Changing landscape of ODR and Mediation during COVID-19

Note on how to cite this journal:

Author, Date of the post, WMO Conflict Insight, Title of the post,  ISSN: 2628-6998, https://worldmediation.org/conflict-insight 

The pandemic has compelled the world to function virtually. Even the courts and other dispute resolution mechanisms have been shifted online. This has slowed down the process of ongoing disputes and will result to increased burden on the dispute resolution bodies. Many courts are suggesting the parties to opt for out of court settlement or alternative dispute mechanisms to resolve their disputes where possible. Under the current situation, the increasing financial burden on companies indicates in high rise of such disputes in the future. The non performance of obligations under contracts due to COVID-19 pandemic, the interpretation of ‘force majeure’ clause, the different losses covered under insurance, rights of laid off employees are just few of the examples that the courts will have to decide on soon after the businesses start as usual.

The tools of mediation can be a life saver of companies at this point. The companies pre-deciding compensations, the parties to the contract can discuss on the most important concerns resulted due to non performance and save money and time litigating such issues in the court. Such step can preserve the traditional way of mediating and can also make use of the developed AI technologies to reach a conclusion. Where parties have decided the mediators beforehand the process can be moved virtually instead of meeting in person. The various technologies like Zoom or Skype have proved helpful in bringing people into one room and conducting meetings. This way the counsel, mediators and parties can all access the proceedings together and can have private conversations too. Since all the other formalities during mediation like selecting a mediator or agreeing to time and place is done remotely anyway, there are not many changes that parties have to adjust to for conducting the same proceedings online.

Other than the traditional form of mediation there are several new AI technologies that help mediating disputes with or without the presence of mediators. These AI ODR technologies can be very useful to solve small scale disputes. The older support systems that were incorporated to resolve disputes online like the three step model and the decision support system uses description and reasoning to provide ‘best alternative to a negotiated agreement’(BATNA) and recalculates the inputs by the users until both the parties agree to a conclusion. On the other hand the new AI approach to dispute resolution uses ‘The Game Theory’ and uses optimal negotiation to provide a good bargain to both the parties. The systems like ‘Smartsettle’ or ‘AsseDivider’ that are currently used for mediation through AI calculate the most important issues to the parties, the acceptable trade off and read them in lines with principles of fairness that helps the parties to resolve their disputes.

These systems are very helpful to resolve small scale conflicts and reduce the need of a human mediator. The cases that have similar cause of action within the parties can also benefit from this model. While social distancing has become necessary these tools can come very handy to the parties in conflict to preserve interest of all and share the burden of pandemic. It is also gives the opportunity to widely accept the online dispute resolution systems and the AI so it saves the parties their resources in the future. Many law firms and independent mediators have recently started online meetings, conducting mediation remotely and using these AI technologies which make ODR more acceptable in practice.

The drawbacks of online mediation however remain the same. The issue of privacy is of utmost importance. The parties usually put their trust on the mediators after personally meeting them and the technical problems with internet and AI applications is always a risk. Internet security, confidentiality and identity verification through AI are some of the common risks involved which are beyond the control of mediators or the parties.

However, the wide acceptance of these tools will continue to develop ODR and AI in mediation even after the pandemic.  This changing model integrates the traditional model of mediation with the available technology to minimise the burden of cases on courts and other dispute resolution bodies.

 

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8 Responses

  1. An excellent article on the available ODR options for dispute resolution and management. Some issues, however, remain with the domestic abuse problem that has increased in some areas as a result of the lockdowns. It may be that this will require the interaction of psychological resources as well as legal ad ADR resources.

    1. Thank you for your comments. It is disheartening to see the increasing abuse in this period. Indeed the ADR mechanism will have to find a system with other areas of human behaviour. Unfortunately it seems beyond the control of simple AI technologies or human intervention remotely. It is definitely an important field of research to look into.

  2. I am aware of mediators who are employing ODR to deal with their clients’ disputes. I will provide a reference to your article for the people I know are using ODR because of the COVID 19 crisis.

    I will contact my colleague who is referred to in the article I published on medical collaboration to ask if he is using ODR. You should feel free to contact him as well as he may ODR resources that are being employed in Canada.

    Again, excellent work.

  3. I have heard from the Canadian mediator who indicates all her work, at present, is online. She works with groups in conflict using mediation and facilitation. She indicates this to be a good experience and one that will reduce greenhouse gas emissions.

  4. New Comment: I have heard from the Canadian mediator who indicates all her work, at present, is online. She works with groups in conflict using mediation and facilitation. She indicates this to be a good experience and one that will reduce greenhouse gas emissions.

    1. That is very good to hear. I have recently been in contact with few mediators in the US who have also implemented ODR and have provided guidance to the parties on overcoming technical and privacy issues. Environment is one aspect that is often been overlooked or considered trivial during business as usual. If the ODR methods are able to be efficiently implemented it can result to several benefits even after the pandemic.

  5. Well done Sonal. I am sharing information about your article with mediators with whom I work.

    1. Thanks. Feel free to share the article. I will also be happy to share the template/guidelines that few mediators are using in the USA to overcome privacy and technical issues, in case you or any of your colleagues needs it.

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