Winner of the 2020 James L. Thistle Q.C Law Student Essay Competition

Increasing the Use of Technology in Alternative Dispute Resolution

Brett Ryan Book, Thompson Rivers University School of Law Kamloops, BC

Brett Ryan Book is from Hamilton, Ontario, Canada which sits on the traditional territory of the Haudenosaunee and Anishinaabe First Nations. He is entering the second year of his Juris Doctor at Thompson Rivers University School of Law in Kamloops, British Columbia in the unceded territory of the Secwepemc First Nation. Brett is a trained mediator and member in good standing with the Alternative Dispute Resolution Institutes of Canada and British Columbia. He is a graduate of the Alternative Dispute Resolution program at Humber College and a former Support Staff member of the Hamilton Community Legal Clinic. Brett is also a Policy Officer with the not profit organization CanAge, Canada’s National Seniors Advocacy Organization. In his spare time, he enjoys exploring the province of British Columbia with his partner Maggie and their adventurous beagle Ziggy and returning home to visit his parents Marcia and Phil and four brothers.

ABSTRACT

As the nation enters a second month of social distancing, it seems appropriate to reflect on the current reality as well as the forecasts for foreseeable future. One thing appears certain; during a time of crisis such as the current COVID-19 pandemic, there is an increased need for dispute resolution. Personal and business relationships are not immune from the societal effects of widespread illness, death, job insecurity, and housing uncertainty. As the field of Alternative Dispute Resolution (ADR) prepares to take on a new slate of cases, a light needs to be cast on new forms of conflict and methods required to resolve them. Its practitioners must also be mindful of the fourth party – technology. In arguing that ADR must embrace technological changes, this paper will examine the impediments to technological progress and the benefits of increasing the use of said technology before examining current technological applications and their concerns.

INTRODUCTION: THE CURRENT REALITY

As the nation enters a second month of social distancing, it seems appropriate to reflect on the current reality as well as the forecasts for foreseeable future. One thing appears certain; during a time of crisis such as the current COVID-19 pandemic, there is an increased need for dispute resolution. Personal and business relationships are not immune from the societal effects of widespread illness, death, job insecurity, and housing uncertainty. As the field of Alternative Dispute Resolution (ADR) prepares to take on a new slate of cases, a light needs to be cast on new forms of conflict and methods required to resolve them. Its practitioners must also be mindful of the fourth party – technology. In arguing that ADR must embrace technological changes, this paper will examine the impediments to technological progress and the benefits of increasing the use of said technology before examining current technological applications and their concerns.

This paper will begin by exploring the transformative power of technology, examining how conflation of terms and processes, generational distinctions and theoretical shortcomings have led to a gap in technology in the field. Before turning to the benefits of applying new technology to ADR, this essay will also explore issues that constrain the self determination of the parties and perpetuate the lack of visibility of the practitioners. In discussing why ADR needs to adopt new technology, it will also be highlighted how evolution and growth can stimulate procedural fairness and access to justice, empower economic development, keep pace with the legal field, and provide solutions in emerging markets and areas of society.

By establishing the groundwork for technology in ADR, this paper will provide an overview of available online applications, while also emphasizing the distinction between different forms of online technology. This overview will lead into a thorough analysis of current online dispute resolution (ODR) methods, distinguishing between instrumental and principal systems before finally analysing online courts and the efficacy of online applications for family law. The final segment of this study will thoroughly weigh the concerns with the application of technology in ADR including privacy, confidentiality, and a loss of control over the process against solutions and measures prescribed by the academic literature on the subject.

I. THE TRANSFORMATIVE POWER OF TECHNOLOGY

Technology has a transformative place in our society. Its immersion in our daily lives is changing the way society works, behaves, and even the way it can regulate itself. Tremendous growth in technology has changed many things, most for the benefit of society. While many enjoy the convenience of online banking, shopping from home, or communicating with friends or family members across the globe, technology also plays an important role in our cognitive changes. As Alyson Carrel and Noam Ebner remind us, technology has impacted the way “we seek, access, verify, process and analyze information.”¹ The authors added that, “Communicatively, we engage with new people and networks using new platforms and methods, learning new communicative etiquettes and new languages.”² Carrel and Ebner argue that the accelerating pace that technological changes occur in society is exemplified by Moore’s law. The Co-founder of Intel, Gordon Moore released a report in the mid 1960’s that concluded the number of transistors on computer processing chips were doubling every two years.³ A perfect example of this accelerated development is present in everyday life, and can be observed through the growth of artificial intelligence (AI) in personal applications such as Netflix, Amazon, Alexa, and Google Home.⁴ It can be debated that where it concerns personal applications, we are in the infancy of AI trends.

The technological transformation of society can be seen not only systematically but also on an individual level. As Carrell held, “looking inward, we can all frankly say that, no matter our age at its outset, over the course of this past decade, our immersion in a technologically-driven world has catalyzed a great deal of personal change in the way each of us think, act, communicate, spend our time, and more.”⁵ Technology is even changing negotiation patterns that greatly impact how, where, and what people choose to fight about.

