This post is by John Zeleznikow from Victoria University and was workshopped at the ADRRN Roundtable at Latrobe University on 9-10 December 2019.
Whilst there is no generally accepted definition of Online Dispute Resolution (ODR), we can think of it as Using the Internet to perform Alternative Dispute Resolution (ADR).
ODR is a natural evolution of the trend towards using alternative approaches to litigation across a wide range of civil, commercial, family and other contexts.
One reason for this phenomenon is that average trials are getting longer and more complex, and the cost of pursuing traditional legal recourse is rising. A second reason for the trend towards ADR lies its growing acceptance by mainstream conflict systems, including court systems; this acceptance has trickled down to affect the attitudes of litigants themselves.
ODR provides solutions for cases that do not justify long, complex trials – such as in the case of low-value transactional disputes, in cross-border and cross-jurisdictional contexts. The unsatisfied purchaser of a Madonna CD on eBay is more likely to prefer an online process for achieving redress rather than pursuing litigation with the seller, who may be based in another country.
While the focus of ADR has largely been on face-to-face processes, incorporating technology into ADR processes has quietly been commonplace for a long time. Primarily, this has taken the form of using the telephone as a simple measure for convene people who cannot or should not be together in the same room, whether owing to geographical situations or to extremely vitriolic situations, or those where violence has occurred.
As Internet technology has become widespread, much attention has been directed at using these tools for dispute resolution. In some ways, ODR is a natural evolution of convening over the telephone. Technology now offers parties different levels of immediacy, interactivity and media richness to choose from. Through some platforms, parties can choose to communicate through text; through others, they can convene in real-time video, allowing them to see each other and, possibly, a mediator.
Recently, ODR has moved beyond Ecommerce – ODR is being used for non-financial disputes. In 2002, Zeleznikow suggested that the internet could prove invaluable in supporting the growing number of pro se litigants. Today, ODR is being suggested as being capable of supporting Self Represented Litigation. This however brings forward the issue of whether Self Represented Litigants can sufficiently understand legislation, cases and the technology to adequately represent themselves in dispute resolution forums.
Zeleznikow’s initial approach, in the Split-Up system, for providing ODR support about the distribution of marital property following divorce in Australia was to use machine learning to provide advice about BATNAs (a BATNA is used to inform disputants of the likely outcome if the dispute were to be decided by decision-maker e.g. judge, arbitrator or ombudsman) re the distribution of marital property following divorce.
Despite using Artificial Intelligence, it involved the development of 94 Toulmin argument structures to model the domain as it existed in 1995. Twenty-five years later, the theoretical principles behind AI software have not changed. But computer hardware is much. cheaper and data can be much more easily stored. This has led to the development of ‘quicker; systems’, which the community has seen as ‘more intelligent’.
The Split-Up system was viewed as futuristic work – for example the media speculation about its use on the Charles and Diana Divorce in the London Daily Telegraph of July 4 1996 and in a ten minute program on GTV9’s Current Affair on Monday 26 August 1996.
Whilst the Split-Up system provides advice about BATNAs, it is not a Negotiation Support System. The Family Winner System provided advice to disputing parents on how they could best negotiate trade-offs. The disputing parties were asked to indicate how much they valued each item in dispute. Using logrolling, parties obtained what they desired most. The Family Winner software won its heat of the ABC (Australia) TV series science show The New Inventors.
The discussion on the show raised issues on how to appropriately use ODR. In particular Do we use ODR as a tool to support decision-making or should the ODR system be fully automated? What should be the level of automation of ODR systems? Many Artificial Intelligence and ODR followers believe in using robots and developing systems that are fully automated. But doing so leads to ethical problems as well as losing one of the major benefits of Alternative Dispute Resolution – the ability for disputants to craft their individual solution.
The automation vs decision support conflict raises issues on the purpose of ODR systems and how users interact with ODR systems.
Given the wide variety of possibilities, it should be clear that there is no universally best approach or technique for providing online dispute resolution. Rather, there is an eclectic bag of methods with properties and performance characteristics the techniques vary significantly depending on the context. What all of the selected ODR Systems have in common is that they provide an alternative to litigation providing a mechanism by which parties involved in a dispute can communicate over the Internet. Many of the illustrated systems are specialized to provide the best approach for a particular path to resolution.
In trying to develop a classification system for Online Dispute Resolution systems, we believe that a truly helpful ODR system should provide the following facilities:
- Case management: the system should allow users to enter information, ask them for appropriate data and provide for templates to initiate the dispute. Currently most clients of Victoria Legal Aid phone the organisation to seek help. It is expensive and time consuming for telephonists to enter data. And mistakes are often made. Clients should be able to enter their data and also track what is happening during the dispute as well as being aware of what documents are required at specific times;
- Triaging: the system should make decisions on how important it is to act in a timely manner and where to send the dispute. This may be particularly important in cases of domestic abuse or where there is a potential for children to be kidnapped;
- Advisory tools: the system should provide tools for reality testing: these could include, books, articles, reports of cases, copies of legislation and videos; there would also be calculators (such as to advise upon child support) and BATNA advisory; systems (to inform disputants of the likely outcome if the dispute were to be decided by decision-maker e.g. judge, arbitrator or ombudsman). Other useful advice that could be included are copies of the relevant Acts, links to landmark cases, relevant books and reports and videos providing useful parenting advice;
- Communication tools – for negotiation, mediation, conciliation or facilitation. This could involve shuttle mediation if required. For many ODR providers, the provision of communication tools is their main goal;
- Decision Support Tools – if the disputants cannot resolve their conflict, software using game theory or artificial intelligence can be used to facilitate trade-offs. Family Winner and Smartsettle provide such services;
- Drafting software: if and once a negotiation is reached, software can be used to draft suitable agreements. Drafting plans (such as parenting plans) once there is in principle agreement for a resolution of a dispute, is a non-trivial task;
No single dispute is likely to require all six processes. However, the development of such a hybrid ODR system would be very significant, but costly and very time and resource consuming. A total system would require us to construct the appropriate systems 1 to 6, and the ultimate solution is to make sure that all the systems are capable of talking to each other. But such a system would be an important starting point for expanding into a world where AI is gainfully used.