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Journal

The latest edition of the journal is now out – it was in the packets at the ODR Forum in Paris last week.  This edition includes an editorial from me as the issue editor-in-chief, and articles by:  Colin Rule and Any Schmitz, Ethan Katsh and Orna Rabinovich-Einy, Zbynek Loebl, Graham Ross, and Ana Goncalves and Irena Vanenkova.  The next issue, due out at the end of this year, will feature articles assessing the state of ODR in MENA (the Middle East/North Africa).

19
Jun 2017
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ODR Forum, cont.

These are the notes from my opening remarks at the standards panel last Tuesday in Paris:

To set the frame for our discussion today, let me start with a few words about what I see as two “branches” of ODR – Wholesale ODR and Retail ODR.

By using the term wholesale and retail I am not referring to the dollar amounts involved in the ODR transactions. Rather, I am referring to the numbers of cases handled by ODR technology, and the dependence on algorithms to drive wholesale ODR.

Wholesale ODR can be most easily seen as the e-commerce platforms that handle millions of cases per year (eBay – at least 60 million per year, Ali Baba – over 100 million cases per year), and in the rapidly emerging online court systems like the one Tyler Technologies wants to build using Modria. There are so many cases that it is imperative that algorithms are developed to handle cases without the intervention of human mediators.

Retail ODR can be thought of as the kind of work I have done with the NMB. We may only have 60-80 mediation cases open at one time, and we may do only 5000 or so arbitrations every year, but the dollar figures can be large, and the need for individualized attention to the parties and the issues is pressing. For example, there is a case going on now in mediation with the potential, if a consensual agreement is not reached, to have an economic impact on the US economy of up to 1.5 billion dollars per day. So, again, wholesale and retail in this context are not about dollars and cents, but about case throughput and the need for smart systems.

In the past it has been difficult to get ADR practitioners to accept strongly enforceable standards or rules. There are standards and model rules, and they can be encouraged and enforced to some degree, but the wider ADR community has traditionally seen strong standards of conduct as a force working against creativity in the field. This may be changing a bit with the graduation of masses of dispute resolution students from universities, many of whom want their credentials to mean something more than a 40 hour court-approved mediation course.

Standards have an entirely different footing in the wholesale world. There, it is much easier to get consensus about the need for strong standards, and perhaps even certification and accreditation. Why? I think because of four reasons.

1 – The raw number of people affected by wholesale systems is huge, and the resultant impact can be equally huge.

2 – Wholesale systems are driven by algorithms, and it is much easier to talk about binding rules for fourth party systems than it is for human third parties.

3 – The fear that designers and coders will build bias into their systems, intentionally or unintentionally. Alma Abdul-Hadi Jadallah and I wrote about this in a general sense for the 2005 Cairo ODR Forum.

4 – The nature of algorithms, particularly learning systems that move toward a singularity (the ability of code to itself write code), are perceived as potentially dangerous or harmful. The latest edition of the Administrative Law Journal in the US has an article arguing that the nature of algorithms makes it desirable to create a regulatory agency to oversee and control algorithm development and deployment. (The article is called “An FDA for Algorithms.”)

While fourth party development and algorithms may be not urgent matters for Retail ODR, there is one area in which I think there will be some crossover, and where algorithm development may soon impact, for good or bad, depending on your point of view, Retail ODR providers. That area involves Big Data and the algorithms that can mine information from data provided by practitioners. The third parties alone may have retail practices, but all of their data taken together can be mined for patterns, hidden meanings, suggested outcomes, etc.

But, for now, the essential difference between Wholesale ODR and Retail ODR in terms of standards is that Wholesale ODR standards seem aimed to address what the system should do, while Retail ODR standards seem to address what the human third party should be expected to do.

Why have standards in the first place? I think because whether we are talking about fourth parties or third parties, interveners should have a good idea of how they should behave, and those in conflict whom we serve deserve a solid understanding of how the intervening parties will and should behave.

16
Jun 2017
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ODR Forum

At the Forum, on Tuesday, June 13, I will moderate a panel discussing “Governing ODR – Standards and Practices.”   For the past few months I have been involved with the International Mediation Institute (IMI) Task Force developing competency criteria for e-mediators.  Although I will not have time to fully discuss the Task Force’s work at the ODR Forum, the current state of our work is contained in the linked documents below:

Background             Annex 1              Annex 2

27
May 2017
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ODR Bibliography

ADRHub, maintained by Creighton’s Werner Institute, has posted the ODR bibliography that I initiated as a way to see and understand the sweep of research and writing on ODR since its inception.  The bibliography will be updated by Noam Ebner and his colleagues as members of the ODR community send updates and additions.  The document can be located and downloaded here:  ODR Bibliography

16
May 2017
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IADRWG Session 2 – Scheduling and Polling

On Wednesday, May 10, my colleagues and I presented the second in a two-part series on ODR for teh Inter Agency Dispute Resolution Working Group (IADRWG).  I did a general opening addressing why we use ODR tools in the first place, and my colleagues added details with some specific technology that is being used by various government agencies.  An audio recording of my opening remarks can be found here: Intro, and a video of the session can be found on the Department of Energy web site here:  Panel

14
May 2017
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ODR in Paris

The 2017 ODR Forum will be co-hosted by the National Center for Technology and Dispute Resolution,  and the International Chamber of Commerce at the Marriott Champs-Elysees in Paris.  The sessions will be held on June 12 and 13:  on the 13th I will moderate a panel addressing ODR standards.

14
May 2017
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ALI CLE

I will appear with the NMB Board Members on a panel at the ALI Airline and Railroad L&E Law continuing legal education session.

21
Apr 2017
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ABA Section of Dispute Resolution

On Friday, April 21, Susan Exon, David Larson, and I will be on a panel discussing the ethical impact of technology on the Model Rules for Mediators.  The panel will feature a series of “what if” scenarios that the audience will be invited to discuss.  The day before the panel, a joint group composed of representatives from the Association for Conflict Resolution, the ABA, and the American Arbitration Association will meet to begin discussion how to address adjustments to the model rules to take into account the rise of ICT use among practitioners.

10
Apr 2017
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ODR Master Class

On March 30, I did an interview with Graham Ross as part of a master class in ODR.  There were about 30 participants from 10 countries in the session that focused on basic ODR approaches.  A recording of the session can be found here:  Master Class.

05
Apr 2017
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ADR Lunchtime Series, Part 1

The video of the first session (recorded on March 17) is now available at Session One – my comments begin at 1:03:00.  The next session will be on May 10.

04
Apr 2017
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