Conflict Resolution

Advanced Problem-Solving Strategies

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Attending the 13th International Online Dispute Resolution Forum, being held at Stanford Law School, the first time the conference has taken place in the United States, offers a glimpse into the future of conflict resolution.

Ethan Katsch, dubbed the “father” of online dispute resolution, started the day by telling us that while it began as an outgrowth of ADR, ODR is developing into a distinct field with its own expectations, assumptions and values. I think this might be true, but I’m skeptical based on the evidence so far. Online tools are still mostly applied to allow us to conduct traditional litigation, arbitration, mediation, or negotiation, in more efficient ways.

As a number of speakers told the group, traditional practitioners are often highly resistant to online dispute resolution. John Pardun from JAMS said that about 80 or 90% of their clients are either unfamiliar with ODR or unwilling to use it. India Johnson, the CEO of the American Arbitration Association, mentioned that many of their panel arbitrators are highly resistant to technology. And Kent Walker, general counsel at Google, speaking about patent litigation, thinks that the difficulties of calculating the commercial value of patents, as well as the likelihood that they will be upheld in court, make these cases unsuitable for ADR or ODR. (I wonder about that, since I often find that the great uncertainties of litigation are helpful to mediated resolution of complex commercial disputes: if neither side is sure what something is worth, that leaves a lot of room for potential agreement.)

These attitudes are bound to change, and the change seems to be occurring from the bottom up, rather than the top down. One of the themes of the day concerned the vast numbers of disputes that are too small to be resolved by the traditional justice system, and ODR’s potential to efficiently serve this vast market. Services like Rocket Lawyer, Legal Zoom, Smartsettle, Modria, and eLance, all of whom had representatives at the conference, have developed efficient ways of delivering conflict resolution services to parties for whom the traditional court system makes no sense. Many of these consumers are not well served by traditional ADR either.

Potentially this enormous under-served market could even absorb a lot of the lawyers whose workloads have been affected by the shrinking market for traditional legal services. Maybe there is hope that the dawning new age of robot lawyers will create some new opportunities for human lawyers as well.