Technology and dispute resolution

The future of dispute resolution - technology

Our appreciation of current issues in the dispute resolution world was deepened when we attended the Singapore 2016 Global Pound Conference Shaping the Future of Dispute Resolution and Improving Access to Justice.  The more we learn about contemporary dispute resolution, the better we understand how our role as consulting (dirty) or independent (clean) expert fits into the process as a whole and the better we can assist our clients.

The use of technology during the conference transformed it from being the traditional series of lectures supported by PowerPoint presentations to being more like a seminar that reflected the issues relevant to the audience.  In each session, participants were posed a series of questions to discuss with their neighbours and submitted group answers via a website.  The answers to questions then formed the agenda for a wide-ranging discussion between a panel of about eight experts on the stage.

Technology was also centre stage for a presentation on online dispute resolution.  How can disputes between people be settled online?  An interactive website model has been pioneered in the United States to settle low value cross border disputes arising out of internet commerce such as Amazon, PayPal and EBay (see for example http://resolutioncentre.ebay.com.au).  The buyer and seller enter the essentials of their dispute into the website and, while human mediators supervise the site, over 90% of disputes are settled by parties using the software alone without the need for any intervention by the mediators.  Online dispute resolution is cheap, can take place in numerous languages and takes the anger and emotion out of the dispute by making parties settle down with their computer and simply answer a series of questions, rather than facing each other.  It works because the means of resolving the dispute suits the users it uses the Internet like the original transaction, or in other words "fits the forum to the fuss".

Because of its potential to diffuse emotion, the techniques are now being extended out of low value commercial disputes into more challenging and tense areas such as family law, an initiative that is already in use in the Netherlands.

Science was also applied to dispute resolution in a session on how the brain works.  There is a lot more to this than sitting everyone around a round table and watching body language!

We learned that there are three parts to the brain, a primitive part that is dedicated to survival, the limbic system that registers emotions and the neocortex that deals with higher order thinking.  Working across these regions are three "operating systems", emotional, social and cognitive.  How these operating systems act on the regions determines our behaviour.

As a result of an exercise looking at silhouettes of eyes, we learned that we are programmed to register danger and fear much more quickly and accurately than emotions like happiness that do not pose a threat to us.  Our first impressions are formed in the amygdala and respond to our perception of dominance and trustworthiness in a new face.  Before we know it, we are registering where the new person fits in the social hierarchy and whether they are friend or foe.  Feelings of friendship and empathy cause particular regions of the brain to fire.  The suffering of a friend arouses empathy and acts on the brain in a different way from witnessing the suffering of someone who means nothing to us.  With all this happening in milliseconds at the beginning of a meeting or negotiation, it is important to be aware of what is going on and to try to create empathy "we are all in this together".

The cognitive operating system transcends this and enables us to step back from a situation and act rationally rather than purely on instinct.  However, the brain tires quickly and with it cognitive ability, but we often do not realize it.  Some fascinating research on judges assessing parole cases revealed that rulings in favour of the prisoner were much more likely first thing in the morning or after a meal break!  The judges benefitted from short breaks and food in their ability to assess each case on its merits rather than follow the status quo.  Again, this is useful information when embarking on a long or emotionally tense negotiation.

By the end of the session on neuroscience, the opportunities for online dispute resolution, which takes away some of the human unpredictability, appeared to be enormous.