Daniel Rainey

New Relationship with SMU

Beginning in August, 2013 (I suppose that’s now), I will change my formal relationship with the Southern Methodist University Dispute Resolution program.

For the past few years I have been an adjunct faculty member at SMU, teaching a number of courses on contracts that were good from class to class.  Beginning this month, I will be come a “regular” member of the faculty with the title Clinical Professor of Dispute Resolution, and I will be on a yearly contract to teach graduate classes and do other work related to expanding the academic program.  I will continue to teach the classes that I have taught in the past – Online Dispute Resolution, International Dispute Resolution, Integrating Dispute Resolution Theories, and Study Abroad courses – and in the short term I will begin teaching the program’s Negotiation course and work with students in internships and special projects.  I will not assume any administrative duties at SMU.

I will continue to serve as the NMB’s Chief of Staff for the foreseeable future.  I will drop some of the other teaching and consulting work that I have been doing in order to make time to work effectively with SMU and the NMB.

I am excited about the potential for having an increased voice in helping shape the SMU program, and I’m looking forward to whatever challenges the future may bring.

ODR Journal and ODR Degree

There are a couple of developments on the international ODR front.

First, the ODR degree being planned by the Universitat Oberta de Catalunya, Instituto International de Posgrado, is moving along.  The effort is being guided by Aura Esther Vilalta Nicuesa, professor of law and political science at UOC (and a moving force behind scholarship and legislation affecting online commerce in Spain).  Ethan Katsh, Colin Rule, and I are listed as advisers and “faculty” for the degree.  The first course, a basic online dispute resolution course, will be offered later this year, online, with Spanish and English versions.

Second, the development of the International Journal of Online Dispute Resolution is also moving along.  Ethan Katsh, Mohamed Abdel Wahab, and I (co-Editors-in-Chief) have almost finished putting together the editorial and advisory boards, and we are targeting the end of this year for the first volume, with the second coming out mid-year in 2014.

Modria Press Release

Modria, which may become the first commercially successful online dispute resolution platform offering general dispute resolution services, and not directly connected to a proprietary e-commerce business (e.g., eBay),  just took another big step toward stability and long term growth.  By way of disclosure, I am an investor in Modria and a member of the Board of Advisers. From Silicon Valley, Modria released the following item earlier this week:

Foundry Group leads $5M Series A investment round and J. Scott Carr joins as
CEO to drive Modria’s growth

SAN JOSE, July 8, 2013

–Modria today announced it has closed a $5 million dollar Series A investment round led by Foundry Group.  As part of Modria’s expansion, J. Scott Carr has joined Modria as president and CEO.

The Modria platform is the leading online dispute resolution system in the world, enabling businesses and government agencies of any size to resolve customer problems swiftly and fairly. Its proven, scalable cloud-based technology brings all parties involved in a dispute to the table quickly and efficiently, enabling them to arrive at an equitable solution that reduces cost and increases customer brand loyalty.

Colin Rule, co-founder of Modria, wrote the seminal book on online dispute resolution for business (Online Dispute Resolution for Business, published in 2003). He and the core Modria team built the only resolution system to operate at scale, resolving 60 million eBay and PayPal cases a year.  In 2011, Rule spun-out of eBay to start Modria, building the next generation resolution platform to address customer issues for business and governments of all sizes. The creator of online dispute resolution, Ethan Katsh, serves as the Chair of Modria’s Board of Advisors.

“Companies like eBay have long known the importance of converting disputes into fair and swift outcomes as a means of growing their business.  Now, businesses in other sectors, from insurance companies to healthcare and government agencies, are climbing on board,” said Colin Rule, COO and Chairman of the Board of Modria. “Foundry’s investment in Modria is further evidence of how important thisspace is.

Bringing Scott Carr, a proven executive with a solid track record growing web companies, on board as our CEO ensures that we will grow the company quickly, responsibly and with extreme customer focus.”

Foundry joins an impressive roster of leading angel investors in supporting Modria’s growth, including Kapor Capital (Mitch Kapor), EDVenture Holdings (Esther Dyson), andDan Ciporin (former Chairman and CEO of Shopping.com), as well as institutional investors Battery Ventures and Advanced Technology Ventures. “With the explosion of online activities, people are transacting at a rate never before seen,” said Jason Mendelson, Co-Founder and Managing Director at Foundry Group.  “This obviously includes ecommerce, but also includes everyday tasks like paying bills online, reviewing property assessments, filing insurance claims, and other things that used to be non-digital activities.  It is inevitable that all of these new transactions will generate an enormous amount of disputes that need to be resolved.  We believe Modria’s rare combination of deep dispute resolution expertise and proven technology positions them for both short and long-term success.” Along with the capital infusion, Modria has added Scott Carr to the executive team as CEO.  Carr spent the last 15 years leading businesses where trust and transparency were key ingredients of the product value proposition.  Carr was president and CEO of YottaMark, a leader in product traceability and supply chain analytics, and EVP of marketing and business development at Digimarc, a leader in content security and identification technologies.

