By Judge Arthur M. Monty Ahalt (Ret.) and David W. Puckett
“Paving the cow path leads to new cows and new paths†– anonymous
Introduction. If you are a neutral and are not interested in being creative in helping your clients resolve their differences then this article is not for you. The parties are only interested in the most creative and effective neutrals. And it applies to computer aided dispute resolution as well as computer generated dispute resolution.
The dispute resolution universe is enormous and very diverse. After all it encompasses all human undertaking. The importance of resolving a dispute is as old as mankind. It only took 40 days for the Israelites after being rescued from the ravages of tyranny to begin arguing among themselves and seeking Moses’ wisdom in resolving their differences. The key 3,000 years ago is still the key today. Seek a wise person immediately and if necessary stand in line to get the matter resolved. As Barney Fife would say “nip it in the budâ€. In today’s’ complicated world disputes find their way into every activity and the wisdom of judges and the courts cannot keep up with the pace of dispute creation. And the traditional institutional forms of dispute resolution of family, church and school have slowly disintegrated. Alternatives to the courthouse – courtroom and juries and judges have thus become a necessity, but the process is still too slow, too time consuming and too expensive. Alternative dispute resolution comes to the rescue but is bound by the same structure and process – buildings, rooms, paper and words. The creative neutral needs to be liberated from the constraints of the physical world. Their creativity is unleashed by the same dynamics that have transformed the business, educational, communication world – the computer – the mobile device -the Internet and now the cloud.
Because of the diverse nature of human activity the subject matter of disputes is likewise diverse. One only needs to take a look at the courts’ docket to see this diversity up close. But the diversity does allow for some logical groupings
1. Family
2. Personal Injury
3. Property
4. Business
Generally speaking different alternative approaches work better than others in each grouping. One size does not fit all. Evolving approaches include
1. Facilitative mediation
2. Evaluative mediation
3. Transformative mediation
4. Neutral case evaluation
5. Arbitration
The communities’ response to festering disputes has been a top down motivation. Disputes fester long enough so the parties resort to lawyers and courts. However there are not enough judges to bring resolution in a timely fashion. Faced with these realities courts command the parties to mediate as a condition to getting a trial date. Knowing this, lawyers coach their clients into pre-court activities or bottom up activities. And bottom up motivation is increasing as parties and their lawyers recognize that sooner is better than later when it comes to dispute resolution.
Typically a neutral (mediator/arbitrator) is trained in the paper -â€bricks and mortar†– world where all matters are conducted with the use of paper and face to face communications. A neutral is trained to allow the parties to meet together so that the neutral can explain the nature of the mediating process and set the stage for mediating activities. The neutral then designs a process that allows and facilitates private discussions with each party. The design of the process is the product of the neutrals experience, creativity and the input of the parties. Traditional mediation trains a neutral to hold a series of separate and private face-to-face neutral led discussions.
In the first session the neutral focuses on achieving the following – gather information, identify interests, generate options, anticipate the other parties concerns, isolate areas of disagreement, and explore multiple options.
In the second and subsequent sessions the neutral encourages the parties in separate sessions to focus on the future not the past, test feasibility of solutions, focus on best and worst alternatives. In the final session the neutral makes sure there is a complete, clear, mutual understanding that brings closure to all issues.
Typically the neutral attempts to accomplish these tasks in one meeting lasting several hours to ten plus hours and multiple days. The overall task of the neutral is to keep the parties from drawing lines and to stay engaged in alternative solutions. Once the parties leave the physical meeting place it is extremely difficult to get them back together. The physical nature of the forum becomes a part of the process. It even identifies the process. So when the meeting place is not present the parties struggle to stay focused on the mediation process. It is therefore key to replace the physical conference room as the place of the commencement of mediation. Not that a physical place can’t play a role – it just can’t be THE Role.
