We have expressed in previous works an issue that has concerned us for several years; this is, how it has cost us and it is difficult for human beings to understand what are the steps we have to take in order to achieve the future. Because doing this reflection exposes us to think about the simple, ordinary and everyday things that normally fill our days with occupations, and imagine them in a change, for example, the products we buy, the places we frequent, the social organizations in which we live, the people who make up our lives, the way we develop our jobs and / or professions, in short, the lifestyle that we live in the present. Probing these aspects, thinking about their future reality, is not an easy task because it takes us out of the comfort zone that the present gives us, because in this present that we live are “the known aspects” ..
We must accept that, what has happened to us worldwide with this serious Covid 19 pandemic, is that it has come to modify all that present that we had only a year ago in our way of life, our customs, the norms of coexistence developed in the different countries, etc … all that social construction that we had for many years, until a few months ago, we realize that it doesn’t serve us, and most importantly, we are not sure if it will serve us again. Because there is no doubt that when the COVID19 Pandemic passes, it is very possible that the reality of the world has changed and we will need to continue building new ways of existence, as world history has shown us each time a similar situation arose.
In this context, we must understand that the use of Technology applied to conflict resolution methods, which for several years has been making its way with the presence of ODR (On line Dispute Resolution), In 2020, as a result of the compulsory confinement due to the pandemic imposed in many countries, they have experienced an astonishing proliferation, becoming a valid alternative for access to justice worldwide.
Therefore, we propose to address in this work, what are the possibilities that Artificial Intelligence has in the field of ODR, adding to this advance in the use of technology in the field of Conflict Resolution.
BLOCKCHAIN ??……. LIKE THE BLACK SWAN?
Miguel Ángel González San Román explains that in recent years, the world has experienced an authentic revolution caused by the application of technology in most of the processes that occur daily in society.
The aforementioned author adds that these processes, although digitized, required a mediator to verify acceptance of the terms that make each operation possible. Technology has also advanced in this sense and has begun to intervene in this mediation, which is generating an impact on society and a change in the provision of services much more profound than it may seem and of which we may not yet be aware. . Within this process, it is striking how little is still installed in the collective imagination the disruptive nature of the combination of Blockchain technology with traditional activities that have been developing for years. Perhaps it is due to the complexity of the matter, Or perhaps it is because this new revolution, contrary to what happened with other revolutions such as the creation of the steam engine, mass production or the application of the microelectric, is led by forces that are not seen, that do not weigh, and that they do not have physical support in the transaction process.
González San Roman, in his previously detailed work, identifies Blockchain as a transactional model that allows trust in human relationships to be extended to a level never seen before. And trust is a fundamental element to generate social capital in free societies. The Blockchain, in a very simplified way, collects information on the transactions carried out by the agents connected to it. When a transaction is made, participants must verify the terms of the transaction to validate it. At that time, the transaction becomes part of a large database that collects the conditions that such transactions must meet in order to be approved by both parties, without the intervention of a third party to verify the operation.
With this, the author says that technology makes disappear that neutral mediator that for centuries has guaranteed the veracity of what we say or write. A third party that, by the way, added no more value than trust and charged a toll for it. Having cheaper and faster models of trust than what we had never known will be a revolution that will change many of our life habits. One of the key elements that can be built now is the Smart Contract, in which the agreed actions are executed when the appropriate conditions are met and recognized “automatically”, without the need to wait for reviewing the process. This represents a qualitative change in the current relationship model; now we can develop business relationships with strangers who may be thousands of miles from us with greater security and without the need for a physical third party to certify the action. The contract model is transparent, since the two parties are clear about what they agree from the beginning and it is much cheaper, since no external interventions are needed to provide this confidence.
As Miguel Ángel González San Román says, this disappearance of the intermediary caused by the Blockchain does not only affect the speed and the great reduction, up to ten times, of the most conventional transactions.
