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ODR Forum Blog #2: ODR and Access to Justice

 

My second post in the ODR Forum blog just went up – you can find it here:  ODR & A2J

13
Mar 2019
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E-Mediation

 

Ana Goncalves and I have an article in the upcoming edition of the IJODR – “Standards, Qualifications, and Certification for E-Mediators.”  The article is based on information generated by the ODR committee of the International Mediation Institute (of which Ana and I were the Co-Chairs), and presented at the International ODR Forum in New Zealand.  Here is a link to the article:  EMediation Standards

11
Mar 2019
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AI and the Law

This afternoon I will present a short talk on ODR and Access to Justice at the AI and the Law Symposium at American University College of Law.  This is an annual event that brings justices from Brazil to DC for surveys of developments in US law and the courts.  It’s not connected to the training and presentations I did in Brazil back in November, but it seems I can’t escape Portuguese translators.  Thanks to Judge Peter Messitte for the invitation.  A copy of the power point I’ll use can be found here:  AI and A2J

A greatly edited (and shorter) version of the presentation is available in audio with the power points at:  Recording

07
Mar 2019
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ODR Forum Blog #1 – Why ODR Now?

The NCSC has established a blog to lead up to the International ODR Forum in Williamsburg in October.  They have invited everyone to contribute to the blog with short notes and commentary about ODR, and during the run up to the ODR Forum there will be many blog entries, and many topics explored on a variety of subjects related to online dispute resolution.  One thing about which I think most of us who deal with ODR would agree is that the idea of, and the reality of, ODR has been expanding rapidly in the last couple of years. Why now?

For the past two decades ODR has been acknowledged as an approach to disputes, but it seems that ODR has in the past year or two been on the tongues of dispute resolvers in just about every mode and venue.  It is the classic example of an “overnight success” that is anything but overnight.

ODR’s first blooming began in the 1990’s in e-commerce, addressing the bounded universe of disputes there with algorithms and online work by “real” mediators.  What we are seeing now is the blooming of ODR in the courts, for what I suggest are much the same reasons that we saw ODR being developed in e-commerce. The courts offer huge numbers of cases, many of which are bounded by forms, rules, and processes that lend themselves to assistance by algorithm driven ODR platforms.  The payoffs in saved time and saved money are also analogous to the payoffs in e-commerce. The promise of those payoffs in the court systems around the world are, I think, driving the emergence of ODR beyond e-commerce. There are two areas in which I still don’t see a lot of progress in ODR.

First, we are not seeing yet the development of a true justice layer for the Internet.  In the “real” world we interact in a social layer and a commercial layer, with a justice layer available to resolve disputes created by our social and commercial interactions.  That justice layer is driven by venue, standing, and rules that recognize borders. On the internet we have an active social layer (perhaps too active) and a commercial layer, but no real justice layer that operates in the cyber-world we have created with our online social and commercial interactions.  The closest we’ve come to a justice layer of the Internet are the private justice systems created by e-commerce platforms, joined and ruled by the the fine print behind the “I Agree” button that we click almost automatically. The court ODR that is being developed is, at least at this point, not revolutionary.  Court ODR has, so far, taken the traditional functions and structures of court systems and converted them or adjusted them to the use of online tools. And, significantly, the court ODR platforms are designed to operate within the same venues, and with the same borders, that control non-ODR court processes. The EU has taken small steps to stretch ODR across borders (although the idea of borders in the EU are not, themselves, traditional).  But the major attempt to create an agreement about how to handle cross border disputes not managed as a private justice system, the UNCITRAL ODR Working Group, basically failed.

Second, we are not yet seeing ODR platforms in widespread use for sole practitioner dispute resolvers or for small firms and non-profits without the financial resources or the case loads to support large scale ODR platforms.  Even though most dispute resolvers are using technology to some degree, it is probably the case that most do not think of their use of mobile phones, document sharing platforms, and, heaven forbid, e-mail, as ODR. The gap in the market seems to be for ODR platforms with secure document handling and storage, designed for dispute resolution, with the ability to communicate, brainstorm, and create agreements that are user friendly and cheap enough to be used by those who are not operating in large e-commerce or court systems.

07
Feb 2019
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EU IPO Conference

On May 30 and 31, The European Union Intellectual Property Office will host a conference in Alicante, Spain, on the topic of intellectual property mediation.  On May 30 I will be speaking on the topic of  “Artificial Intelligence and Mediation Ethics.”  The conference link is https://euipo.europa.eu/ohimportal/en/ip-mediation-conference2019 

25
Jan 2019
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SMU ODR

I just finished the in-class portion of an International Dispute Resolution class for SMU.  Delightful students, and this photo includes one of our guests, a photo-artist (Farah Janjua) who took us through a photo experience in Jerusalem.  (She’s in the front row in a checked shirt.)

