Putting another E in EDR (Electronic)

By Noam Exner for EDRblo.org.

Online Dispute Resolution (ODR) is an area of Alternative Dispute Resolution (ADR) that has been developing over the past twenty years. I see many opportunities to use ODR techniques in environmental dispute resolution (EDR).

The advent of e-commerce generated new forms of online conflict, spurring development of possibilities for constructive dispute resolution in online forums.  The ever-widening migration of human interactions to the online venue has expanded ODR’s activity to resolving, online, a wide range of conflicts, whether they originate online or result from traditional, face-to-face, interactions.  Today, ODR is still used to address e-commerce transactions that have soured at-a-distance, but it is also employed for more high-context, relational and emotional conflicts such as workplace disputes or divorce.

ODR has developed not only in terms of the span of its application, but in its degree of professional and institutional acceptance as well. Quickly maturing from its early roots as a hobbyist or enthusiast activity, ODR is now a full-fledged field of practice. Along the way, it has gained recognition from inside the ADR field, evidenced not only by its acceptance by organizations in the field but also by the rising number of practitioners incorporating ODR into their practice. On a larger scale, ODR has been institutionalized by external bodies including governments and court systems. For example, the EU has recently tapped ODR to be the primary mechanism for settling cross-border consumer disputes, and British Columbia’s court system has incorporated ODR processes into small claims as well as certain property disputes.

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ODR is a broad term, relating to a very wide spectrum of processes, systems and services.

One category of ODR involves creating online dispute systems for handling large volumes of cases – volumes that only internet activity can produce. An example of this would be eBay’s dispute resolution system, which conducts 60 million cases per year. Another category of ODR involves professionals offering online replications of familiar, ‘traditional’ dispute resolution processes such as negotiation, mediation or arbitration. Various media provide the vehicle for such processes. Some processes employ asynchronous communication (e.g., email), whereas others use synchronous communication (e.g., videoconferencing). Some practitioners use low-to-no cost software such as Skype, and others use dedicated, specially-tailored platforms for their interactions. The sophistication of these platforms varies greatly; some essentially provide a simple discussion forum for text interaction, whereas others incorporate advanced artificial intelligence in order to analyze parties’ preferences and optimize results.

The core commonality of ODR processes, services and systems is that they all involve application of online technology for the purpose of resolving disputes.

Some challenges often associated with ODR are dissolving over time – such as parties’ or practitioners’ general hesitation to conduct significant interactions online. Others are more persistent. For example, enforcement of decisions or agreements. While this is a challenge in any ADR process, and ODR processes generally enjoy the same enforcement mechanisms that ADR processes do (e.g., contractual mechanisms or judicial upholding of arbitration awards), these are always more challenging to implement at a distance. Another challenge relates to security: In the age of WikiLeaks and the Panama Papers, how do I know that information entered into a database of some sort for the purposes of an ODR process will remain private and secure? And, more generally – how do I know whether I can trust an ODR service provider, who might be located on the other side of the world? ODR needs to overcome these challenges, much as all industries.


What benefits might ODR bring to the world of EDR?

Before offering some suggestions to address that question, I’ll note that to a large extent, elements of ODR are already present in many EDR processes, just as they are in all areas of dispute resolution practice. Preliminary contact with stakeholders and scheduling are sure to be elements of many processes, which are conducted via technology. Drafts of agreements are circulated via email, as are requests for comments or thoughts.  The suggestions below, therefore, speak to the notion of weaving technology into the process in a more robust manner, to the extent that an entire process or a significant part of it, might be conducted online.

ODR overcomes geography. We no longer need to convene around a table in order to work out our differences. Being able to convene at a distance saves travel and time costs, and makes scheduling a lot easier. Considering the sheer number of stakeholders who are often involved in environment conflict, and their different locations across the country or world, this might be a key consideration in favor of exploring ODR for environmental conflicts.

ODR expands the pool of potential participants. ODR allows parties to avail themselves of experts who don’t live in their area; similarly, it empowers EDR experts to expand their client pool far beyond their local region or the limitations of away-from-home time available to them. ODR makes dispute resolution much more accessible for parties and professionals with disabilities. And, as the form of dispute resolution with the smallest environmental footprint, it provides a fitting forum for sustainability-related issues.

ODR is well-suited to data-driven conflicts. EDR processes often involve large amounts of data – and different versions of data and its interpretation. Constructive conversation around divisive issues involving data often requires agreement as to what data is relevant in the first place, and shared access to that data, even if there is disagreement as to the implications of that data. Online platforms might be able to support this very type of deliberation, analysis of data and verification of facts. (One example of this, which never made it off the drawing board, can be found here. Feel free to bring it to life!).

ODR facilitates expansive public input. EDR professionals generally hope to conduct inclusive processes in which multiple stakeholders are given voice. Text-based, asynchronous communication media can allow such inclusivity.  Shared online, opinions can then be disseminated in a way that is still meaningful, but does not require dozens or hundreds of hours of open hearings. Opinions can also be solicited in an ongoing fashion through online polling. Documents can be drafted in real time, with all stakeholders viewing, and perhaps contributing to, the writing process. A description of a comparably inclusive process (in the context of negotiated rulemaking) can be found in Rule, 2002.

noam-ebner-photoSeveral cases in which the application of technology significantly improved dispute resolution processes in environmental issues have been described by Colin Rule and Jason Gershowitz. Beyond providing proof of concept justifying further exploration and experimentation, these examples also serve to demonstrate the potential for EDR to expand ODR to multiparty conflicts. Developing ODR in EDR contexts would contribute to driving ODR’s evolution beyond the contexts in which it has succeeded so far – which have largely involved engaging a small number of parties around a relatively small number of issues. EDR contexts requires examining multiple issues, which are often wicked problems, with multiple stakeholders. The technology for doing so, at least on an exploratory level, already exists and is easily accessible; designing technology that is specially tailored for engaging with such issues (here is one exploration in technology that might apply) could follow.

Noam Ebner is a professor of Negotiation and Conflict Resolution at the Werner Institute, Creighton University School of Law.