Tips on Technology

Alternative Technology Vehicles for ADR

by Richard K. Herrmann, Esquire

Are there Alternative Technology Vehicles for the delivery of alternative dispute resolution? Are mediation and arbitration amenable to less conventional ADR tools such as video teleconferencing, internet and electronic filing? As the case has been in many aspects of court technology, there needs to be a balance between our culture and available technology.

This issue is a fascinating one, because the analysis is multifaceted. We can discuss the subject from the view of each participant, the neutral, the attorney and the party. Each has his own focus and bias. We can also test the value of ADR technologies against very basic factors. And when you review these factors and balance them with the benefit they afford, you will agree that as our culture evolves, the use of alternative technology vehicles will eventually drive all forms of ADR.

What are Alternative Technology Vehicles?
Technology plays two roles in ADR. As in litigation, technology can assist traditional mediations or arbitrations by providing tools such as video teleconferencing and electronic filing. The more interesting focus is in the second role of technology as providing the actual means of conducting the venue for ADR.

Is there room for online ADR? Can you imagine resolving a dispute on the internet or totally by video teleconferencing? As attorneys, we believe that the traditional venues for resolving disputes work and require no tampering. This understandable, but narrow-minded focus, highlights the current cultural bias to which I referred previously.

Let me make it clear that I to do not believe the cultural bias is a bad thing. To the contrary, it provides a filter which prevents us from applying technology simply because we can.

For years, I have bought into this cultural bias against using alternative ADR technology vehicles because I did not, and do not, believe technology can replace in person presentation in terms of “persuasiveness.” A live witness must have a greater “credibility impact” than the same witness appearing by video teleconferencing. After all, isn’t there a “dehumanizing effect” by appearing remotely? According to the Federal Administrative Office of the Courts at an International Technology Conference in February, there is no empirical data on this issue. But let’s assume that it is more desirable to present a person live. What if the individual is not available live; does this mean the party should not be presented at all? If you cannot arrange for all parties to be present, should ADR be disregarded altogether? The answer is obviously “no.” I have always said, “Life is a compromise.” And this is the very reason why one must balance the need for resolution with the tools available to assist in the disposition of the dispute.

So, let’s agree that under most circumstances live mediation or arbitration would be more desirable. However, if “in person” or traditional forms of ADR are not practical, what factors do you consider in arriving at realistic alternatives? They are (1) effectiveness, (2) efficiency, (3) convenience and (4) cost.

Effectiveness
In any form of ADR, we need to be effective. We must persuade a neutral or opposing party that we are correct. Often, effectiveness may depend on the credibility of a witness. Clearly, live testimony is desirable. Just as often, the outcome of a transaction or event may be completely contained in a set of documents and live testimony is not required at all.
In a mediation environment, most neutrals will tell you they can be more effective live; they will indicate it is easier to say “No” remotely, or on paper or on a computer screen. This factor is very important and deserves significant weight.

Efficiency
There are many aspects to efficiency, such as speed of resolution, ease of communications, access to the neutral and the information relevant to the matter in dispute. In fact, the factor of efficiency certainly has a relationship too, and may very well drive the other factors of convenience and cost. No one ever accused the court system of being efficient. How many times have we said “the wheels of justice do not run swiftly.”? When we measure this efficiency, we naturally think in terms of streamline, smooth, uncluttered and value balanced. If a proposed technological approach to ADR isnot efficient, it ought not be considered.

Convenience
Convenience is certainly important in selecting a form dispute resolution. If a party finds the process too burdensome, or unavailable, ADR may not be an alternative at all. Of course, the amount in controversy plays a significant role in balancing convenience. It makes no sense to travel or miss time from work for a $200 dispute. On the other hand, there is no reason that the dispute can’t be resolved. It would be an attractive alternative if the dispute resolution vehicle would be available at whatever time suits all of the parties, no matter what their time zone. People are primarily communicating these days by email; why not resolve certain kinds of disputes via the internet, whenever and wherever you wish?

Costs
It goes without saying that the cost of the vehicle must bear some reasonable relation to the amount in dispute. You will find there are many alternative technology vehicles available, all at relatively low price points when compared to more traditional forms of ADR. The key is to find the tool which suits thedispute and become proficient as using it.

Exemplar Alternative Technology Vehicles
How would internet ADR be used? Suppose you are a plaintiff’s lawyer who knows that the soft tissue case you have always settles between $7,000 and $12,000. Suppose the claims adjuster knows this as well. Why not let the computer mediate with a double blind bidding system. Each provides the range of settlement and the computer finds the overlap and does the math. The American Trial Lawyers Association seems to think it will work with Cybersettle. If you are interested in exploring the new approach to ADR, take a look at a few of these sites:

We’ll take a closer look during the upcoming months.

Return to March 2004 Table of Contents.