II. TECHNOLOGY IN ALTERNATIVE DISPUTE RESOLUTION (ADR)

An examination surrounding the nexus of technology and ADR is key to this study because it has impacted practitioners regarding how they negotiate, engage in conflict, and how they engage in resolving it.⁶ Viktor Terekhov argues that technology, “is not only used as communication medium, but takes the active role, assisting the third party in resolving the dispute and on rare occasions even taking its role.”⁷ Since the 1990’s, ADR has explored applying technology to the resolution of conflict.⁸ Pioneers of the Online Dispute Resolution (ODR) movement, E. Katsch and J. Rifkin, coined the term ‘fourth party’ to refer to technology in ADR.⁹ Currently, the majority of technology in ADR is focused on organizing, data collection, presentation, reminders, and analysis. Terekhov held that, “programs can do much more than a human individual, consequently they are not being used, but are rather functioning on their own, performing their separate and unique tasks.” This speaks to the way in which technology can be used to support and streamline ADR processes.

Before examining some of the current applications of technology in ADR, our focus will turn to understanding why technological progress is lacking in ADR while expounding some of the benefits that can be derived from increasing the use of technology in the field.

II. A: Barriers to Technological Progress in ADR

An examination of the available literature indicates that there is a significant technological gap in ADR that speaks to not only a gap in practice, but also a gap in theory. This gap is largely informed by a conflation of terms and processes, generational divide, and theoretical shortcomings in the academic field. The lack of technological progress in ADR has also had a stymying impact on the self determination of the parties while perpetuating the lack of visibility of practitioners in the field.

II. A.1: The conflation of ODR with ADR supported by technology

According to Carrel and Ebner, the early focus of the academic exploration of the ADR-technology bond narrowed on how the field could substitute physical convening with wholly-online procedures.¹⁰ According to the authors, the issue at this juncture is that technology has been conflated with online processes. This development over time is almost ironic, as at first conflation of these processes would have been received as antagonistic to the focus of mediation. In fact, Carrel and Ebner realized that, “perceived limitations in online communication led mediators to view ODR cynically; this attitude broadened to the notion of technology in mediation more commonly.”¹¹ While there is tremendous benefit in online applications, in applying such a narrow focus we lose the full potential that technological advancements can bring to the field of ADR. As Carrel and Ebner concur, “Indeed, today, most mediation processes are largely bereft of technology.”¹² In their article, "Mind the Gap: Bringing Technology to the Mediation Table", Carrel and Ebner suggest that by not minding this gap in technological understanding, traditional mediation forgoes opportunities to improve its processes and its outcomes. Victor Terekhov argues that online mediation is one of the easiest processes to be deployed online, and was also very cautious to add that traditional mediation supported by technology is quite distinct from online mediation. Terekhov held that it is an error to conflate ODR with ADR, remarking that, “in this way, online dispute resolution stands for nothing else than traditional ADR supplemented and facilitated by some modern information and communication tools (ICT), such as email, VoIP, smart-messengers, videoconferencing and so on.”¹³ For Carrel and Ebner, the conflation has led to ODR setting aside in-person processes, instead of ADR developing a core focus around the advancement of technology. This is marked by the replication of online dispute systems, the application of AI to dispute resolution (for the purpose of gathering information from parties to automate part of the process, provide guidance, or even determine outcomes), and the focus on using technology as a communication intermediary for party-to-party and party-to-mediator interactions.¹⁴

II. A.2: The Generational Divide

The age and generational affiliation of practitioners in ADR has influenced the direction of the field. Having said that, Carrel and Ebner held that most mediators belong to a decidedly non-technological generation. A popular career trajectory for civil mediators is to practice first as a lawyer then possibly as a Judge. The distinction is that many disputes will involve members of younger generations, especially the digitally native Millennials. Carrel and Ebner were of the opinion that being brought up in the digital age, “not only affects their comfort with utilizing technologies, it also shapes their expectations regarding technology, business practices, information gathering, and many other issues pertinent to mediation.”¹⁵ While this is anecdotal in nature, it is easy to understand how technology has always been a part of the Millennial experience.

II. A.3: Theoretical Gaps in ADR

Technology in mediation is rarely mentioned in the foundational books. Virtually the same holds true for fundamental journals which discuss mediation. Carell and Ebner reviewed the contemporary scholarship surveying law reviews focused on ADR, social science journals on conflict resolution, and literature on ODR. They were only able to find several dozen articles and chapters which focused on combining technology and mediation. Upon closer examination the authors concluded that only one chapter in an early book and two recent journal articles significantly addressed the use of technology as it relates to traditional in-person mediation.¹⁶ Understanding this theoretical gap is crucial to recognizing the precise delineation of the technological gap that Carell and Ebner called on mediators to mind.

