Alternative Dispute Resolution
Technology Transforming Dispute Resolution
By Sheila Grela
I. INTRODUCTION TO DISPUTE RESOLUTION
Although familiar to everyone in the legal community, the definition of ADR is more complicated than the three simple letters of its acronym. Alternative Dispute Resolution encompasses well-known elements such as mediation, arbitration, settlement conferences, and the rarely-discussed process of neutral evaluation. In addition, as ADR evolves, we can expect to see changes to the systems, methods, and, more importantly, the technology used to resolve issues, both before and during litigation. This evolution must focus on safely folding new technologies, such as artificial intelligence, into this process.
“The use of technology in dispute handling expanded slowly but steadily until the COVID-19 pandemic forced widespread global usage of videoconferencing.”1 This quote from Framing the Parameters of Online Dispute Resolution by the National Center for Technology and Dispute Resolution2 points out one of the obvious ways that the pandemic accelerated technology adoption.
II. EXPANDING ONLINE ACCESS
Everyone’s conducting depositions virtually, but the new focus will be expanding Online Dispute Resolution (ODR) through new or improved technology. Developing ODR programs will require legal professionals to modify their mindsets and workflows. The adoption of new technology also requires that the legal team access risks. Some of the dangers are related to issues with protecting the privacy and security of the data. Technology to facilitate ADR is expected to include new tools such as ChatGPT.
The process of ODR involves more than using virtual tech to conduct the hearing portion. The Los Angeles Superior Court’s ODR for Unlawful Detainer is an excellent example.3 This program does not facilitate meetings or phone calls. Instead, the Court’s ODR provides a “guided” message negotiation. In addition, the website includes instructional videos and other materials. As a bonus, this progressive program also offers free online mediation by mediators trained in the system.
III. UNDERSTANDING THE ALTERNATIVES TO LITIGATION
The alternatives to litigation (especially jury trials) take several forms.
Online Dispute Resolution (ODR)
ODR uses technology to settle disputes between parties. ODR was initially used in commercial settings, such as disagreements between buyers and sellers on websites like eBay. However, the procedure varies by service and can involve direct negotiation, using a third-party mediator, or even automated processes.4
ODR also encompasses the use of technology to facilitate or perform any central function of preventing or resolving disputes.5
A neutral third party provides their views on the strengths and weaknesses of each side’s positions on controversial issues. This process frequently is combined with conciliation or mediation.6
Planned Early Dispute Resolution (PEDR)
PEDR7 is a general and flexible approach to dispute resolution. The goal is to reach an agreement satisfying the most vital interests of all parties. As an alternative to litigation-as-usual (i.e., late negotiation after expensive discovery on the eve of trial), both sides jointly determine what is needed to negotiate at the earliest reasonable time.8
Mediation conducted virtually through the use of technology.
Mediation is less rigid than litigation and arbitration, allowing for creative techniques that would not be acceptable in other settings. For instance, a mediator can speak ex parte with each side to find mutually acceptable solutions that might not otherwise emerge.9
Mediation/ Arbitration combined
A hybrid process frequently referred to as "Med/Arb." Mediation is an attempt by arbitrators to impose a decision on the parties only as a last resort.
A settlement conference is relatively short and less formal than a trial, although a judge or referee often will oversee the conference.
An alternative dispute resolution method with attorneys for each side presenting their case as they would at an actual trial. Minitrials are private, voluntary events attended by representatives from each side who have the authority to settle. Neutral third parties may also act as judges or jurors.
An alternative dispute resolution method where the parties agree to hear their case by a qualified arbitrator out of court.
An arbitration conducted virtually through the use of technology.
Below are some reasons to consider alternatives to litigation.
ADDITIONAL REASONS FOR USING ODR
With limited discovery, the process may be less costly than preparing for trial.
The parties can avoid travel costs and other expenses.
The reduced amount of time spent on discovery makes the entire process shorter. Generally, the arbitration system is much quicker than using the courts.
The time used to travel and wait during the actual session is unnecessary.
Parties can decide on many factors, such as demanding mediators or arbitrators based on qualifications, no matter where the individuals reside.
The sessions can be staggered without increased cost or conducted on short notice.
The three above factors may allow the parties to accept the outcome more quickly than after a public trial.
It is easier to accept compromise when you have saved time and money. The absence of publicity also makes any settlement more palpable.