“Complaints and disputes are a fact of life in the networked economy, from online marketplaces to online banking,” said Scott Carr, president and CEO.  “They happen hundreds of millions of times a year. What has been missing is a solution that delivers fair resolutions for all these disputes. The Modria platform solves this problem with a scalable, transparent system that provides appropriate resolution processes for every kind of dispute, leveraging software-only and human-powered processes as needed.  It’s the first step toward a future in which companies and customers around the world settle their disputes amicably outside the overburdened court system.”

The Modria platform is based on more than a decade of research in online conflict resolution. It combines deep knowledge of legal processes with a scalable and reliable toolset in the cloud. Modria flags and diagnoses customer issues quickly and drives effective negotiation, mediation and arbitration before complaints can disrupt a business and bubble up in social media. Its underlying methodology has been used to successfully settle more than 400 million customer issues. The Modria platform can handle any caseload, big or small, anywhere and anytime.  It is in use today, supporting government and commercial caseloads in the US, Canada, and Europe.  The Modria Diagnosis module collects and organizes all the relevant information about the issue and suggests possible solutions. The Negotiation module distills points of contention and enables the parties to discuss the matter directly and on the record.

If the parties are unable to resolve the issue through negotiation, the Mediation module provides an impartial third party to help clarify issues and brainstorm options. If no mutual agreement can be reached, the Arbitration module lets the parties select a decision maker who examines the facts and renders a decision. Throughout the entire process, users can engage in transparent, secure discussions and submit rich assets such as documents and videos supporting their arguments.

About Modria:

Founded in 2011, Modria’s team of technologists, and legal and dispute resolution experts are building the dispute resolution platform for the Internet, providing businesses and government agencies of any size with a scalable and transparent cloud-based platform to diagnose and resolve disputes of all sizes. Modria’s experts created the technology used by eBay and PayPal that has solved hundreds of millions of cases. The company is privately held and based in San Jose, CA.

Find more information at www.modria.com or email info@modria.com.

Egypt and the Impulse to Intervene

Tahrir Square

As it happens, I just finished the classroom portion of a course in conflict analysis for the graduate Dispute Resolution degree program at Southern Methodist University.  The class used the generic “Israel/Palestine” conflict as the basis for the exercise in conflict analysis, partly because it offers such a rich and diverse set of problems and relationships, and partly because SMU’s “safety office” had vetoed a study abroad course in Israel and Palestine for this summer.  The trip was not, they thought, safe.

The day of the last SMU class meeting was June 30, the day the demonstrations in Egypt that have led to Mr. Morsi’s ouster began.  If I had been prescient enough to know what was going to happen there, perhaps I’d have used Egypt as the example for analysis.

The United States has not covered itself with glory with its role in either the Israel/Palestine situation or the Egyptian situation.  One of the guests from Israel who joined the class by Skype responded to a question about the U.S.’s role in bringing peace to the area as, “useless.”  Interestingly, the same guest, in a sentiment echoed by other guests from both sides of the border, thought it would take some bold outside action to get any movement.  So, we could help, but we haven’t, at least from the perspective of some academics and politicians in the area.  We’ve done no better in Egypt over the past two years, and there’s no reason to expect a sudden burst of competence now.

I have an interest in Egypt on a number of levels.  For any conflict engagement practitioner it offers an interesting and urgent case for work on Track I, Track II, and Track III levels, so there is a certain theoretical pull from the events there and the discussions about how to help . . . or at least not harm.  On another level, I have a friend and colleague in Cairo, with an office near Tahrir Square, and my most direct interest in the current unrest is the hope that he and his family are safe and will remain so.

When the first revolution was brewing in Egypt, back in early 2011, I was with a group of executives from some major U.S. corporations, all of whom were scared that the revolution in Egypt would lead to a “radical Islamic” state that would further destabilize the area and pose yet another threat to the U.S.  My attitude at the time was that the officer corps in the Egyptian Army was so heavily invested in U.S. aid and in the business infrastructure of the country that they would simply not allow that to happen.  I have not felt foolish about that statement, either in the immediate aftermath of the revolution or in recent days.  What will happen in Egypt on a micro level in the near future is anybody’s guess.  What is not in doubt is that many well-meaning practitioners of conflict engagement will want to go there to “help” the situation on many levels.  I hope all of them are sensitive to the local knowledge about what is best for Egyptians and how they need to manage their conflict, but I’m not optimistic about that.

