When the Online Dispute Resolution (ODR) world comes together, you know good things are going to come out of it. Check out the website of the 15th International Forum on ODR, held in May in The Hague. You can see some of the talks and presentations here.
I've been working this year on the topic of governance structures and policy for the ODR field; this topic includes issues of ethics, organizations, certification, training - and procedural justice.
Under that last, I'd like to share one talk given at the Forum by Prof. Nancy Welsh, a leading expert on procedural justice and on its role in ADR, suggesting measures that ODR practitioners, service providers and the field as a whole should take on this front. I'm sharing it here, with a very strong recommendation that if you practice, research or care about ODR, this absolutely got to be on your reading list. [As for me, I'm certainly going to assign it to students in my class on ODR!]
ODR: A TIME FOR CELEBRATION AND THE EMBRACE OF PROCEDURAL SAFEGUARDS
By Nancy A. Welsh, Professor of Law and William Trickett Faculty Scholar, Penn State University, Dickinson School of Law
It is an inspiration to attend this conference and listen to your presentations about the latest advances in court-connected ODR. I must acknowledge that I do not have particular expertise regarding most of the world of ODR. Indeed, I see ODR pioneers in this room who have been working for years to help the rest of us imagine what is possible. You remain ahead of people like me! I want you to know, however, that I am convinced that ODR has “arrived.” Your work is paying off. I cannot guarantee that future meetings of the ABA Dispute Resolution Section will do more to incorporate ODR, but I expect that to be the case. There is no question in my mind that those of us involved in ADR need to be aware of and ready to embrace ODR’s many and varied accomplishments and its potential for further advances.
I must also tell you that the spirit and the excitement in this room remind me of ADR a couple of decades ago. We were passionate. We were convinced that we were innovators and entrepreneurs. We were going to change the world. As part of our youthful exuberance, I am afraid that we assumed that we did not have much to learn from those who had come before us. “They” spoke of their concerns and problems to be addressed. “We” heard misguided fears, distrust, manipulation, and defensive opposition.
Did we change the world as we said we would? No. We have made improvements, but conflict is still with us. People still do not have sufficient access to resolution. And, I must add that our processes have sometimes been used for ill.
Did we have something to learn from those who came before us? Yes. One of the most important lessons was that passion was not going to be enough to protect our processes from abuse. In fact, rather than reject those urging the establishment of procedural safeguards, we needed to learn to embrace them.
I hope you will be wiser than we were and will be ready to learn from our experience—to be passionate, to be innovative, to be hopeful—and to view safeguards as a help, not as a sign of distrust or an unwelcome impediment.
To that end, my focus in this presentation will be on something called “procedural justice”—what it is, why it matters, to whom it matters, whether it assures fair solutions, and what it suggests for best practices in ODR. I will also talk about the underbelly of procedural justice—how it can be manipulated, by whom, why and when that matters, and what it counsels regarding procedural safeguards. My goal in talking about this underbelly is to suggest how procedural safeguards may help, at least, with avoiding or quickly addressing the worst practices in ODR.
I know, by the way, that there are some who reject the notion that ODR can produce something called “justice.” I will save that debate for another day. I am using the term today because at this point, the field of “procedural justice” is a well-recognized area of study, and I think we have something to learn from it.
So, what is procedural justice? First, it is not the same thing as satisfaction or happiness. It involves people’s perceptions regarding whether a procedure is fair—not whether it satisfies them or makes them happy. Second, it is a socio-psychological concept. There is a vast empirical literature reporting on procedural justice in the courts, arbitration, mediation, negotiation, interactions between people and police, and in the workplace. Third, this empirical literature reliably reveals that the following procedural characteristics lead people to perceive a process as fair:
The research also shows that if a procedure includes the characteristics I just described:
Thus far, I have used language that suggests that procedural justice matters to everyone. That is not quite accurate. Procedural justice matters to most people. But some people are less likely to be influenced by procedural fairness. In particular, you are less likely to think that procedural justice matters, or to be influenced by the existence of procedural justice if:
Do fair procedures assure fair outcomes? It does seem that if parties are permitted to have voice about what matters to them, and if they receive trustworthy consideration, and if the forum is neutral, evenhanded and dignified, the outcome should be better-informed. That just seems logical. This “logic” also represents a heuristic, of course, a mental shortcut used to assess distributive fairness.
It also seems that if parties are permitted to have voice, if they receive trustworthy consideration, and if the forum is neutral, even-handed and dignified, the parties are being treated as “in-group” members— and that generally means they will be treated fairly. Again, that just seems logical. Once again, it also represents a heuristic.
Do we know that fair procedures actually assure fair outcomes? Of course not. In some sense, equating fair procedures with fair outcomes represents an act of faith. Meanwhile, though, we also must acknowledge that we do not always know what represents a fair outcome. There are various norms used to determine fairness. Equality tends to be the norm that sustains valued long-term relationships. Equity—or merit—is the norm used in other settings. Equitable norms, meanwhile, can be defined by law, religion, and culture. Thus, they can vary widely. Need-based norms are appropriate in still other settings, and restorative norms are appropriate when harmony is valued.
