Dispute Resolution and Technology

Sheila Grela
EDRM - Electronic Discovery Reference Model
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Although familiar to everyone in the legal community, the definition of ADR is more complicated than the three simple letters of its acronym. Alternative Dispute Resolution encompasses well-known elements such as Mediation, Arbitration, Settlement Conferences, and the more rarely-discussed process of Neutral Evaluation. The evolution of ADR will include changes to the systems, methods, and, more importantly, the technology used to resolve issues, both before and during litigation. This evolution must focus on safely folding new technologies, such as Artificial Intelligence, into this process.

“The use of technology in dispute handling expanded slowly but steadily until the COVID-19 pandemic forced widespread global usage of videoconferencing.1” This quote from the “Framing the Parameters of Online Dispute Resolution” by the National Center for Technology and Dispute Resolution2 points out one of the obvious ways that the pandemic accelerated technology adoption.

Building on the near-universal adoption of virtual depositions, the new focus will be expanding Online Dispute Resolution (ODR) through new or improved technology. Developing ODR programs will require legal professionals to modify their mindsets and workflows. The adoption of new technology also requires that the legal team manage risks. Some of the dangers are related to issues with protecting the privacy and security of the data. Technology to facilitate ADR is expected to include new tools such as ChatGPT.

The process of ODR is more than using virtual tech to conduct the hearing portion. The Los Angeles Superior Court’s ODR for Unlawful Detainer is an excellent example.3 This program does not facilitate meetings or phone calls. Instead, the Court’s ODR provides a “guided” message negotiation. In addition, the website includes instructional videos and other materials. As a bonus, this progressive program also offers online mediation for free by Mediators training in the system.

The alternatives to litigation (especially jury trials) take several forms. It is important to understand the various processes available to resolve disputes. Below is a table constructed from definitions provided by leading professional groups such as the ABA and the Cornell ADR Center:

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METHODOLOGIES
NAME DEFINITION(S)
Online Dispute Resolution (ODR) Online Dispute Resolution (ODR) uses technology to settle disputes between parties. ODR was initially used in commercial settings, such as disagreements between buyers and sellers on websites like eBay. However, the procedure varies by service and can involve direct negotiation, using a third-party mediator, or even automated processes.4https://www.americanbar.org/groups/centers_commissions/center-for-innovation/online-dispute-resolution-in-us/
The use of technology to facilitate or perform any central function of preventing or resolving disputes.5https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/leadership/odr-guidance.pdf
Neutral Evaluation Using a neutral third party who provides their views on the strengths and weaknesses of their respective positions relating to controversial issues. This process frequently is combined with conciliation or mediation.6https://adr.gov/guidance/adrguide-home/adrdefs/
Planned Early Dispute Resolution (PEDR) The7https://www.law.cornell.edu/lii/about/about_lii Planned Early Dispute Resolution (PEDR) is a General and flexible approach to dispute resolution. The goal is to reach an agreement satisfying the most vital interests of all parties. Alternative to litigation-as-usual (i.e., late negotiation, after expensive discovery, on the eve of trial) Both sides jointly determine what is needed to negotiate at the earliest reasonable time.8https://www.jamsadr.com/blog/2013/jams-supports-the-abas-planned-early-dispute-resolution-project
eMediation Mediation is conducted virtually through the use of technology.
Mediation Since mediation is less rigid than litigation and Arbitration, it allows for creative techniques that would not be acceptable in other settings. For instance, a mediator can speak ex parte with each side to find mutually acceptable solutions that might not otherwise emerge.9https://www.law.cornell.edu/wex/category/mediation
Mediation / Arbitration combined This hybrid process is frequently referred to as “Med/Arb .”Mediation is an attempt by Arbitrators to impose a decision on the parties only as a last resort.
Settlement Conferences A settlement conference is relatively short and less formal than a trial, although a judge or referee often will oversee the conference.What is a Settlement Conference? | Justia. https://www.justia.com/trials-litigation/alternatives-to-court/settlement-conferences/
Minitrial An ADR method with attorneys for each side presenting their case as they would at an actual trial. Minitrials are private, voluntary events attended by representatives from each side who have the authority to settle. Neutral third parties may also act as judges or jurors.
Arbitration Arbitration is an alternative dispute resolution method where the parties agree to hear their case by a qualified arbitrator out of court.
Settlement Conferences A settlement conference is relatively short and less formal than a trial, although a judge or referee often will oversee the conference.What is a Settlement Conference? | Justia. https://www.justia.com/trials-litigation/alternatives-to-court/settlement-conferences/
Virtual Arbitration Arbitration is conducted virtually through the use of technology.
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Below is a list of some reasoning behind using options other than litigation.