International Journal of Online Dispute Resolution

At the 12th Annual ODR Forum in Montreal, we announced the launch of a new international journal – The International Journal of Online Dispute Resolution.

I will be one of the co-editors-in-chief, along with Ethan Katsh and Mohamed Abdel Wahab, and the journal will be published by Eleven International Publishing, the publisher of ODR Theory and Practice.  We are in the process of establishing an editorial board and a roster of outside expert reviewers, and we are working to establish cooperative agreements with academic institutions to manage submissions, reviews, etc.

To see the announcement from Eleven, click here:  IJODR  –  more information regarding submissions and publication dates will follow soon.

ODR Forum Opening Discussion Notes

Opening Discussion

International ODR Forum Number 12

Montreal, Canada

June 17, 2013

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To open the 2013 Forum, Mohamed Abdel Wahab and Daniel Rainey facilitated a discussion among all of the attendees, begun with a basic question about how ODR relates to the concepts of Rule of Law and Access to Justice.

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The topics that came to the front from the participants are noted below.

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• There is a crisis in the law, and that crisis has been at least partially caused by the disruption caused by the use of technology.

• One big change in the recent past is that the traditional legal community is coming to the ODR world for answers about how to “save” the law.

• The upshot of this is that the ODR community must begin to think about justice, access to justic and rule of law in a systematic way.

  • How do we deliver legal aid/services to those who do not have easy access to the formal justice system?

  • Is there a way to use ODR to improve poverty law services? This may be counterintuitive since one of the usually cited barriers is lack of access to those with less money or those on the bottom of the social order – is there enough penetration of online technology to make poverty services really deliverable via ODR?

  • Related to the note above, how does the use of ODR affect power imbalance among parties?

• How does ODR relate to International Humanitarian Law – is ODR capable of delivering information in a way and to places that are new?

• Much of the work in ODR has focused on resolving disputes that have always existed – what is ODR’s role in “new” disputes, types of disputes that are new or for which there have not been resolution methods before?

• Related the notes above, ODR developers need to begin delivering methods from “a blank piece of paper.”

• We have tended to talk about the process – we should be talking about harmonization and consensus building apart from process. Perhaps this means that we should look first at the problem and the human dynamic, then worry about creating processes that address those.

• Should we encourage more regulation of ODR, or should we maintain a hands off approach?

  • What does the absence of law in cyberspace mean?

  • In Latin America – “if it’s not in the law, it does not exist” – we have to be sensitive to the local conditions and use regulation or formal modes when they are the norm. ODR should be Glocal, not Global.

• After a presentation, the response indicated clearly that the clients are interested in ODR, but the lawyers are not.

• How do ethics fit in? Should we, as a group, consider more professionalism or more regularization? Is this linked to credibility? There is no access to justice and no justice if no one uses the platforms.

• Who are the disputants? The parties in ODR may not always be as they seem – for example, in bullying, does the use of ADR and ODR blur the line of who has been harmed?

• ADR is becoming more and more ODR every day – we should acknowledge this and not make the mistake of trying to regulate what is an evolving field.

• Is the devlopment of ODR a top down or bottom up process – does the state impose ODR or is ODR developed because the users demand it?

• There is a lack of engagement between technology and the tasks that we are asking ODR schemes to perform and formal theories of justice – there is a gap in the literature that we should begin to fill with formal development of ODR theories of justice.

• China’s experience demonstrates that ODR is unbiased – breaks down cultural barriers and allows for “level” interaction not just across national borders but across cultural differences.

Not Your Father’s Privacy – Take 2

Thanks to Edward Snowden, we now know with much more detail how much information about us – every one of us – is being gathered and analyzed by our government.  In the end, Snowden may wish he had chosen to reveal his identity from a country that does not have an extradition treaty with the U.S., but that’s his problem.

I say we know more than we knew, because any one of us who logs on to Google and is presented with ads for products suspiciously like those we tend to want should have known that someone, somewhere, was “watching” our online behavior.  In February, I was out in Silicon Valley visiting the offices of Modria, a start-up ODR company with which I am involved, and I had the chance to hear one part of the “State of the Valley” conference and talk to a couple of people about the kind of market research and data analysis that is being done in the commercial world.  On February 25, I posted a blog note about the conference, including this aside.

