How Different are e-Commerce and Divorce Mediation?

In October I will participate (via web video) in a panel discussion at a conference in Wroclaw, Poland, sponsored by the Research Center for Legal and Economic Issues of Electronic Communications. The panel I’m on will focus on ODR, and when I was asked for a topic about which I would like to speak I responded that I would talk about what I perceive as “The Great Divide” beginning to form between ODR as applied to e-commerce and ODR as applied to more traditional ADR pursuits. Having confidently blurted out that topic, I’m now wondering if the divide is as great as I once thought.

ODR as an area of interest was born when it became clear that commerce on the Internet was creating disputes that were unlike the disputes that we create in face-to-face interaction. People who could or would never meet were engaged in conflict across national and legal borders in an environment where litigation or alternative approaches to dispute resolution were not practical, or even possible. As interest in ODR has built, the focus has largely remained on the huge volume of disputes generated by e-commerce, with eBay as the poster child for ODR applications and approaches. That is changing a bit, and there is an interest in the application of technology to more traditional ADR venues: there were even two NSF funded research projects in that area in which I was involved. But, for the most part, I think when students and practitioners think of ODR, the first thing that comes to mind is ODR as applied to e-commerce.

The “great divide” distinction I have drawn is based in the differing needs of e-commerce ODR as opposed to, for example, ODR applied to divorce mediation or community mediation. ODR for e-commerce must find ways to deal with very large numbers of cases (our poster child, eBay, handles sixty million cases per year), with reasonably predictable characteristics (it didn’t arrive, it wasn’t as advertised, it was damaged, etc.). ODR for more traditional venues must help practitioners deal with fewer cases, but cases in which the characteristics may not be so predictable – in short, disputes that are more “messy.”

The special needs in e-commerce have driven development of algorithm-driven fourth party ODR applications, and crowd sourced ODR applications, that push information, classify disputes, and manage disputes largely, or at least in part, without the attention of a traditional third party (eBay’s Resolution Center, or Colin Rule’s community court and reputation system software at Modria, for example). Adventurous developers targeting traditional venues have created a number of applications that attempt to create what I call “virtual tables,” with the capability of delivering online all of the functions that would be necessary for a face-to-face session (The Mediation Room, Juripax, etc.). The development of ODR in e-commerce has been reasonably successful. The development of ODR in the more traditional context has met with mixed success, and in fact my own practice uses communication and data handling applications that, for the most part, were not designed with dispute resolution in mind at all.

So, seeing all this, I began to think of the divide between e-commerce and traditional ADR venues, and I observed what I thought was a deep difference in needs and applications, which I further observed seemed to be widening – hence, the “Great Divide.” I’m rethinking this.

I still think there are significant differences between the needs of e-commerce and traditional ADR, but there are some developments in the area between the two that have interesting implications for both.

I’m involved on the margins in the development of a proposal to NSF that will address multi-party disputes and the handling of information in situations where there are many voices and a lot of data that have to be handled by the third party. The need in multi-party disputes, which I would characterize as more traditional than e-commerce, is how to take a large amount of communication from multiple channels and keep the sheer volume from becoming simply noise that the third party has trouble separating into meaningful messages. Going hand-in-hand with this research is an already underway study of whether and how a computer application can sift through communication and identify value statements and emotional statements, and further how the application (the fourth party) can make useful comments to the third party about those statements. On the far edge of research is a project underway in Israel that is seeking to create, using artificial intelligence, a fourth party capable of taking the place of a flesh-and-blood third party.

So there seems to be a convergence of interests around data handling, and around automating some functions that traditional third parties have had to handle for themselves or with co-mediators. I still think there is a divide between the ODR-related needs and interests of e-commerce and traditional ADR, but I’m beginning to think there is more common ground than has been apparent to me.