II. A.4: Technology and the Self-Determination of the Parties

The self-determination of the parties is one of the guiding principles of mediation. It has been suggested that mediators may be unintentionally hindering the advancement of technology in ADR by constraining its use in processes.¹⁷ Perhaps the best example of this concerns the general position on the use of cellphones in mediations. The intention is to ensure parties focus on the task at hand, avoid distractions, and demonstrate respect for other parties and a willingness to genuinely engage in resolution. However, Carell and Ebner contend that, “in telling parties to turn off their devices we essentially limit their access to their primary tool for storing and accessing data about their daily lives, interactions, and communication, as well as for connecting to troves of information on the internet that, if readily available, might help them reach more informed decisions.”¹⁸ This distinction is important because it recognizes that parties already rely on their smartphones as a tool in everyday conversation and decision making. Technology is changing the way people behave. The use of the smartphone as a tool for everyday life is a growing global phenomenon that transcends social barriers to access to justice such as wealth, race, and distance. In a 2013 study, Pew discovered that 88 percent of white non-Hispanics, 79 percent of Black, Non-Hispanics, and 75 percent of Hispanics in the United States of America had some access to the internet when factoring in smartphone use.¹⁹ The United Nations created the International Telecommunications Union (ITU) to advance information and communication technology (ICT). In 2016 the ITU studied net access and found that approximately 99 percent of people in developed nations lived in an area covered by a mobile-cellular network. A 2016 study conducted by Pew found that approximately 12 percent of internet users rely on their smartphones as their only means to gain access to the internet.²⁰

One of the issues with constraining the use of smartphone technology concerns the impartiality of the mediator. Carrel and Ebner argue that “a mediator might show bias by disapproving of or vetoing a party’s desire to use a smartphone or laptop to access information or another process-related purpose.”²¹

Mediators subscribe to the well-accepted but unwritten ethical standard of mediation to do no harm. It is because of this standard that mediators must recognize that in some circumstances, separating a party from their ever-present device could cause physiological stress responses²² and a lack of confidence in the process.

II. A.5: ADR’s lack of visibility

One of ADR’s biggest challenges surrounds the field’s lack of visibility. According to Carrel and Ebner, “unless mediation practitioners improve the searchability, ease, and usability of their online presence, millennials will likely pursue other approaches or services they find easier to access.”²³ Not only is the lack of visibility impacting the ability to connect with target audiences, but it is also diminishing the potential for practitioners to effectively manage their reputation while generating new business through advertisements. There is a lack of progress in promoting the visibility of ADR, which has led to a situation where the public is largely unacquainted with the mediation process. This lacking of familiarity is precisely why the field of ADR must keep pace with the advancements of technology. In prescribing solutions, Carrel and Ebner wrote that, “mediation websites could take advantage of better indexing and search engine optimization in Google, create more interactive forms and tools, and invest more in back-end development, to increase the likelihood of people in conflict finding the website.”²⁴

II. B: Benefits of increasing the use of technology in ADR

The literature demonstrates that the field of ADR can derive many benefits from the increased use of technology. Richard Susskind, writing on the future of the legal profession, suggested that technology can be categorized as a sustaining factor.²⁵ A perfect example of this is seen in British Columbia who established its Civil Resolution Tribunal in 2016, the world’s first full integration of ODR in a formal tribunal system.²⁶

This section will examine the benefits of increasing technology in ADR as it relates to the promotion of access to justice and procedural fairness, empowering economic development, keeping pace with the legal field, and providing solutions in emerging areas.

II. B.1: Promoting Access to Justice and Procedural Fairness

Tania Sourdin examined the cost effectiveness of increased technology in civil dispute resolution and shared that, “One hope is that the use of technology will promote better access to justice, partly because it may reduce cost and delay.”²⁷ In a brief summation relating to costs, New South Wales Barrister Philippe Doyle Gray argued that, “you can repeat slogans, like just, quick, and cheap, which is s 56 of the Civil Procedure Act 2005, but the only way that $11,000 became $990 (for my client) is because somebody embraced technology.”²⁸

Sourdin argued that technological changes can promote the just resolution of civil disputes by addressing power imbalances through the provision of free supportive technologies which allow the weaker party to engage in the proper legal research and advice.²⁹ Ayelet Sela’s study, "Can Computers be Fair: How Automated and Human-Powered Online Dispute Resolution Affect Procedural Justice in Mediation and Arbitarion", proposed an instrument for evaluating procedural justice experiences in ODR.³⁰ Tania Sourdin highlighted the ability technology has in dehumanizing justice processes.³¹ Sela’s study examined a wholly-online dispute resolution process, comparing principal to instrumental forms (which will be addressed in greater detail in this paper) She concluded that, “the findings portray a promising picture regarding both instrumental and principal ODR: both technologies were shown to foster positive disputant procedural justice experiences, regardless of decision-control.”³²