Coincidentally, last week Alan Westin died.  Westin was the Columbia professor of public law who wrote the seminal text in privacy law (Privacy and Freedom), extending Brandeis and Warren’s argument that privacy is a right – the “right to be left alone.”  Westin’s original position was that individuals have a right to control what information about them is distributed, to whom, and in what circumstances.  That idea seems quaint now . . . . In the end, Westin’s attitude seemed to be that we can no longer control the information about ourselves that is public, and that privacy law should shift focus to protect our right to make sure that the information circulating about us is at least accurate.  I’m not sure there is any deeper meaning in the juxtaposition of these two events than simply being another marker in the physical passing from the age of digital immigrants to the age of digital natives, but it does highlight that among all the other changes that the use of online communication tools has brought about, what we have now is ‘not your father’s privacy.’

Not your father’s privacy, indeed.  The data analysis techniques being used, and to some degree perfected, in the commercial world have, at least since 9/11 been used to analyze the communication patterns of potential terrorists, which is to say the communication patterns of everyone who uses telephones, mobile phones, or the Internet.  This should surprise none of us.  Intelligence organizations have a history of using the best available sources to gather information that goes back at least to the Bible.  Having a concubine report on the goings on in the palace may be an appealing way to get information, but data mining phone and Internet use is obviously a lot more effective in the long run.

Any terrorist worth his or her salt already knew that near universal surveillance exists.  It is no longer paranoid to assume that, at any given moment – as I load this onto my blog, for example – some organization, or several organizations, are recording what I’m doing, or taking photos from hidden cameras, or looking down from drones too high for me to see but with cameras that can pick up the image of the quarter I dropped on the sidewalk.  In one sense, what Snowdon revealed is no more than what the reasonably paranoid among us already assumed.  But in another sense his leak can be seen as damaging to both the intelligence community and the rest of us.  The intelligence community is no longer hiding behind a curtain of secrecy to the extent that they were before Snowden’s leak, so they now have to defend themselves and are to some degree damaged.  But the rest of us may suffer, too.  Whatever one thinks of the fact of the data gathering, before Snowden’s leak all of us, including the terrorists, had to guess at the extent and nature of the data being gathered.  Now, some of that information is public.  As an acquaintance of mine who was an old-school spy once told me, anything at all that your enemy finds out about you, no matter how trivial it may seem, adds to the store of data about you, and helps them predict your behavior or understand you better.  Snowden’s leak certainly gives our enemies some information they did not have, and that is potentially dangerous for us all, and may be the reason that his choice of Hong Kong as a place to “come out” wasn’t all that smart.  The intelligence community is bound to be a little irked with him. 

The vigorous debate over whether Snowdon has committed an act of treason or an act of patriotism is already well underway.  I think it is possible to think of his actions as both treasonable and patriotic, but in our currently polarized society that’s not likely to be a majority opinion.

What is clear is that, no matter which side of the argument one is on regarding Snowdon’s leak, you can just pick your cliché to describe the current state of privacy in the United States:  that horse is out of the barn, that ship has sailed, etc., etc.  President Obama says emphatically that the government is not “listening to your phone calls” – that may or may not be true at the moment, but what is undeniable is that the advances in natural language research and data mining that are happening both in the private sector and the public sector mean that the government could listen if it wanted to.  And why, in a world where we define a sizeable portion of humanity as potential enemies, would the government not want to listen?

The most troubling, and either dishonest or stupid, argument that I’ve heard from the intelligence community is that the data being collected is “just sitting there,” stored for use only if there is reasonable cause to mine it.  That may be technically true at the moment, but anyone who has ever dealt with organizations knows that things that are not supposed to be made public somehow become public, and things that are supposed to be unused or benign find their way into nefarious uses.  To say that the data being collected cannot be misused is at best naïve and at worst dishonest.

Imagine a case in which, years from now, a candidate is running for President of the United States.  In fact, if you are in your 20’s or 30’s now, imagine yourself in that position, as a candidate, 30 years from now.  How comfortable would you be knowing that somewhere, in a data base that is easily searchable and analyzable, is information about every phone call you made, everyone with whom you communicated, and every Internet site you visited from the time you were in your 20’s?

It really isn’t your father’s privacy.

Regulating ADR?

I don’t know if this is a momentary blip or the emergence of a new discussion that extends the ongoing debate about credentialing and accreditation.  In the most recent issue of the ABA’s Dispute Resolution Magazine there are “point-counterpoint” articles about possible regulation of ADR (basically, mediation).  This is regulation, not accreditation, but some of the arguments are similar in nature.

