28 Jun 2017
The Future's Already Happening ...
By Andy Rogers
At least that seems to be the case when it comes to Online Dispute Resolution (ODR).
Many aspects of dispute resolution are now being taken online, or at least finding online equivalents. This is both helping Alternative Dispute Resolution (ADR) to find new users whilst delivering more value for the existing users of ADR processes – such as mediation, conciliation, arbitration and adjudication. Developments in technology would appear to be occurring in both large and complex commercial and civil cases as well as in the handling of consumer complaints against organisations.
These observations come not only from CEDR’s own experience of introducing and developing new technologies, but also from hearing from other providers and services from different jurisdictions - when I was a speaker at the Equal Access to Information and Justice Online Dispute Resolution annual conference, organised this year in June by the International Chamber of Commerce in Paris
As Dr Mohamed Abdel Wahab, Founding Partner and Head of International Arbitration at Zulficar & Partners, remarked at the conference, when it comes to ODR, professionals have been talking about the same issues for at least five years (around online case management, using Skype, creating bespoke platforms for interaction, etc). The difference, he said, between 2012 and 2017 is that around the world, there are now ADR providers and ADR centres with the necessary infrastructure and that are developing and offering these services.
Indeed speakers at the conference pointed to different examples of how dispute resolution was being innovated, often driven by a wish to ensure that there were proportionate methods available to resolve different sizes of dispute. Thus, a consumer that a purchased a faulty car could file a claim online and the relevant garage could defend itself in the same way in an ADR process. However, a claim over a dozen tractors purchased from a different continent might access a mediation or arbitration via a web conference.
A solid case
It is not surprising that ADR Case Management is increasingly going online, this simply reflects the trend of how we now interact with organisations and each other. Where case management is available online it is frequently quicker, more convenient and cheaper for all involved than the alternatives. There are valuable features that can and are being incorporated into some forms of ADR Online Case Management such as uploading, editing, sharing and even commenting on documentation.
ADR Centres (CEDR included) and potential vendors are looking at and actively investing in solutions that can deliver these benefits. Yet, there are also potential problems with putting the management of cases online, not least security, where materials can be confidential and correspondence highly sensitive. It is because of this concern some are weary of attempting online case management without being assured of the integrity of the security system being used.
Robust not robotic processes
Technology and the internet have and do play an important role in closing geographical gaps between people. ADR is no different to this and it is encouraging, with the development of ODR to see how many more people around the world are now able to access alternatives to litigation. Take for example the Russian Arbitration Association, in a country spanning over 9000 kilometres, where the challenge of bringing disputants together across great distances has been solved by creating on online platform for running the arbitration process. It was this same impetus to solve the problem of distance across member states (and quality of consumer dispute resolution) that led to the EU’s creation of the Online Dispute Resolution Platform last year.
Technology also allows for creativity in process design. For example, if not everyone need be present at all stages of the process (typical in the different sorts of meetings that might happen in a mediation – especially one with multiple parties), then web-conferencing technology can allow for different groupings to be formed at different times quite easily.
For all the creativity and ‘user-friendliness’ that ODR and technology permits, those with disputes should not forget that they will need to invest time - both in thinking through their strategy and in delivering their case. It might be quite tempting to avoid being at an arbitral tribunal in person, but ask yourself how compelling would a witnesses testimony be if not done face to face. It could also feel uncomfortable to have to spend a day in mediation, negotiating with someone that you find very difficult. But, it would be dangerous to ignore the importance of building rapport, both with the other side and also the mediator, when seeking a workable settlement. To get the most from using technology in dispute resolution it is about being conscious of what the technology might do to the process and what the alternatives are.
It was by thinking through these issues that CEDR introduced its own Advice for Mediators Working with Technology in 2016: https://www.cedr.com/about_us/modeldocs/?id=70
Appropriateness and aptitude
Many ADR Centres around the world feel a responsibility to educate within their jurisdiction and therefore offer their own training. Just as with all other areas of life there is an expectation from users (particularly from younger generations) that the delivery of services can be done, at least partially online that online. However there is a dilemma for ADR centres here for whilst much learning can be done online there is real critical value in face to face teaching of many skills.
This challenge crystalizes when one considers the two main ADR processes - Arbitration and Mediation. Arbitration is merits-based rather than interests or needs-based and so not as reliant on relationship skills, thus could be seen as well-suited to learning in online environment. Whereas Mediation is focused on negotiation skills, where relationship building (along with content management and being in control of a flexible process) is one of the three prongs of a successful mediation, thus arguably needs much more personal interaction to teach.
CEDR’s response in this area has been to introduce the first Mediation Simulator where, as an adjunct to Mediator Skills Training, delegates can in an online ‘game’, see the mediation develop through the eyes of a mediator and how the choices made impact negotiations. Delegates who have used the simulator then arrive for training with a deeper insight at the start of their course.
So, if the future is already here, what is left? To which of course the answer is ‘everything’. ADR Centres are developing ODR and technology solutions because they offer what parties and users need and will bring benefits to all concerned. New uses for existing technologies and breakthrough applications are likely to shape what happens next as we all continually look to improve what we can offer in ADR.