To be published in the Journal of Dispute Resolution.
This Article examines the strengths and weaknesses of ODR (online dispute resolution) from a psychological perspective. It makes five main points:
(1) The phrase ODR is too broad to be useful. This phrase encompasses many different kinds of technology (computer, phone, video, mechanical pencil), many different kinds of dispute resolution (litigation, negotiation, arbitration, mediation), disputes arising in many different contexts (consumer, family, property, tax, employment, etc.), and many different roles (technology as neutral, technology as aide to neutral, technology as aide to disputant, etc.). In order to consider whether and when ODR can be most useful we will need to tease apart these various types of ODR.
(2) Those who design all types of ODR should pay substantial attention to the psychology underlying disputes, and be conscious that merely using ODR to foster rational exchanges of information will likely not yield ideal dispute resolution. Many empirical studies already show that human psychology is critically important to dispute resolution.
(3) In the short term my instinct is that humans will often have a comparative advantage over computers or other technology in handling the psychological aspects of disputes. I believe humans are likely to be more adept than technology at creating empathy, building rapport and trust, and helping to persuade people to rethink their strongly felt beliefs.
(4) At the same time, we should all appreciate that technology is evolving quickly, and potentially will be able to do things we can’t easily imagine. As ODR designers work to refine ODR approaches they should focus on the human and psychological side of disputes. Perhaps holographic mediators will actually be able to build better empathy and rapport than many humans?
(5) Rather than trust our instincts regarding the comparative superiority of humans and technology to handle human psychology we should test these approaches empirically. I appreciate that even my own instincts on these fronts may be wrong.
Read the Complete Article Here.
|Pouring a Little Psychological Cold Water on Online Dispute Resolution (Pouring A Little Water on ODR.pdf)|
Professor Sternlight is the Michael and Sonja Saltman Professor of Law at the UNLV Boyd School of Law, where she also directs the Saltman Center for Conflict Resolution. She received her B.A. (Phi Beta Kappa and High Honors) from Swarthmore College and her J.D. (cum laude) from Harvard University, where she served as editor in chief of the Harvard Civil Liberties - Civil Rights Law Review. Professor Sternlight then clerked for federal judge Marilyn Hall Patel in California and subsequently practiced plaintiff-side employment law in Philadelphia.
Professor Sternlight started her academic career at Florida State University School of Law, where she received tenure, and then moved to the University of Missouri-Columbia School of Law, where she was the John D. Lawson Professor of Law and also a Senior Fellow at the Center for the Study of Dispute Resolution. She joined the Boyd faculty in 2003.
Sternlight is nationally and internationally recognized for her scholarship and law reform activities in the field of dispute resolution. Her most recent book, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation and Decisionmaking (with Jennifer Robbennolt) was published by the American Bar Association in 2012. She has also co-authored texts on alternative dispute resolution, arbitration, and mediation, and has published numerous articles in many journals including the University of Pennsylvania Law Review, the Stanford Law Review, and Law and Contemporary Problems. She is frequently cited by courts and the press as an expert with respect to "mandatory" arbitration. Professor Sternlight often teaches Civil Procedure/Alternative Dispute Resolution, Arbitration, Psychology and Lawyering, and other courses in Dispute Resolution.
She received the 2015 American Bar Association Section of Dispute Resolution Award for Outstanding Scholarly Work and the 2015 Lifetime Achievement Award from the American College of Civil and Trial Mediators.