Of course, since the articles come from the legal world, there is an unstated assumption that ADR really is just a set of dispute resolution modes attached to the court system.  But, leaving aside that myopia, there is a remarkable reliance on the language of commerce and the marketplace to justify or refute the need for regulation.  

Jean Sternlight, in the pro-regulation article, argues that:  “While many of us are attracted to the free-spirit or even libertarian idea that disputants should design processes that best suit their needs, others fear that unregulated dispute resolution processes may lead to unjust results.”  Imagine having a say in how one handles conflict.  That’s radical and may well lead to a “race to the bottom.”  Now, I think there is some merit in the notion that in ongoing ADR systems there may be a tendency for providers to  “cater to powerful repeat players,” but whether that justifies lumping all ADR into the court world and regulating the providers and the process is, to me, questionable.

Even the defenders of the open system that we currently have use economics and the open market as a basis for rejecting regulation.  Bryan and Weinstein assert that:  “Creative dispute resolution tailored to the case at hand ultimately saves company time and resources, thereby maximizing shareholder profits.”  Bodies that have looked at the issue of accreditation, even within the ABA, have consistently suggested that rules and frameworks, let alone regulation by the government or the ABA, would have a chilling effect on the creative development of ADR modes.  Are we getting to the point in the maturing of the field, if it is that, where the mainstream desire will be for stability, predictability, and accountability instead of creativity?  Probably not yet, but it could be that we are hearing the first round of a debate that will go on within the ABA, and that ultimately could affect all those ADR providers who are not lawyers and who are practicing in ways not connected to the traditional justice system.

It’s a complex topic, too big for a blog entry.  I suggest you read the pro and con articles in the DRM and consider joining the discussion.

UNCITRAL Working Group III

NOTE:  All daily posts for the week of UNCITRAL meetings will be contained as additions to this post – scroll down to see the posts day-by-day.

Monday, May 20, 2013

I’ll try to post a note at the end of each day this week about what is happening in the Working Group meeting – not to try to track each moment in the debate, but to present a general notion of the way the discussion is moving.

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Itzhak Perlman, the great violinist, once remarked that he liked to practice at home with a game of cricket playing in the background on his television. It was possible, he said, to concentrate on his music for an hour, glance at the cricket game for a couple of minutes, and understand all that had happened in the past hour.

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That is not a bad way to think about the state of things with the UNCITRAL Working Group III. Over the past couple of years, one could concentrate elsewhere for six months, then check back in with the Group to find the same issues and arguments on the table, or at least be able to catch up quickly on the glacial movement from meeting to meeting.

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One difference this time around is that the buzz in the room this morning before the session opened was about the need to make some progress, and the threat that the failure to make progress might lead to dissolution of the Working Group. The opening remarks by both the Session Chairman and the Working Group Secretary echoed this feeling – barely disguised but carefully worded threats to the effect that a lack of progress this week could find the July meeting of the Plenary being displeased to the point of pulling the plug.

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There was also some buzz about a presentation that the delegation from Columbia will make during one of the lunch breaks this week. They have initiated a process in Columbia that treats B2B separately from B2C, and which uses arbitration in a focused way for B2B, disputes. The assumption is that they, or someone, will offer a resolution to consider B2B ODR first, get an agreement, then move back to B2C ODR later.

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In fact, Columbia did introduce that idea, which was quickly countered by a motion by the EU to consider a system whereby states could opt-in or opt-out of an arbitral outcome based on the status of their national laws on pre-conflict arbitration clauses.

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Among others, the EU, Germany, and France support the opt-in/opt-out approach, which was introduced by the EU through a “non-paper”, which is a term I’d not encountered before. When asked what a non-paper was, one of the delegates from a country not supporting the EU motion said, “it’s what they produced.” Enough said.

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Japan and the US, among others, supported Columbia’s approach for sequencing – B2B first, then B2C, with no limitation of the Working Group’s mandate. Egypt’s contribution was that arbitration is not an acceptable solution, because of cost and other factors, and that it is not the approach used for their consumer disputes.

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After a break to consider the situation, the Chair did not see enough support for either of the options introduced today to discard the two track system that is contained in Working paper 119 and addenda, Section 8, from the last meeting in Vienna. This is a two-track approach, with a “proceed to arbitration track” and a “termination after settlement or failure track.” Check out the link below for the language from the document produced after the Vienna meeting.

