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ODR Is No Overnight Sensation

Online Dispute Resolution (ODR) has gained credibility lately, due largely to a combination of pandemic limitations on in-person dispute resolution and rapid strides in online technology. But it is the product of more than 20 years of steady development and advocacy.

I was reminded of this reading a pre-publication copy of ODR: Yesterday, Today, Tomorrow, an engaging collection of individual articles by Colm Brannigan and Marc Bhalla that explores the history, current state and future prospects of ODR. The book assembles materials each author has created over the years, including Master of Laws (LLM) research – Brannigan in 2003; Bhalla in 2019 – as well as other articles, courses, seminars and a podcast.

There is so much thoughtful material in this book that I found it hard to focus on specific topics for this column. Individual chapters reflect the evolution of research and thinking about ODR’s place on the dispute resolution spectrum. There are many genuine nuggets of insight from the authors and a wide range of other commentators. Many apply to dispute resolution generally, not just ODR.

Brannigan and Bhalla also offer a wealth of practical advice for lawyers and ODR practitioners.

The book is loaded with personal experiences and reflections from these seaasoned mediators and arbitrator/adjudicators who have thinking about – and actually doing – ODR for a long time. And it’s fascinating to compare the perspectives of someone who has been doing ODR since the beginning (i.e., late 1990s) with someone who has come to it more recently.

At its most basic level, ODR is simply the application of technology to dispute resolution. As the technology has evolved over the past decades – from dial-up connections to online databases, to early forms of e-mail and the birth of the Internet, to smart phones and ubiquitous connectivity – so has ODR evolved from its early tentative beginnings.

The book looks at a wide range of ODR, everything from how to negotiate by email, to online mediation, arbitration, and adjudication, to fully-automated settlement platforms and the use of artificial intelligence (AI).

One small drawback with the book’s format is that there is inevitably some repetition of certain ideas that the authors have explored in various forms. But they do offer new takes on many of these ideas as both technology and ODR practices have adapted over time.

ODR has gathered steam slowly – much more slowly than many, including myself, expected.

For many people, the first step is often the hardest. They have to learn how to use new online tools, as well as get their heads around new ways of resolving disputes. For some, it took the shock of the pandemic to really make it happen. But there is also a younger online generation that simply accepts ODR as a normal way of doing things.

The authors explore the role of technology from many angles. It can both help and hurt the dispute resolution process. Participants must learn how to use the tools effectively. But, as Brannigan writes, we shouldn’t become so fascinated by the technology itself that we forget it is merely a tool to help us achieve results.

As he says: “[T]echnology is technology only for people who are born before it was invented.” (Indirectly quoting Seymour Papert, a pioneer in learning and technology, who pointed out that we do not argue about whether the piano is corrupting music with technology.)

I agree with Brannigan and Bhalla that one of the factors in the growing acceptance of ODR is that people who do everything else online simply expect to be able to deal with problems online too.

ODR advocates also recognized quite early the need for civic and dispute resolution authorities to champion ODR, to build and deploy the tools and generate the confidence needed to get people to use them. Bhalla and Brannigan both argue that the growing use of ODR by administrative tribunals in Canada and elsewhere has given ODR legitimacy it didn’t have before.

Private actors have also encouraged the use of ODR. Bhalla refers to research in the early 2000s that found EBay’s dispute process led to greater confidence in the platform. Online activity increased when there was effective ODR, regardless of whether a party won or lost a particular dispute.

Bhalla calls the development of ODR in recent years “The Great Acceleration”.

Brannigan notes that courts and ADR institutions all rushed to publish guidelines for privacy and security of online processes in 2020, when the pandemic forced everything to become virtual. One of the challenges now is to continue developing and encouraging those processes.

Bhalla quotes Shannon Salter, the Chair of British Columbia’s Civil Resolution Tribunal, Canada’s first online administrative tribunal, writing in the 2017 Windsor Yearbook of Access to Justice:

“Our common law tradition is built on the notion that precedent, or what came before, is inherently better and more trustworthy than some uncertain future innovation.”

(We have already seen some back-sliding this year from courts which have issued guidelines defaulting back to in-person proceedings unless everyone agrees otherwise. For example, the Ontario Superior Court decided that all mandatory mediation would be in person by default.)

The debate about whether in-person dispute resolution is somehow better than ODR is likely to continue for some time.

Some argue that the online communication loses many in-person social cues that are critical to successful dispute resolution, whether that’s through settlement or adjudication. Disputes are personal; resolution must be personal, too.

Online communication may be convenient, they say, but it is not as effective.

Bhalla disagrees. He says: “I propose that shared cultural understanding is needed to understand in-person cues such as body language and common sayings, just as such are needed to understand online communications. The cues still exist, they are just presented differently online…”

Both authors have given a lot of thought to the importance of effective communication in any dispute resolution process. They recognize that there’s no “one size fits all” when it comes to online communications and offer many practical tips for effective ODR.

As for the future, many of the challenges of ODR over the past decades still remain. The same concerns keep coming up over and over again throughout the book: access to and comfort with technology, fairness, confidentiality, and privacy.

It’s amazing how much the technology has changed over the past 30 years, and how little human nature has changed. It seems incredibly quaint and naïve to now read that at the dawn of the Internet age, some people thought that cyberspace would somehow be a conflict-free zone – or that if there was conflict it would all be managed and resolved painlessly online.

Many of the chapters foreshadow issues that have exploded over the last few years. These include the aggressive, unaccountable nature of much online communication, whether it is anonymous or not.

The authors acknowledge that it’s also more challenging dealing with conscious and unconscious biases when people are acting remotely. There Is an interesting chapter on systemic biases that explores the challenges they present for ODR. But ODR also offers the potential to use technology to expose and compensate for biases that are already inherent in many existing dispute resolution systems.

Bhalla also looks at the challenges posed by self-represented parties participating in ODR. Many are self-represented from necessity, not choice. ODR systems must accommodate those people.

And more needs to be done to make ODR accessible and effective over a wide range of disputes and situations. As Bhalla notes: ZOOM is not the only video conferencing platform out there and there is more to ADR than video conferencing.

ODR: Yesterday, Today, Tomorrow, is available from Shadow of the Law Publications

Comments

  1. I’m looking forward to reading this book. I’m especially interested in the section on SRLs participating in ODR, because right now ODR is causing major A2J problems for some self-reps. For example, Ontario’s Landlord & Tenant Board has adopted a “Digital First” strategy that requires almost everyone to participate online. The overwhelming majority of tenants before the LTB are self-represented, most are low-income, and many do not speak English.

    Maybe it is possible, as the review suggests, for a tribunal to operate mostly online while giving procedural justice to SRLs who lack the ability to participate in this way. But if so, Ontario’s LTB is not yet doing so.

    The case of Lorraine Peever is especially striking. Ms. Peever is a 77 year old resident of public housing in North Bay. She does not have home access to the internet and doesn’t know how to use it. She has a landline phone. Ms. Peever’s building was infested with bed bugs for several years. She applied under the Residential Tenancies Act for compensation from the landlord. She has been put through a real ordeal just trying to get access to a hearing that she can actually participate in. She is represented by the Advocacy Centre for Tenants Ontario which has brought a human rights complaint on her behalf. The details are well worth reading : https://www.theglobeandmail.com/real-estate/article-group-takes-landlord-and-tenant-board-to-human-rights-tribunal-over/

    ODR has enormous potential but we urgently need best practices to avoid denying justice to those for whom it doesn’t work.

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