ADR is Changing with the Times – We Must Too!

For most of us, our world and practices changed drastically and quickly during the pandemic. We learned how to go on something called Zoom to meet with friends, family, and clients.  No longer were we conducting mediations in closed conference rooms. Many practitioners were forced--kicking and screaming--to learn about technology. We adapted. We learned. Many court appearances, especially for motions, are now virtual.  Many practices have been changed forever. Clients and lawyers found it more convenient, saving time and money.

Although not in as widespread use as it is today, in 2009, The National Center for Technology & Dispute Resolution (NCTDR) issued the first Online Dispute Resolution (ODR) Standards. In response to developments in online dispute resolution technology and attitudes towards it, the NCTDR in collaboration with The International Council for Online Dispute Resolution (ICODR) developed updated ODR Standards in 2017. More recently the leadership of both organizations approved an updated version in April 2022. The following are a few of the relevant highlights.

ODR Standards require that ODR platforms and processes must be:

1)     Accessible.  ODR must be easy for parties to find and participate in, and not limit their right to representation. ODR must be accessible to all parties, minimize costs to participants, and be easily accessed by people with different types of abilities.

2)     Accountable.  Human oversight of (1) the originality of documents and the path to outcome when artificial intelligence is employed, (2) the relative control given to human and artificial decision-making strategies.

3)     Competent.  ODR providers must have the relevant expertise in dispute resolution, legal matters, technical execution, language, and culture required to deliver competent and effective services and those services must be timely and use participant time efficiently.

4)     Confidential. ODR providers must make every genuine and reasonable effort to maintain the confidentiality of party communications in line with policies that must be articulated to the parties.

5)     Equal. ODR providers must treat all participants with respect and dignity. ODR must seek to enable often silenced or marginalized voices to be heard and strive to ensure offline privileges and disadvantages are not replicated in the ODR process. ODR must strive to ensure on an ongoing basis that no technology incorporated into ODR advantages any one party.

6)     Fair and Impartial. Throughout the entire proceeding, ODR must treat all parties equitably and with due process, without bias or benefits for or against individuals or groups or entities.  Conflicts of interest must be disclosed in advance of ODR services.

7)     Legal. ODR providers must abide by, uphold, and disclose to the parties, relevant laws and regulations under which the process falls.

8)     Secure. ODR providers must make every genuine and reasonable effort to ensure that ODR platforms are secure. Data collected and communications between those engaged may not be shared with any unauthorized parties.

9)     Transparent. ODR providers must explicitly disclose in advance and in a meaningful and accessible manner:

a.     The form and enforceability of ODR processes and outcomes

b.     The risks, benefits, and costs of participation for each party

c.      The sources & methods used to gather any data that influences any decision by artificial intelligence

d.     Timely notice of any data breach and steps to prevent reoccurrence

As the COVID pandemic ebbs, it is increasingly apparent that ODR is here to stay – perhaps not for all mediations but for many. These updated standards illustrate the evolving nature of ODR and the importance of mediators remaining ready to evolve with it.