Most ADR practitioners know of the contributions of Carrie Menkel-Meadow [Note 1] to the conflict resolution field. She is a “founder” of the US “ADR” movement and continues to deepen and strengthen our global understanding of the field.
Professor Menkel-Meadow attended the 15th ODR (Online Dispute Resolution) Conference in the Hague in May 2016 and published a helpful commentary on her experience comparing ODR with ADR [Note 2]. She began by suggesting that the modern “ADR movement” grew for three main reasons:
First, what I call ‘quantitative’ ADR – for cheaper, faster and more efficient docket clearing from long queues in court (the judicially promoted reason); second, more ‘qualitative’ ADR which means more tailored and party fashioned solutions to legal problems, including a focus on future relations, not just the past, and thirdly, a more politically process oriented hope for greater party participation and de-professionalization (‘lets not have lawyers if we don’t need to’) and democratization of dispute resolution. (emphasis added)
Professor Menkel-Meadow is skeptical that ODR can, on its own, meet the “qualitative” goals. She worries about losing the ability to “talk to a real person to give and get advice about legal matters that don’t lend themselves to tick boxes”. She is, however, encouraged by models like the Dutch Rechtwijzer 2.0 that provides parties with an online platform to resolve divorce issues and, if they need more than this, it provides (with the click of a button) access to mediation, adjudication, and a neutral review of all agreements. She prefers a “combo” approach and says:
Watching how this program can work has converted me somewhat to thinking the future of ODR is a combination of a well designed computer platform where some interactive possibilities still allow human and more flexible and tailored advice and information to come through.
In other sectors it is well recognized that customers need a combination of seamless, effective service with human touch: “…understanding customer emotion and empathy are critical components of a successful customer experience. Clearly the human touch is needed at the heart of customer service.” [Note 3]
In BC, the Legal Services Society partnered with Hiil and Modria and recently launched MyLawBC, an interactive website to help people resolve everyday problems. It does not yet offer online access to “real people” like mediators but users are provided with information about these options and it is my understanding that some embedded referral process may be in this system’s future. I hope so. MyLawBC could link with Mediate BC’s Roster of Family Mediators, as an example, to connect the parties with a list of mediators who meet their requirements.
Professor Menkel-Meadow’s comments that some people need access to a “real person” for advice or guidance fit well with the principle that conflict resolution systems need to be designed with the needs of the user at the centre. I was reminded of this during a panel discussion at the recent BCAMI Symposium in Vancouver. Shannon Salter, the Chair of the Civil Resolution Tribunal provided an excellent summary of the CRT which is set to launch its strata claims resolution platform in the summer of 2016. The CRT will take a “combo” approach by involving “facilitators”, real people who will interact with the parties on a primarily asynchronous basis (the parties are not online at the same time) to assist them to resolve their problem and, if they are not able to do so, to help them plan for their tribunal hearing.
Panel member Tony Gioventu, ED of the Condominium Home Owners’ Association of BC, described how the CRT will assist with strata disputes. The third member of the panel, Alex Ning, an experienced BC Notary Public and Civil Roster Mediator, echoed some of Professor Menkel-Meadow’s concerns. While he expressed support for the CRT, he explained his worries about how an online platform which operates primarily asynchronously could provide the kind of skilled support and interventions that mediators are able to provide either in person or using synchronous technology tools. How can CRT facilitators use effectively such key skills as active listening, creating a respectful environment, managing the emotional climate, keeping momentum (a cohesive and progressive negotiation), and getting a discussion back on track if it stalls or derails? He asked whether we are expecting technology to do “human work” (engaging with emotion and showing empathy for example).
We know from Mediate BC’s Distance Mediation Project that family mediation can be conducted safely and effectively using technology tools (such as webconferencing). A key question is whether the CRT’s asynchronous facilitator role will be enough to assist parties towards resolution. Alex Ning concluded his comments by recommending that innovative systems like the CRT can be strengthened through collaboration with the mediation community’s deep and long experience with conflict management and resolution. These are important issues and I am encouraged that the CRT is committed to paying close attention to ongoing feedback from its users and to continuous learning.
Disclosure: I am a knowledge engineer for the CRT’s Small Claims Solution Explorer, the self-help front end of the process which will provide users with information, tools and guided pathways.
 Chancellor’s Professor of Law, University of California, Irvine and Visiting Distinguished Scholar Queen Mary, University of London, School of Arbitration.
 Republished at: http://www.indisputably.org/?p=9198.
 Chris Lord, “Combine AI and the Human touch for Exceptional Customer Service”, May 26, 2016: http://www.cmswire.com/customer-experience/combine-ai-and-the-human-touch-for-exceptional-customer-service/. And my previous posts here and here.