All this scenario leads González San Román to think that these phenomena, considered as “events that nobody expects”, are the “black swans” coined by Nassim Taleb , wich have a devastating effect and which later all We try to find an explanation for them through narrative fallacies in order to get them to fit our mental schemes. However, the creation of the Blockchain could be only the first step towards a neutral and cheaper system that allows the completion of transactions in real time, guaranteeing the full trust of the participants.
THE BLACK SWAN THEORY … CAN WE REFLECT IT ON THE ARTIFICIAL INTELLIGENCE APPLIED TO ODR?
The black swan theory or theory of the events of the black swan is a metaphor that describes a surprising event for the observer, of great socioeconomic impact and that, once the event has passed, is rationalized by hindsight (making it seems predictable or explainable, and giving the impression that it was expected to occur). It was developed by the Lebanese philosopher and researcher Nassim Taleb.
In his work the author indicates that in Europe it was believed that all swans were white, until in the 18th century, black swans arrived from Australia. It seemed like an irrefutable belief. But, then, it was seen that in Australia swans could also be black.
This fact illustrates a serious limitation of learning that is done from observation or experience, as well as the fragility of our knowledge. A single observation is capable of invalidating a generalized claim. All it takes is a single black bird.
Thus, Taleb’s theory, considers as black swans those events that meet the following characteristics:
It is our interest in this work to invite the reader to visualize these points of Nassim Taleb’s Theory, previously exposed, referring to Artificial Intelligence and its possibility of existence and development in its application to ODR.
POSSIBILITIES OF ARTIFICIAL INTELLIGENCE IN ODR
As we have seen, blockchain is one of the buzzwords across the board and a rising trend that seems unlikely to stop. That is why mediation professionals, and especially those who work in ODR, must follow it closely and see how they can benefit from this technological innovation that is garnering a lot of attention.
We ask ourselves at this point if there is today a possibility of thinking of a mediator adapted to a blockchain intelligence system. To do this, we need to understand the origin and evolution of ODR.
ORIGINS AND EVOLUTION OF ODR
Online dispute resolution methods were originated as a result of the synergy of technology and alternative dispute resolution methods to resolve disputes. originating on the Internet. ODR facilitate conflict resolution through the transformative power of technology, which is incorporated as a fourth part of the traditional tripartite model of conflict resolution.
The origins of ODR can be identified in the early 1990s. At that time, as in all historical stages that establish paradigmatic shifts, emerged many observations and predictions.
An interesting prediction was that the Internet as it continued to evolve and its use increased, it would not be a harmonious place.
This may seem obvious to anyone today when consumer and copyright disputes are commonplace, when identity theft is on the rise, and when anti-virus software is required simply to keep a computer running. It wasn’t that obvious, however, in the first half of the 1990s before there was spam, phishing, downloading music, online buying and selling, etc. In fact, the hope often expressed at that time was that this new online environment for commerce, education, work, entertainment, etc., would find ways to avoid the kind of conflict that many of these activities had generated. in the past in the physical world. Even some of those who understood that a highly active, creative and potentially lucrative environment would inevitably generate conflict were, at the same time, skeptical that online resources could be used effectively to help people involved in a dispute. Conflict resolution, at the time, was assumed to require a face-to-face meeting, either in or out of court.
.. Among the observations made by experts in those early days of the Internet, the most important was that conflict resolution, wherever and however it occurs, would involve communication and information processing. Such interactions could more easily occur face-to-face, but computers were information-processing machines and the Internet facilitated communication. Software, by definition, involves managing the flow of information and therefore, with the appropriate software, interactions between litigants could be handled online in a way that would lead to settlement. ODR, therefore, would not only be necessary but also feasible.
Some of the early skepticisms about the need and use of ODR stemmed from the fact that the Internet had been invented in 1969 and for the first twenty to twenty-five years of its existence there was relatively little controversy. Its users during this period were mainly academics and military and, when there were conflicts in the relatively small user population, they were resolved informally. During this time period, few ordinary citizens were aware of the internet and if they had been aware they wouldn’t have had way of connecting because the first internet service provider did not appear until 1992.