II. B.2: Empowering Economic Development

To be candid, litigation is too expensive. Individuals involved in disputes are increasingly demanding remedies in real time. As Amy J. Schmitz argues, “for small dollar claims, it is even cost prohibitive to seek redress through face-to-face ADR processes such as mediation if one must pay for the mediator’s time and bear costs of travel and time off work.”³³ In a global economy, public face-to-face dispute resolution is not a feasible option. This rings especially true for cross-border trade through e-commerce. Along these lines, the literature has developed to cover the development of ODR, especially where it concerns the resolution of business-to-consumer contract disputes.³⁴ An example of this kind of economic development is the example Schmitz provided of the African jewel merchant who wants to sell his products online. There are global consumer trust issues which prevent the implementation of this business. The biggest question for consumers is how they can enforce an award generated from any dispute. Schmitz argued that an embedded reliable and vetted ODR system – if it gains a reputation for trustworthiness – may encourage purchases from the jewel vendor. In this regard, “ODR is seen as increasingly important for economic development, and progression in emerging economies.”³⁵ In speaking to the digital divide between developed and developing nations, Schmitz found that the introduction of inexpensive mobile phones, “democratized access to the Internet and e-commerce.”³⁶ Where physical distance is an issue, ODR has seemingly bridged the gap in allowing for conflict resolution in eCommerce. This will be explored later when we shift our focus to applications, specifically the principal form of ODR utilized by eBay in their dispute resolution process.

II. B.3: Keeping Pace with the Legal Field

It is essential that the field of ADR keep pace with the traditional legal field. Carrel and Ebner remind us that mediation was always given a ‘foot in the door’ in court for its ability to provide faster, cheaper options for keeping cases off the court dockets.³⁷ Part of this reflection also concerns examining the changing nature of the mediation parties and the legal professionals who attend mediation with them.

Salvatore Caserta and Mikael Madsen analyzed how digitalization is accelerating the economization and commodification of the legal profession and its practitioners. In their article "The Legal Profession in the Era of Digital Capitalism", the authors recognized that law firms were becoming increasingly service driven enterprises at the cutting edge of the capitalist economy. With the increased demand for service, the authors concluded that more routinized areas of practice will face serious challenges and will most likely be replaced by technology and technology-based service firms.³⁸ The authors used the notion of digital capitalism as a framework for understanding how new technology will impact the organization and structure of the legal profession. The authors held that, “as the production and application of law becomes increasingly interlaced with digital media, major privately owned non-legal companies are increasingly entering the legal field, with significant consequences for the latter’s socio-political dynamics and power relations.”³⁹

Some of the technologically influenced changes are already noticeable in the legal profession. Take for example the development of legal process outsourcing and the rise of Alternative Legal Service Providers. Caserta and Madsen held that, “these are developments that essentially seek to cut costs of legal services by introducing new technological solutions, or using technological advances to introduce new and cheaper legal services and providers.”⁴⁰ The emergence of digital services that offer online legal services has catered to the convenience of the end-user, enabling lawyers to work outside of the office and provide a quicker response to client requests. According the American Bar Association’s Legal Technology Survey Report, 72% of solo and small American law firms had adopted some form of online document storage by 2015.⁴¹ The rise of virtual law offices had led to new offerings for clients that normally would require the use of a telephone, fax machine, or in-person meeting. New online platforms of lawyers such as DirectLaw⁴², NewGalexy⁴³, LegalZoom⁴⁴, and RocketLawyer⁴⁵ now function like a personal app, allowing the user to share their views on service similar to Uber or Airbnb.⁴⁶ The legal profession is even diminishing the boundary of distance in service provision. An example of this is seen at the regional economic court of the Caribbean Common Market, which has adopted online video-conferencing through Skype and Zoom to allow who do not reside in Trinidad and Tobaggo (where the court sits) to e-file.⁴⁷

There has also been reports of similar technologically supported growth in the field of case-based reasoning. Casserta and Ebner wrote about the growth of computerized legal assistants, which help identify relevant precedents and apply them to solving legal problems. The authors provided the example of the insurance company Allianz who utilize the services of French AI company Predictice for litigation analysis and case prediction.⁴⁸

It is arguable that the best tools in the legal profession have not been created yet. The same holds true for ADR. When looking to the future, many scholars have begun to examine the role AI can play in performing various functions usually reserved for humans. This can include problem solving, modelling, communicating with other machines or humans, and understanding and filling in blanks. One of the most famous examples of an AI system is IBM’s Watson. IBM has already used this computer programme in the medical field to aid with diagnoses and has recently started to search for evidence and data in an attempt to predict the outcome in legal cases, similar to existing computer investments in case-based reasoning. As Caserta and Madsen remind us, “the problem with Watson is that it cannot provide informed explanations of why the answers provided to specific cases in fact are the right ones. This process requires one to reason with rules and concepts, and Watson is not capable of performing this, at least for now.”⁴⁹

II. B.4: Providing Solutions in Emerging Markets

Online mediation may become essential in cases where everything else either fails or is unlikely to help resolve the dispute. The literature has indicated that in new markets or areas of society where some relations exist on the Internet there is a growing need to resolve disputes where the is a lack of proper regulation by law and no apparent efficient remedies are available for cases of violation or abuse. According to Victor Terekhov, “to this category we may include disputes between online gamers over some in-game artifacts, not being considered as ‘real property’ in classic terms, yet quite valuable and important for the relevant community; and also inter-personal conflicts in social media, which can only be comprehended by someone, who is also part of the same community and know its hierarchy of values and code of conduct.”⁵⁰

III. APPLICATIONS OF TECHNOLOGY IN ADR

Having outlined the impediments to the progress of technology in ADR and the benefits of increasing its use, this summary will now focus on the current application of technology in ADR. This portion will feature an overview of the available technology before closely examining the areas of Online Dispute Resolution (ODR) and how the use of technology can be used to support the Family Law processes.

