Like any new discovery or application, there is always resistance to change. But once it becomes handy, and its benefits realized it is accepted as the new norm. Many mediators initially resisted encroachment of technology in dispute resolution, concerned that technology-based communication was not rich or robust enough to enable the kind of open, honest interaction that most mediators feel is essential to achieving effective resolutions.
Some in the field say that technology was not only a bad fit with dispute resolution, it was dangerous, because it suggested a shortcut to solving problems and that parties could just click their way out of disagreements.
Also, Computer-mediated communication, people thought, was dehumanizing, impractical, and overly prescriptive - a solution available only to the wealthy who could afford such expensive tools. This was the prevailing sentiment for many years. Moreover, It cannot for example be suitable for various emotionally charged political disputes,
But over the last decade, however, the resistance to computer-mediated communication has mellowed significantly. Many things today are done online that were never considered a few years ago. Cell phones have democratized access to the Internet. But how many people can afford to be connected all the time. The younger generation, in particular, is comfortable with online communication in a way their parents may never be.
If a dispute arises, to resolve it by traditional legal system, the consumer would need to navigate jurisdictional as well as cost and access barriers. In contrast, ODR mirrors the design of the Internet. ODR systems are designed to be global from inception, so there is no need to resolve issues of jurisdiction. And ODR systems can be built directly into software to provide fast and fair redress at the point where the interaction first took place.
In other words, national governments and international agencies have examined the challenge of cross-border redress over the past 10 years and concluded that ODR is the future. UNCITRAL, the UN agency responsible for harmonizing global laws, has a Working Group on ODR, and the European Union recently adopted a regulation requiring all member states to implement ODR for cross-border consumer cases by the end of 2015.
British Columbia, Canada, has been on the cutting edge of ODR for some time, and the Legal Services agency has announced that it will construct an online system that will leverage ODR to expand services to low-income families in the province. The Dutch Legal Services constantly navigate back and forth between our online and offline channels, sometimes in the space of just a few minutes. This is true in ODR as well.
ODR recently launched a system for online family mediation and plans to expand it to address neighbor and landlord-tenant issues. When ODR began, the first platforms simply replicated face-to-face dispute resolution approaches online. Experience, however, quickly demonstrated that online dispute resolution required new approaches to reach its full potential. For example, ODR is pushing practitioners to break down some of the silos constructed within the face-to-face dispute resolution field.
Instead of bright lines between diagnosis, negotiation, mediation, arbitration, and ombuds, many online disputants prefer a seamless progression from communication to evaluation, perhaps within hours. In this regard, a modular ODR approach extends building an infinite array of online "doors" that can be customized to individual disputes on demand. For example, a low-value e-commerce resolution process may be wholly online and powered by technology-assisted negotiation, but a high-value or emotionally complex matter may leverage online intake and case management, while keeping the joint sessions face-to-face, supported by online scheduling and secure document management.
ODR is not without its critics however. Some may not feel comfortable with technology: that in some cases computer-mediated communication may perpetuate power differentials, and enable parties to avoid difficult but important emotional conversations.
The answer is that over-reliance on technology is not recommended. Dispute resolution professionals should know how to use technology when it is appropriate and avoid using it when it is not. All mediation trainings, therefore, should cover ODR tools and ethical guidelines so that new dispute resolvers know technology's advantages and disadvantages and can determine when ODR approaches are likely to add value to the process.
As best practices are changing and new tools are emerging, practitioners must also stay abreast of developments in ODR which simultaneously presents the biggest opportunity and challenges for dispute resolution. Conflict Resolution field is being transformed by technology, and the only uncertainty that remains is whether how long this transformation will take to play out completely.
Generally, online resolution of dispute issues could become the new normal. In the interim, we must work together to design systems that leverage the historical lessons of alternate dispute relation (ADR) systems while supporting the needs of modern globally connected online world. Instead of clear demarcation of diagnosis, negotiation, mediation, arbitration many online disputants prefer a seamless progression from communication to evaluation perhaps within short time.
In sum, a successful ODR system will not only improve access to justice, but may provide speedier and better outcomes, maintain relevance in the lives of customers, and live up to the promise of the field which is undergoing changes with technology.
(The writer is Visiting Faculty, Department of Defense and Strategic Studies, Quaid-i-Azam University, Islamabad. Earlier, he served as President Islamabad Policy Research Institute; Adviser, COMSATS Institute of Information Technology, Islamabad; and Head, Dept of International Relations, NUML University, Islamabad Campus)
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