Information technology provides opportunities to facilitate communication and so assist in prevention and management of disputes explain.
Technology mediated dispute resolution is not new. In fact we have been engaged in TMDR throughout our life. We use telephones facsimile machines e-mail messaging and we continue to add new technologies to our dispute resolution practices. As the name suggests TMDR simply describes dispute resolution processes that use technology to facilitate communication and information exchange.
The technologies that now are available present opportunities for dispute resolution that are restrained only by the limits of our imagination.Some of the possibilities appear to border on fantasy. But currently and imminently available technologies offer possibilities that will reshape the way that we think about problem solving.
We need to think broadly about how our world is changing and how our dispute resolution systems will adapt. First we must appreciate how children are using different communication mediums and become at least minimally competent in those technologies if we hope to serve that population as it matures into adulthood. Second we must acknowledge that as china and india’s demand for all begins to surge the cost of transporting ourselves from one location to another is going to spike more quickly than we ever have dreamed. Regardless of whether we are mobbing from city to city or merely across town the financial cost of travel will force us to reconsider whether we truly need to meet face to face.
Forms of information technology:
Information technology is of particular significance to dispute resolution since disputes and ADR processes involve processes of information exchange or communication. Such information can be the written word the spoken word numerical data kinetics station visual images moving visual images sound or other sensory data.
Information technology can take many forms. While this paper focuses on new information technology it is important to note that many everyday forms of information technology such as pen and paper were once new and unfamiliar.
There are many forms of telecommunications including telephone landlines wireless networks (satellites, mobile phones, television, radio) the internet internets and local area networks data may be transmitted in analogue or in digital form.
Audiovisual technology creates and reproduces visual and auditory information. Whiteboards, audio/video tape, data projection, closed circuit TV and one-way screens may be used both in the delivery of dispute resolution services, as well as for auxiliary purposes such as training, supervision and security. Three-dimensional images (holograms) are also possible, but not readily available. Audiovisual technology may be analogue (sound waves), or, as is increasingly the case, digital.Some audiovisual devices that may be particularly useful in ADR include:
•Electronic whiteboards (enabling agenda and agreements to be written up and copied)
•Data projection (enabling issues and agreements to be drafted and amended by parties during a session)
Audiovisual tools are not necessarily electronic. Many non-electronic devices, for example, one-way screens, pin boards and semi adhesive surfaces can also be used effectively.
Disputes and technology:
Technological change is not a smooth and continuous process. Predictions often under- or over-state the uptake and impact of new technologies. Some inventions, such as videophones died an early death, but are later re-born. Some take many years after their invention to become accepted commercially and socially. Other inventions, such as mobile telephones, are rapidly embraced, well beyond initial expectations. Technically ‘backward’ regions, corporation or countries can ‘leapfrog’ their more advanced rivals by moving straight to a new form of information technology and skipping unproductive intermediate stages<
Technological change represents a complex interplay of:
• Technical feasibility
• Commercial viability
• Political, social, cultural and psychological adaptation.
Each new technology creates new types of disputes, as well as opportunities for new forms of dispute resolution. Technologies may transform the ways in which people communicate and relate to each other. The advent of the motor car or the telephone created particular types of disputes, for example, vehicle insurance and telephone harassment. They also changed many aspects of social interaction, which in turn affected the way in which disputes were handled. New technology has also provided previously unavailable solutions to problems.
The late 20th century saw the advent and increasing acceptance of on-line communication and through it, the creation of a ‘virtual’ environment in which people and entities relate, make transactions and have disputes. The virtual environment transforms our thinking about the nature of human interaction and relationships (Boulle 1999, Tidwell 1996). People create virtual identities, virtual locations (URLs) and virtual meeting places, for example, chat sites and cyber-cafes. On-line relationships include learning relationships between educators and students; virtual affairs, marriages, separations and divorces; offenders and victims; and a range of commercial arrangements. On-line cultures develop through protocols, norms and language. Emotions may be represented symbolically. ‘Tribal’ style loyalties and sub cultures may develop. A particular style of communication may arise which is abbreviated and polemic. Age, gender and cultural differences that are apparent in face to face communication may disappear, while other differences may emerge. A virtual community can also have its own unique ‘legal regime’ through rules for authentication, recognition, entry and exclusion (Katsh, Rifkin and Gaitenby 2000). New technologies create dynamic new industries and new economies, with businesses and coalitions forming and collapsing.
As well as conflicts within the virtual environment, issues arise between the physical and virtual environments. Moving between virtual and physical communities may create a kind of culture shock (Hardy 1998). Some people may better express themselves emotionally in on line than in face to face interaction. Those who struggle in the face to face environment may blossom in the virtual environment. Many people spend a large proportion of their lives communicating on-line. For them, the virtual environment may be as, or more, real than the physical one.