Successful neutrals are good at designing creative methods to keep the parties engaged in a process while preventing the parties from “walking out†on the process emotionally and physically. Creative neutrals are constantly coming up with the “what’s new†factor. In the physical world it is difficult to prevent the parties from “walking out†on the process. Not so in the virtual world. The evolving tools available to the neutral in the virtual world however, are difficult to find, to understand and to figure out how to make them available to the parties.
But the parties and the neutrals have not adopted the virtual world and ODR. WHY?
It is All about Change Not Technology – Overcoming Barriers
The adoption of technology by businesses and individuals over the last two decades is astounding. Today only a few laggards in the legal profession fail to make use of the PC. Interestingly enough, the leaders are not always the younger generations as many senior lawyers lead the way. Take Judge Richard Rombro, a retired Judge in Maryland (having been forced to retire because the Constitution requires retirement at age 70). Judge Rombro managed the entire asbestos docket for the Circuit Court for Baltimore City using Lexis-Nexis File and Serve – sometimes even from his winter office in Florida. The legal profession has fully embraced technology including the Internet in order to become better lawyers. Those who have not embraced technology are losing the competitive battle.
So why is it that disputes are still mainly resolved with a dependency on paper and face-to-face meetings? It is all about change. Old ways are not put aside easily. Who hasn’t heard a lawyer say – “I know that is the way it will be done in the future, but I am not going to change now.â€
Change requires strong and great leadership. And great leaders always have a vision, a strategy, and they are enthusiastic and work really hard.
In developing a strategy it is essential to identify the barriers. The following are but a few:
The neutral needs to see the parties
Scanning and uploading documents
It is easier to do it the old way
My computer is too slow
As ODR enters its second decade, it requires adoption by three separate constituencies – the claimant, the respondent and the neutral. Much like a stool with three legs, if one leg is absent the stool falls. Thus, the challenge of change is multiplied or as the mathematician might say – “cubedâ€. Most all practitioners have successfully overcome the barriers to change, which were presented with the advent of court ordered ADR in the 1990’s. The benefits have become obvious – time savings, cost savings and “resolution satisfactionâ€. Yet the court dockets keep growing – so – much more remains to be accomplished.
Students of the dynamics of change will testify that change does not occur unless there is;
1. Leadership
2. Strategy
3. Management
Transferring an existing process from the bricks-and-mortar world to the Internet is a daunting undertaking. The process is fraught with barriers of change involving multiple parties and multiple processes. Developing a strategic approach is therefore essential. It is similar to “eating and elephant†– you do not want to plan this event for one meal or you will surely fail. You need to start small but you need to start. It is necessary to strategically identify a starting point where the existing barriers are not overwhelming and where efficiencies of online business will bring the greatest bottom line result.
Start Now Before the Technology Overtakes You
The speed of technological change is now “warp speed†. According to Joshua Topolsky editor-in-chief of the Verge “What will happen over the next few years in user interface design and decentralized cloud systems will make the previous 20 years seem tame by comparison. We’ve crossed over from a long, slow evolution to an explosive revolution in what a computer is and how you use it – and there’s no looking back.†But Topolsky is not alone as the financial community is planning ahead and quantifying activity for the next several years. As the biggest maker of networking equipment, Cisco has a good view of what the future of the online data boom looks like. It even employs a “Chief Futurist” to help guide its business.
Right now, Cisco is laying out the numbers for 2015 (less than four years away). By 2015:
• Internet traffic will quadruple, reaching 966 exabytes of data per year. (An exabyte is an amount of data roughly equal to a billion medium-quality movie downloads.)
• There will be a total of 15 billion network-connected devices in the world (two per person).
• Internet users will reach 3 billion – roughly 40% of the global population.
• Average broadband speeds will increase fourfold from current levels.
Those are just the basic “big picture” numbers. Cisco also confirmed the enormous trend in mobile devices… gadgets like smartphones and tablet computers. In 2015, traffic from wireless devices will exceed traffic from wired devices. (Today, wireless makes up just 37% of traffic.)
