Thursday Thinkpiece: Troke-Barriault on ODR and Autism Spectrum Disorder

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Online Dispute Resolution and Autism Spectrum Disorder: Levelling the Playing Field in Disputes Involving Autistic Parties

Roland Troke-Barriault
First published in the Western Journal of Legal Studies, (2016) 6:2 online: UWO J Leg Stud 1 <http://ir.lib.uwo.ca/uwojls/vol6/iss2/1>.

Excerpts from: Abstract, Introduction, Sections I-III
[Footnotes omitted. They can be found in the original via the link above]

Abstract

Often, the overall success of an Alternative Dispute Resolution (ADR) process hinges on the ability of a neutral third party to establish a level playing field supported by a sense of equal bargaining power between disputants. Most forms of ADR, including traditional approaches to mediation and arbitration, are characterized by in-person interactions, where disputants and third parties communicate through a combination of verbal and nonverbal cues. Though many believe that this form of interaction is crucial for effective communication, it may result in significant disadvantages for autistic parties who face difficulties properly discerning the intentions or meaning of these cues.

This work examines the potential benefits of implementing Online Dispute Resolution (ODR) tools and platforms in dispute resolution processes involving autistic parties. It explores the inherent disadvantages presented by traditional forms of ADR and proposes an alternative approach geared toward the individual needs of parties and the accommodation of cognitive difference. Given the high potential for eased communication presented by computer and internet technologies for autistic disputants, this work posits that an ideal process would be one that effectively incorporates ODR tools and that provides a structured and stable environment for dispute resolution.

INTRODUCTION

Online Dispute Resolution (ODR) is the focus of an expanding field of study that has made substantial advancements in recent years. New ODR systems incorporate rapidly evolving technologies, including automatic translation software and video conferencing. The implementation of these new ODR systems has allowed disputants to overcome traditional litigation obstacles, such as cost and distance, and to employ creative solutions in order to facilitate communication in situations where it may have otherwise been impossible.

This paper examines the benefits of the implementation of ODR tools and platforms in dispute resolution processes involving autistic parties. It also identifies common issues resulting from Autism Spectrum Disorder (ASD). The benefits and inherent disadvantages presented by traditional forms of Alternative Dispute Resolution (ADR) are analyzed to determine their suitability for autistic parties. This paper argues that any process designed for autistic disputants should incorporate ODR tools in an online space. The use of online technologies is examined as a potential tool for empowering autistic parties and facilitating communication between autistic and non-autistic disputants.

I. UNDERSTANDING ASD: CONDITION, CULTURE, AND CONFLICT

In order to adequately assess and meet the needs of autistic persons when it comes to resolving disputes, it is essential to understand the nature of ASD and its impact on the lives of autistic persons.

Defining and Identifying ASD

There is no single definition of ASD. The disorder itself varies highly among autistic persons. As a result, most legal definitions of ASD tend to be written broadly. Clinical definitions of ASD generally include, but are not limited to, the following: (1) compulsive behaviour; (2) self-isolation; (3) communication difficulties; (4) disturbances in social and language skills; (5) compulsive engagement in repetitive activities and stereotyped movements; (6) unusual responses to sensory experiences; and (7) resistance to changes in environment or routine.

The intricacies of social interaction often pose problems for autistic persons. They may experience difficulty determining when to initiate, maintain, and end conversations; when to make eye contact; and how close to stand in relation to others when interacting. These aspects of day-to-day communication may not be evident to autistic persons. Other problematic behaviours linked to ASD include continuous staring, unintended violations of personal space, and asking for or offering out of context information.

Autistic persons vary in their abilities with respect to communication, mobility, and self-care. Individuals on the lower end of the autism spectrum may require extraordinary levels of support and are therefore unlikely to participate in the ADR process as disputants. Individuals on the higher end of the spectrum are considered to have “high-functioning autism” (HFA). While these individuals may be perceived as neurologically typical (neurotypical), they may be prone to seemingly odd or bizarre behaviours. These individuals may be more prone to experience social anxiety, although their social and emotional functions may be only slightly impaired, and these difficulties are often counterbalanced with higher-than-average intellectual functioning. Individuals along the entire spectrum may have difficulty recognizing and interpreting facial expressions and, ultimately, empathizing with others. This paper will focus on the application of ODR to higher functioning individuals, given that lower functioning individuals tend to be the focus of the disputes, rather than parties to the dispute.