As the virtual environment is global, it transforms our sense of geography and sovereignty. The Internet is largely unconstrained by national boundaries or laws. Various attempts have been made to improve global governance of the Internet, but such attempts are often are caught up in national and regional rivalries.
Any number of interpersonal, family, community or business disputes could arise in ‘cyberspace’ in much the same way as they do in physical space. New types of disputes that arise specifically from new technologies include:
•Domain names (there are dispute resolution processes established through the Internet Corporation for Assigned Names and Numbers (ICANN) .
•Complaints in relation to privacy and security of on-line communications
or the web site of the Federal Privacy Commissioner http://www.privacy.gov.au/internet/index.html)
• Infrastructure complaints and disputes, especially in relation to telecommunications carriers
•IT performance and project disputes (Packbier and Pratt 2001)
•Disputes over trademarks and copyright
•Dispute arising over the circulation of information, or illegal or inappropriate content, over the Internet
•E-commerce including those between businesses (B2B), and businesses and consumers (B2C) and between consumers (C2C).
•Workplace conflicts arising out of changes to employment, personnel and work practices, generated by new technology.
While the virtual environment creates the conditions for new disputes, it also can create the conditions that prevent differences from reaching a dispute stage. Universal coverage, access to information, and automated problem identification can be ‘built into’ new forms of information technology. Virtual communication can also enhance the accessibility, flexibility and quality of ADR services.
Using information technology in ADR
Information technology is part and parcel of almost all ADR service delivery<href=”#_ftn4″ name=”_ftnref4″ title=””>Dispute resolution services may use whiteboards, telephones, fax machines or word processors. Parties and providers communicate via telephone networks, information and agreements are entered onto computers, information may be accessed and down-loaded from the Web, parties and providers may communicate via e-mail, forms may be lodged electronically, fees may be paid by the Internet. Many dispute resolution services use tele- or video-conferencing facilities. Some provide their services predominantly or entirely on-line. Some may integrate multiple telecommunication forms with ‘intelligent’ software. In the future, nano-technology, virtual reality, holography and robotics may be taken for granted like telephones are today.
Strategies for managing technological imbalance include:
• Deliver on-line services in conjunction with existing ‘face to face’ services, by, for example using local services to provide interpersonal support and technical assistance.
• Agree on technical ground rules at the outset on, for example, the bandwidth and software to be used, and the nature of data to be transmitted.
• Where one party is face to face and the other remote, introducing procedures that build and maintain trust, and that minimize the risks of disadvantage or bias. Also consider the feasibility of creating ‘virtual equidistance’, by, for example:
1. Placing the local party in a separate office, with a separate line, and engaged in the same way as the distant party.
2. Engaging a ‘neutrally located’ practitioner, who is equidistant or suitably removed from both parties.
3. Engaging ADR practitioners at both ends of the exchange, using a form of virtual co-mediation. This would rely on a large network of skilled practitioners, with common training and protocols.
Each mode of communication has advantages and disadvantages. For example:
•Face to face communication provides the fullest degree of interpersonal communication. It is not always feasible, however, and some interpersonal dynamics <href=”#_ftn5″ name=”_ftnref5″ title=””>(eg physical intimidation) may also work against effective resolution (King 2000).
•On-line text communication is quick, accessible, and cheap. It allows for large amounts of text based information to be transmitted, searched and modified. It enables the exchange of large volumes of written information. While e-mail requires typing skills, the act of writing may assist parties to reflect on their positions. However, like other forms of written communication, e-mail may have limited capacity to communicate complex emotions.
•E-mail is far quicker and more convenient than conventional forms of written communication. The speed of exchange can be determined largely by the parties, and multiple exchanges, which would take months through an exchange of letters, can be compressed in time. For some people, however, e- mail may lack a sense of formality and finality.
• Telephone communication is almost ubiquitous, is relatively cheap and enables greater human interaction than text. However, it excludes body language.
• Video conferencing provides an approximation to face to face interaction.
However, images are two-dimensional, and, as eye contact is via a fixed camera, some information gained from eye contact is lost. Lagging can create delays in responses and lead to a perception of hesitancy. Physical movement may be constrained by camera angles and bandwidth constraints. Video conferencing also fails to convey other sensory data such as touch and smell.
•One-way communication may be a stilted and constrained but prevents interruption. Two-way communication is more natural and provides immediate feedback. It allows interruptions, which may have negative or positive impacts.
• Communication, such as e-mail, voice mail and video streaming, is not dependent on parties being available at the same time (a major advantage where parties are in different international time zones). It demands a reflective response, which could lead parties to alter or adjust what they would communicate in a face to face situation. Asynchronous communication also allows parties the ‘space’ to consider proposals and offers without the pressure of immediate acceptance. By contrast, the immediacy of synchronous communication may lead to greater spontaneity, more pressure and greater risk of words and actions that are later regretted.
