've certainly seen the ads on TV or online.  Why won't the justice system move to a point where you can access it on the cell phone?  And, if you can do that - and, just to take the case of foreclosures, and to use Prof. Katsh's notion of 4th party tech, why can't we imagine a system which exists in the cloud, properly secured, that removes the imbalance of the parties in a mortgage foreclosure - and gets to the root cause. 

Mortgage default is ultimately a financial issue - and, it is in the interest of all to resolve the financial issue with verifiable facts, and, if you are to believe the marketing arms of the banks, real concern for their customers.  If all the financial information on both sides is available, verifiable, and in one place (that's usually the downfall of the current process, getting the facts right is where the huge costs/delays and power imbalances reside), then an algorithm could generate several options for settlement - all the way from a modification agreement, to a sale/leaseback, to .... any number of options.  Changing the system, training all, CAN be done.  It will take time.  And, privacy concerns will be there - but, I'm guessing that they can be worked through if the alternative is to live with what we currently have.

The computer is gone - the cloud is today's computer, and, all our devices are now just access points to the cloud.  Certainly, the hackers and cybercriminals are having a heyday because most of the rest of civil society isn't totally there yet.  The criminals operate freely because we let them, and, rely upon a sovereign based justice system to fight a global criminal enterprise.  How ridiculous is that?  SO we need to be knowledgeable about the Cloud, and use this incredible time in the history of the justice system, to be agents of change, educators,  - and the ODR movement gives us the chance to do all of that.

From the ethical point of view, WE need to be competent, and understand the cloud, understand its implications -  to be the agents of change, we need to embrace the future, and, understand how to design the systems that will make a difference.

From my perspective, the ODR field has a value potential in conflicts.  Some conflicts such as ones whose members are now many, many miles apart have a vast amount to gain from ODR however, the issue of security and ethics always seems to be a huge issue when discussing ODR.  I feel that most people such as myself are very skeptical when it comes to serious discussions over chat or video conferencing over the internet.  There are so many possibilities for fraud, manipulation, and betrayal to happen in an online environment it makes people very skeptical to participate in such things.  If there could be some way to nearly guarantee confidentiality and absolute purging of information said online I think more people would be inclined to participate. 

            I know there are some computer programs used in ODR but maybe if there were one developed that would essentially be a security barrier to the rest of the computer or internet that would definitely make me feel better about participating in such things.  In my undergraduate career I was often forced to take exams online in a classroom and we were required to download a piece of software called “lockdown browser” which basically locked you out of the rest of your computer for the time being while taking the test or be forced to no longer work on the test and submit it.  It denied you the ability to copy and paste any text from or to the exam in question and also prevented you from accessing your camera in your computer to take “screen shots” or just accessing any other programs at all on your computer.  I think if there were some sort of secure forum such as what this program did in ODR that may also make parties much more comfortable sharing information. 

            Also, I think another way to perhaps safe guard ethics and information in ODR is to prior to any negotiation formulate a contract between all parties binding them, upon penalty of legal action, or agreeing to pay a punitive amount, make both parties acknowledge and sign the contract prohibiting the distribution, copying, storing, sharing or anything else of the information discussed within the private confines of the discussion.  I would also perhaps, if confidentiality is of the UTMOST in importance in a certain case, also suggest making arrangements for both parties in a secure area, such as a local law firm, in their designated cities or areas, the ODR company may be contracted with, to use a private secure room to prevent leakage of information.  This may sound very strict and probably a bit of trouble, but if ODR truly is the best option, such as in a long distance case, are these simple security measures, or attempts at security not worth the integrity of the resolution or discussion.  I would personally feel a lot better if I and the other party had both agreed to a strict contract to agree to not use, copy or share any information in the ODR process under strict penalties of law and/or a route of legal recourse if this contract is violated. 

            If security and ethics are such large issues, as they usually are, then would some more reassuring measures for the parties not be worth the potential trouble?  There is no way to account for time, trouble, and costs in these suggestions but are some of the aspects not perhaps applicable? 

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