instruments and they could also bring additional complications for streamlining.
The chosen approach accentuates the principle of technological neutrality. However, the role of technology, what it means in the context of the Regulation, and
its implications for human interaction in dispute resolution processes are not
discussed in the impact assessment accompanying the Regulation either.
59
A similar functionalist approach has been adopted in other policy documents.
For example, UNCITRAL’s working group on ODR has discussed definitions of
ODR and technology and agreed that any definition should be sufficiently
inclusive not to exclude future developments of technology. The working group
has also acknowledged the importance of preserving the principle of technological
neutrality.
60 As policy-makers avoid setting certain technological solutions in stone
for good reason, the unfortunate side effect is that the definition deficit of dispute
resolution technology cannot be remedied with these authoritative sources.
However, there are some initiatives that aim to produce information for future
policy setting. In the UK, the Civil Justice Council is responsible for overseeing
and co-ordinating the modernisation of the civil justice system. In February
2015, the Council’s ODR Advisory Group produced a background report that
includes examples of ODR, detailed recommendations, and suggestions for ODR
piloting. The report recognises four areas in which future technological development
will further revolutionise dispute resolution: 1) systems to help analyse legal
problems, 2) systems to assist in negotiations, 3) systems to assist in decisionmaking, and 4) systems that make decisions. According to the report, advancements
in artificial intelligence, big data, affective computing, crowd sourcing, machine
learning, what-if analysis, and virtual meeting rooms will all contribute to the future
development of ODR. The report also predicts that legal applications of artificial
intelligence will function as “intelligent agents for judges” in the 2020s, although
the advisory group does not anticipate AI systems replacing human judges.
61 The
functionalities discussed in the report provides a useful overview of the use cases for
dispute resolution technology.
Also, ODR literature presents discussions on the role of technology in dispute
resolution, although these assessments often focus on the similarities between
ODR applications and ADR methods. The starting point is often Ethan Katsh
and Janet Rifkin’s analogy of the technology as the fourth party of the resolution
process, in which technology is seen as assisting the third party.
62 Drawing from
the fourth party analogy, Professors Arno R Lodder and John Zeleznikow analyse
different types of ODR and discuss the convergence of the third and fourth
parties when software is used for decision-making.
63
Furthermore, the changes in communication brought on by technology have
received scholarly attention, which most likely results from ODR’s ideological
roots in ADR and the importance of communication in non-binding resolution
mechanisms.
64 Also Professor Cortés considers the lack of face-to-face (F2F)
communication to constitute the main difference between ADR and ODR. As
ADR mechanisms often emphasise the importance of such communication,
Cortés points out that distance and lack of physical interaction does not necessarily
signify poorer quality, as sometimes distance may be beneficial and new substitutes
42 Theoretical implications of dispute resolution technology
The chosen approach accentuates the principle of technological neutrality. However, the role of technology, what it means in the context of the Regulation, and
its implications for human interaction in dispute resolution processes are not
discussed in the impact assessment accompanying the Regulation either.
59
A similar functionalist approach has been adopted in other policy documents.
For example, UNCITRAL’s working group on ODR has discussed definitions of
ODR and technology and agreed that any definition should be sufficiently
inclusive not to exclude future developments of technology. The working group
has also acknowledged the importance of preserving the principle of technological
neutrality.
60 As policy-makers avoid setting certain technological solutions in stone
for good reason, the unfortunate side effect is that the definition deficit of dispute
resolution technology cannot be remedied with these authoritative sources.
However, there are some initiatives that aim to produce information for future
policy setting. In the UK, the Civil Justice Council is responsible for overseeing
and co-ordinating the modernisation of the civil justice system. In February
2015, the Council’s ODR Advisory Group produced a background report that
includes examples of ODR, detailed recommendations, and suggestions for ODR
piloting. The report recognises four areas in which future technological development
will further revolutionise dispute resolution: 1) systems to help analyse legal
problems, 2) systems to assist in negotiations, 3) systems to assist in decisionmaking, and 4) systems that make decisions. According to the report, advancements
in artificial intelligence, big data, affective computing, crowd sourcing, machine
learning, what-if analysis, and virtual meeting rooms will all contribute to the future
development of ODR. The report also predicts that legal applications of artificial
intelligence will function as “intelligent agents for judges” in the 2020s, although
the advisory group does not anticipate AI systems replacing human judges.
61 The
functionalities discussed in the report provides a useful overview of the use cases for
dispute resolution technology.
Also, ODR literature presents discussions on the role of technology in dispute
resolution, although these assessments often focus on the similarities between
ODR applications and ADR methods. The starting point is often Ethan Katsh
and Janet Rifkin’s analogy of the technology as the fourth party of the resolution
process, in which technology is seen as assisting the third party.
62 Drawing from
the fourth party analogy, Professors Arno R Lodder and John Zeleznikow analyse
different types of ODR and discuss the convergence of the third and fourth
parties when software is used for decision-making.
63
Furthermore, the changes in communication brought on by technology have
received scholarly attention, which most likely results from ODR’s ideological
roots in ADR and the importance of communication in non-binding resolution
mechanisms.
64 Also Professor Cortés considers the lack of face-to-face (F2F)
communication to constitute the main difference between ADR and ODR. As
ADR mechanisms often emphasise the importance of such communication,
Cortés points out that distance and lack of physical interaction does not necessarily
signify poorer quality, as sometimes distance may be beneficial and new substitutes
42 Theoretical implications of dispute resolution technology