Prevalence of ASD

ASD is neither a mental illness nor a form of intellectual disability. Instead, it is better understood as a complex neurodevelopmental condition characterized by a wide array of underlying genetic and neurological differences. The rate of observed autism is increasing. As a result of this growth, media and governments have increased their focus on the disorder. One should nonetheless be cautious in concluding that this increased prevalence is solely rooted in an actual increase in the rate of autism, because a number of relevant factors could contribute to such an observed increase in rates. These include: (1) changes in diagnostic practices; (2) increased awareness of autism among parents, professionals, and the public; (3) increased development of specialized services; (4) evolution of study methodologies; and (5) historical under-diagnosis of autistic females. Taking these factors into account, the rapid increase in diagnoses of autism appears to be indicative of a better understanding of ASD, and will likely foster greater recognition of the need for accessibility and accommodation. In a legal context, it will be important to address this need through the incorporation of alternatives to traditional court processes, taking into account the needs of autistic disputants.

Autism as Identity

Many self-advocates with ASD have embraced the idea of neurodiversity, a term used to denote diversity rooted in neurological differences. This notion has been used to encourage both society and the state to focus on accommodating cognitive differences rather than trying to cure or treat “symptoms” of ASD. As a result, advocates of neurodiversity tend to prefer the term “autistic person” rather than “person with autism.” The former is thought to imply that, when it comes to identity, ASD is a fundamental aspect of personhood, whereas the latter implies an illness-based identity. As such, this paper will use the term “autistic person” throughout. However, it is important to recognize that not all advocates view the neurodiversity movement as the appropriate way to address autism in society. There is no single autistic identity, and intersectional factors—including race, religion, ethnicity, sexuality, and other forms of disability—may be of equal, concurrent, or greater importance to an autistic person’s perception of self.

Autism and Conflict

Characteristic behaviours of ASD can be easily misinterpreted in legal proceedings. Facilitating communication between autistic and neurotypical disputants could benefit both parties. The following sections outline some common situations in which autistic persons come into contact with the law.

Criminal Law

Generally, high-functioning autistic persons are more likely to come into contact with the criminal justice system than lower functioning autistic persons. This is because characteristic features of high-functioning autism, such as obsessions or the inability to read social cues, may create impressions of harmful intent where none actually exist. Additionally, misunderstandings may arise from a high-functioning autistic individual’s compulsions for repetitive or ritualistic behaviours. It is more likely that an autistic person will be involved in a minor transgression as a direct result of a social misunderstanding or because of obsessive pursuits or behaviours. In some situations, these difficulties or behaviours may create a sense of discomfort in neurotypical individuals leading to criminal complaints against autistic persons. Additionally, neurotypical individuals may interpret inappropriate or persistent attempts at social interaction by low- to mid-functioning individuals as stalking.

Family Law

Autistic persons are typically involved in divorce proceedings as well as custody and access disputes as either children or parents. This issue is becoming increasingly relevant, since the rising rates of divorce and separation are leading to more family law proceedings.

Employment Law

Disputes can arise between autistic persons and their employers, particularly in matters pertaining to workplace discipline. Although there is debate as to whether autism veritably constitutes a form of disability, it is treated as such for the purposes of employment law statutes. As noted by the Asperger/Autism Network, autistic employees may not be aware of the unwritten social rules and behaviours that are expected in a largely neurotypical workspace. Misunderstandings resulting from atypical behaviours can ultimately result in disciplinary action or termination.

II. ADDRESSING THE NEED FOR ASD-ACCESSIBLE DISPUTE RESOLUTION

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Obstacles to ADR

Obstacles Rooted in ASD

Most forms of ADR, including traditional approaches to mediation and arbitration, are characterized by in-person interactions where disputants and third parties communicate through verbal and non-verbal cues. Many believe that this form of interaction is crucial to the ADR process, since the opportunity to observe the body language of others offers opportunities for communication and effective interaction. However, this aspect of ADR may result in significant disadvantages for autistic parties because they may have difficulty properly discerning the intentions or meaning of these cues.

Because many autistic persons experience obstacles in social functioning, they are more likely to experience social anxiety in new situations. In severe cases, this anxiety can take the form of a social phobia, where a fear of humiliation or embarrassment may lead to social withdrawal and self-imposed isolation. This poses significant difficulties for the in-person aspects of ADR when autistic persons are involved in resolving legal disputes in this manner.