It is also fair to say that if one had been aware of the Internet and had somehow connected to it, that person would have found it uninteresting, due to the limited range of activities That internet offered, and unattractive, because it was necessary to know a certain level of computer skills to participate in these activities.
Until 1992, the National Science Foundation, which was managing the Internet at that time, prohibited its use for commercial purposes. Therefore, even if one had found a way to connect to the Internet and even if one also had the computer skills to surf the Internet, and if one did all this with the aim of buying something, he would not have found anything to buy. . There was no consumption or commercial controversies, not only because there had been a systematic and intentional effort to design an environment that would not generate controversies, but because there was an online population with very little feasibility of generating a controversy Before there were controversies, there was no urgent need to think about their solutions, and the variety and quantity of disputes that the need for dispute resolution would suggest, was not present until the first half of the 1990s.
THE EVOLUTION OF ODR
In one of the first written works on ODR, it was observed that context can influence the neutral approach, the choice of process, and the behavior and attitudes of the disputing parties. In any enviroment, the context can affect the types of conflicts that may arise and also affect who are the parties into dispute situations. The context implicitly feeds us information about the scope or nature of the injury, as well as how the injury or controversy is perceived by those involved into it. Also, the context places a dispute in a certain time and place, and we react accordingly.
Today’s online environment may be a descendant of the environment that existed fifteen years ago, but the context in which disputes occur is very different. The range, variety, and number of disputes arising from online activities have grown. Ten years ago, many were skeptical of the need and potentiality of ODR, but today it is well understood. Most importantly, ODR, which initially focused on disputes related to online activities, is now used in offline disputes. Rather than finding disputes that ODR can use, the new challenge is finding tools that can offer confidence, comfort, and experience of many different types of disputes In any context, the contestants are influenced by the measures put in place to anticipate and avoid potential disputes. The pioneers of the Internet simply focused on a technical challenge, on creating new capabilities for communication. They did not anticipate the kind of growth that has occurred and did not focus on the possible long-term social consequences. For the first 25 years of its existence, the Internet did not address the issue of conflict and its resolution, as, we noted above, there were sufficiently effective informal processes. In the early 1990s, however, this began to change as many students came to campus with personal computers and many people out off the campus became aware of the Internet. When more people gained access to the Internet and email and the web became more easily usable, it was predictable that a growing population of users would generate controversy, and this did indeed occur.
In one of the oldest and most famous conflicts during that time, when a participant in LambdaMoo, assaulted the virtual characters of several participating women. Journalist Julian Dibbell wrote an article titled A Rape into Cyberspace, which remains one of the most inspiring essays thought about disputes in cyberspace.
In 1994, one of the first Internet-related copyright cases using MIT was the, David LaMacchia.’s case. LaMacchia allowed others to upload and download software from his account.
In 1992, Internet Service providers emerged and it was then possible for people not affiliated with the university to obtain an account that allowed access to the Internet. With a larger and more global user base, the range of online interactions as well as the range of disputes began to grow.
In August 1995, Jeff Bezos launched Amazon and Pierre Omidyar founded eBay a month later. Netscape’s famous initial stock offering also was in 1995. A year later the first version of the Netscape browser was released. Electronic commerce depends on users, not only that they may be able to carry out transactions, but also that they are willing to do so. This system is a device for improving reputation and trust. This system also reduces the risks that it involves users posting messages about whether a transaction with a particular user was successful. The goal of eBay, and the goal of all businesses and markets, is to provide both low prices and low risk.
In 1999, eBay commissioned the Amherst Center for Information Technology and Dispute Resolution at the University of Massachusetts to conduct a pilot project to mediate disputes between buyers and sellers. The pilot project handled two hundred disputes in a two-week period, by far the largest number of disputes ever handled online, and led eBay to include dispute resolution as an option for buyers and sellers in the event that a transaction was unsuccessful.
