Listening to Concerns About ODR

One of the first articles I ever wrote in the field of alternative dispute resolution focused on listening to voices of those who are critical of dispute resolution. It is my opinion that any criticism should be welcome, so long as it is constructive.

Now that online dispute resolution (ODR) is growing in prominence, we are starting to hear from those who are a bit more skeptical (or perhaps cautious) about its growth. I work every day to promote ODR and coach others how to do it well, but I believe that ODR systems designers should pay attention to articles that raise concerns as well.

One such article by Jean Sternlight, a Professor at the Boyd School of Law at the University of Nevada Las Vegas, articulates some potential challenges in delivering on the promise of ODR. In the article, “Pouring a Little Psychological Cold Water on Online Dispute Resolution,” she raises the following issues:

1. The phrase ODR is too broad. We include so many things under that description (e.g. intake forms, facilitated negotiation offers, online mediation, artificial intelligence) that it is leading us to imprecise thinking. How can we compare two ODR programs if one uses text messages to help citizens resolve traffic tickets and the other uses machine learning to calculate appropriate child support amounts?

We need to craft more specific language that teases apart the different types of applications under the broad umbrella of ODR if we are to be able to discuss it clearly.

2. ODR designers aren’t paying enough attention to human psychology. Merely enabling the exchange of information online will not resolve most disputes. ODR systems need to stop reducing complex disagreements into simple monetary negotiations that can be summarized on a single web form with just a few checkboxes.

People are just as complex when they interact online as they are face-to-face, so we shouldn’t design technology to suppress the complex psychological realities that undergird most conflicts.

3. There is not enough testing. Too many ODR design decisions are made on intuition and are not rigorously challenged and tested once they go live. Hunches and instinct are not the best ways for us to build and improve online conflict resolution systems.

We need to be engaged in dispassionate, empirical research before, during, and after an ODR system is designed and implemented to ensure that it is achieving intended results and is benefiting from continuous improvement.

Professor Sternlight makes clear that, over the long run, technology may become much more sophisticated in helping people address and resolve conflicts. But, for now, humans are usually better at engaging with disputes at their full level of psychological complexity.

Web pages are not yet very effective at “creating empathy, building rapport and trust, and helping to persuade people to rethink their strongly felt beliefs.” We’re going to need people to play those roles for some time to come.

She concludes her article by offering four pieces of advice for ODR systems designers that we would all do well to keep in mind:

1. Keep human psychology front and center in the design of ODR systems.
2. Preserve a role for human mediators, arbitrators, and lawyers in ODR systems.
3. Don’t design technology to suppress the human complexity of disputes.
4. Continually evaluate ODR applications with empirical research.

As we roll out ODR to more courts across the United States and around the world, it will behoove us to keep these well-considered points in mind. Constructive criticism is a gift, and if we are open to listening to cautionary voices and evolving our practice in response, it will only make our systems stronger and more effective.

Colin Rule was recently awarded the Frank Sanders Award by the American Bar Association. This is the seventh post in a series on ODR by Rule, vice president, Online Dispute Resolution and co-founder of Modria. Check this space on the second Wednesday of each month for more.

Read his earlier articles here:

Report from the ODR 2019 Conference
Court Leaders Gather in Kazakhstan
Frank Sander and the Multidoor Courthouse
How ODR Can Benefit Three Criminal Case Types
The Intriguing Evolution of ODR
ODR Around the World