III. A: An Overview of Technological Applications for ADR

One thing to bear in mind is that fact that the best tools may not have been created yet. In examining how ADR can embrace technology, Carrel and Ebner referenced two starting points; looking at the different roles technology can perform and dividing ADR activity into dispute areas and questioning how technology can improve each area.⁵¹ In their study, the author’s proposed two models. The first model which examined the room for technological improvement of categories and tasks looked at how technology could support Administrative roles (assisting a third party organize the process, keep participants focused, and provide everyone with equal access to information), communication roles (assist to enable, facilitate, improve, and secure communications between the parties and mediator), substantive roles (helping the parties understand and work on issues, and practice support roles (helping the third party promote their practice). The second model involves mapping and models the application of technology in the practice of mediation, identifying different areas of mediator functions and considering how technology can improve each.⁵²

Technological advances in ADR can be considered in two separate streams; supportive and disruptive technology. Supportive technology may function to promote access to justice. Supportive technology can include applications to assist mediators and parties and can be used on devices in the mediation (smartphones and tablets are ideal). Carrel and Ebner also discussed the potential to recognize or explore emotions with wearable devices. This may be helpful in situations where there is distance or where the opportunity to view non-verbal cues such as body language and facial expressions has been removed, making it impossible for the mediator to know when the intervene and take a break. The authors held that, “a smartwatch or fitness tracker could notify a party that he is experiencing a stress-related physiological response such as increasing heart rate. At this notification, the party might take steps to restore his equilibrium.”⁵³ Other supportive options may include smart assistants to support the mediator in the process (such as Google or Alexa) and reality testing with the use of legal analytics. The latter may be useful in helping parties determine strengths and weaknesses of a BATNA assessment.⁵⁴ One of the major criticisms with supportive technology concerns its cost and lack of evenness. Caserta and Ebner provided an illustrative example seen, “Through mining litigation data and applying big data analytical tools, Lex Machina, a company owned by legal publisher LexisNexis, is able to provide law firms and corporate clients with quantified insights into judicial behavior, venues, opposing parties and opposing counsel to assist them to make better decisions about claim construction and case strategy.”⁵⁵ The prohibitive cost of supportive technology coupled with unequal access creates an unfair advantage for parties with greater resources. As this can hinder access to justice and contribute to party imbalances, ADR practitioners should be wary of this.

Disruptive technologies may include developed AI and replacement procedures for traditional processes. A prime example of this is the online dispute resolution (ODR) replacement technology currently being utilized across the globe. This technology which may include videoconferencing, “has at least saved travel times with disbursements whilst contributing to faster finalisation of disputes compared with both traditional litigation processes and traditional forms of ADR that require face to face contact.”⁵⁶ Caserta and Ebner held that case management is also aided by the use of replacement technology which provides for an easier exchange of material, timetables, and advising.

III. B: Online Dispute Resolution (ODR)

Online mediation offerings commenced in the late 1990’s. At first these were run on a purely University project basis. As their efficiency improved, these projects evolved into commercial ventures. Most of these ventures went bankrupt with the new millennium. The literature has indicated that the same holds true for academic research on the subject. Despite its waning appeal at the start of the new millennium, online mediation has been embraced by the ADR field. Many academics agree that online mediation is still in its infancy. Terekhov argues that, “many issues surrounding it are problematic, the scholar and practicing community are not united in terms, no solid regulatory framework is provided from the public side and, finally, some potential users may be distracted from it due to trust-related problems.”⁵⁷ Online mediation is capable of engaging parties through a range of web-based technologies including simple email communication, messengers, videoconferencing, and procedures involving advanced algorithms. Online mediation can be divided into textual and dynamic (audio and video) and immediate (synchronous) and asynchronous. One advantage of online mediation is the inclusion of virtual rooms in online platforms specifically designed for dispute resolution. According to Terekhov, “virtual rooms may be general (open to all three participants) and private (only one of the parties and the mediator have access there). Such design enables the mediator to chat with both parties in separate browser windows and none of the parties is capable of seeing what is being typed to its counterpart.”⁵⁸

Despite the wide range of technology available, online mediation largely remains textually based. This may actually serve access to justice better as currently, access to broadband internet and advanced technological resources can manifest an unfair advantage for one of the parties. Amy Schmitz provided that, “ODR includes automated decision-making and online negotiation, mediation, arbitration, or community courts. It also includes variations on these processes and new possibilities through expanding technologies.”⁵⁹

Ayelet Sela has provided that disruptive legal technology represents a shift in the legal paradigm. In understanding this paradigm, Sela looked at the socio-techno-legal phenomenon that is the law of cyberspace. Informed by Lawrence Lessig’s “Code is Law” theory, Sela held that, “it conveys the notion that the way that a software tool is designed and programmed to operate is not neutral; it reflects – and promotes – particular values which affect the way it services its users.”⁶⁰ In examining the operation of legal technology, we can view developments in two areas; instrumental and principal ODR systems.

