Modernizing your Practice. ODR Online Dispute Resolution

Modernizing your Practice. ODR Reflections

Modernizing your Practice. ODR Online Dispute Resolution

1.   What is ODR?

• Definition: Use of technology to resolve disputes between parties
• History: People have been providing coaching over the phone for years, as well as moderating discussions online (during the reign of chat rooms at the start of the internet). In 1995, Ebay commissioned UMass to conduct a pilot project between buyers and sellers – using email to resolve disputes, with great success.
• Scope: Can be an array of technologies to facilitate communication and dispute resolution, including messaging, moderation, video conferencing, case management and more.
• Types: Can be used in self-resolution,[i] consultations, coaching, facilitation, training, mediation, ombuds and workplace investigations, arbitration, etc.
• Subject Matter: private consumer dispute resolution (Paypal and Modria), public dispute resolution (BC Consumer Protection) settling claims/automated negotiation (SmartSettle – many municipal disputes), Fair Outcomes), arbitration (eQuibbly), self-resolution tools (Mediate2go), etc.

  

2.   Why ODR?

• Access to Justice: Improve access to justice through easier access to courts, affordable and quick assistance,[ii]
• Immediate Results: Improve access to more immediate dispute resolution,
• Improve Negotiation: Facilitate negotiation with tools using mathematical models,[iii] games theory, etc.,
• Go Green: Reduce environmental footprint, whereby documentation is completely digitized, parties need not drive to meet practitioners, etc.,
• Reduces Costs and Inefficiencies: parties spend less money on conference calls, transport and travel, their issues can be resolved more quickly, (but it might be very expensive when it could be for free in the court system),
• Already happening: Most mediators today communicate over email with clients. However, they are not doing so with encrypted messaging. ODR can improve current processes of practitioners.
• Consumers Demand: People want quick resolution. See our blog on Modernizing your practice. 

3.    Concerns with ODR? (Also see concerns related to the process below)

• Change: Fear and discomfort of change and using technology. Change comes slowly the field of law. Many law firms waste vast amounts of paper; when technology could save money and reduce the environmental impact. The status quo is easier to maintain, even if it would be better. Some might fear the loss of business/work if disputes are being settled privately.
• Resources: Investing in ODR might divert funds from other court needs?[iv] However, this assumes that the current system works well (ignoring the inconveniences and inefficiencies of court administration: rolling briefcases, documents cannot be filed online, judgment often not sent electronically),
• Generation Gap: People might not be comfortable with technology.[v] Not exactly, even older generation is using technology.
• Barriers to Access: People might not have access to technology? At the same time, it might provide more access to a greater amount of people.
• Advocacy: Some ODR systems do not facilitate/ensure legal representation. But, participants may nonetheless consult lawyers…
• Lack of Consultation? In BC, the bar was apparently not consulted,
• Jurisdiction: Concern that settlement decisions might not be enforced.
• Quality and Oversight: It might be better to encourage parties to seek ODR within same jurisdiction, so they may have easier access to complain to the relevant ADR association and eventually court,
• Lack of Training? Mediators might not have sufficient training to ensure effective security protocols, etc.

4.   Current trends in ODR in Canada and elsewhere

• Virtual Courtroom Environment: eCourtroom of the Australian Federal Court,
• Small Claims ODR: Address disputes within court system that are not expensive to resolve, but cost the system a great deal,
• Empowerment: Tools to empower private practitioners
• ODR Tribunal: BC Government offers independent civil resolution for family and small businesses as created via the Civil Resolution Tribunal Act,[vi]
• Self-Resolution: Self-resolution tools to improve client’s skills in conflict resolution,
• E-Commerce ODR: Cross border e-commerce transactions – see UNCITRAL,
• Internet Domain Name Disputes: - see ICANN
• BC Consumer Protection – see BC ODR

5.   Security implications of doing DR on the Cloud

• When using multiple platforms, one must determine if the site is encryption (now, AES is standard)
• What’s next? Off the record (OTR) encryption, which uses a combination of AES and other functions to provide “perfect forward secrecy and malleable encryption”, in order to move towards keeping online conversations private, like in real life.

6.   Implications for ODR processes related to ethics, party satisfaction, etc.

• Informed Consent: Informed consent to enter clients information into online database, newsletter, or use it electronically, as some clients might be more comfortable with you using paper, like therapists,
• Quick Access: Some parties would be happier to get things over with, have quick access, which might lead to satisfaction.
• Electronic Distance? Some suggest that electronic communication leads to “distance”, and that mediation works best when parties are physically with them.[vii]

• It’s a very traditional view, that doesn’t recognize how online is a valid and daily form and medium of communication.
• Online learning has been researched, and has been proven at times to make it easier to participate in activities, and improve “the quality and quantity of interaction.[viii]”
• Also, “the benefits of using technologies in an informed and pedagogically sound way can be felt across sectors”, especially taking into account “Learners needs, motivates, learning styles and prior experience” and more.[ix]

• Less Control? Mediator has less control of the process?[x] Again, this might be an assumption. 