CATEGORY DETAILS ADDITIONAL REASONS FOR USING ODR
Saves Money The limitation on the scope of discovery, the time involved in getting the matter The parties can avoid travel costs and other expenses.
Saves Time The reduced amount of time spent on discovery makes the entire process shorter. Generally, the arbitration system is much quicker than using the courts. The time used to travel and wait during the actual session is unnecessary.
Increase Control Parties can decide on many factors, such as demanding mediators or arbitrators based on qualification, no matter where the individuals reside. The sessions can be staggered without increased cost or conducted on short notice.
Increase Satisfaction The three above factors may allow the parties to accept the outcome more quickly than after a public trial. It is easier to accept compromise when you have saved time and money. The absence of publicity also makes any settlement more palpable.
Preserve Relationships Business relationships can be salvaged when the dispute is not public. Avoiding disparaging the other parties or individuals is easier when the focus is quick resolution instead of winning at trial.

The use of ADR has increased, and there is no reason to believe this trend will change soon. The information on the American Bar Association’s website is useful for the ADR process. The website also discusses other novel ADR systems, including non-business disputes, such as divorce coaching and family group conferences.

Other resources include:

National Arbitration and Mediation (namadr.com)

International Institute for Conflict Prevention & Resolution (cpradr.org)

Association for Conflict Resolution (acrnet.org)

FORUM (adrforum.com)

The National Center for Technology & Dispute Resolution (odr.info)

International Council for Online Dispute Resolution (icodr.org)

The image below of the ODR Framework (within the “Framing the Parameters of Online Dispute Resolution” by the National Center for Technology and Dispute Resolution) is a fantastic example of going from no tech to no human.10

Excerpt from National Center for Technology and Dispute Resolution)
Framing the Parameters of Online Dispute Resolution, National Center for Technology and Dispute Resolution

I would be remiss if I did not share this quote regarding ethics considerations by the Director of the National Center for Technology and Dispute Resolution “Without coding fairness and equality into artificial intelligence (AI), it will emerge as an outcome. NO CODE, NO JUSTICE” (Leah Wing)11.

It is essential to consider the ethics involved in using technology as a tool during the ADR process. The mandatory ethical issues to consider range from accessibility to transparency. The categories from the Online Dispute Resolution Standards jointly published by the National Center for Technology and Dispute Resolution and the International Council for Online Dispute Resolution in May 2022 are set forth (in alphabetical order, not in order of importance) below:

  • “Accessibility
  • Accountability
  • Competence
  • Confidentiality
  • Empowerment
  • Equality
  • Fairness
  • Honesty
  • Impartiality
  • Informed Participation
  • Innovation
  • Integration
  • Legal Obligation
  • Neutrality
  • Protection from Harm
  • Security
  • Transparency”12

The benefits of ODR are apparent, but one crucial future obstacle is that many underserved communities lack the necessary equipment and technology. One of my eMentors, Molly McDonough13 writes a blog regarding access to justice issues at “ajustsocietynow.com.” Molly inspires the legal community to pursue other possible uses of legal tech to close the access to justice gap. New and improved technologies, like the ODR systems, are important in closing the justice access gap.

Additional Resources:

ABA Section of Dispute Resolution

ABA Benefits of Commercial Arbitration

ABA Planned Early Dispute Resolution

ABA Update on federal alternative dispute resolution (ADR) legislation and other related proposals and measures

Notes

1 National Center for Technology and Dispute Resolution, principal author Leah Wing with Chris Draper. Framing the Parameters of Online Dispute Resolution. National Center for Technology and Dispute Resolution, 2022, p.2.

2 https://odr.info/wp-content/uploads/2022/05/Framing-the-Parameters-of-Online-Dispute-Resolution_NCTDR_2022.pdf

3 https://my.lacourt.org/odr/unlawful-detainers

4 https://www.americanbar.org/groups/centers_commissions/center-for-innovation/online-dispute-resolution-in-us/

5 https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/leadership/odr-guidance.pdf

6 https://adr.gov/guidance/adrguide-home/adrdefs/

7 https://www.law.cornell.edu/lii/about/about_lii

8 https://www.jamsadr.com/blog/2013/jams-supports-the-abas-planned-early-dispute-resolution-project

9 https://www.law.cornell.edu/wex/category/mediation

10 See Figure 1, National Center for Technology and Dispute Resolution, principal author Leah Wing with Chris Draper. Framing the Parameters of Online Dispute Resolution. National Center for Technology and Dispute Resolution, 2022, p.7. Used with permission.

For further explanation of the ODR Framework, see Wing, L. “Mapping Online Dispute Resolution.” International Journal of Online Dispute Resolution Vol. 9, No.1, 2022, 3-16.

11 Found on her faculty website at: http://polsci.umass.edu/people/leah-wing

12 Online Dispute Resolution Standards, National Center for Technology and Dispute Resolution and the International Council for Online Dispute Resolution, May 2022. The standards can be accessed at: https://odr.info/wp-content/uploads/2022/05/NCTDR_and_ICODR_ODR_Standards_2022.pdf and found at https://odr.info/standards/ and https://icodr.org/standards/ where they can be found in nine languages.

13 https://www.linkedin.com/in/mollymcdonough

https://www.mcdonough-media.com/
https://ajustsocietynow.com

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