Initially, e Bay’s dispute resolution process was limited to the launch of SquareTrade, and several years later it was acquired by eBay. By 2010, the number of disputes handled by eBay had reached an extraordinary sixty million.
During 1999 to 2000, many newly created ODRs appeared and then disappeared. A few, such as Smartsettle, Cybersettle, and The Mediation Room remain. SquareTrade, eBay’s original ODR service provider, shifted its focus from ODR to consumer warranties in 2006. ICANN was founded in 1998 as a non-profit association and gathers people from around the world whose goal is to ensure that Internet is secure, stable, and interoperable. This association promotes competition and develops unique identifier policies for the Internet, managing the domain name system on the web. When it started, it was largely an offline process but over time it has become an online process.
In recent years interest in ODR has grown and its focus has expanded. Government agencies, such as the National Mediation Board (NMB) and the Office of Information Services (OGIS) in the United States, began promoting ODR as an effective method of resolving problems with citizens. Government use of ODR promises to be a huge market. eBay remains ODR’s most notable effort but now there are others that can be singled out. Cybersettle, for example, has gone beyond its original approach for insurance disputes and now is helping to resolve claims filed against New York City. The market for ODRs is now offline disputes, as well as online disputes and public sector disputes, as well as private sector disputes.
Interest in ODR has expanded geographically as well. The annual International Forum on ODR, as we have said before, has been organized at least once on each continent. The United Nations Commission for International Trade Law (UNCITRAL / UNCITRAL), has been developing since 2010 a very important work writing regulatory systems for ODR in cross-border disputes. Its latest regulatory system is “United Nations Convention on the International Settlement Agreements Resulting from Mediation”, known as the “Singapore Convention” (because the opening ceremony for the signing of the treaty was held in that City in August 2019).
Appropriate Software for ODR is more widely available today. There are more software options, some for general use and some, like Modria.com Community Court, Juripax.com, and FairOutcomes.com that were specially developed.
Because of online differences, the parties may be looking for a system that can handle the entire process. For offline disputes, however, the most common goal will be to find tools that can improve elements in the process rather than managing the entire process. If mediation consists of several interlinked processes, for example brainstorming, caucusing, prioritizing options, drafting, etc., the software can target a particular process. For example, STORM, software developed at the University of Massachusetts, facilitates remote brainstorming. This reduces the need for some face-to-face meetings and has the added benefit of allowing, if the mediator wishes, to brainstorm anonymously.
Conflict is a growing industry and companies are less and less likely to ignore conflict or treat it as a minor and insignificant issue. It is also increasingly recognized that ODRs have value in two ways: conflict resolution and also as part of an institution’s trust-building efforts.
The ODR era has largely parallelism with the development and use of the Web. In general, the Web progressed from providing information to the provision of goods and services, a progression that is understandable if we see an interactive computer service that consists of a series of exchanges of information.
When Web 1.0 matured, it also became more complex. The complexity increased in the sense that Websites contained more components and many of the components were linked to other Websites. This impacted on the controversies because, in general, with more components, connections and relationships, there is a greater chance that something will go wrong. An electronic payment for a purchase that involves communication with a network and a bank or some other financial institution elsewhere approving the transaction, while the buyer is still staring at the screen, makes a dispute more likely than when a purchase is made with cash in a physical face-to-face store. The movement from the original and relatively straightforward website providing information to websites that drive many millions of transactions was also a movement that made controversies more likely.
The increase in the value and use of the Web has been rapid in recent years, and largely coincided with technological developments that have contributed to the complexity of websites, new and powerful tools for entrepreneurs and also the ease of use for Web users.
The following technology trends are just a sample of recent advances in communications capabilities, all of which were based on the growth of the Web:.
