Today I will join David Larson’s Hamline University Law School class to discuss technology and dispute engagement. I’ll focus on three basic issues: the NMB’s use of technology in mediation and arbitration, the annotated Model Rules for mediation, and the impact of technology on access to justice. Here is a link to the power point handout for the class: technology-dispute-engagement-and-access-to-justice, and here is a link to the latest version of the annotated Model Rules: model-standards-annotated-for-odr-september-2016-clean-copy
This morning, I was privileged to be a guest speaker at the William H. Bowen School of Law, the University of Arkansas Little Rock. I was asked to speak on the topic of Technology and Access to Justice, with an emphasis on mediation and alternative dispute resolution (ADR). A copy of my speaking notes (not a fully written article – just speaking notes) are available at the link below.
The Power Point notes are available at this link:
As a way to start a conversation about the impact of technology – online and offline – on the various practices that make up conflict engagement in all its forms, I have worked with a group of SMU graduate students to draft a set of annotations to the Model Rules for Mediation published by the ABA, ACR, and AAA. At the moment, at least one law review article is being written in response to the annotations, and they will be the subject of discussion at several upcoming conferences, including, I hope, the 2017 ODR Forum in Paris next June. To see a copy of the annotations, click on the link below.
Routledge has just announced a new, soon-to-be-released, book: The Mediation Handbook. A preliminary look at the chapters and authors can be found at this link: Handbook. A pre-release order form can be found at this link: Release. Chapter 2, Online Technology: The New Frontier for Mediation and Conflict Engagement, was co-authored by Alan Tidwell and me – an excerpt from the chapter is included below, as a gentle advertisement for the book.
Information and communication technologies (ICT) now link the globe, yet even with their tremendous growth and innovation we have barely begun to feel the depth of their impact. The International Telecommunications Union announced that as of 2015 “… there are more than 7 billion mobile cellular subscriptions worldwide, up from less than 1 billion in 2000. Globally 3.2 billion people are using the Internet, of which 2 billion are from developing countries” (ITU, 1, 2015). The fledgling world of online dispute resolution, including mediation, peacemaking and peacebuilding, has yet to be fully realized. The impact of this ever increasingly networked world has the potential to remake conflict engagement.
Any observer of the conflict engagement movement would acknowledge its diverse and wide-ranging character. Mediators, peace activists, lawyers, aid workers, community organizers, and more coalesce under the broad conflict engagement banner. That same diversity of practice and perspective is replicated in the world of online dispute resolution (ODR). Before delving into the diverse ways in which technology is being used by conflict engagers, we offer a definition and make two caveats. Firstly, online dispute resolution was initially used to describe the ways in which the internet could be used to facilitate mediation, negotiation, or other similar processes in the realm of e-commerce. Over time, however, ODR has broadened to include the use of any ICT through the broad range of dispute resolution and prevention. We suggest that the most useful definition is that ODR is the intelligent application of information and communication technology to any of the varied modes that make up the practice of conflict engagement. Following that, the first caveat concerns our use of the phrase conflict engagement to include a broad church of practitioners, scholars and readers including those interested in alternative dispute resolution, mediation, peacemaking, peacebuilding and many more. We do this because there are many ways that we, as third parties, engage with those who are in the cycle leading up to conflict, are in active conflict, and are dealing with the aftermath of conflict—and not all of our intervention efforts are aimed toward resolution. So, we will use the broader term to suggest that the entire sweep of conflict engagement is, and should be, affected by the use of ICT. The second caveat is that technology has been an integral part of conflict engagement since its inception. It simply was not often noticed. Just as a fish does not notice water, people have a hard time recognizing the ways in which the technology surrounding them affects their work. Our argument is that because of the ubiquitous nature of ICT in our everyday lives, it is absolutely inevitable that ODR technology will play a central role in all forms of conflict engagement—especially for our purposes here the practice of mediation—as we move further into the 21st Century.
Mediators, and indeed all conflict engagement professionals, do three things wherever they work: they help parties manage communication; they help parties deal with and understand data; and they help parties manage group dynamics. Three of the basic features of information and communication technology and ODR are that they create and use a vast array of communication channels; they help us deal with and understand information in ways not possible in the past; and they help us redefine and expand the concept of what a group is. Given these parallels, how can ODR technology not basically impact mediation and conflict engagement?
After many twists and turns, the new book on “alternative” approaches to alternative dispute resolution is out and available. Julia has a chapter in the book: “Developing Embodied Awareness and Action in Conflict Resolution.” The book is published by Kumarian Press (Lynne Rienner Publishers) – it is not yet available on Amazon.com.
This week Julia and I have been in Geneva with an outstanding group of SMU graduate students, visiting international conflict intervention organizations, including the Red Cross, the International Organization for Migration, and the new Transitional Justice program at the University of Geneva. Several of this group are also involved in the annotated model rules project that I started with the ODR group from SMU.
Unfortunately, I was not able to attend the ODR Forum in the Hague this year, but I am on the agenda on Tuesday, May 24, via video. My very brief remarks introduce a project that is underway with students in the graduate dispute resolution program at Southern Methodist University to annotate the ABA/AAA/ACR Model Rules for Mediators. Click on the link above for the 4 minute intro to the project.
The Spring 2016 edition of the ABA Litigation Journal (Vol. 42, No. 3) contains an article by Jeff Aresty, Robin West, and me – pp. 41-45. The article is entitled, “Building the Justice Layer of the Internet,” and is a critique of the legal profession and a call to be involved now in the development of an Internet justice layer that delivers “justice” in a way that the traditional justice system does not. Our argument for immediate attention to the justice layer of the Internet can be distilled to a reasonably simple point: For poor people “. . . access to justice remains illusory . . . “, but “. . . this wouldn’t be the case if access did not depend on systems created in a barely post-Medieval world.”
Later this year, Taylor & Frances/Routledge publishers will release The Handbook of Mediation: Theory, Research and Practice, in which Alan Tidwell and I have a chapter related to the impact of information and communication technology on mediation and other forms of conflict engagement.
The upcoming edition of the ABA Litigation Journal, due out late this month, will include and article entitled, “The Justice System and the New Social Operating System,” co-authored by Jeff Aresty, Robin West, and me.