Some information is lost in all forms of current telecommunications technologies, and this loss may have an impact on some of the intangible aspects of human relationships. For example, it may be difficult to create trust (Katch et al 2000). Conversely, the loss of such information may be useful where interpersonal dynamics are destructive, for example, a history of physical intimidation or enmeshed conflict (King 2000).
Suggested strategies for making telecommunications most effective in ADR processes include:
•If conducting an on-line process, create opportunities to develop trust, for example, by making direct contact by telephone beforehand.
•With written (e-mail) messages, keep messages clear and concise. Avoid ambiguities or messages that may be misinterpreted or require further clarification. If using codes, ensure that all parties understand what they mean.
•With automated processes, balance the human with the automated dimensions of the process. Ensure that parties have access to ‘real’ people if required.
•With audio communication (such as tele-conferencing) keep messages clear.
Describe your surroundings and the process you envisage. Introduce yourself when you cut in.
•With video-conferencing, take into account and explain limitations of the medium such as time lags, ‘flat image’, etc. Avoid too much physical movement. Allow parties and practitioners an ‘easing in’ period.
Benefits of using information technology to dispute resolution:
|Form of communication||Requirements||Benefits|
|Face to Face Meeting||Physical meeting venue and waiting room facilities parties need to be able to travel to the venue and be capable of face to face communication||Allows for full real time communication, Verbal, non-verbal and body languages, exchange of written information, clear authentication, signing off.|
|Letters||Stationary and postage facilities||Formal, authentic (signed).|
|Access to computer, internet and ISP by parties and ADR service.||Enables Exchange of complex written information Neutralizes negative interpersonal dynamics give people time and space to consider responses.|
|Video or audio streaming||As above, although bandwidth and computing capacity requirements may be higher.||May be more effective than text in conveying massages, especially emotions.|
|Telephone and tale-conference||Access to telephone lines, preferably with conference call capacity||Availability
Ease of use
Research and evaluation
There is little current information on the efficacy and effectiveness of information technology in ADR. Quality research and evaluation in this area is constrained by several factors:
• The lack of independent commentators. People tend to be resistant skeptics or passionate advocates of information technology. Commercial interests may also be involved.
•Rapid rate of change. The speed of technological change means that academic knowledge lags well behind practice. Traditional research designs may take years to complete, by which some of its finding may be redundant.
• The lack of research on ADR generally. The relatively small number of people involved in ADR, the lack of industry structures in ADR and the lack of reported problems and complaints makes it hard to mount a case for expensive research into ADR, let alone the applications of information technology in ADR.
Effective data, research and evaluation are, however, essential to improve dispute resolution practices.
Some suggested strategies are:
• Adopt a holistic and multi-disciplinary approach: gather information from other fields such as education, community development or commerce, and use global resources.
• Develop research partnerships between ADR organizations and independent research or academic bodies.
• Use action research and other applied research methods through which improved practices are developed in tandem with research.
• Use information technology to better record and analyze data, for example, through automated data collection and collation programs attached to case files.
• Develop systems for recording complaints and use such complaints as the basis for specific research.
• Encourage ADR service providers and practitioners to adopt a philosophy of evidence-based practice or continuous improvement.
The introduction of information technology into society generally, and into ADR processes specifically, is a change process affecting the human, social, political and technical environments. Below are suggestions for managing this change process.
• Communicate the change and the reasons for the change. It is usually easier for people to adapt to change if they are able to prepare for and make sense of it.
• Assess the impact of the change. Such impacts may be economic, structural, social or psychological. There may be winners and losers. There will be negative and positive impacts in both the long and short term. There may be a J -curve effect in which there are short term losses, but long term benefits.
• To the extent possible plan for, and allocate time and resources to, the change process.
• Assist people to adapt technically, psychologically, socially and emotionally.
Information and training, combined with ongoing support and backup, will be required.
• Manage any resistance to change effectively. Identify the reasons for resistance and use conflict resolution principles to manage it.
Information technology provides opportunities to facilitate communication and so assist in prevention and management of disputes. Where disputes arise, ADR services can use information technology to provide information to parties and to complement, or substitute for, traditional face to face interventions. Information technology can also play a valuable role in supporting the quality of ADR practice through more effective supervision, assessment, training, information management, research and evaluation.
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In an effort to encourage students and lawyers to think as creatively as possible about the Rules of Evidence, Professor Irving Younger once reminded us that we are restrained only by the limits of a “diseased imagination.” Videotape: Basic Concepts in the Law of Evidence (National Institute for Trial Advocacy 1975).
•Electronic whiteboards (enabling agenda and agreements to be written up and copied)
•Data projection (enabling issues and agreements to be drafted and amended by parties during a session)
Technically ‘backward’ regions, corporation or countries can ‘leapfrog’ their more advanced rivals by moving straight to a new form of information technology and skipping unproductive intermediate stages.
(eg physical intimidation) may also work against effective resolution (King 2000).