7.   Generational expectations related to technology and DR on the cloud

• See this blog: http://blog.mediate2go.com/2014/08/modernizing-your-practice-mediating-on.html

 

8.   Resources

• http://www.uncitral.org/uncitral/publications/online_resources_ODR.html

Modernizing your Practice. ODR Online Dispute Resolution

 

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[ii] Sizing up online dispute resolution, Canadian Bar Association, http://www.nationalmagazine.ca/Articles/September-2012-Issue/Sizing-up-online-dispute-resolution.aspx.

[iii] Ibid.

[iv] Ibid.

[v] Ibid.

[vi] Ibid.

[vii] The Pros And Cons Of Online Dispute Resolution: An Assessment Of Cyber-Mediation Websites, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr

[viii] Comparing the Effectiveness of Classroom and Online Learning, Journal of Public Affairs Education,

http://www.naspaa.org/jpaemessenger/Article/VOL19-2/03_Ni.pdf

[ix] Effective Practice with e-Learning , JISC Development Group, University of Bristol

http://www.jisc.ac.uk/media/documents/publications/effectivepracticeelearning.pdf

[x] The Pros And Cons Of Online Dispute Resolution: An Assessment Of Cyber-Mediation Websites

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr

How to Control and Manage Anger

How to Control Anger, How to Manage Anger

Annoyed, bitter, enraged, exasperated, furious, heated, outraged, resentful, offended, irritated, irate, indignant, sullen, etc. These are just some synonyms for anger. Sometimes, people’s anger turns into revenge, which is even more destructive. Given the negative connotation with many of these words, it is not surprising that many of us have a painful, fearful or uncomfortable association with anger; whether we feel anger in ourselves, or with 
other people. 

Mediate2go: How to Control Anger, How to Manage Anger

Anger and our Health

Surprisingly for some, feeling and expressing anger can be completely normal and healthy part of our lives. At the same time, anger must be controlled or we risk our well being and relationships. If anger is left unresolved, people may experience “high blood pressure, heart attack, depression, anxiety, colds, flu and problems with digestion.[i]”

With skill, practice, and time, we may reflect on what we feel, why we feel that way and then how to make a decision to manage it (control it) and react accordingly.

Recognizing Anger

In order to effectively address anger, we must first become fully aware of when we start to feel angry. One description of feeling angry: “Your heart beats faster and you breathe more quickly, preparing you for action. You might also notice other signs, such as tension in your shoulders or clenching your fists.[ii]”

Controlled and managed anger can make you feel amazing

Use the anger to feel catharsis, whilst respecting those around you. “Telling people [your frustration] releases that energy rather than trying to submerge it. See our blog on Constructive Confrontation. Anger is a feeling to get over with, not to hang on to.[iii]” Along with this recommendation, be careful when expressing anger as we often underestimate the impact of our anger on others.

Ways to Control and Manage your Anger

Here are three recommendations to effectively control and manage your anger:

1. Count to 10. This gives you time to calm down and have a clear mind.[iv]
2. Take deep breaths.[v] Through controlling your physiological response, you can moderate the strength of the emotion.
3. Express anger skilfully, which is part of positive conflict. Learn about using ‘I feel’ communication. Remember to be very specific about what bothered you. Name the behaviour so the other person does not feel threatened or rejected, but rather capable of changing something specifically to help you feel better in the future.[vi]
4. Match your face to your feeling. Make sure that your facial expressions match your emotion so the person doesn’t feel confused about your message.[vii]
5. Lean on me. Try to talk through your frustration in a calm way with the person in your immediate surrounding if it might be appropriate. Rather than yelling at someone, or running away from the situation, rely on the person around you to work through the intense feeling. They can help you calm down through actively listening to you. Learn about the definition of trust and building trust .
6. Challenge your assumptions. Think about the person and/or situation, and assume that they had the best of intentions, which may help the anger to dissipate.[viii] Say someone has belittled you at work during a team meeting. Try to change your assumptions about the individual’s behaviour. Did they feel insecure or threatened by you? Be sure to read about Self-Leadership in Conflict Resolution. You may choose to take ‘the high road’ and assume the best. How can you think about the situation differently so that you may feel better?
7. Vent to someone. This is not always ideal, as you are not dealing directly with the issue. However, it might help to express your emotions to someone who will respect your privacy, and is not involved in the situation, in order to release emotional tension. This can help you feel validated; yet avoid a confrontation that may be inappropriate, which means expressing your feelings in a non-accusatory manner. Be sure not to gossip, or if you do, make sure it is positive gossip.

Controlling Anger in the Future

Now that you have addressed your anger in the moment, it’s time to think about how you can improve yourself for the future.