• Global mobile data traffic in 2015 will be 26 times higher than 2010.
These enormous growth rates are happening because of two factors. First, the entire world is becoming connected. Nearly a billion people in China and India will be using the Internet. Meanwhile, the fastest growth is in Latin America, where traffic is expected to increase at an annual rate of 50% over the next four years.
The second big factor is video. Unlike the average Microsoft Word document, videos are huge files. Internet video is currently about 40% of online traffic. That percentage will rise to more than 60% by 2015. (Does this unequivocally demonstrate the human factor appeal of real time pictures)
Dave Evans, Cisco’s “Chief Futurist,” summed up the explosion in traffic by noting that it took 200 years to fill the U.S. Library of Congress. He pointed out that Internet users now create the equivalent amount of digital data every two minutes.
In February Eric Schmidt, CEO of Google, announced “The PC is Dead†– see you tube http://www.youtube.com/watch?v=S80hf4kp25c – and then in August Google purchased Motorola.
How Can Change Help the Mediator/Neutral – Adopting new ways should be natural to the creative neutral that is always searching for a way to keep the parties from drawing lines and reaching an impasse. Creativity equals success in the “case closed/dispute over†statistics column. The successful neutral will immerse themselves into technology in order to help folks reach finality quicker and cheaper.
Direct all Activities Online. Confidentiality demands that all information relating to a dispute to be mediate be segregated in such a fashion that no other individuals have access to any information concerning the mediation. The best place to accomplish this level of confidentiality is in a secure mediation case file, which can only be accessed by the parties counsel and the mediator/neutral. Online dispute resolution providers provide such confidentiality – outside of the firewalls of law firms, businesses and individuals.
Adopt Currently Existing Technology. Even prior to the term Online Dispute Resolution (ODR), practitioners of mediation where using the standard multi-party conference call in the process of mediation. Synchronous and asynchronous discussion web technologies have been successfully employed. But many more technologies are quickly becoming available. Dr. Ted Becker, today a professor at Auburn University, recalls the Community Mediation Center on campus at the University of Hawaii in the early 80’s, using conferencing calls exclusively in the mediation process successfully. Most citizens have likely used the telephone many times to resolve disputes of various types. And video is becoming a common family event with the likes of Skype and Facetime.
The Conference Call. Today, with major technology advances in the world of telephony, IP phones that leverage the Internet for making calls has reduced the cost around national and even international calls to a minimal cost. Phones have very advance features today; even personal computers and smart phones can be leveraged in muti-party conference calls. Just this past semester, the Residential Institute at Nova Southeastern University conflict resolution class held a 3-party conference call with two different tribes in Cameroon, leveraging mediators on campus in Ft. Lauderdale working as neutrals to resolve a complex generational conflict between two tribes.
In the original days of conference calling dedicated equipment was required. It was rare when a board or conference room did not have a big centralize conference phone device in the center of the table. However, today it is much easier and most phones including cell phones enable a conference-calling feature. Conference calling across the state, country or internationally used to involve expensive long-distance charges or dedicated toll-free 800 numbers, however today several vendors offer IP based conferencing for free. Cell phones have all but eliminated long-distance phone bills.
Examples of current conference call providers
1. Free Conference Call.com.
2. Nocostconference.com
3. instantconference.com
4. rondee.com
5. budgetcall.com
Web Based Video Meeting Technology. For more than a decade corporations have been leveraging electronic meeting technology across the Internet for very important internal and external meetings. And, the technology is used for sales and new product announcements. This technology is very easy to access and use. All that is needed is an Internet connection (fixed or wireless) and a web-enabled device like a PC, Pad or Smart Phone. The systems include the ability for multi-party participation and all participants have the ability to talk and see video and/or other documentation on the screen as the conference is being hosted. This technology is so common, easy to use and widespread that nationally focused businesses are using it to reduce corporate travel, extend their reach to their partners and to communicate directly to their customers. The ODR industry is just begining to use this technology today. The business related applications of these technologies are easy to use and can host more than 200 active simultaneous connections – far more than needed in a typical mediation or arbitration secession.