Because there are so many ways to define fair outcomes, I tend to prefer to focus on the relative consistency of our understanding of fair procedures. It makes sense to me that procedurally just behaviors—especially listening, providing trustworthy consideration and trying to treat people and their claims in an even-handed manner—should make thoughtful, fair outcomes more likely. They’re not guaranteed, just more likely.
The procedural justice literature thus suggests the following concrete questions and considerations to me regarding how to achieve best practices in ODR:
Regarding trustworthy consideration
Regarding a neutral forum and even-handed treatment of parties and their claims
Regarding dignified treatment
Thus far, I have been talking about procedural justice and how it can help with the development of best practices in ODR. But now let’s talk about how procedural justice can be manipulated, by whom, why and when that matters, and what it suggests regarding the need for procedural safeguards. My goal in discussing this underbelly of procedural justice is to encourage the embrace of procedural safeguards that will help to avoid or help to correct manipulation and the worst of practices. All of us—pioneers as well as late adopters—want to be protectors of ODR, protecting good processes from abuse.
Can procedural justice be manipulated? Of course it can. Let’s assume I am the decision-maker in a procedure. I can give someone the opportunity to speak, I can sit and look like I’m listening, I can pretend that I will consider what they have to say, I can pretend to believe that they deserve to be treated in a dignified manner. But it can all be an act. I may have made up my mind and have no intention of allowing them to influence my decision-making. Or I may have input certain information into an algorithm and have no plan to deviate from the algorithm’s recommendation. The fix is in.
Meanwhile, ODR must contend with heightened suspicion based on problems that have already occurred in the online world—e.g., inaccurate information regarding consumers’ credit scores that have had the effect of ruining people’s lives; the use of zip codes, gender and age to place consumers into certain segments that determine whether, when and how to respond to complaints; identity theft and credit issues that have arisen in the mobile phone industry; difficulties in correcting inaccuracies contained in sensitive and very personal electronic medical records; etc. The huge and faceless world of Big Data can be horribly powerful, frightening and opaque.
We are most likely to suspect that our perception of procedural justice is being manipulated when we’re vulnerable, we know that the opposing party has established the ODR process, and the opposing party tends to win. Of course, we will suspect that the other party has established a process that favors them. Such design may be intentional or unconscious. We also are likely to suspect manipulation if there is a large power distance between us and the “other side”—e.g., a dispute between an individual and a governmental agency or a large mobile telephone provider that has a monopoly or a near-monopoly—and somehow the more powerful party tends to win.
Does it matter that people suspect manipulation even if a process appears to be procedurally just? I urge that it does. Although distrust can be entirely rational and even helpful, inviting too much distrust can be disruptive and dysfunctional. How smoothly will a community operate, for example, if all or most of its members doubt the legitimacy of its court-connected (but still private) procedures, the distributive fairness of these court-connected decisions, or the moral obligation to comply with those decisions? Research indicates that a heightened degree of distrust can be very difficult to overcome. Indeed, research indicates that there is the need to produce decisions that actually are lopsided in favor of those who distrust.
What does this research suggest regarding the need for procedural safeguards? First, I urge authenticity and transparency. I think ODR providers should be ready to disclose how their processes (including its algorithms) work, in a manner that the average person will be able to understand. Further I urge ODR providers to be clear about when and how actual human beings become involved in their processes. Second, I urge transparency regarding outcomes, both in the individual case and in the aggregate and as differentiated by salient demographics. Such transparency should reveal patterns—e.g., frequent bad actors, products that are attracting more than their normal share of attention, etc. Third, I urge transparency regarding the legal or other norms applied in individual cases—e.g., disclosure regarding how an ODR process arrived at an outcome, applying what norm, and whether that norm is always applied. Fourth, I urge transparency regarding business operations and relationships with parties or other related parties. Fifth, I want to commend the presenters who said that their procedures engage in continuous monitoring and improvement. I urge transparency regarding such improvements. Finally, I urge the adoption of something analogous to financial audits. Let’s call them “algorithmic audits.” Others who are much more knowledgeable about Big Data than I have made similar proposals in other contexts and have even examined different approaches that can be used. Indeed, judicial referrals or their enforcement of ODR’s outcomes might even be made contingent upon consenting to such audits.
So let me return to the point I made early in this presentation. Long ago, Owen Fiss famously declared himself to be “against settlement” and praised the trial. I was offended. How could he have so little regard for the alternative dispute resolution processes that I had come to know and that had so much potential? Today, I’m older and wiser—quite a bit older and maybe a little wiser. Perhaps I should have listened--not in order to be dissuaded from pursuing ADR--but in order to try to anticipate and prevent likely problems and abuses.
Today, I see the promise of ODR. I am amazed and even enthralled by what I have seen and heard today. I am your friend. And as your friend, I plead with you to be ready and willing to anticipate the worst. Be ready and willing to anticipate that your good processes, with all of their promise, could also be turned to use for ill. Western literature, old and new, is replete with examples of fallen angels. There is a reason for that, and it reflects hard-won wisdom. Today, I join you in celebrating ODR and I plead with you to embrace the procedural safeguards that will help your processes to achieve the potential you imagine. Perhaps you will even be able to claim that they do indeed deserve to be recognized as delivering “justice.”