These and other technological advances led not only to a Web with an expanded range of capabilities, but to the phenomenon labeled as Web 2.0. Web 2.0 sites get most of their value from their users. eBay was one of the first Web 2.0 companies, since buying and selling were transactions that provided income for eBay, but of which eBay was not a party. Wikipedia, Facebook, and TripAdvisor are other examples of sites that offer space, but the real content and value comes from what is provided by users.
This is a development that has been important to the history of ODR. As eBay learned early, and Wikipedia learned over time, as did Facebook, Web 2.0 companies derive value from users, but only if users perceive low risk in using the system.
Web 1.0 companies were able to build trust by branding, but Web 2.0 sites must in each case provide a way to protect those whose participation in the site also provides the value of the site. The hope of many Web 2.0 companies initially was that they could simply provide a space for users and would not be responsible for problems that arose between users.
As eBay and Wikipedia illustrate, over time this goal becomes less and less possible. Particularly for Web 2.0 sites, it has become clear that users need to feel as little risk as possible in using a site or that they will move to a competing site. In this context ODR space was opening up as an asset for the company instead of being seen as something peripheral.
This evolution that we have detailed about ODR, which brought us from e-commerce to the present day, is completed in 2020 with the coping of the pandemic situation globally by Covid 19. All the governments of the planet, even the most developed countries, have had a difficult work in order to get accommodation to the circumstances, for carrying on providing the fulfillment of the human rights of their inhabitants. And, all of us who value and have worked for a long time in the field of Online Dispute Resolution, we have been able to verify that ODR reached maturity, becoming an excellent alternative, so that, despite the factual situation of the pandemic, all the people can continue exercising their right of access to the administration of justice.
This has been proven by many government agencies, such as the Supreme Court of Justice in Mendoza, Argentina, and the government of Buenos Aires, in Argentina, the Government of Córdoba in Argentina, and innumerable non-governmental organizations, in the rest of Latin America (Spain, Mexico, Ecuador, Costa Rica, Chile and Brazil), which requested training courses in ODR for their teams of mediators from the Director of ODR Latin America, Alberto Elisavetsky, in order to be able to provide an effective alternative for access to justice, despite the mandatory confinement measures as a result of the pan
This leads us to conclude that ODR ceased to be the tool for solving conflicts derived from e-commerce, becoming an alternative of access to justice, valid and effective, applicable to all areas where disputes arise and to all types of disputes.-
With this, new challenges appear, as such as all the legal derivations that ODR use implies. And we must recognize that, although Private Law, in several countries such as Argentina, has reflected the technological advance in the normative reality, there is a deficit in the Internal rights of many countries regarding normative regulation of ODR.
With this, new challenges appear; they are all the legal derivations that its use implies. And we must recognize that, although Private Law, in several countries such as Argentina, has reflected the technological advance in the normative reality, there is a deficit in the Internal rights of many countries with respect to the regulation of ODR.
And in the international enviroment, a great effort is also made for the regulation of ODR. Maria Victoria Marún explains that there are currently some regulatory proposals for cross-border trade in the international enviroment, but we must also recognize that there are many regions of the world that do not have specific regulations or some regulatory frameworks are just being developed. By way of example, we can cite the following: 1) Within the United Nations, UNCITRAL / UNCITRAL has been carrying out important work since 1966 in the development of regulatory frameworks for international trade; In particular, Group III, has established annually recommendations for ODR since 2010, generating in 2016 an interesting regulation of technical notes aimed at Online Dispute Resolution, and in 2018 adopted by Res. 73/198/2018, the Convention on International Settlement Agreements resulting from Mediation ; 2) The regulations of the European Union, as Directive 2013/11 / EU of the European Parliament and of the Council of May 21, 2013 on the alternative resolution of consumer disputes (DRALC) and Regulation No. 524/2013 of the European Parliament and of the Council of May 21, 2013 on Online Litigation Resolution in Consumer Matters and by which Regulation No. 2006/2004/EC and Directive 2009/22 / EC are modified. 3) In America, within the CIDIP of the Organization of American States OAS / OAS there are proposals on the regulation of a cross-border inter-American system for electronic claims.