The dispute resolution community has been reluctant to adapt these technologies in the mediation and arbitration processes. This reluctance has persisted for several reasons. First, at least three different users have to have the same technology in order to participate. This at times seems almost unachievable. Second, the quality and stability of the voice or video has not reached a level where the parties feel like Video Conferencing technology is stable. Pad computers have front facing cameras. PC’s have webcams integrated and in the very near future smart phones will have the same front facing camera. Wide spread video conferencing including multiple party video will become common place and there will be platforms offered by most major technology vendors. Just in the last year, we have seen Microsoft acquire Skype. Most industry insider’s project that Microsoft is going to have to develop commercial business applications for the use of this technology to turn a profit. So in the very near future, ODR providers will leverage multiple party video technologies and integrate them into their ODR platforms and services. Major advances will occur over the next several years as the number of people who have broadband, and video enabled phones, pads and PCs increases dramatically.
Examples of currently available video services include the following.
1. Go-to-Meeting
2. Adobe – Connect –
3. Webex.
4. Iocom – Visimeet
5. Skype
6. Accuconference.
7. Logitech – LifeSize
8. ooVoo
These and many others include a growing variety of collaboration tools including white boarding and plug-ins to support Microsoft Office and other documents formats. In the past these types of tools have come at a higher cost, but as competition and technology increase the cost is coming down.
Integration of all Activities. The challenge is combining audio, video and document collaboration/document management in a user-friendly application that easily facilitates the parties to communicate in a fashion that results in an agreement. The goal is to ensure the systems are easy to use and empowers the neutral to control the environment like they might control a conference room today. There is no question that the technology community is up to this challenge.
Conclusion: Stay turned for major new advancements in ODR from the major technology vendors. These systems are likely to be outside the traditional legal or ADR industries. There will be portals, platforms and services with capabilities to bring people together instantly and virtually to resolve conflicts. The practice of bringing the partners together with the neutral is only one part of the process. You will soon see case management, document management, time keeping, billing and accounting for neutrals. But that is a matter for another day and another article.
Expect ODR, to not be a competitor to the traditional legal system, but a partner and an alternative platform for conflict resolution of the future.
How Can Change Help the Mediator/Neutral – Adopting new ways should be natural to the creative neutral that is always searching for a way to keep the parties from drawing lines and reaching an impasse. Creativity equals success in the “case closed/dispute over†statistics column. The successful neutral will immerse themselves into technology in order to help folks reach finality quicker and cheaper.
by By Judge Arthur M. Monty Ahalt (Ret.) and David W. Puckett – February , 2012
Judge Ahalt is CEO of VirtualCourthouse.com. He is currently recalled as a Circuit Court Judge and serves private parties as a mediator and arbitrator in personal injury, professional malpractice, commercial, real estate, construction and electronic discovery disputes. www . montyahalt .com
David W. Puckett is currently a graduate student in Conflict Resolution/Mediation at Nova Southeastern University. He has been a professional in the IT consulting industry for more than 20+ year including founding and managing domestic and international practices for a Big 4 consultancy. As a Technology Evangelist, his primary focus is Corporate Performance Optimization assessments focused on Cloud Computing, SaaS/PaaS/IaaS and Business Transformation Services. http://www.linkedin.com/in/davepuckett
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This Article was first published in the February 2012 Practical Lawyer a publication of ALI-ABA
http://www.ali-aba.org/index.cfm?fuseaction=publications.periodical&pub=PL
Introduction. If you are a neutral and are not interested in being creative in helping your clients resolve their differences then this article is not for you. The parties are only interested in the most creative and effective neutrals. And it applies to computer aided dispute resolution as well as computer generated dispute resolution.
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