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Working Paper 119

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To some degree, the afternoon devolved into a giant editing session, with input about the impact of various approaches to wording the Section 8 paragraphs. Tomorrow morning starts with the US having the floor to make further comments.

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Tuesday, May 21, 2013

The discussion picked up this morning with US comments on the two-track approach contained in the Working Paper from the most recent Vienna meeting. My post yesterday probably danced right up to the line of being a bit too much info about the proceedings, but at the end of the day, literally, we wound up with a very public document on the table for discussion, so, no harm, no foul.

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Without giving a blow-by-blow of the discussion today, I would just note that in my opinion the overall direction of the debate at these meetings begins with a fundamentally flawed view of how “enforcement” should be handled in an international e-commerce ODR scheme. It has always seemed to me that B2B and B2C disputes in the international e-commerce world exist in two different universes.

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B2B disputes may be of sufficient value to make pursuing enforcement in some legal context worthwhile, so the details of what constitutes an enforceable agreement under the New York Convention, and when it becomes enforceable, may be important.

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B2C disputes, however, are in great part likely to be of insufficient value to make it worthwhile to pursue enforcement in any formal legal channel, even if that channel is well thought out and clear. B2C disputes exist in a universe where approbation or naming and shaming of bad actors is probably more powerful and more of a deterrent to bad behavior than any formal legal system. Bundling B2B and B2C in the same debate and creating one system to handle them, as the Working Group has done so far, pretty much guarantees that the B2C disputes will get short shrift and that consumers, as a result, will not be well served.

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All of this highlights the situation with UNCITRAL – the debate so far has centered on “access to justice” as “access to courts or formal legal systems,” not on access to acceptable and useable avenues to pursue grievances or get some sense of closure. I actually heard one delegate, from which delegation I won’t say, offer the opinion that, in a comparison of arbitration and mediation, mediation actually works against the interests of the consumer. I don’t know what rationale was used to come up with that opinion, and I didn’t get a chance to ask, but just on its face it doesn’t make sense to me.

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Probably the most interesting issue today, without getting into specifics about delegations, etc., was a procedural one, highlighting the fact that official documents need to be translated into the six official languages of the UN, and that just doing that takes a good bit of time and slows down the process.

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Tomorrow is mid-week – counting down toward “progress” this week.

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Wednesday, May 22, 2013

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Most of the day today was spent in the pursuit of final language for one of the sections contained in the “two track” approach brought forward from the last Vienna meeting. The major new factor in the discussion was brought in by the delegation from Columbia, via a lunch time presentation on new legislation that will establish chartered online arbitration centers (in addition to “paper” arbitration centers) that will have the ability to hear and decide cases (except family law cases and criminal cases). The process in Columbia is a two-step process: the law has been passed, but the implementation phase has not taken place, so the best guess is that the system will be implemented some time later this year. There are a couple of things that I find really interesting about the system. First, it seems that the system will be market driven in the sense that once the online centers are blessed by the government, they can charge what they like, and they can set up rules of procedure that may or may not be mirrored in other centers. It would be up to the customers (the businesses and consumers) to choose which center they would use based on price, process, etc. Second, the arbitral decisions will be rendered ex aequo et bono, which is to say that the arbitrator will be able to render a decision based on her or his best judgment about what is proper and fair, with the ability to cite legal precedent or legal bases, or to ignore legal precedent and bases. What’s more, if an arbitrator cites an interpretation of a law as part of the basis for what is fair and just, and one party argues that the arbitrator has incorrectly interpreted the law – that’s too bad: the arbitrator’s sense of justice stands. As an aside, language regarding ex aequo et bono in the Working Paper being discussed in the larger UNCITRAL Working Group III discussions caused quite a stir, and in fact, as I understand it, will probably not make it into the final language. Of course, the Columbian system is a national system and decisions made there will not be enforceable in other jurisdictions.  For a copy of the power point slide deck from the Columbia presentation, click here:  Slides

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Thursday, May 23, 2013

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The discussion this morning turned, after a late start and a statement from the Chair, from language for the overall process to language describing the nature of the third party or third parties – whether the third party for the mediation phase could or should be the same third party as the arbitrator who would issue an award. Again there are states that have laws that prohibit the same third party from playing both roles, and some do not. I think, at least in my experience, the “best practice” guidance would be to not have the mediator become the arbitrator except in special circumstances, but who knows how this discussion will go. If I were to guess, I’d say it will wind up with one third party playing both roles unless one of the parties objects. On the agenda for the afternoon is a discussion regarding the arbitrator list that will be used for the parties to choose a third party. One of the issues related to this question is whether there will be one list or whether there will be the ability to choose from an UNCITRAL list and other qualified lists of arbitrators. Once again, I think best practices would probably suggest one list, managed through UNCITRAL or some other body. The discussion will return to the two-track process in Vienna in November.