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III. ODR AS A MEANS OF LEVELLING THE PLAYING FIELD

Online Mediation and Arbitration

One possible method for tackling these bias issues is through the implementation of ODR technologies. This involves incorporating Internet tools, services, platforms, and online spaces. These technologies are often seen as constituting an additional presence and input into the traditional three-party dynamic of ADR. When used to alter an ADR process, either through automation or as a supplement to the role a neutral third party, the incorporated technology is often referred to as the “fourth party” to the dispute. The fourth party increases the effectiveness of the third party and provides additional support to the disputants.

There are two forces credited with driving the development of ODR. The first arose in the early 2000s from the difficulties in resolving low-value, cross-border disputes using traditional dispute resolution methods after the increase in popularity and accessibility of the Internet. The second and most pertinent was the recognized potential of online forums as a way to provide faster and more cost-effective methods for resolving issues that arise both online and offline. Conducting mediations and arbitrations online allows for the use of e-mail correspondence, instant messaging, online bulletin boards, and a variety of other tools that can reduce or eliminate the need for in-person interaction and its associated obstacles. More importantly, these tools present the possibility of increasing access to justice and the likelihood of a just and equitable settlement for the parties.

ODR as a Means of Easing Communication

Autistic Persons and the Use of Computer and Internet Technologies

The use of computer and Internet technologies among autistic persons has increased dramatically over the past two decades. In assessing the appropriateness of using ODR processes for disputes involving autistic parties, it is crucial to understand the relationship between technology and ASD.

The adoption and effective use of computing applications for education and communication has been largely successful among autistic persons. A number of studies have indicated that, among autistic children and adolescents, the use of computers can produce marked increases in rates of learning, attention to detail, and ability to work independently. In 2001, the National Autistic Society of the United Kingdom identified five key characteristics of computer technologies that make them well suited to the needs of autistic persons: (1) computers allow for information to be abstracted or limited to its most relevant components, assisting individuals in overcoming difficulties related to filtering sensory information; (2) computers allow for the exchange of information without the unpredictable and nuanced nature of in-person conversations; (3) tailored programs allow for the creation of routines and processes that are explicit and methodical, with clear expectations and consistent consequences for actions and responses; (4) audio and visual aids can be used and selected to match the cognitive abilities and personal circumstances of an individual; and (5) computer and Internet technologies can be structured to allow learning and acclimatization in small logical steps, which may be important for individuals who find it difficult to modify their routines. More recently, in 2010, the University of Pittsburgh conducted a study on the use of computer-mediated communication tools by persons on the autism spectrum and found that most subjects were able to use tools such as instant messaging, social networking, online dating websites, and discussion forums to connect with others and develop successful relationships.

The variability and adaptability of computer and Internet technologies allows for the creation of tools and processes that can be tailored to the needs of autistic persons, and can take into account the diverse manifestations of ASD. Although the majority of research on the relationship between ASD and technology focuses on its implications with respect to education and early childhood development, computer and Internet technologies can have a positive effect on other aspects of the lives of autistic persons. Since the early 2000s, increasing numbers of autistic persons have participated in online community forums and discussion boards. These Internet spaces have grown rapidly and offer a means through which individuals can express their needs and identities, in contrast to the challenging and often exclusionary experiences in the offline world. These spaces have allowed autistic persons to interact with like-minded people, discuss issues of empowerment and adversity, and develop new advocacy narratives.

General Criticisms of ODR

Communication Barriers

Despite significant advances in recent years, many ADR practitioners still consider the role of computer and Internet technologies in dispute resolution as a novelty or fringe issue. A recurring critique of ODR is that eliminating the in-person element of ADR removes the opportunity for nuanced communication and emotional engagement. This critique posits that parties cannot form adequate impressions of each other in the absence of non-verbal cues such as body language and facial expressions. Furthermore, critics contend that physical absence may produce a negative dissociative effect, which may affect the parties’ abilities to empathize with each other. As a result, many critics view the lack of in-person contact as an insurmountable obstacle that can only be mitigated by the use of video conferencing or other tools designed to simulate an in-person experience. It is debateable whether or not online environments should strive to mimic offline conditions. However, when considering disputes involving autistic parties, ODR may be the most effective option in navigating the potential barriers to communication posed by the traditional ADR process. There is little evidence outside of academic speculation to indicate that the use of ODR negatively impacts dispute resolution or settlement.