Instrument ODR systems represent the virtual space for conveying the dispute resolution process. Instrument systems handle planning and interaction. The decision-making remains in the control of a human third-party neutral to facilitate communication with the disputants. The Civil Resolution Tribunal in British Columbia is an instrumental ODR system.

Principal ODR systems take a proactive role in facilitating resolution. Sela provided that principal systems are “typically powered by artificial intelligence, principal ODR systems automate classic third-party capacities such as identifying interests and goals, educating parties about available options, refining preferences and defining strategies, diagnosing applicable rules and applying them, classifying and routing cases to relevant resolution paths, generation options, and determining final outcomes.”⁶¹ The eBay Resolution Center is the perfect example of a principal system, “it is a questionnaire-based algorithmic expert system that performs the role of a mediator: collecting factual information, identifying preferences, and suggesting resolution options.”⁶² The eBay Resolution Center is not only a paradigmatic example of a principal ODR system, it is also the first clear business-case for the creation of an automated system to resolve disputes. It is simply impossible for human agents to resolve the over 60 million buyer-seller disputes that eBay handles each year. To date, the eBay Resolution Center has resolved 90 percent of its cases.

There have also been reported successes with the use of hybrid instrumental-principal ODR systems. The paradigmatic example is Juripax which was acquired by Modria in 2014. This combination instrumental/principal system involves an initial principal phase where the branching intake questionnaire passes parties through a decision-tree of logic regarding their case. As Sela contributes, this has a dual purpose in automating the beginning of the process to educate parties about process and confidentially collect and organize information about the case while identifying interests in a structured form, distilling them in a collaborative manner. After this phase, the mediator facilitates an instrumental mediation which has been aided tremendously by the streamlined intake and initial education provided.

Finally, ADR has embraced automated arbitration by blind-bidding. According to Sela, “in blind-bidding processes, parties submit several settlement proposals (typically three); the ODR system sequentially checks the proposals against each other to detect a monetary range of possible agreement; if matched proposals fall within this range, the algorithm yields a final award by splitting the difference.”⁶³ Blind bidding systems in use today include; CyberSettle, SmartSettle One, Freelancer, and Fair Outcomes proprietary Adjusted Winner process.

III. C: Online Courts

Ayelet Sela, studied the role of digital choice architecture in online courts and the impact the selection has on participants. Sela held that most online courts are in fact designed to improve access to justice to for self represented litigants (SRLs). This is an important distinction because SRLs coming before the courts may eventually become ADR clients, especially in British Columbia with its Civil Resolution Tribunal and in Ontario with the Mandatory Mediation program through Rule 24.1 of the Rules of Civil Procedure, RRO 1990, Reg 194.⁶⁴ According to Sela,

to help SRLs navigate and complete the proceedings without the advice or guidance of a lawyer, online courts rely on streamlined and simplified procedures that are delivered through the court’s digital interface. They harness IT tools, user interface (UI) design, and user experience (UX) technologies to offer SRLs a fairly interactive system that handholds them throughout the process, empowering them to make procedural and substantive decision, and take legal action.⁶⁵

Sela demonstrated the momentum that was gaining in the courts as they continue to embrace technology. She looked at the development of the Online Solutions Court (OSC) in England and Wales as part of a 1.2 billion pound reform of the English Courts and Tribunals System (HMCTS). Sela contends that it is expected that, “by 2022 most civil disputes in England and Wales will be resolved through an online court.”⁶⁶

Since 2016, British Columbia has utilized its Civil Resolution Tribunal (CRT) to handle small claims under $5,000 and strata property disputes. This tiered process is the first formal use of ODR in a court setting. The first step in the CRT is engaging SRLs with the Solution Explorer. According to Sela, the Solution Explorer is “an automated online wizard that helps potential litigants diagnose the problems they face and presents them with relevant legal information and courses of action.”⁶⁷ After the parties have made their selections, the next step is a period of online asynchronous free-text party-to-party settlement negotiations. The parties can go back and forth in negotiations until reaching a settlement. If one is not reached, a staff mediator can facilitate the remaining negotiations and if there is still no agreement, the matter is sent to the tribunal for adjudication. Once at the CRT, Sela shared that, “facilitation and adjudication can involve video or audio communication, and in-person hearings can he held at the discretion of the judge.”⁶⁸ In a 2018 statistical report on the CRT, it was found that since inception, the Solution Explorer had been used over 50,000 times and has processed nearly 9,000 disputes.⁶⁹

The honest intention of online courts is to alleviate some of the burden felt by the traditional court system. They offer a cost-effective system designed with the end-user in mind. Sela argued that the goal of the individuals designing these courts should be to create digital choices that guide SRLs in identifying interests and options while make appropriate decisions to advance their action.⁷⁰ By supporting the end-user in this manner, online courts eliminate a lot of the background work faced by mediators entering a dispute. What is more, designing online courts with the end-user in mind supports a foundational principle in self-determination by allowing parties to determine the outcome in settlement negotiations.

