This post is written by Kirsty Cadusch, a Human Resources professional with a focus on workplace conflict and resolution. Kirsty is passionate about supporting parties to address conflict in the workplace, and building leadership capability to effectively manage workplace conflict, to enable the development of high performing teams. Kirsty’s twitter handle is @kirstycadusch. Kirsty is currently undertaking the Masters of Conflict Management and Resolution at James Cook University. This blog entry was originally submitted as part of the assessment for the subject Foundations of Mediation in the JCU Masters program.
The commercialisation of the internet and development of e-commerce in the 1990s called for a dispute resolution system to address complaints into online transactions (Fernandes and Masson, 2014). In response, online dispute resolution (ODR) evolved as the fields of alternative dispute resolution and information technology intersected (Ebner and Zeleznikow, 2016). ODR refers to any method of dispute resolution in which an open or closed network is used, either wholly or partially, as a virtual location to solve a dispute (Carneiro et al, 2012).
Artificial intelligence advances have taken mediation for the resolution of business-to-consumer e-commerce disputes to wholly online dispute resolution systems, using computerised mediators to facilitate party interactions via text and messaging (Liyanage, 2012; Ebner and Zeleznikow, 2016). So, what does this mean for the future of mediation practitioners? As artificial intelligence continues to advance, and systems are increasingly able to act as agents, assessing and responding to human interactions and emotions in mediation (Carneiro et al, 2012), are mediators to be replaced by avatars and holograms?
The development of AI for conflict resolution
In the mid 1990’s, the field of artificial intelligence was thought to offer exciting opportunities for alternative dispute resolution (ADR). Developments such as artificial neural networks, intelligent software agents, case-based reasoning mechanisms, methods for knowledge representation and reasoning, argumentation, learning and negotiation would move ADR to a virtual environment in which ODR services proactively assisted disputant parties (Carneiro et al, 2012). It was considered using such technologies may contribute to develop ODR processes that could mimic the cognitive processes of human experts to deal with complex multiparty, multi-issue, and multi-contract issues, leading to more efficient ODR tools (Carneiro et al, 2012).
In practice, two decades later the field of ODR has yet to reach the technological utopia anticipated. While the development of ODR as a field of ADR is growing, with many mediators offering ODR as part of their service, this is typically an add on to their traditional face-to-face practice (Ebner and Zeleznikow, 2016). Mediators typically rely on first generation technology such as instant messaging, forums, video and phone calls, video conferencing, mailing lists and file sharing to deliver their ODR service (Carneiro et al, 2012).
Online Dispute Resolution in practice
At present, ODR in this context is used in family, employment and commercial dispute resolution, and in the traditional court setting in the form of government-sponsored electronic courts (Liyanage, 2012). Relationships Australia Queensland (RAQ) provide an example in the Family Dispute Resolution (FDR) context.
From 2009 to 2011, RAQ developed a web-based online FDR (OFDR) system to provide a safe, secure online environment in which a family dispute resolution practitioner (FDRP) may actively facilitate registration, intake, family dispute resolution and Pre-FDR education of a mediation session. The system operates across most platforms, including Windows and Mac, and provides flexibility to deliver online sessions with or without video conferencing and for sessions to be conducted individually, jointly, by co-facilitation, shuttle or with interpreters (including sign languages) and/or support people (RAQ, 2011).
Currently, the Resolution Institute is working with MODRON, a ODR service provider, to develop a mediation platform that will enable parties, representatives and mediators to resolve disputes ‘from any device, anywhere in the world’. This web-based technology will enable participants to instant message, host private and group video and audio calls and securely share files and manage cases (Resolution Institute, 2017).
Governance and ethical considerations
As mediators and ODR service providers identify opportunities to increase the use of technology in mediation practice, it raises issues regarding governance and ethics, confidentiality, security of information, mediator impartiality and education and training requirements. These issues relate to the disputing parties and mediators utilising the technology, as well as what Katsh and Rifkin call “The fourth party”, i.e., the technological elements involved (Carneiro et al, 2012). Additionally, these issues relate to what may be considered the “fifth party”, i.e., the service providers who provide and deliver the technological elements (Carneiro et al, 2012).
Governance of ODR may be considered from the two perspectives that influence the field, Alternative Dispute Resolution (ADR) and Information Technology (IT). Mediation in Australia is governed by the National Mediator Accreditation System (NMAS) and focuses on accreditation of practitioners and practice standards. Court and legal systems, with their existing structures, procedures, and oversight also impact mediation governance as it is increasingly embedded in those systems (Ebner and Zeleznikow, 2016).
The Australian Computer Society is the professional body that certifies computing professionals’ qualifications, and has a code of ethics and a code of professional conduct, and codes of testability and of quality control to ensure software engineering standards (Ebner and Zeleznikow, 2016). However, in both Mediation and IT, practitioners are not required to be members of these bodies or hold a licence to practice, making industry regulation of standards and quality of service challenging (Ebner and Zeleznikow, 2016).