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An interesting impact of the decision to change the focus for the discussion today is that our proposed presentation in Vienna and the white paper that we want to produce will be quite timely. Basically, the students from Creighton who will work with Jeff and me will put together a white paper describing an “electronic check box” approach to invoking the New York Convention, and then do a lunch time presentation of the proposal at the Vienna meeting.

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Jeff and the students will work with some of the other NGO observers for the Working Group III to form an outline from which the paper and the presentation will be created. Japan, Canada, the Czech Republic, and Columbia have agreed to review and comment on a draft, so we will have the ability to approach the Secretary for the Working Group with a good bit of support for putting us on the agenda in Vienna. I’ll let the US delegation know what we are up to next week in DC.

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Since tomorrow will probably be a clean-up day, and since I have a fairly early train back to DC, I’ll probably make this the last post until the Secretary posts the working documents from this session.

WSIS Forum ODR Panel

[These are some notes I jotted down when I couldn’t get back to sleep this morning after “appearing” at the WSIS Forum in Geneva. They are not comprehensive by any means, and I hope they don’t do any damage to the intent of my colleagues, whose comments I summarize a bit.]

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The 2013 World Summit on the Information Society Forum in Geneva included a panel discussion on ODR chaired by Frank Fowlie (Ombudsman for the International Office for Migration), and featuring, among others, Colin Rule (CEO of Modria.com), Graham Ross (VP at Modria.com and an ODR pioneer), and me. Frank was in Geneva, Colin was in California (at 2:00 a.m.), Graham was in Wales, and I was in Alexandria, just outside of DC (at 5:00 a.m.).

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Frank’s overview and panel introduction included a quote from Richard Susskind, which I will have to paraphrase, but which essentially argued that the future of dispute resolution is online – he foresaw in his book, the Future of the Law, that everything except the most complex and most costly conflicts would be handled online.

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Colin started the panel by giving an overview of the development of ODR and managed to quote Mao Tse Tung at 2:30 in the morning, arguing that there are boundless opportunities for ODR, and that we should “let a thousand flowers bloom.” Another of the points he made, which I later referenced, is that his work developing an ODR platform has moved from working with strictly traditional conflict resolution systems and formats to including case management and other “administrative” aspects of dealing with parties in conflict.

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I was asked to address ODR issues from an e-government perspective, so I prepared remarks focused on Ombudsman programs, traditional mediation/facilitation programs, and public input channels. I opened my remarks with a couple of observations.

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The first was that I take slight exception to Susskind’s assertion about the types of cases that are appropriate for the use of ODR tools. At the NMB we deal with cases that involve billions of dollars, with hundreds of open items, and we have found that ODR technology has a firm and useful place in the handling of those cases. I think Susskind was probably talking more strictly about the law and the kinds of cases that could be taken from the traditional courts, but still it is good to think of ODR more broadly. Graham, in a comment later in the session, matched Colin’s Mao quote by noting that for a frog at the bottom of a well, the sky is a small, round patch of blue. I think all of us on the panel agree that it is necessary to look horizon-to-horizon for ODR opportunities, not just at the patch of blue immediately above us.

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The second was that I agree with Colin’s observation about the breadth of what we should call ODR. When I first went to the National Mediation Board in 1997, one of my tasks was to figure out how to integrate technology into the business systems of the NMB. Their business happened to be dispute resolution, and the reason I was there in the first place was that I knew something about mediation and something about technology. Frankly, there weren’t many of us around who fit that description in the mid-1990’s. So, the first thing I concentrated on was the creation of communication channels, then on creating information sharing systems, and then on creating platforms that allow for parts of the dispute resolution process to be done online, synchronously and asynchronously. That experience cemented in my mind that making information and communication channels available to parties and third parties can be just as important, and just as much a part of a dispute resolution process, as the mechanics of running a mediation, facilitation, or arbitration session. It is also the experience that brought me to think of third party work as consisting of three basic functions: facilitating communication among the parties, facilitating the sharing of information and data among the parties, and managing the group dynamics created by the dispute resolution process.

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I started my prepared remarks by recounting a phone call that I recently received from a large U. S. Government agency. This is an agency that handles a large case load of mediation and facilitation cases in a particular sector of the economy, nation-wide – and they have been told that, because of the recent draconian budget cuts in the U.S., they have no travel money at all for the rest of this year. They were interested in the NMB’s ODR program because, for them, some use of ODR may become the only game in town for the near future.

