ODR, Susskind and “the Human Element”

♬ I had some problems
And no one could seem to solve them
But you found the answer
You told me to take a chance…♬

Lyrics and music by: El DeBarge and recorded by the family musical group DeBarge.

CyberSettle Logo

I had a curious moment today in juxtaposing three websites today.

One was an interview of Richard Susskind OBE, who has just assumed the Presidency of the Society for Computers & Law. In assuming this position, he stated that: ” a useful role for SCL is to act as a focal point for a debate about the ways in which advanced technology affects legal practice – not just in traditional legal firms but in the administration of justice in its most general sense.”

I couldn’t agree with him more…we need a place to have debate on how advanced technology is affecting legal practice as well as the ways it can assist – particularly so in helping with the costly, slow and burdened administration of justice process that must be borne by governments all over the world.

Accordingly, it was refreshing to see that Richard next focused his thoughts on ODR:

One example that occurs to me relates to online dispute resolution (ODR). In the UK, we might once have expected the Ministry of Justice to take a lead, perhaps to undertake a major study of the effectiveness and limitations of online dispute technologies. But that is not something that we can expect in the current climate. Perhaps SCL could be involved in such a study, bringing a range of players together for that purpose. The area of online consumer dispute resolution fascinates me and the eBay example, where 60 million disputes are resolved online each year, shows that there is a real appetite for such services. There is now a substantial and growing literature on ODR and, as well as the eBay example, we have the MOJ’s Money Claim Online and Possession Claims Online – the latter two really are world-beating instances of ODR. The question for me is how to accelerate the uptake of ODR. If we want an affordable and pervasive technique for the resolution of disputes that is suitable for individuals or small businesses then, I argue, we must look online. The public sector is not going to fund the necessary work that will explore the potential of ODR. But SCL could provide thought leadership here – perhaps a commission of inquiry into this followed by a definitive report, looking at what has been done around the world, what the costs and benefits are and what the strategic options are for developing this further. The danger is that what could be a very powerful technology in promoting access to justice could otherwise develop in a piecemeal, unstructured and non-strategic way. SCL may be able to help avert this.

The second web site was by First Mediation Corporation, in an article entitled: “Expert Analysis of Cybersettle.Cybersettle bills itself as “the “Worlds #1 Online Settlement Company”. Cybersettle is a ‘zero sum game’ settlement method.

The learned author stated:

The challenge: convincing plaintiffs’ attorneys that this service actually serves their clients, the true victims in this game of chance. From an ethical standpoint, the dilemma faced by lawyers is whether their clients are receiving adequate representation from a judicial formula cranked out by a microchip. Its hard to imagine that a computer program would replace the human element, a key ingredient in any negotiation. [emphasis added]

I was actually stunned when I read this. The author doubts that a computer program couldn’t eventually replace a human or that an algorithm could not perform at least as well as a human?

In 1997, “IBM’s Deep Blue” defeated World Champion Garry Kasparov at Chess.

More recently “IBM’s Watson” won at Jeopardy:

Watson is an artificial intelligence computer system capable of answering questions posed in natural language,[2] developed in IBM‘s DeepQA project by a research team led by principal investigator David Ferrucci. Watson was named after IBM’s first president, Thomas J. Watson.[3][4]

In 2011, as a test of its abilities, Watson competed on the quiz show Jeopardy!, in the show’s only human-versus-machine match-up to date.[3] In a two-game, combined-point match, broadcast in three Jeopardy! episodes February 14–16, Watson beat Brad Rutter, the biggest all-time money winner on Jeopardy!, and Ken Jennings, the record holder for the longest championship streak (75 days).[5][6] Watson received the first prize of $1 million, while Ken Jennings and Brad Rutter received $300,000 and $200,000, respectively. Jennings and Rutter pledged to donate half their winnings to charity, while IBM divided Watson’s winnings between two charities.[7]

Moore’s Law states that the number of transistors that can be placed inexpensively on an integrated circuit doubles approximately every two years. Computer processing ability, at least for the foreseeable future, is only going to increase.