III. D: Family Law Considerations

Divorce through e-Mediation is a process that was first proposed in 1996 in a pilot project conducted by the University of Maryland. According to Dafina Lavi, “Two successful projects have used e-Mediation in family law cases in recent years: one by the online mediation company Juripax in 2008, and the other by the British Mediator Roster Society, which took place in 2009-2010.”⁷¹ In both cases, Noam Ebner noted that the levels of satisfaction and agreement were high and the parties all indicated a willingness to use mediation in future cases. In Canada, Family Mediation Canada offers the use of advanced technology in e-Mediation for family law matters. A 2009 study conducted in Holland studied 126 participants involved in an e-Mediation divorce process. According to Lavi, “the study concluded that the process has a true potential for resolving legal disputes in a fair and just manner; the results of the study indicate that e-Mediation in divorce cases may definitely serve as a practical and viable alternative.”⁷² Another study, conducted in Australia looked at the efficiency of simple technologically supported processes in the Family Relationship Advisory Line (FRAL) and the Telephone and Online Dispute Resolution Service (TDRS). According to Tania Sourdin, “the Relationships Australia report actually found that there were very high rates of satisfaction with the Online Family Dispute Resolution (OFDR) services that were set up as part of the project in Queensland.”

ODR for family law may present some practical benefits. There is the obvious advantage of distance which may serve to reduce or eliminate the component of danger that may be inherent in cases involving domestic violence (DV). There is also a power balancing factor inherent. Online communication relies solely on written texts, which eliminates the body language and non-verbal cues of abusive parties. What is more, in applying asynchronous communication, parties can pause and reflect before responding. This is a helpful tool in the empowerment of parties who may not feel confident enough to speak up freely in a traditional face-to-face mediation. E-Mediation also allows the mediator to speak with each party privately by using separate virtual rooms. This eliminates any lack of confidence or trust in the process that may be inherent in a shuttle mediation in-person. Finally, where it comes to an abusive party or power imbalance that threatens the possibility of a reasonable outcome, Lavi wrote on how “traditional mediation is a voluntary process, it may arouse the cycle of controller-controllee and provide the violent party with optimal conditions for maintaining this pattern of control and aggression toward the weaker party.”⁷³

Where it concerns the important tool of screening, Carrel and Ebner suggested that screening in family law can be strengthened by the use of an expert system. According to the authors, “a traditional screening questionnaire could be incorporated into an expert system that guides the mediator through the various questions to be asked, determining the next question based on the party’s previous responses.”⁷⁴ This may be particularly helpful as studies have indicated that only approximately 80 percent of mediation programs officially attempt to identify DV while only half of these actually conduct thorough interviews in addition to questionnaires.⁷⁵

IV. CONCERNS WITH THE APPLICATION OF TECHNOLOGY IN ADR

Having identified the current applications of technology in ADR, this paper will now weigh some of the concerns and solutions.

IV. A: Privacy and Confidentiality

A strict adherence to confidentiality and privacy concerns is at the foundation of the core values of any ADR practitioner. For Linda Elrod, “Confidentiality protections in alternative dispute resolution (ADR) processes rest at the intersection between privacy and self-determination and the protection of vulnerable parties.”⁷⁶ One of the largest concerns for confidentiality in ADR lies in an understanding of court-mandated mediation which tends to appear more evaluative in nature. In these processes the mediator is often under pressure for a quick resolution and may engage in a process that lacks adequate confidentiality protections. Where it concerns the online realm, the literature has expressed worry regarding the limitations that operating online places on human communication, privacy, confidentiality, and neutrality. Despite the terms and agreements we may negotiate before an online process, Terekhov reminds us that “even such powerful corporations as Facebook or Microsoft get hacked or leak private information of their users, what to say of small private ODR providers with limited cyber-security budgets?”⁷⁷

In their assessment of the confidentiality and privacy concerns inherent in dispute resolution processes, Gregory Firestone and Sharon Press proposed a new term, privadentiality, to describe a wide range of communications protections and provide a framework to develop and understand more consistent and appropriate communication protections. They looked at the nexus of inadmissibility and confidentiality, lamenting that the ambiguity that lies in what communication is protected and when, manifests uncertainty and requires clarity. The authors held that, “for example, parties believing everything in a DR method is both confidential and admissible in court, may disclose facts, perceptions, or interests which later may be used against them in court, or vice versa.”⁷⁸

