Lessons from Online Dispute Resolution for Dispute Systems Design


by Ethan Katsh, Orna Rabinovich-Einy

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.

March 2013


This chapter addresses a disconnect between two bodies of literature in the ADR field – that relating to “dispute systems design” (DSD) and that relating to “online dispute resolution” (ODR). We show that the need to integrate technology into the ADR field has been understood only in a narrow area and in a limited fashion.

To date, technology in dispute resolution has been relegated to the ODR field, viewing it as a niche area relevant mostly to where disputes between parties arose online or are substantively connected to technology.

As we will show, the reach of new technologies is far more pervasive and holds a promise for transforming in a very deep sense some of the ADR’s field’s most deep-rooted assumptions in the area of DSD.

While our main focus is on the lessons of ODR for the DSD field, we believe that the merging of ODR and DSD provides important insights for both the DSD field and the ODR field. In terms of DSD, technology has been challenging some of the field’s most basic assumptions, but has also generated new means for addressing and preventing disputes systematically. For ODR, the DSD perspective highlights the need to think of dispute resolutionina systematic way and emphasize the prevention of disputes, rather than focusing on tools for addressing individual disputes on an ad hoc basis.

In the sections that follow, we describe the rise of both ADR and DSD in recent decades, as well as the impact technology has had and can be expected to further have on the evolution of DSD in the future.




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Biography





Professor Ethan Katsh is the director of the Center for Technology and Dispute Resolution and Professor Emeritus of Legal Studies at the University of Massachusetts. Along with Janet Rifkin, he wrote the first book on ODR, Online Dispute Resolution: Resolving Disputes in Cyerspace (2001).  Professor Katsh is a graduate ofthe Yale Law School and was one ofthe first legal scholars to recognize the impact new information technologies would have on law. He is one of the founders of the field of ODR and author of two books on law and technology, Law in a Digital World (Oxford University Press, 1995) and The Electronic Media and the Transformation of Law (Oxford University Press, 1989). He is currently consultant on online dispute resolution to two federal agencies. Professor Katsh has chairedthe InternationalForums on Online Dispute Resolution, held in Geneva in 2002 and 2003, Melbourne in 2004, Cairo in 2006, Liverpool in 2007, Hong Kong in 2007, Victoria (Canada) in 2008, Haifa, Israel inJune 2009, Buenos Aires in 2010 and Chennai (India) in February 2011. He has been Visiting Professor of Law and Cyberspace at Brandeis University, is on the Board of Advisors ofthe Democracy Design Workshop, the legal advisory board of the In Sites E-governance and Civic Engagement Project, the Board of Editors of Conflict Resolution Quarterly, and is a Fellow of the American Bar Foundation.Professor Katsh received the Chancellor’s Medal and gave the campus Distinguished Faculty Lecture in October 2006.


Orna Rabinovich-Einy is an assistant professor at the Faculty of Law at the University of Haifa. Her areas of expertise are alternative dispute resolution, online dispute resolution, and civil procedure, with research focusing on the relationship between formal and informal justice systems, dispute system design and the impact of technology on dispute resolution. She is a fellow of the Haifa Forum of Law and Society, the Haifa Center for Law and Technology, and the Center for Information Technology and Dispute Resolution at UMass, Amherst. Orna holds a doctorate in Law (J.S.D.) degree from Columbia University. She was admitted to the Bar in Israel (1998) and New York (2001) and was certified as a mediator in New York by the Safe Horizon Mediation Center (2003).

 

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