Online Dispute Resolution and the Development of Theory

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.

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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Daniel Rainey

Daniel Rainey is a mediator, author and trainer, and a principal in Holistic Solutions, Inc., an organisation that offers training and consulting in a variety of conflict engagement modes.  Until 2017, he served as the Chief of Staff for the US National Mediation Board and is the Co-Chair of IMI’s… MORE >

                       

Leah Wing

Dr. Leah Wing is Co-director of the National Center for Technology and Dispute Resolution (NCTDR) and Senior Lecturer, Legal Studies Program, Department of Political Science, University of Massachusetts/Amherst, USA.  Leah has taught dispute resolution since 1993 and served as a researcher on early experiments in online dispute resolution.  She heads the… MORE >