A Canadian study found that 80 per cent of disputants exposed to ODR reported that they experienced no difficulties expressing their ideas and concerns online and felt that the other disputants were able to understand them. Additionally, 82 per cent of disputants indicated that they had no trouble expressing their emotions in an online environment, despite the absence of visual cues. Of the 79 per cent of disputants who had also participated in in-person mediations, the majority found that their ODR experience compared favourably to traditional face-to-face interaction and, in some instances, offered greater efficiency and clarity.

Studies have shown that, even without non-verbal cues, parties communicating electronically can form effective relational behaviours by relying on cues that exist in online environments. These can include typographic cues (such as underlining or bolding text), the use of adapted linguistic strategies to indicate favourable responses to humour (including acronyms such as “lol” or “rofl”), or the use of symbols to indicate an emotional response (such as smiley faces or other emoticons). Where nonverbal cues are lacking, parties to online-mediated communications are likely to narrow the scope of their conversations to only the relevant issues. Additionally, parties may use strategies that reduce uncertainty, without first relying on prompting from third parties, such as the voluntary disclosure of relevant information and direct questioning. As a result, many parties reported feeling that they were engaged in more focused or intimate exchanges.

Online communication offers the potential benefit of generating more meaningful interactions between parties. ODR allows parties to adopt new approaches and strategies that not only compensate for a lack of non-verbal cues but also create opportunities for autistic parties to meaningfully engage in dispute resolution. The use of clear and consistent visual cues, when combined with focused and explicit exchanges, create an environment where both autistic and neurotypical persons can engage in dispute resolution on equal footing.

Other General Concerns

Although the use of ODR presents many benefits, it is not without disadvantages. This section will touch upon the following concerns: (1) the use of text-based communication in ODR processes can lead to misinterpretations of meaning or intent when parties fail to employ medium-appropriate cues; (2) the asynchronous nature of ODR may cause frustration due to delays in response time; (3) some ODR processes may be culturally inappropriate for some groups or inaccessible to certain demographics due to a lack of familiarity with the technology used; and (4) communication via e-mail or other Internet platforms may make information exchanged during ODR inherently less secure than in traditional forms of ADR.

Misinterpretations and Frustrations in Communication

The use of ODR processes can raise issues of misinterpretation and frustration. When designing ODR processes, it is important to incorporate tools and services that facilitate communication and avoid ambiguity. A neutral third party may become involved to moderate interactions between the parties, clarify misunderstandings, and maintain decorum in dispute resolution. The fourth party—the online tools and platforms—must be selected or tailored to accommodate the needs and technological competencies of each party. Communications may take place in real time if the parties desire quick resolution, or asynchronously if the parties require additional time for reflection in order to hone in on certain issues or accommodate the schedules of the parties.

Individuals Lacking Technological Competencies

The critique concerning accessibility for individuals lacking technological competencies poses a greater challenge. When selecting an appropriate process, it is counterproductive to select a platform that eliminates disadvantages for one party, only to create disadvantages for another. Nevertheless, this should not discourage or prevent the development of tailored ODR processes to accommodate for ASD. This technological barrier is likely to diminish in scale over time with the rise of computer literacy and the increasing prevalence of computer and Internet technologies. In a North American context, most children are introduced to computers and books simultaneously, and exhibit a comfort with online communication tools that can surpass that of experienced dispute-resolution practitioners. Even with the reduced impact of this barrier, some ODR tools may remain inappropriate for certain parties. Therefore, sensitivity to the needs of the particular parties is essential when determining whether or not to make use of ODR processes.

Privacy Concerns

Given that ODR processes take place either partially or entirely online, there is a general concern for privacy due to the perceived danger of unauthorized interception of communications, hacking of information, and identity fraud. It is therefore important that (in consultation with the neutral third and fourth parties) the disputants involved in an ODR process (1) come to a consensus regarding the storage, retention, and destruction of documents, communication logs, and other information; (2) ensure that communications are transmitted between secure and pre-identified computer bases; and (3) implement suitable protections such as encrypted messaging, digital signatures, and passphrase-protected services. For autistic disputants communicating with the aid of a facilitator, additional measures such as video-conferencing may be necessary to ensure that information is not communicated falsely on their behalf.

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