11
Dec 2018
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ODR Subcommittee

I have been a member of the Virginia State Supreme Court’s Access to Justice Commission, Self-Represented Litigants Committee, for the past couple of years.  At the most recent meeting, which I missed because I was speaking at a couple of ODR events in Brazil, I was nominated to [which I think means placed on :-)] a newly-created ODR Subcommittee of the SLR Committee.  The SLR Committee is made up of very well meaning, and very traditional, legal professionals – the creation of this Subcommittee is a huge indication that the integration of technology into the structure of the justice system is moving steadily, and increasingly rapidly, forward.

27
Nov 2018
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Happy Thanksgiving

This Thanksgiving Day is, like everything else these days, shrouded in controversy. The specific controversy surrounding Thanksgiving is related to the relationship between indigenous populations and immigrants from Europe. The specifics about controversies surrounding seemingly everything else in our society are simply too numerous and complex to talk about in a brief blog post.

Even given the fractured state of our nation, it is still the case that we have and can find much for which to be thankful today.   But it’s hard to dwell on the things for which we can be thankful when our country seems to be slipping more and more into what observers of politics around the world have called a “backsliding democracy.”

My dark mood has been triggered by the document released by the White House yesterday declaring that the military troops along our southern border can be authorized to use “lethal” force under some circumstances in their dealings with civilians. The Border Patrol is a heavily armed, well-trained police force that really does not need the Army to protect it. And the fact that the civilians involved are not citizens is, to me, largely irrelevant – the point is that using an army to police a domestic population is one more step in the direction of authoritarian rule that should trouble all of us.

Our current “leader,” with the collusion of too many citizens and politicians, has engaged in the classic hat trick of dictatorship: fostering fear, undermining democratic institutions, and creating a cult of personality.

We should all fear the “caravan” on its way to invade the US. But, of course, now that the mid term elections are over, we don’t mention that anymore. But there are many other things, mostly brown and foreign things, of which we should be afraid. Never mind that you are far more likely to be shot and killed by a white guy with a gun than you ever are to be harmed by an immigrant. Fear of blacks, fear of browns, fear of gays, fear of immigrants, fear of Korea, fear of Iran, fear of Democrats – fear of Canada for heaven’s sake – are part and parcel of our current political climate.

The basic democratic institutions that make this country different from dictatorships are constantly under attack. The judiciary is maligned. Rule of law is threatened. And, of course, there is “fake news” – any news that accurately reports what the “leader” does or says. As an aside, if he doesn’t want it reported, perhaps he shouldn’t do or say it. But vilifying the free press works a lot better with those who are attracted to demigods.

The “leader” once said that he could shoot someone in the middle of 5th Avenue and his base would not desert him. That’s probably true. When caught quoting Mussolini, he was either unaware of the context, or just didn’t care that he was aligning himself with a supporter of what can be justly described as the world’s worst cataclysm. He might be wise to remember how Mussolini finished his days, but no dictator thinks he’s personally headed for a bad end.

I have avoided political posts for a long time, partially because I was in a position that made making political statements problematic, and partially because I assume very few care what I think. But I fear for our country, and even the catharsis of putting that down in writing today makes it a bit easier to see through the fog to some of the things for which we all have to be thankful.

Enjoy your families. Don’t talk politics. Look for positive things to celebrate, and shun the dark.

Happy Thanksgiving.

22
Nov 2018
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ODR and Ethics

The day of discussions, the master class, and the closing keynote at the conference in Rio went well.  There is a huge amount of interest in online dispute resolution in Brazil, and there are a number of applications currently in use.  The judiciary is particularly interested, as evidenced by two government ministers who spoke at the Rio conference.  I was in pretty good company – sort of makes you wonder why they chose me for the closing keynote.  I had several interesting conversations about the Brazilian presidential election that happened just before Julia and I flew into Sao Paulo.  The consensus was that the election was a choice between two evils, and that Brazil is now headed down the same path that the US has been on since Trump was elected.  For a number of reasons I chose not to make the trip to New Zealand, but I assume the existence of ICODR was announced there, and that I’ll be working as one of the founding Board Members starting later this year or early next year.

16
Nov 2018
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Next Up . . . A Day With . . .

 

This will be my first trip to Brazil – I will be honored to share the podium with a group of distinguished lawyers and judges in Sao Paulo for a series of discussions related to online dispute resolution and the justice system.  The “Day With” will be followed by a Master Class that I will teach with Julia and Ana Goncalves, and then I’ll deliver the closing keynote address at a conference in Rio.

21
Oct 2018
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