Such critique reveals how determinist approaches to technology attain universalist nature and how universalist arguments about technology may lead to
attributing agency to technology that is not there. This thingification of technology and objectification of persons takes the form of the fourth party analogy in
ODR literature. Generalised claims about dispute resolution technology’s impact,
in turn, mystify technology, distancing its use and functionalities from the
concrete practice of dispute resolution, highlighting rather than downplaying its
role while simultaneously leaving aside further analysis of its various consequences. Instead of contextual analysis of individual use cases, dispute resolution
technology becomes a decisive element in the whole process.
If we are to understand technology as the fourth party, its use then
becomes a participant in the resolution process, linguistically equivalent to
other participants but unable to meet the expectations of such agency. Thus,
we are left with a procedure which has several participant roles, but one of
which is permanently vacated. By such stances, the technology of dispute
resolution is reified into subjectivity, and consequently action and active role
are allocated to technology instead of the parties. Through attaching agency
to technology, the resolution process is alienated from the actual social
relations between the parties. In other words, agency is shifted from the
participants to the technology, making it difficult to assess those social factors
that are also relevant to the dispute resolution process, e.g. power imbalances
or lack of access.
Similar warnings about mystifying technology has also been voiced by the
American academic Lawrence Lessig, who emphasises that technology should not
be dogmatised. Lessig argues that technology can be remade and thus its functioning can be changed by rewriting its code. This aspect is often disregarded by the
rhetoric of cyberspace emphasising technology’s innate regulation-averse nature.
27
Despite these shortcomings of objectification and dogmatism, we need to
consider the feasibility of the fourth party analogy for describing the changing
autonomy of dispute resolution technology as well as its role as a metaphor for
revealing the networked structures behind its adoption. Although these insights
do not follow from the original conceptualisation of Katsh and Rifkin, they may
reveal possibilities for future theory development.
If we apply the embedded suggestion in the fourth party analogy that
technology has an active and autonomous role in dispute resolution to the
taxonomy described in the previous section, we notice that the role attributed
to technology has changed significantly since 1960s data processing to applications of legal artificial intelligence in 2010s. Although the agency of technology
is far-fetched for first-generation and many applications of second-generation
dispute resolution technology, this may not hold true for autonomous decisionmaking that employs machine learning and neural networks. After all, thirdgeneration applications possess a higher degree of autonomy than the first
generation of dispute resolution technology. However, there is a difference
between autonomy and agency. Unlike autonomy, agency suggests the ability
to interact in social structures. Although third-generation dispute resolution
66 Theoretical implications of dispute resolution technology
attributing agency to technology that is not there. This thingification of technology and objectification of persons takes the form of the fourth party analogy in
ODR literature. Generalised claims about dispute resolution technology’s impact,
in turn, mystify technology, distancing its use and functionalities from the
concrete practice of dispute resolution, highlighting rather than downplaying its
role while simultaneously leaving aside further analysis of its various consequences. Instead of contextual analysis of individual use cases, dispute resolution
technology becomes a decisive element in the whole process.
If we are to understand technology as the fourth party, its use then
becomes a participant in the resolution process, linguistically equivalent to
other participants but unable to meet the expectations of such agency. Thus,
we are left with a procedure which has several participant roles, but one of
which is permanently vacated. By such stances, the technology of dispute
resolution is reified into subjectivity, and consequently action and active role
are allocated to technology instead of the parties. Through attaching agency
to technology, the resolution process is alienated from the actual social
relations between the parties. In other words, agency is shifted from the
participants to the technology, making it difficult to assess those social factors
that are also relevant to the dispute resolution process, e.g. power imbalances
or lack of access.
Similar warnings about mystifying technology has also been voiced by the
American academic Lawrence Lessig, who emphasises that technology should not
be dogmatised. Lessig argues that technology can be remade and thus its functioning can be changed by rewriting its code. This aspect is often disregarded by the
rhetoric of cyberspace emphasising technology’s innate regulation-averse nature.
27
Despite these shortcomings of objectification and dogmatism, we need to
consider the feasibility of the fourth party analogy for describing the changing
autonomy of dispute resolution technology as well as its role as a metaphor for
revealing the networked structures behind its adoption. Although these insights
do not follow from the original conceptualisation of Katsh and Rifkin, they may
reveal possibilities for future theory development.
If we apply the embedded suggestion in the fourth party analogy that
technology has an active and autonomous role in dispute resolution to the
taxonomy described in the previous section, we notice that the role attributed
to technology has changed significantly since 1960s data processing to applications of legal artificial intelligence in 2010s. Although the agency of technology
is far-fetched for first-generation and many applications of second-generation
dispute resolution technology, this may not hold true for autonomous decisionmaking that employs machine learning and neural networks. After all, thirdgeneration applications possess a higher degree of autonomy than the first
generation of dispute resolution technology. However, there is a difference
between autonomy and agency. Unlike autonomy, agency suggests the ability
to interact in social structures. Although third-generation dispute resolution
66 Theoretical implications of dispute resolution technology