Ebner and Zeleznikow (2016) note that ODR generally knows little or no regulation, authority, standards, or monitoring and as it has not yet been embedded in court or government systems, it has developed largely unregulated from a public policy standpoint. The Mediator Standards Board and the NMAS (2015) do not currently reference ODR in relation to mediation services or processes.
This lack of governance may reduce participants trust, sense of security, and confidence that the online mediation process is fair (Ebner and Zeleznikow, 2016). Significantly, misuse of online mediation may cause harm for the participants (Ebner and Zeleznikow, 2016) Examples might include where a digital record of the mediation is shared unsuitably due to poor system security, or where inefficiency, errors or bias are hidden behind the interface of a poorly designed system (Fernandez and Masson, 2014).
However, the NMAS Practice Standards (2015) do consider ethical practice and provide, among other ethical consideration, that a mediator may liaise with other relevant professionals with permission from the relevant parties. The Standards also require a mediator to take care to preserve confidentiality in the storage and disposal of notes and records and take reasonable steps to ensure that administrative staff preserve such confidentiality. In the absence of specific ODR guidelines or inclusion in the NMAS Practice Standards, these broad and general requirements should be considered when engaging ODR service providers to provide online mediation services.
Consideration should also be given to the impact of online mediation and use of technology on the perception of mediator impartiality. A mediator’s impartiality may come into question where there is a lack of information about the systems being used, the mediator’s affiliation with the ODR service provider and whether there is a conflict of interest, and the governing structures of that provider with regard to the parties’ personal information (Fernandez and Masson, 2014).
As mediators increasingly utilise technology to deliver online mediation services, they will need to identify what training they may require to develop the skills to manage a virtual mediation room (Sole, 2016). The NMAS Approval Standards specify the training and assessment required of NMAS accredited mediators, and currently require an applicant to complete a training course of 38 hours duration. There may be an opportunity for Recognised Mediator Accreditation Bodies that provide mediator training to incorporate information about online mediation systems and skills into their programmes.
Mediators also need to be mindful of the parties’ willingness to engage with technology and their technical capability in considering whether the dispute is suitable for mediation. When utilising technology or an online mediation system, mediators should consider reliability and ease of use of the device or system to ensure a robust process.
The future of AI in ADR
The development of AI technologies has influenced the field of mediation predominantly in the legal field, using rule based legal decision-making systems (Carneiro et al, 2012). However, the concept of replacing human mediators with computerised third party agents such as avatars, capable of mimicking the full range of human emotions and interactions to support disputing parties to reach fair and reasonable solutions is a daunting prospect.
It seems more probable that we may see the increased use of automated systems to supplement the traditional mediation process whereby second generation systems are used to facilitate some aspects of the mediation process. For example, mediator practitioners may utilise a ‘fourth party’ to facilitate case assessment and intake; option generation and evaluation; negotiation and documentation in the mediation.
To ensure party self-determination and procedural justice, a mediation practitioner may facilitate the initial stages of the mediation joint session; mediation opening, party statements, agenda setting and issue exploration and discussion; as well as the private sessions and the agreement/outcome. Key findings from the RAQ online mediation pilot included that participants rated the online service as convenient, however face-to-face FDR remained the preference for most parties (RAQ, 2011).
While the use of technology will no doubt increasingly impact mediation interactions, there appears to be a long way to go in terms of developing governance and ethical standards for all parties involved before this becomes commonplace. Incorporating these standards into the existing NMAS Approval and Practice Standards will likely positively influence the trust and confidence participants have in engaging in online mediation that may see this aspect of mediation practice gain momentum into the future.
References:
Boulle, L. (2012). Mediation: Principles, Process, Practice. Australia: LexisNexis Butterworths
Carneiro, D., Novais, P., Andrade, F., Zeleznikow, J., Neves, J. (2014). Online dispute resolution: an artificial intelligence perspective. Artificial Intelligence Review, 41(2), 211-240. doi: 10.1007/s10462-011-9305-z
Casey, T., & Wilson-Evered, E. (2012). Predicting uptake of technology innovations in online family dispute resolution services: An application and extension of the UTAUT. Computers in human behaviour, 28(6). 2035-2045. DOI: 10.1016/j.chb.2012.05.022
Ebner, N. & Zeleznikow, J. (2016). No Sheriff in Town: Governance for Online Dispute Resolution. Negotiation Journal, 32(4), 297-323. doi:10.1111/nejo.12161
Fernandez, A.J., & Masson,M.A. (2014). Online mediations: advantages and pitfalls of new and evolving technologies and why we should embrace them. Defense Counsel Journal, 84(1). p. 395+. Academic OneFile. Accessed 22 May 2017
Liyanage, K. C. (2012). The Regulation of Online Dispute Resolution: Effectiveness of Online Consumer Protection Guidelines. Deakin Law Review, 17(2), 251-282. http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/DeakinLawRw/2012/11.html?stem=0&synonyms=0&query=Online%20Dispute%20Resolution
Sole, M.E. (2015). e-Mediation: A New Stage of Ethics. Retrieved from http://www.mediate.com/articles/SoleME4.cfm
The Australian Dispute Resolution Research Network 