Online Dispute Resolution and the Development of Theory


by Daniel Rainey, Leah Wing

This chapter is from "Online Dispute Resolution Theory and Practice," Mohamed Abdel Wahab, Ethan Katsh & Daniel Rainey ( Eds.), published, sold and distributed by Eleven International Publishing. The Hague, Netherlands at: www.elevenpub.com.

February 2013


A young person seeking higher education in the late twelfth century might have trudged his way through medieval Paris to the complex oflearning centers associated with Notre Dame or Sainte-Genevieve Abbey seeking admission. Once accepted, the student faced a daunting curriculum that, taken together, covered all the theoretical knowledge faculty deemed worth obtaining. The entire curriculum consisted of the Arts, the Law, Medicine, and Theology.

As the modern notion of a University as a self-contained body of scholars and students grew, a few disciplines were added to the four core disciplines of the Universitas scholarium of Paris. By the late twentieth century, film studies, black studies, women’s studies, computer science, and even conflict resolution had been added to the list of disciplines, each with a growing body of theory.

To put the evolution of a university-based conflict resolution curriculum into perspective, consider that a person born in the year that the world’s first graduate degree in conflict resolution was created would not yet be thirty years old at the time of this writing.

The Center for Conflict Resolution at George Mason University was made up of faculty from a number of “traditional” disciplines, and, as do all new academic disciplines, it drew upon established theory from related established disciplines

As late as1996, authors producing works on conflict theory were citing a variety of sources for the theories informing the practice of conflict resolution. As Schellenberg noted:

The jury is still out on whether conflict studies is to become a discipline in its own right. Some scholars have argued that this field has now developed its own literature and academic programs and therefore should be treated as an emerging discipline. Others point out that most of the work still comes from persons who identify themselves primarily with one of the more established disciplines. … Indeed,the list of disciplines that the systematic study of conflict resolution may draw upon is very long including the full range of the social sciences and the humanities, as well as mathematics and biology.
Few still would argue that conflict resolution has not emerged as an established, albeit young, discipline, and few would deny the sizeable and growing body of scholarship including conflict theory. That body is now large enough to form a coherent whole with internal divisions flourishing suchas facilitative and transformative mediation and stimulating substantive critiques from outside as well as from within the discipline.

Notwithstanding significant development on its own, conflict theory has been drawn largely from scholars and practitioners in “traditional” disciplines with an interest in the idea of and the dynamics of conflict. Conflict theorists, at a point when the practice of conflict resolution was becoming a sub-field of study in itself, sometimes struggled with how to fit alternative dispute resolution (ADR) into an overall theory of conflict.

Less than a decade ago, Scimecca argued:

I have presented … the view that those who practice ADR will not become true professionals until ADR incorporates a theoretical base to undergird its practice, and, until it has such a base, it will remain an instrument of social control. At present, I remain convinced that practitioners do little more than pay lip service to theory.
Scimmeca seems to offer two arguments: first that there was no ADR theory at that time, and second that even if there were a body of ADR theory, practitioners would ignore it. Arguably, he could have been right on both counts in the early 1990s, but clearly in the interim there has developed a body of ADR theory, whether or not we pay attention to it.

We suspect there are few who would still hold this “looking down the nose” attitude toward ADR, but it illustrates the progression that is to be expected in the development of theory in any discipline: an effort to separate theoretically from established disciplines, development of internally consistent theories, and, slowly, the addition of sub-disciplines or areas of study, and the confidence to critique areas of weakness from within the field.

Given this, what relationship does online dispute resolution (ODR) have to the conflict theory and ADR theory that has developed? To put it into perspective, consider that a person born when the term ODR was coined in the mid-1990s would, at the time of this writing in 2011, barely be eligible to legally drive an automobile in the United States. It is not surprising, then, to note that there is as yet no substantial body of ODR theory, and it should not be surprising that there persists a reluctance on the part of established conflict resolution and ADR faculty and practitioners to treat ODR as fully legitimate.

We argue, therefore, that ODR has been developing without its own cogent theoretical base. Whether attempting to create ODR theories, or for the purpose of critiquing ODR, practitioners have seemed to rely on conflict resolution theory designed for and out of the Face-to-Face (F2F) offline world, and on theoretical traditions from other disciplines. A growing number of creative ways of intervening with the use of technology have yet to be analyzed sufficiently to build a proper theoretical base. While the haphazard approach to furthering ODR has seen some success, we predict that ODR practice will both demand and generate a clearer set of theories grounded in the experience of navigating disputes in non-F2F settings, and we hope our discussion here will, in some small way, help to further these efforts.




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Biography





Daniel Rainey is the Chief of Staff for the National Mediation Board (NMB), the US government agency charged with dispute resolution in the airline and railroad industries in the United States. While at the NMB he has guided their ADR programs into a leading role in online dispute resolution, integrating technology into all of the agency’s mission areas and winning the National Archivist’s award for managing electronic records. He regularly is a speaker at international conferences concerned with online dispute resolution, and he is a contributor to a number of publications dedicated to online dispute resolution and the application of technology to the broader field of dispute resolution.  He is amember of the Association for Conflict Resolution (ACR), and past Chair of the ACR ODR Section. He is a member of the ABA Section of Dispute Resolution and the co-Chair of their ODR interest group.  He is an adjunct member of the faculty in the graduate dispute resolution programs at Creighton University and Southern Methodist University.

 


Leah Wing is Senior Lecturer, Legal Studies Program, Political Science Department,University of Massachusetts/Amherst (USA) and Co-Director of the National Center for Technology and Dispute Resolution. Mediator and trainer since 1985, Leah served on the Association of Conflict Resolution Board of Directors (2002-2006) and on the editorial board of Conflict Resolution Quarterly since 2002. She is also founding director of the Social Justice Mediation Institute. Leah’s research and teaching apply critical theory to ODR, mediation, and reconciliation in colonized and post colonial societies and she has served on ODR research teams on a number of National Science Foundation grant projects.




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