Online Dispute Resolution A Digital Door to Justice or Pandora’s Box? Part 3, 0420 COBJ, Vol. 49, No. 4 Pg. 26

Author:BY DOUG MCQUISTON AND SHARON STURGES
Position:Vol. 49, 4 [Page 26]

49 Colo.Law. 26

Online Dispute Resolution A Digital Door to Justice or Pandora’s Box? Part 3

No. Vol. 49, No. 4 [Page 26]

Colorado Lawyer

April, 2020

ALTERNATIVE DISPUTE RESOLUTION

BY DOUG MCQUISTON AND SHARON STURGES

This three-part series takes a deep dive into the future of online dispute resolution in Colorado. Part 3 considers ethical issues surrounding the use of ODR.

Part 1 of this article discussed videoconference mediation, a form of online dispute resolution (ODR). Part 2 considered artificial intelligence (Al)-assisted ODR. This Part 3 expands on the ethical issues touched on in Parts 1 and 2.

Ethical questions involving videoconference mediation and AI- assisted ODR tools have both strictly legal and, more broadly, societal dimensions. An analysis of the issues begins with the Colorado Rules of Professional Conduct (Colo. RPC or the Rules).1 But the Rules must be viewed in the context of broader societal issues posed by these new technologies.

The Technology Context

As computers begin to act more like humans (or more profoundly, in ways humans might not even recognize as "human"), some thorny ethical challenges immediately become apparent. Enthusiasm for new software tools must be tempered with critical thought about how to use these tools fairly and appropriately. The tools might have features that get in the way of their equitable use by negatively impacting privacy, fair use, and constitutional protections. For example, if your Amazon Echo is "always listening," who else can access your data? Given that your Nest thermostat allows remote adjustment via its app, will users be required to connect their thermostats to the utility company so it can remotely adjust the settings on its own? And if your refrigerator can monitor how many beers you consume each day, will it also be able to call your doctor to report your over-consumption? These concerns involving the appliances and applications we use every day are similarly implicated in the use of ODR tools.

For Brad Smith, the president and chief legal officer of Microsoft, the societal question posed by "intelligent" machines is it's "not just what computers can do, but also what they should do."2 He further cautions: "We not only need a technology vision for AI, we need an ethical vision for AI."3 Further, such ethical issues should not be the focus of only "'engineers and tech companies... because growing numbers of people and organizations are creating their own AI systems using the technological 'building blocks' that companies, like Microsoft, produce."4 Thus, the use of Al-assisted tools in the law ought to begin with these fundamental ethical questions, which have profound implications for attorneys, policymakers, and the public.

As attorneys, we are uniquely positioned to advocate for building ethical limits into the source coding of Al-informed platforms. We can also advocate for using Al-assisted tools only when they out-perform functions that lawyers and legal systems already fulfill. We should not succumb to the notion that AI is necessarily "better" simply because it is new. When issues concerning legal rights are implicated, legal institutions should proceed prudently, despite the push to bring technological tools to the practice of law and court system as soon as they become available.

The Ethical Issues

The following broad issues face legal professionals and alternative dispute resolution (ADR) participants when using videoconference mediation and Al-assisted ODR:

Confidentiality, Privacy, and Safety

■ How secure is the ODR platform?

■ How secure is the medium, including both end-to-end and en route encryption?

■ Can confidentiality of the result be maintained as it is in conventional ADR?

■ When the mediator separates the parties into digital "rooms," how sure can all participants be that the room is truly sequestered from the other parties? Are the attorneys sufficiently trained on the software to ensure clients full confidentiality in separate rooms?

Reliability

■ Is the digital platform on which the tool is run (the internet service provider or broadband vendor) sufficient to provide stable, understandable, reliable transmission and reception without undue interruption?

■ Is the broadband bandwidth sufficient? If you recommend an ODR tool to your clients, what duties do you have to ensure clients have the necessary bandwidth, stability, and speed to handle the transmission without disruption? Does your office have sufficient bandwidth?

Competency

■ How tech-savvy is your client? How tech-savvy are you?

■ If your clients engage in Al-assisted ODR without your involvement but with your knowledge (or maybe following your recommendation), are you confident they can competently do so? What duties might you have undertaken to assist clients by recommending or knowing about their use of ODR, or your partial assistance in drafting documents for their case submission? Does your engagement letter on these matters cover these questions sufficiently?

■ Have you taken the time to understand the tool your client intends to use and discussed its potential risks and benefits? Did you document your advice on the point? Should you offer to participate with the client?

■ If you represent a corporate defendant or other party who is brought into an ODR process, will you be sufficiently up to speed on the tool to competently defend them?

Fairness

■ What is your obligation to ensure your client will be treated fairly in using the tool chosen?

■ What steps should you take to educate your client on how best to present the claim or dispute to maximize the likelihood of a fair resolution?

■ Even if they decline your offer of full representation in the ODR process, should you offer to assist clients with completing forms or preparing documents?

■ Is the result binding, or are there bail-out points to go before a mediator or cease the ODR process altogether?

The Relevant Standards

Existing ethical standards for dispute resolution professionals specifically inform the approach to engaging in ODR. For attorney and non-attorney mediators, the American Bar Association's (ABA) Model Standards of Conduct for Mediators,5 ABA Standards for Family Mediators,6 and Colorado Model Standards of Conduct for Mediators7 are all important to review before entering online territory.

There are specific standards for ODR as well. The International Council for Online Dispute Resolution (ICODR) has established standards of practice for ODR programs and practitioners.8 Though they are broad and not directed at practical guidance, the ICODR standards offer a workable baseline for best ODR practices and suggest that ODR programs be:

■...

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