The world continues to change rapidly, and most of us race to keep pace with technological advances. While some would prefer the quieter days of dial-up, the high level of global disruption caused by COVID-19 continues to cause us all to adapt if we want to stay relevant as practitioners or be left behind. Not only are we bringing ourselves up to speed with current technology and all that it has to offer, but we must be proactive in these thoughts with new technology such as the Metaverse clearly on the horizon.
In the dispute resolution world, necessity has been a strong driving force for changed practice and, now more than ever, the flexibility and agility of out-of-court processes to help bring resolution for a myriad of issues using modern technology.
Traditionally, online dispute resolution (ODR) was “Skype” or “Zoom”. The last two years have shown sceptics that working online provides a positive alternative with many now considering how they can best utilise all the technology to move toward a new best practice rather than a competent substitute.
Excitingly, 2022 is a new era, with Mediate.com formally adopting the Path’s Forward Task Force's Recommended Practice Standards for Online Mediation which came effective January 1, 2022.
We know that a good mediator assists parties through careful questioning techniques to recognise their own positions, interests and needs, as well as, the interests and needs of others involved in the dispute. The skill of mediators is to find common ground and sometimes even create a new pathway leading to the restoration of relationships, as well as, agreement.
Do we think this can only be accomplished with us in the room? In an ever-changing world, is the restoration of relationships what parties want? Is there space for parties who want a simple transactional mediation? Will a lack of diversity in what we offer lead to disputes needlessly escalating when a safe and practical solution is achievable if we are willing to utilise technology and step out of the process?
In recognition of our values at the Domain Names Commission Ltd (“DNCL”), we are taking a human-centred approach, focusing on user experience, and an experimental and iterative approach to developing an ODR service for conflicted domain names and domain name disputes.
Like the dispute resolution continuum, the process is not linear. Parties can join at any point and move around to find the process that works for them.
Simply put, disputants register from our website or accept an email invitation to engage. The dispute resolution options include: e-negotiation, negotiation chat, and mediation via video conferencing. Parties choose their entrance point and their exit point. A coach is available to support them through the process, and a mediator is appointed if requested by either party.
E-negotiation – essentially a quick, fuss-free, targeted process to resolve one dispute – is becoming more well-known and, according to some, is the next logical step in remote mediation. Used for some time by SmartSettle, we have worked with Immediation to create our model for .nz domain name disputes.
All matters – including signing agreements – will be managed through the system.
Will it work?
In considering how we will measure the effectiveness of the trial (as well as design and operation), we are applying the five principles from the Government Centre for Dispute Resolution (GCDR) Aotearoa New Zealand Best Practice Framework:
1. User focussed and accessible
2. Independent and fair
These five principles are underpinned by the following nine standards:
1. Consistent with Te Tiriti o Waitangi (the Treaty of Waitangi),
2. Accessible to all potential users,
5. Information about parties and disputes is used appropriately,
7. Promote early resolution and support prevention,
8. Properly resourced to carry out the service, and
9. Accountable through monitoring and data stewardship.
Standard 1 is unique to Aotearoa New Zealand. The key tenets of our Treaty – partnership, participation and protection - help us ensure we utilise technology from a human lens. We take heed of the following, in that as we navigate this new world, “the lessons we have learnt about partnership, protection, and participation from Te Tiriti o Waitangi [need] to be taken into the design and implementation phase of any online dispute resolution development”.
As this has been an evolving framework for Aotearoa New Zealand, we have already noted our lack of engagement with Maori in the pilot design phase of our work. We plan to approach the newly formed Maori Design Group at InternetNZ on how best to engage with Maori when it comes time to make decisions about the permanence or otherwise of our online dispute resolution platform.
What about the human element?
Opportunities abound for ODR and the further development of artificial intelligence (AI), but there should and always will be a place for face-to-face mediation. Humans need connection. Even in an uncomfortable space, learning to be together is important for personal growth. Communicating through issues and becoming aware brings understanding, empathy, and empowerment and gives us the confidence to tackle further challenges as they arise in our lives. It also offers a different sense of closure than a deal done in an online environment.
Online is not a replacement for kanohi ki te kanohi (face to face); it is a pathway. Another track for people who, for whatever reason, prefer not to meet face to face but will mediate virtually.
Many of the people who find themselves in dispute in the domain name environment have never communicated with each other prior, let alone been engaged in a face-to-face setting.
Having the ability to offer different avenues for dispute resolution shows the incredibly evolving nature of mediation. As a model, I favour designing an approach that works for the particular dispute you are working to resolve. Often the hurdles of life can limit people’s options (time, finances, emotional capacity, pandemic), or the dispute is of a nature that does not require a face-to-face meeting.
As mediators, an easy option is to take the process that suits us best. If we flip things over and consider the parties and put them in the driver’s seat, we give them more power over their dispute resolution process.
All systems that enable online dispute resolution are tools – a small part of the equation. People, their passion, skills, and experiences are always more valuable than systems and tools. Technology will never solve all problems, but it does provide fantastic tools to enhance the valuable work we all do.
When it comes to “fitting the forum to the fuss”, it is exciting to see the embracing of ODR and the possibilities it offers as another pathway to resolution. COVID-19 has proven the ability of mediators in every environment to adapt and improve our practice and break new ground. As an industry, we have always been the ones pushing for change, striving to find improved processes and access to justice for people. Let us not be the profession playing catch up with technology when we have the opportunity to continue to lead. This underlines for us all the importance of ensuring we do not become complicit in our thinking but are looking forward to what could be next… virtual reality mediation?
Keri Morris has been a Legal Officer at the Domain Name Commission since July 2021. She has many years’ experience in dispute resolution and is passionate about creating opportunities for agreement. Keri is a Fellow of the Chartered Institute of Arbitrators UK and a Fellow of Arbitrators and Mediators Institute NZ.