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Even in the best of economic times, government entities share a couple of characteristics that should suggest the use of ODR technology: potential parties/participants are scattered geographically, and there are massive numbers of potential participants in government conflict engagement systems. For the very brief time that I had on the panel, I talked about three conflict engagement venues in which e-government in the form of ODR would be useful.

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Ombudsman programs exist for a number of reasons, including handling cases using traditional mediation and facilitation skills. One of the other features of a well-functioning Ombudsman office is the ability to serve as an early warning system for organizations, identifying potential areas of trouble and moving to avert conflict by acting on information that is, for lack of a better word, “pre-conflictual” in nature. Because there are a massive number of potential clients of government Ombudsman systems, and because they are often spread across time zones, use of ODR technology to allow access for the transmission of information, and even for conducing online mediation, facilitation, or coaching sessions is quite valuable. Additionally, we found while working on a couple of NSF grants from 2004-2010, that online conflict engagement is not merely an analog of face-to-face conflict engagement. One of the significant differences between online and offline processes is that online systems can offer the clients/parties anonymity, and, essentially, a safe haven for communicating information that they might be reluctant to communicate with attribution. For the early warning functions of an Ombudsman office, this would seem to be a true asset.

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Traditional mediation, facilitation, coaching, and arbitration functions can obviously be conducted online. Very inexpensive tools allow for synchronous and asynchronous processing of cases, and the ability to use algorithms like the ones developed for e-commerce by eBay allow for the processing of a large number of cases with minimum staff involvement.

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Public input functions may be radically changed by the use of ODR technology. Keeping in mind my assertion that information gathering and the fostering of communication are central to the process of conflict engagement, opening communication channels for citizens is at the heart of e-government and public conflict engagement. The challenge for those in government is what to do with the input when they get it. A couple of examples will illustrate what I mean. In the 1990’s, the US Department of Agriculture was working on a set of standards that would define what foods could be labelled “organic” in the U.S. In years past, USDA would have held a series of public meetings around the country, and they would have taken written comments, mostly from organized interest groups. For the organic standard they decided to use what, for them, was a new channel for comments – e-mail. If I remember the stats correctly, the USDA received over one million online comments in the first month that the comment period was open. The Obama Administration currently has in place what they have labelled the “Open Government Initiative.” This program allows anyone with access to the Internet to make comments, create petitions, and give input to the government. The problem, as I indicated before, is that once you get the input you have to in some way make sense of it – the work being done in data mining and natural language research is making strides in this area, and will, eventually, lead to solid information coming from direct citizen input.

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To wrap up my comments I started with what I think is a basic truth about the efforts that the U.S. Government has made to integrate technology into dispute resolution and citizen input: with few exceptions, the government has gotten it wrong, and indeed has gone about the development of online tools with a fundamentally flawed approach.

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Specifically, in my experience development of online tools for e-government has been approached in the same way that the government has developed weapons systems or other big ticket items. Each problem has been approached as a unique situation, calling for development of complicated systems from the ground up by vendors who have an interest in developing complicated systems and charging for that complexity. This has led to any number of headline stories about millions of dollars spent on technology systems that fail to deliver at all on their requirements. To be fair, there are many expensive systems that do deliver, all or in part, but, then, one would expect an expensive system to do what it basically promised to do.

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In my work with the NMB we have taken a different approach. The assumption has been that the basic functions we need are simple (remember my “three basic things we do as conflict interveners”) and that it is not necessary to totally fabricate a complex system to deliver these simple functions. So, over the past decade, we have built a complex of applications, most off the shelf with a very few custom functions built for our work, that operate in all areas of our dispute resolution systems, for less than one of the big-ticket projects that have failed spent in a week.

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The lesson from this is not so much that we’ve been brilliant (but I do think we’ve been pretty smart), but that as a small agency a lack of access to millions of dollars forced us to think of the development process in a different way. With full disclosure, I am associated with Modria.com, but I would suggest that the development process there has been a model of what I am advocating for integration into e-government. Modria is a platform with modules that represent the commonly needed elements of conflict engagement systems. With very little redevelopment, it can be configured to do divorce mediation, Ombudsman work, tax assessment challenges, or contract negotiation. That should offer an attractive alternative to those interested in e-government development, both from a budget perspective and from a functional perspective.

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If a thousand flowers are going to bloom in ODR, I think they will look a lot like the modular, focused flowers that already have been quietly and inexpensively successful in e-government.