Notes from ODR Forum Presentation

9th Annual International ODR Forum:
Peacebuilding in the Digital Era

"State of the Art in ODR"
Daniel Rainey
June 2, 2010

[Slide #1: Title Slide]

• I have produced a couple of articles for this Forum, both of which are available on the Forum web site.

• Those articles focus on the ODR work I've done at the National Mediation Board, and on lessons I've learned teaching ODR classes for the past few years.

• This morning I'd like to suggest that you go to the Forum web site to see the article about the NMB and ODR - because I'm not going to talk much about that right now. Instead, I'm going to pick up an idea that is embedded in the Teaching ODR article, and which I think speaks to the title of this panel - the State of the Art in ODR.

• There are three assumptions about Online Dispute Resolution that students seem to consistently bring to ODR classes - if they know nothing or very little about ODR, they tend to assume that:

➢ Interactions conducted online can never, under any circumstances, be as good as interactions conducted face to face.

I strongly disagree with that assumption, but I'll let it lie for the moment -
we can bring it back up in the Q&A session if anyone is interested. They also
tend to assume that:

➢ The ultimate goal of "good" ODR is to eliminate the need for face to face interaction; and

➢ The "Holy Grail" of ODR is an algorithm driven system (a true fourth party) that eliminates the need for live third parties.

• This sets up an unnecessary, but common, false conflict: Algorithm vs. Art. [Go to Slide 2]



[Slide 2: Algorithm vs. Art]

• One of the hardest obstacles for me to overcome, as a teacher, is to get students to stop thinking and talking in either/or terms about technology assisted dispute resolution and face to face dispute resolution. The tendency, from a distance, is to see the two as at best an odd couple, and at worst as incompatible.

• But I don't think they have to be.


[Slide 3: Algorithm Driven ODR]

• Let me stop for a moment here and make sure I am clear about what I mean when I talk about algorithm driven ODR.

• I am referring to those ODR applications that either have or aspire to use logic trees and algorithms to take some or all of the burden of dispute resolution work from the mediator/facilitator.

• Conceptually, an extreme example would be a type of Neanderthal artificial intelligence that would interact with the parties, walking them through the steps of an ADR process. Not so extreme examples would include the double blind bidding systems like CyberSettle, and the filtering systems like the one in use by e-Bay and the one being constructed for the National Archives in the U.S.

• e-Bay's filtering system is a good example, and that's the one shown on this slide - in an environment where there are very many "disputes," an automated ODR filtering system can offer information and options that stop a great many disputes from progressing to the point where a live third party is necessary.

• Regardless of what those new to the concept of ODR think, our colleagues who work on algorithm driven systems don't really want to do away with traditional third parties, but that is often the perceived goal.


[Slide 4: The Art of Mediation]

• On the other hand, there is the more traditional notion of mediation and dispute resolution that says the practice is an art, not a science, and that online, automated interaction can never take the place of the third party.

• This graphic is a crude way of demonstrating an environment where there are many complicated issues that must be gradually crafted into a unified whole - this is the type of environment in which I usually work these days. For example, it is not uncommon for a company and a union to come to the bargaining table with several hundred open items, each one of which has ties to or affects many others. The "art" in mediation is slowly moving them all toward a unified whole that is acceptable to all of the parties.

• I don't see this as a process in which ODR technology is useless - but many who are new to the idea of ODR, and many who are steeped in traditional training and practice in ADR, do see the art and the technology as incompatible.

• In the work I do, I try to take a variety of ICT tools and use them to enhance various steps or functions in the process of mediation and facilitation, leaving the face to face interaction intact, but making it more efficient and, I hope, more effective.



[Slide 5: Algorithm & Art]

• Having said all that, so what? What does it mean to those of us who now make up an increasingly large and accomplished ODR community around the world?

• There are two things I would stress.

➢ First, we all need to be aware that our colleagues who are coming to ODR now, after over a decade of talk and development, bring with them a very different perspective than we have developed among ourselves. As we put together ODR courses, ODR training, as we give speeches or presentations on ODR, we need to remember to address issues like the one’s I’ve brought up today directly, even if they are not really issues for those of us who have dealt ODR for some time..

➢ Second, I strongly believe that we should be developing very many simple, narrowly focused tools that enhance communication, and that can be used in conjunction with face to face interaction. The tools need to be secure (many are already available, but they are "in the cloud" which is not always acceptable for sensitive disputes), inexpensive, and accessible. What I call "virtual tables" (soup to nuts ODR sites that recreate all the aspects of a discussion at a real table) are nice, but most mediators and most parties don't want or need them - they want and need specific types of help with specific pieces of the ADR process.

• This doesn't mean that virtual table development, algorithm driven development, and even "smart" ODR system development should not continue - we should simply recognize that they are useful for one part of the dispute resolution world (perhaps a large part, but I'm not sure of that), but not for all of the dispute resolution world. We can and should have Algorithm AND Art.

• Finally today I want to announce a project that I hope will be interesting to those of us who are teaching, or who will teach ODR. I am aware of an increasing number of ODR courses, and ODR modules within courses, around the world, and I am sure there are many more of which I am not aware. I am working to put together an ODR Educators Online Workroom where we can all share syllabi, readings, exercises, and engage in ongoing discussions about what we are doing in our classes. I'll invite all of the ODR educators I know into the site, and hope that they will in turn invite others, etc.


• The site will be sponsored by Creighton University, where Colin and I designed and where I still teach the first required ODR course in a graduate dispute resolution degree program. The Werner Institute at Creighton has set up what they are calling the ADRHub - I will create a group on the Hub, post all of the material that I use in my ODR courses at Creighton and SMU, and invite everyone in to share as they wish.


[Slide 6: Q&A]

• That's it for my remarks - I'll open the floor for questions and discussion.