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International Journal of Online Dispute Resolution

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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.

19
Jun 2013
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WSIS Forum ODR Panel

WSIS2013

[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.]

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.).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

15
May 2013
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Modria at Launch Festival

Launch Fest

To see a short video about Modria.com’s performance at Launch Festival 2013, click on this link:

Modria At Launch

19
Mar 2013
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Teaching ADR/ODR

 

Hastings Title

For notes on the ADR Faculty of Northern California conference keynote, click on this link:  HSI Blog

 

09
Feb 2013
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ODR Theory and Practice Wins CPR Book Award

 

 

9789490947255_3717CPR

The International Institute for Conflict Prevention and Resolution (CPR) has awarded its annual Book Award to ODR Theory and Practice, the online dispute resolution sourcebook edited by Mohamed S. Abdel-Wahab, Ethan Katsh, and me.  The three of us also contributed multiple chapters to the book, along with more than a dozen contributors from around the world.

On its web site, the CPR describes its awards program this way:

The CPR Institute’s Awards Program honors outstanding scholarship and practical achievement in the field of alternative dispute resolution.  Award criteria focuses on processes, techniques, systems, commitment, and scholarship which address the resolution, prevention or creative management of major disputes involving public or business institutions between corporations, between government and corporations, or among multiple parties. The review committee comprises judges and lawyers from leading corporations, top law firms and academic institutions across the U.S.

The concept for the book was presented to Ethan and me by our friend and colleague, Mohamed Wahab.  The three of us took equal ownership of the editing and writing process, but it was Mohamed who really pushed and cajoled all involved to meet deadlines and produce the best work possible, so Ethan and I owe him a public “thank you.”

The award will be presented at CPR’s annual conference in San Diego, on January 17, 2013.

ODR Theory and Practice is available online at Eleven International Publishing.

04
Jan 2013
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Out with 2012, in with 2013 . . . .

TechofNonViolencejpg

Thanks to a gift from my friend Alan Tidwell (his blog can be found at http://storeofideas.net/), I have spent the last few days going through a book that has prompted my end-of-year thoughts for 2012.

The book is The Technology of Nonviolence:  Social Media and Violence Prevention, by Joseph Bock – it’s a treatise on the theory of strategic peacebuiding, and sort of secondarily a commentary on the use of technology as an aid to intervention in violent conflict.  (It’s available at http://www.amazon.com/Technology-Nonviolence-Social-Violence-Prevention/dp/0262017628/ref=sr_1_1?s=books&ie=UTF8&qid=1356984229&sr=1-1&keywords=the+technology+of+nonviolence)

Bock introduces the concluding chapter with a quote from Paul Currion:  “Innovation is all well and good, but you can easily miss the forest for the trees . . . . political problems cannot be solved by technological solutions.”  This tracks pretty well with Bock’s attitude throughout the book.  That is to say he’s not greatly enamored of the use of technology, and he’s pretty quick to point out technology’s limitations as part of a response to violent conflict.  It’s a convenient straw man for Currion (I’ve never heard anyone claim that technology can, by itself, solve any kind of problem), and to Bock’s credit he kicks off his conclusion by saying, “. . . violence prevention initiatives at a local level, combined with the support of middle- and top-level leaders, using various combinations of technology, have saved and can save lives.”

Given my well-known affinity for and relationship with online dispute resolution technology, I’m surely more positive about the use of technology than Bock.  As I’ve said on many occasions, the basic tasks facing those who deal with conflict, on pretty much any level, are managing communication, managing information, and managing group dynamics.  ICT has obvious things to contribute to all three, especially in the hands of those who artfully combine technology with traditional approaches to conflict engagement.

But as a catalyst for my end-of-year ruminations, it isn’t Bock’s thoughts on the limitations of technology that set me off:  it was the “have saved and can save lives” comment.

So, for my friends in the world of conflict engagement I have this thought.

Each year, mindfully and intentionally, I reflect on the amazing group of friends and colleagues I have been so fortunate to meet and work with over the years.  From those who deal with peacebuilding at the broadest level, to those who sit at tables between individuals who are in conflict, you are all in a position to affect, if not literally save, lives on a daily basis, and I have the most profound respect and love for all of you.

31
Dec 2012
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Athens on the Web, Revisited

The Obama Administration continues to exert valiant efforts to encourage public participation in policy debates.  From one point of view, the problem is that they are succeeding.

The Citizen’s Briefing Book, the Administration’s first effort at giving voice to a multitude of opinions, undertaken within the first couple of months of the President’s first term, became infamous for the priorities established by the users of their open feedback system.  The number one issue was not war, economic collapse, famine, or rising tides, but legalization of marijuana (based on recent election results, it seems someone may have been listening) and calls for proof of the President’s citizenship.

Anand Giridharadas, writing in The New York Times, contrasted the passing age when “ we would elect people to govern us and sporadically renew or revoke their contracts” with the new age of open electronic communication where governance could include “all of us, all the time.”  The first results were “embarrassing – not so much to the administration as to us.”  [‘Athens’ on the Net, NYT, September 13, 2009]

In the interim, the Administration has refined the public input process, setting up a requirement for petitions to be offered, with the further requirement that the petitions garner a sufficient number of endorsements online (currently 25,000 endorsers) before an Administration official responds online.  The headline in today’s Washington Post says it all about the current state of citizen input:  “The People Speak:  Give Us Twinkies and Death Stars.”  A petition to have the President compromise with Congress and avoid the “fiscal cliff” so “young people can have bright futures” currently has fewer than 650 endorsers.  [David Nakamura, The Washington Post, December 10, 2012, p. 1]

At one time the debate in the world of public participation may have been about what technology to use and how to use it to open up public dialogue, but the explosion of free or cheap online technology has made the “how do we do it?” question, in a technical sense, much easier to answer.  Having easy to access and easy to use technology creates channels, but largely the information flowing through those channels demonstrates that there are a pretty fair percentage of chuckleheads out there among our fellow citizens.