1. Consult our expert advice on How to Be Confident, in order to improve your reaction, and avoid overreaction in a given situation.
2. If you are having trouble moving on and letting go of the past, learn about how you can create a positive future for yourself. Being angry forever isn’t worth it. Our blog on finding inner peace is also helpful
3. Say that you were not the one who was angry, be sure to read about how to fix a relationship and what to talk about.

Labels: bad-relationships, Body-Language, Confrontational, personal-change, How-to-Control-Anger, How-to-Manage-Anger

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[i] How to Control your Anger, NHS, UK: http://www.nhs.uk/conditions/stress-anxiety-depression/pages/controlling-anger.aspx

[ii] Ibid.

[iii] Tjosvold (1991; 134)

[iv] How to Control your Anger, NHS, UK: http://www.nhs.uk/conditions/stress-anxiety-depression/pages/controlling-anger.aspx

[v] Ibid.

[vi] Tjosvold (1991; 133).

[vii] Ibid.

[viii] Ibid. at 136.

Revenge

Revenge is a Dish Best Not Served

Revenge

Introduction to Revenge

I can nearly guarantee that you have felt vengeful at some point in your life.  It is arguably a natural emotional response when we perceive that an injustice has been done to us.  Retribution, justice, or payback are terms sometimes used to disguise or even justify feelings of vengeance and the desire to have a wrongdoer made to suffer for their actions.  There is, of course, a difference between standing up for yourself and being malicious or antagonistic, but it can sometimes be difficult to gauge where to draw the line.  If you feel you’ve been wronged, what is the appropriate course of action?

Recognize the Feeling of Revenge

The desire for revenge is an untrustworthy emotion. As an example, there is evidence that shows that years after the offense, the satisfaction of victims’ feelings of revenge are not typically related to the severity of the punishment of the criminal.  Shortly after the time of conviction, victims were more likely to say that they felt their vengeful feelings were satisfied, but this oscillated more rapidly and was unpredictable between and within individuals. Many people think that seeking vengeance will make them feel better, or bring resolution to their problem.  In fact, it appears that this is not the case, and that unleashing aggression or retribution on someone who has wronged you may have no cathartic effect at all – and in fact it can lead to further feelings of aggression.   One possible explanation for this is that the injustice remains current (for both the offender and the “avenger”), and it detracts from the ability of the offended party to trivialize and move on from the original injustice.   Further, it is unlikely that the original offender will take any vengeful acts lightly.  There is a real danger in perpetuating a cycle of revenge, with potentially destructive costs to all involved.  

 

Consider the Cost of Revenge

In any dispute, it is common to see parties who want revenge.  One main way in which this manifests is in a Pyrrhic Victory, a “win” that is so costly, time-consuming, or relationship-damaging that it is tantamount to defeat.  It is important to watch out for this and to guard against heading down a path that leads to one.  It is unfortunate that sometimes injustices occur.  And no, it is not always the best advice to allow injustices to go unnoticed or ignored.  But it is equally important to remember all of the costs and efforts, including the mental strain and lost peace of mind that can come from a drawn-out dispute, and these tend to be even more pronounced if the relationship is very antagonistic. It is also important to consider these costs in the context of your particular situation.  Whatever injustice you have suffered may feel amplified if the perpetrator was a friend, family member, or any other person in which you held trust.  Take into account the effect that a soured relationship may have on your other relationships, including ones that may not have developed yet! Is it really worth it?

Revenge 

Strategies to Deal with “Revenge”

If you are feeling vengeful, it may be helpful to step back and consider all available options.  Every situation and relationship is different, and it can help to come to terms with the problem if you consider what could occur next. Start by considering what you would ideally like to get out of the situation. Ask yourself the reasons why, and try to imagine what the consequences could be if you got exactly what you are asking for.  Seeking outside help can be very useful in getting to the root of the issue. This could be in the form of a lawyer, a mediator, the police (if the matter is criminal), or even a medical professional. These are especially important if the issue is time-sensitive.  Speaking to someone who may be able to give you advice – even a friend or family member – is a great start.  It may help to simply have your feelings of injustice affirmed or shared.  If possible, you may wish to simply wait and reflect for some time, even if this means not contacting a family member or friend who has hurt you somehow.

It is unfortunate that sometimes, wrongs occur for which there is no apparent remedy, no “next step” that can be a distinct marker of resolution.  Sometimes this marker does not materialize immediately, and sometimes it has little to do with the effort or thought you can put into it. Vengeance, however, is untrustworthy, and a misleading hook on which to hang your dispute resolution strategy.  


Author

Dan Lawlor is a Mediate2go Blogger focused on estates and commercial dispute resolution. Dan is a graduate of McGill University's Faculty of Law with interests in conflict resolution, business law and writing. He played an important role as a director with Mediation at McGill, building connections with the community to improve outreach. Currently he is a student-at-law with Campbell Mihailovich Uggenti LLP in Hamilton, Ontario. Dan loves team sports, reading, and traveling.