IV. B: Protecting Communication

Many scholars have acknowledged a perceived lack of influence where it concerns ODR systems. This may factor into the generational divide and generalized apprehension to trust technology, especially the Internet. One of the complaints lobbied is that the mediator is removed from the ability to interrupt the mediation and impose a cooling off period.⁷⁹ As Terekhov argues, “a situation where the mediator does not see messages prior to them being sent (or, in the worst case, not seeing them at all) makes him totally blind and unable to track the progress in the dispute. In fact, at some stage he may be totally and implicitly removed by the parties from the loop essentially turning the whole process into another form of dispute resolution – negotiation.”⁸⁰ The literature indicates that there is a generally held belief that mediators feel a lot is being missed by way of non-verbal cues. Terekhov also argues that text typed online simply cannot convey emotions, feelings, and desires accurately. What’s more, he held that, “people normally try to sound more professional, solid and reliable while composing their letters.”⁸¹ Terekhov also argues that issues concerning the literacy of the parties and the ability of parties to keep up with the pace may factor into potential mediator bias. Words can also be misinterpreted – a joke may be perceived as an insult and a reasonable proposal may be misconstrued. Many people would agree that communication with computers is cold, mechanical, and depersonalized. Despite our preconceived notions, “research shows that advanced computer agents – even ones that are represented by simple text messages or low-fidelity cartoonlike characters – can exhibit conversationally appropriate social, emotional, and personality figures.”⁸² More importantly, however, Sela found that “people were shown to react to a computer’s personality, ethnic cues, and gender cues, identify a computer as a teammate, and attribute to it responsibility. People also exhibit politeness, intimacy, and reciprocal behaviour towards computers, and respond to flattery and praise by them.”⁸³

Online mediation processes also have the ability to reduce gender and racial norms that skew traditional face-to-face mediation. Lavi argued that traditional mediation may naturally favor parties who are educated, good looking, speak well, or belong to a dominant social group.⁸⁴ Written communications diminish the chances that the mediator will favor one party over the other because of these reasons. Lavi has provided that online mediation that features asynchronous communication essentially allows parties to pause and reflect, allowing for a more organized and thoughtful process for everyone involved.

At the end of the day, perhaps the most significant advantage of online mediation concerns its efficacy and speed. These benefits are much more pronounced in the area of family law, where a divorce and custody arrangement under the light of DV may require a quick resolution. According to Lavi, “abuse may also include financial abuse where the husband has total control of all financial resources and withholds information about the couple’s financial situation, net worth, and/or access to means of payment.”⁸⁵

V. CONCLUSION

As the literature has indicated, the best technological tool one could use in the field of ADR may not have been created yet. If the narrative has taught anything, it is that technology continues to advance at a astonishing pace. Today’s ADR practitioner must be at the front of these developments to provide cutting edge technology to a clientele that is accustomed to using technology to make their daily lives better. The consequences of allowing the field of ADR to fall behind in technological advances could be a significant loss of confidence in the process and those signal parties relying on other methods to resolve their disputes. In order for ADR to continue to progress as a viable, cost-saving, efficient alternative to traditional legal and commercial practices, its practitioners must nurture and embrace new ways to incorporate technology into their practice. It has been demonstrated that technology, if utilized correctly, can increase procedural fairness and access to justice, empower economic development and the self determination of the parties, and promote the virtues of the field of alternative dispute resolution.

Table of Authorities

LEGISLATION

Rules of Civil Procedure, RRO 1990, Reg 194, 24.1

SECONDARY MATERIALS: ARTICLES

Amy J Schmitz, "There's an App for That: Developing Online Dispute Resolution to Empower Economic Development" (2018) 32:1 Notre Dame JL Ethics & Pub Pol'y 1

Alyson Carrel & Noam Ebner, "Mind the Gap: Bringing Technology to the Mediation Table" [2019] 2019:2 J Disp Resol 1

Ayelet Sela, "Can Computers Be Fair: How Automated and Human-Powered Online Dispute Resolution Affect Procedural Justice in Mediation and Arbitration" (2018) 33:1 Ohio St J Disp Resol 91.

Ayelet Sela, "E-Nudging Justice: The Role of Digital Choice Architecture in Online Courts" [2019] 2019:2 J Disp Resol 127, 128.

Dafna Lavi, "Til Death Do Us Part: Online Mediation as an Answer to Divorce Cases Involving Violence" (2015) 16:2 North Carolina J of L & Technology 253.

Gregory Firestone & Sharon Press, “Privadentiality: Developing a Coherent Framework for Establishing Communication Protections in Family and Child Protection Dispute Resolution Methods” (2020) 58:1 Family Court Review 9.

Linda D. Elrod, “The Need for Confidentiality in Evaluative Processes: Arbitration and Med/Arb in Family Law Cases” (2020) 58:1 Family Court Review 26.

Salvatore Caserta & Mikael Rask Madsen, "The Legal Profession in the Era of Digital Capitalism: Disruption or New Dawn" (2019) 8:1 Ls 1.

Tania Sourdin, Bin Li & Tony Burke, "Just, Quick and Cheap: Civil Dispute Resolution and Technology " (2019) 19 Macquarie LJ 17.

Victor Terekhov, "Online Mediation: A Game Changer or Much Abo about Nothing" [2019] 2019:3 Access to Justice in Eastern Europe 33.

OTHER MATERIALS

DirectLaw.

LegalZoom.

NewGalexy.

RocketLawyer.

Endnotes