Does ease of access to the public dialogue mean that we get a more robust debate over important issues?  Or does making it as easy to weigh in on policy discussions as it is to Tweet about how long it took for the barista to make a latte create a diluting effect?  The question for those who engage in facilitation and manage public dialogue online now has to be how to frame and manage public policy issues to focus the public at large in a constructive way.  If we don’t figure it out, policy makers will continue to be occupied with petitions to bail out the Twinkie.

10
Dec 2012
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Buenos Aires Mediation Class

On our recent visit to Buenos Aires, Julia and I had the pleasure of having a discussion with the students in Alberto Elisavetsky’s mediation course – we had a particularly lively discussion about process, caucuses, etc., during which one of the students really defended their basic process and questioned the use of caucuses (particularly pre-session caucuses).   Interestingly, the model used by the Center, and in some university courses in BA, is basically the “Harvard model” (interest based).  The students in this course were all professionals, working as CPA’s or in other economic fields, so our discussion may have been different if we’d been talking with family mediators or workplace mediators, but the basic interest based model, with little overt adaptation for culture, seems to be the baseline model for mediation in Argentina.  Coincidentally, the issue of the ABA Dispute Resolution Journal that came while we were in BA contained an article on caucusing, which I shared with Alberto for distribution to his class.

Here’s Alberto’s Facebook post regarding the session with Julia and me:

Encuentro con mediadores de Estados Unidos, Odr Latinoamerica facilito un encuentro presencial en Buenos Aires Argentina a temario abierto con los Profesores Dan Rainey Director del National Mediation Board de los Estados Unidos & la Profesora Julia Morelli especialista en conflictos en el ámbito del trabajo del estado de Virginia (EEUU), con un grupo de mediadores profesionales en Ciencias Económicas.

30
Nov 2012
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ODR and Mediator Ethics

 

The Fordham University ADR Conference scheduled for last week in New York City was, for obvious reasons, cancelled, but I had prepared a short talk on the impact of technology on the ethics of mediation to present at the conference.   To begin thinking about the issue, I reviewed the ethics guidelines of the AAA, ABA, ACR, JAMS, the Commonwealth of Virginia (where I live), and the State of Texas (one of the states in which I teach).  This link – ODR Ethics Prezi – is to the Prezi graphic presentation that I was going to use at the Fordham conference.  Obviously, a lot of the presentation was going to be oral, but the landing points in the Prezi give some indication of where I was going with the issue of ethics and ODR.

I pulled 14 issues related to ethics that appeared in the ethics statements of the organizations mentioned above, and created a grid to show which ones were common and which ones popped up routinely across the board.  I chose four of the fourteen issues on which to concentrate for the presentation.  Arguably, all of the issues are affected by technology, but it seemed to me that, for purposes of a short presentation, the four I pulled out were the most affected, or at least the most obviously affected.  The four are:  Competence of the Third Party, Confidentiality of the Process, Quality of the Process, and Advancement of the Practice of Mediation.

Under Competence I was going to address certification, training and training content, mentoring and co-mediation, and review processes for third parties who use technology.  Confidentiality brought up issues of what representations the third party can make regarding confidentiality online, the responsibility of the parties to maintain confidentiality, the nature of “deleted” content online (it’s almost never really deleted in a final sense), and hacking or file sharing.  Quality of the process is related to the comfort level of the parties in a strange venue, the computer literacy of the parties and the expertise in using technology by the third party.  Finally, Advancement of the Practice of Mediation, suggests issues related to integration of ODR into F2F modes, use of varied communication and data handling channels, and the use of evaluation and data analysis methods.

I’ve been invited by The ADR Commercial Law Journal to write an article about this topic – as scant as the information in the Prezi is, and as thumbnail-like as my comments here are, I’d appreciate any comments or observations that might be useful as I prepare the article – post them as comments on this blog, or send them to my e-mail address .

 

07
Nov 2012
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A Mixed Week

This has been an up and down week on the East Coast, as you might imagine.    On the up side, although some of us on this coast found life a little disrupted, there was still record participation in CyberWeek, which is one more testament to the fact that the use of technology to address various kinds of conflict situations is no longer on the fringe.  The level of the discussions, both in terms of numbers and in terms of quality, was remarkable, as was the amount of new information that surfaced during the week.  It is always the case that even those of us who think about technology and conflict engagement a lot will find in the CyberWeek interactions something to stretch our thinking or open up new ways of looking at the world.  Again this year, sincere thanks to the Werner Institute at Creighton for hosting, and thanks to Cornell for reviving the online mediation competition.

On the down side, PeaceTones did not win the Innovating Justice award, but we were one of the final three programs in consideration for the award, and that speaks volumes about the vision and the great heart of Jeff Aresty, who was there at The Hague representing PeaceTones.

06
Nov 2012
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