The third web site was the Wikipedia’s entry on Game Theory. My past life, before being a lawyer, was to study mathematics and computer science. So I admit a certain leaning in this direction. Why game theory? ODR – online dispute resolution – is based on game theory:

In mathematics, game theory models strategic situations, or games, in which an individual’s success in making choices depends on the choices of others (Myerson, 1991). It is used in the social sciences (most notably in economics, management, operations research, political science, and social psychology) as well as in other formal sciences (logic, computer science, and statistics) and biology (particularly evolutionary biology and ecology). While initially developed to analyze competitions in which one individual does better at another’s expense (zero sum games), it has been expanded to treat a wide class of interactions, which are classified according to several broad types of games. Prominent examples include cooperative and non-cooperative games and games with perfect and imperfect information.

Game theory is a very well respected field of study today – this is from the Wikipedia entry:

Game theory has been widely recognized as an important tool in many fields. Eight game-theorists have won the Nobel Memorial Prize in Economic Sciences, and John Maynard Smith was awarded the Crafoord Prize for his application of game theory to biology.

Game theory, as applied via ODR, holds tremendous promise in the field of helping to settle human disputes, particularly as our ability to apply algorithms to model human disputes increases. Indeed, it is only a matter of time before computers start passing the “Turing Test” in more examples than just chess-playing and Jeopardy!

Getting back to Richard, I agree with his assertion that what we need now is thought leadership on how to best apply ODR – to look at the strategic options – in order to see if we can find a way to solve at least some of the world’s problems – Richard is telling us to take a chance…

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  1. Excellent post, David. Richard has been out front on ODR for the last ten years — he actually gave the keynote at our ODR conference in Liverpool in 2007. I hope he uses his new position to push the frontiers. There’s no question in my mind that one day we will have computers judging cases in a courtroom — Watson is just the beginning. We will be able to use applied mathematics, like game theory, to understand the world and universe around us like never before. The Singularity is approaching: http://www.singularity.com/aboutthebook.html


  2. Well, I’m a fan of ODR, but there is a BIG difference between ransacking a phenomenal number of data points for a match, or even using some kind of fuzzy logic to estimate how close a match is, and deciding human disputes beyond splitting a mathematical difference, or coming up with a mean from a lot of case results. I doubt that we are on the verge – and I really doubt that my children or even grandchildren (hypotheticals at this point) will see Singularity. (See my column on Robot Law, June 2010, here.)

  3. I don’t know why I find this all unsettling. I wonder if in the future there will be individuals who will have the courage to question the “wisdom” of the machine because although we’re not there yet it’s already quite clear that the experts and gurus are hinting at “computer infallibility”. Does this mean that “we are Borg”? And, does an accumulation of information and strategies equal wisdom? I hope the SCL will address these questions as well.

  4. David – check out http://www.fairoutcomes.com/ for some deep insights on ODR and game theory (in the downloadable papers)

  5. OK. So if all legal questions can be validly reduced into into mathematical statements, then law is subject to (ahem) Gödel’s incompleteness theorem, right? That means there are questions in law that can’t be answered by law’s premises.

    Oops, that’s not good. That means we’d have to go outside the law to answer law’s questions. Which means ODR has some limits.

    On the other hand, there is one type of philosophy which claims to have all of the answers within its first principles. Ends in ‘ion’, starts with “r” and there’s an “el” in it.

    Does anybody want to equate law with religion? So much for the rule of law.

    There’s a whole field of writing that attempts to explain why law has “soft variables” – a judge’s impression of a witness for example, which make algorithmic resolution (ie machine-based, still) of disputes still problematic.

    Besides, law’s aim is (supposed to be a true decision – true in the sense that we hope it conforms to what actually happened) but the validity of legal decision is not necessarily dependent on the decision being a true statement of what actually happened, at least so long as the truth of what happened is an unknown. Very often, the judicial process requires the judge infer to the best explanation that is consistent with the facts and reality. That’s not the same as an assertion that the conclusion IS an accurate statement of what actually happened.

    A very good overview and introduction for those looking to dip their toes in the subject is R. Brown, “The Possibility of Inference Causation … “, 2010 55 McGill Law Journal 1.

    (And, yes, I know the correct cite is McGill L.J., but then we do have readers who had other things to do but spend time in law school, no?)