CONCLUSION… .THE IMAGINATIVE CELLS
In the preceding points we have seen how technology tends to make that neutral human mediator disappear that for centuries has guaranteed the truthfulness of what we say or write (for example, the teacher who passes or fails our exams, the lawyer who expresses our intention in a contract, etc.). We can think that this technology that is invading different areas of knowledge and work, ¿will it also exclude the figure of the human mediator?
In any case, let’s imagine that in the future we could replicate with an algorithm the way that the brain has, not only to generate emotions, but also to manage them … Does that mean that an artificial intelligence system with this algorithm could feel emotions or develop emotional intelligence to be able to manage them? Different authors’ position themselves in the negative.
On one occasion, someone asked Marvin Minsky, one of the founders of Artificial Intelligence, about the emotions of machines and he said: “The question is not whether intelligent machines can feel any kind of emotion, but whether they can be intelligent without emotions ”.
As Alberto Elisavetsky says, technology only makes sense if the human being exists. Technology, in a positive way, is only useful to society, it only builds peace, if as its axis, the mediator is in charge of directing the process, preserving the quality of management and processes. procedural protocols, being the Human Being the center of this universe , considered as the subject that contributes significance to the peacebuilding processes.
Certainly without emotions we would not have managed to survive as a species and our intelligence has improved as a result of our emotions. On the other hand, we cannot detach our emotions in the way we apply our intelligence. Humberto Maturana says that emotion is a feeling, from a biological point of view; a dynamic body arrangement that defines the different domains in which we move. When you change your emotion you change your domain of action. Emotion is the substrate of our behavior and the fundamental premise of any rational system. This means that, like technical knowledge, emotional intelligence is also used when making decisions. Logically, machines could never feel emotions in the same way that humans do. However, they could simulate emotions that allow them to interact with humans in more appropriate ways.
As we see with Humberto Maturana in his work cited, emotion precedes reason and it is constituted in its condition of possibility. Human emotions also depend on our perception of the external environment and our internal environment. Human perception of the outer world is materialized through the senses and perception of the inner world depends on homeostasis and ultimately our level of abstraction to understand what things are. These are very complex operations that a machine must develop and that do not exist until today. This leaves us many questions: How do artificial intelligence systems see the outer world and its inner world? Is it comparable to the way we humans see it? Could a reality seen only with electronic means generate the same type of emotions as the reality that we perceive with our five senses? Two key words: introspection and abstraction. Operations that the human brain naturally performs, until now machines have not been able to develop them. And we say so far, because in this work we have seen how one technological discovery leads to another and, in the future, we do not know what may happen in that unpredictable world of Nassim Taleb’s black swans
Deepak Chopra, in his description of a new humanity says that imaginative cells would dominate and make the butterfly emerge from a worm-like world. The author has taken these concepts from Bruce Lipton, renowned biologist, who has drawn a bold parallel between the metamorphosis of the caterpillar and the social moment that our humanity lives. Inside the tissue of a caterpillar are cells called imaginative cells that resonate at a different frequency. In fact, they are so different from the other cells in the caterpillar’s body that the worm’s immune system thinks they are enemies and tries to destroy them. But new imaginative cells keep popping up, and multiplying unstoppably. to the point that the caterpillar’s immune system cannot destroy them fast enough and they become stronger connecting with each other until they form a critical mass that recognizes their mission to carry out the incredible birth of a butterfly.
We end this work raising many affirmations, but also with the questions that we detailed at the beginning of these conclusions. The only thing we are sure of is that we are very privileged, because we are living a stage in the world and in history that demands construction, in our case, those of us who work in ODR, we know that more and more peacebuilding is needed at a global level. . And, for this, we must be attentive to what technology offers us, becoming ourselves imaginative cells of society.
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The following are ten time-tested “commandments” for legal counsel who find themselves preparing for the facilitative mediation of one of their cases. 1) Make sure you will know the value...By Richard Barron