Just Court ADR by Susan M. Yates, Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.
Online dispute resolution (ODR) can take many different forms, but one element is always present: the participants aren’t interacting in person. Jean Sternlight explores the possible psychological impact of this in her new article, “Pouring a Little Psychological Cold Water on ODR” (forthcoming 2020 Journal of Dispute Resolution).
It should be noted that before discussing the psychology of disputes and ODR, Sternlight opines that the term ODR is used too broadly as it’s used for any technology-assisted dispute resolution. Although she doesn’t state what she means by ODR in her article, the way in which she discusses it points to the conclusion that she is focused more on text-based and algorithmic processes rather than video-based processes.
Starting from the premise that “human disputes are intimately connected to human psychology,” Sternlight states that ODR should be designed to take into account human psychology and that requires an imaginative approach to determining whether and how to incorporate technology into dispute resolution. Even given this, however, she says that we should consider the possibility that humans are better suited than computers to resolve many disputes.
Sternlight explores the psychology of dispute resolution through four areas: the psychology of perception and memory, the psychology of human wants, the psychology of communication, and judgment and decision-making. Perception and memory often differ among those involved in a dispute. In in-person disputes, mediators and lawyers currently take on the role of overcoming parties’ beliefs that their perception is correct and the only possible version. Sternlight questions whether a computer or avatar can have the same effect, as research has found that simply receiving a message on a computer or reading a book aren’t sufficient to shake one’s belief that theirs is the only right view.
When it comes to human wants, people are complex. We don’t always know what we want, and when we do, we often have many different wants, or our wants may change over time. Further, each person may have different wants in the same circumstances. Because of this, Sternlight suggests that “computers are not likely the best tool for helping humans think through how they want to respond to a dispute, and how they might creatively work things out with a fellow disputant.” She concludes that ODR may best be used for disputes that involve wants that are simple and predictable, such as small online purchases.
Communication is another area in which computers may not provide the best forum, although Sternlight does say that computers may make communication easier by enabling fast and low-cost exchanges, and by allowing for the anonymity that some prefer. However, many ODR platforms rely on check boxes and limited exchange of textual information. This does not permit disputants to communicate fully their broad range of beliefs and concerns nor learn about those of the other party. Textual communications also make it difficult to build trust or rapport among disputants.
Sternlight also believes that human mediators, lawyers or friends are more effective than computers in helping humans deal with their emotions and other judgment and decision-making issues. She notes that a trusted person is more likely than a computer to move a disputant off an unreasonable position, even if both convey the same information. Humans can build rapport and trust and tell persuasive stories, whereas being provided information on a chart or in text will not be as useful.
Sternlight acknowledges that online processes may have their place in dispute resolution, but to do so requires a system design that takes into account human psychology. To figure out how best to approach the resolution of disputes online, Sternlight says that empirical research is required of both online and in-person dispute resolution.
While some readers may not agree with Sternlight’s message, she does offer a thoughtful counterpoint to the current enthusiasm for ODR.
Jennifer Shack joined Resolution Systems Institute (RSI) in 1999 and became Director of Research a year later. In this role, she heads up the Monitoring and Evaluation program at RSI, and is the creator of the Court Mediation Effectiveness Tracking System, in use in circuits around Illinois. She also conducts evaluations of mediation programs in state and federal courts in Illinois.
In another aspect of her position, Ms. Shack is responsible for the growth and evolution of the Court ADR Resource Center, which contains thousands of resources pertaining to the use of ADR in the courts. Most significantly, she led transition of the Resource Center to a new, sophisticated web site, CourtADR.org.