of the legal profession. Applications of artificial intelligence, machine learning and
big data all contribute to automated decision-making. Whereas pattern recognition
based on neural networks provides new tools for prediction and risk assessment,
contract automation, practice management and compliance challenge traditional
law practices. It remains to be seen what are the applications of blockchain
architecture behind cryptocurrencies, which provides tools for decentralised trustless transactions in general and for self-executing smart contracts in particular, in
law, as they can potentially remove the need to place trust in any intermediaries be
it an e-commerce site, credit card company, escrow service, or the public courts.
22
As technological advances make automated decision-making more science and less
fiction both in routine cases and at some point also in hard cases, the role of
technology becomes constantly more autonomous, giving rise to completely
automated procedures and new legal practices.
This chronological taxonomy provides an overview of dispute resolution
technology, in which continuous development has led from early data processing
to autonomous decision-making, making use of artificial intelligence and blockchains. As the role of technology is constantly changing also in the legal system,
it becomes apparent that there can be no universal definition of dispute resolution technology any more than there can be a straightforward and simple
description of its consequences for the legal profession.
3.1.3 Problems of the fourth party analogy
At this point it has become necessary to address the famous analogy of technology
as the fourth party in dispute resolution, as this conceptualisation has been very
influential in ODR literature. Although the analogy provides an easy to understand
and even elegant conceptualisation, it oversimplifies the multiformity of dispute
resolution technology described above.
The fourth party analogy is a word play, where the configuration of dispute
resolution, the triad of parties and the neutral third, a judge or an arbitrator, is
complemented with an additional fourth party, namely technology.
23 Originally
Katsh and Rifkin considered the fourth party in the context of cross-border online
disputes, where technology would be working with and assisting the neutral
third.
24 The analogy builds on McLuhan’s determinism, where the use of technology
fundamentally impacts its use, in this case the dispute resolution process.
25
The shortcomings of the analogy become clear when taking into consideration Williams’ criticism on the neglected social dimension of McLuhan’s
technological determinism. Williamsite focus on social dimension of technology
provides a critical counterpoint for evaluating determinist approaches. For
Williams, the determinist conceptualisation of the medium’s focal impact on
its reception – the medium is the message – presents objectification of essential
social practices. Borrowing from Marxist theory, this objectivisation, or reification,
reduces social relations to relations between traded objects, which leads to transforming such objects into subjects and, vice versa, rendering human subjects into
passive objects.
26
Emerging crisis 65
big data all contribute to automated decision-making. Whereas pattern recognition
based on neural networks provides new tools for prediction and risk assessment,
contract automation, practice management and compliance challenge traditional
law practices. It remains to be seen what are the applications of blockchain
architecture behind cryptocurrencies, which provides tools for decentralised trustless transactions in general and for self-executing smart contracts in particular, in
law, as they can potentially remove the need to place trust in any intermediaries be
it an e-commerce site, credit card company, escrow service, or the public courts.
22
As technological advances make automated decision-making more science and less
fiction both in routine cases and at some point also in hard cases, the role of
technology becomes constantly more autonomous, giving rise to completely
automated procedures and new legal practices.
This chronological taxonomy provides an overview of dispute resolution
technology, in which continuous development has led from early data processing
to autonomous decision-making, making use of artificial intelligence and blockchains. As the role of technology is constantly changing also in the legal system,
it becomes apparent that there can be no universal definition of dispute resolution technology any more than there can be a straightforward and simple
description of its consequences for the legal profession.
3.1.3 Problems of the fourth party analogy
At this point it has become necessary to address the famous analogy of technology
as the fourth party in dispute resolution, as this conceptualisation has been very
influential in ODR literature. Although the analogy provides an easy to understand
and even elegant conceptualisation, it oversimplifies the multiformity of dispute
resolution technology described above.
The fourth party analogy is a word play, where the configuration of dispute
resolution, the triad of parties and the neutral third, a judge or an arbitrator, is
complemented with an additional fourth party, namely technology.
23 Originally
Katsh and Rifkin considered the fourth party in the context of cross-border online
disputes, where technology would be working with and assisting the neutral
third.
24 The analogy builds on McLuhan’s determinism, where the use of technology
fundamentally impacts its use, in this case the dispute resolution process.
25
The shortcomings of the analogy become clear when taking into consideration Williams’ criticism on the neglected social dimension of McLuhan’s
technological determinism. Williamsite focus on social dimension of technology
provides a critical counterpoint for evaluating determinist approaches. For
Williams, the determinist conceptualisation of the medium’s focal impact on
its reception – the medium is the message – presents objectification of essential
social practices. Borrowing from Marxist theory, this objectivisation, or reification,
reduces social relations to relations between traded objects, which leads to transforming such objects into subjects and, vice versa, rendering human subjects into
passive objects.
26
Emerging crisis 65