Business relationships can be salvaged when the dispute is not public.
It is easier to avoid disparaging the other parties or individuals when the focus is quick resolution instead of winning at trial.
The use of ADR has increased, and there is no reason to believe this trend will change soon. You can review the information on the American Bar Association's Section of Dispute Resolution website to learn more about the ADR process. In addition, the website includes details of other novel ADR systems, including non-business systems such as divorce coaching and family group conferences.
Additional online resources include:
- National Arbitration and Mediation
- International Institute for Conflict Prevention & Resolution
- Association for Conflict Resolution
- The National Center for Technology & Dispute Resolution
- International Council for Online Dispute Resolution
The image below of the ODR Framework (within the “Framing the Parameters of Online Dispute Resolution" by the National Center for Technology and Dispute Resolution) is a fantastic example of going from no tech to no human.10
IV. ETHICS AND ACCESS CONSIDERATIONS
Of course, I would be remiss if I did not share a quote regarding ethics considerations by the Director of the National Center for Technology and Dispute Resolution “Without coding fairness and equality into artificial intelligence (AI), it will emerge as an outcome. NO CODE, NO JUSTICE” (Leah Wing).11
It will be necessary to consider the ethics involved in using technology as a tool during the ADR process. The mandatory ethical issues to consider range from accessibility to transparency. The categories from the Online Dispute Resolution Standards jointly published by the National Center for Technology and Dispute Resolution and the International Council for Online Dispute Resolution in May 2022 are set forth (in alphabetical order, not in order of importance) below.
- Informed Participation
- Legal Obligation
- Protection from Harm
The benefits of ODR are apparent, but one crucial future obstacle is that many underserved communities lack the necessary equipment and technology. One of my e-mentors, Molly McDonough13, writes a blog regarding access to justice issues on “ajustsocietynow.com.” Molly inspires the legal community to pursue other possible uses of legal tech to close the access to justice gap.
V. LOOKING TO THE FUTURE
Here are some additional ABA Resources that provide insight into recent technology and policy updates.
- ABA Benefits of Commercial Arbitration
- Planned Early Dispute Resolution User Guide
- ABA Section of Dispute Resolution Federal Legislative Update
With so many intelligent minds focused on this issue, we can expect to see new and improved technologies, such as ODR systems, that will make resolving disputes outside of court easier, faster, and less expensive.
Sheila Grela is a litigation paralegal at Buchalter who enthusiastically advocates for mentorship, professional development, and education. She is currently the Secretary for the Law Practice Management and Technology Section of California Lawyers Association and a member of the EDRM Global Advisory Council.
1 National Center for Technology and Dispute Resolution, principal author Leah Wing with Chris Draper. Framing the Parameters of Online Dispute Resolution. National Center for Technology and Dispute Resolution, 2022, p.2. 2 https://odr.info/wp-content/uploads/2022/05/Framing-the-Parameters-of-Online-Dispute-Resolution_NCTDR_2022.pdf 3 https://my.lacourt.org/odr/unlawful-detainers
4 https://www.americanbar.org/groups/centers_commissions/center-for-innovation/online-dispute-resolution-in-us/ 5 https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/leadership/odr-guidance.pdf 6 https://adr.gov/guidance/adrguide-home/adrdefs
7 https://www.law.cornell.edu/lii/about/about_lii 8 https://www.jamsadr.com/blog/2013/jams-supports-the-abas-planned-early-dispute-resolution-project 9 https://www.law.cornell.edu/wex/category/mediation
10 See Figure 1, National Center for Technology and Dispute Resolution, principal author Leah Wing with Chris Draper. Framing the Parameters of Online Dispute Resolution. National Center for Technology and Dispute Resolution, 2022, p.7. Used with permission.
For further explanation of the ODR Framework, see Wing, L. “Mapping Online Dispute Resolution.” International Journal of Online Dispute Resolution Vol. 9, No.1, 2022, 3-16.
11 Found on her faculty website at: http://polsci.umass.edu/people/leah-wing
12 Online Dispute Resolution Standards, National Center for Technology and Dispute Resolution and the International Council for Online Dispute Resolution, May 2022. The full set of standards can be accessed at: https://odr.info/wp-content/uploads/2022/05/NCTDR_and_ICODR_ODR_Standards_2022.pdf and found at https://odr.info/standards/ and https://icodr.org/standards/ where they can be found in nine languages.