Lyrics and Music by Thomas Dolby and Jonathan Kerr, recorded by Thomas Dolby.

This is a guest post by my friend and colleague, Christy Burke, written today for the blog Legal IT Professionals.  With her permission I have reproduced it here.

Web-Based Dispute Resolution Systems Gain Traction as Court Delays and Low Value Disputes Surge

Courtroom showdowns make for great movie scenes, but To Kill a Mockingbird’s Atticus Finch would be shocked to hear that the courts are only resolving a fraction of today’s legal disputes. A growing number of cases are being resolved by online tools, and sometimes lawyers and judges are not even involved. Impartial web-based systems apply computation, algorithms and cryptographic technology to bring about resolution quickly and inexpensively.

A growing stable of private sector companies are beginning to compete with the judicial system for “customers” and are also changing the face of traditional Alternate Dispute Resolution or ADR, which has typically included mediation, arbitration and other alternatives to the courts.

Not only are approaches to justice and negotiation changing, but some of these new systems like those provided by Fair Outcomes, are actually prompting lawyers and their customers to be more honest about the value of a case and their realistic objectives from the outset, providing disincentives to lie, bully and posture. Utopian though it may sound, this is actually becoming a reality. Atticus would be happy to hear that, at least!

A potential paradigm shift is in the making here, but what is motivating parties to look outside traditional courts, mediation and arbitration and flock to the web for resolving their disputes? In short, overburdened courts, lean economic times, cost, and convenience all figure into the mix.

Pared Down Courts Cannot Keep Up

Many courts in the US and abroad are sagging under the weight of overflowing caseloads while budget cuts slash their resources – a double negative. Take California for example.

According to a March 20th article in Law & Industry Daily, California Chief Justice Tani G. Contil-Sakauye noted in her State of the Judiciary address to lawmakers that the California judicial branch has had one-quarter of its budget cut since 2008. The approximate $653 million in cuts has closed dozens of courtrooms and resulted in layoffs and reduced business hours. To complicate matters further, the volume of California Superior Court filings topped 10 million last year for the second year in a row. Heavy caseloads and fewer resources will certainly cause what Contil-Sakauye refers to as “worrisome and potentially dangerous delays in the resolution of cases” in the California courts.

If courts cannot handle their caseloads in a timely fashion, more cases are likely to settle or turn to alternate means like face-to-face mediation and arbitration, unless the parties patiently wait their turn for their day in court. The other option is for parties to look to web-based systems for relief, and this is happening for sure, and not only in California. This positions technology to become a competitor to the courts, or at least a regular complement to fill in the holes the judicial system cannot cover.

Canadian lawyer and consultant Jordan Furlong of Edge International recently spoke with Canada’s chief judges, warning them of the steady advance of technology-driven dispute resolution and the burgeoning private legal market, which effectively provides competition to the courts. Furlong says, “There are so many ways to resolve disputes beyond going to the courts or face-to-face negotiation, mediation or arbitration, particularly the technology-powered options that can provide faster, cheaper and sometimes better results.”

Furlong notes that another reason for the rise of internet-based dispute resolution tools is a proliferation of low value cross-border cases, particularly over e-commerce oriented transactions, which are not appropriate or attractive for lawyers due to their low yield potential. He explains, “These are disputes that will never see a lawyer’s desk – they’re too small for the court system, but they’re not considered small by the parties involved in the disputes. Online dispute resolution technology taps into this latent market, providing recourse for parties that don’t want to pay lawyers’ fees to settle their cases.”

David Bilinsky of Thoughtful Legal Management, who closely follows Online Dispute Resolution (ODR) issues, explains that global organizations are highly interested in online solutions and how to leverage them. In fact, the United Nations Commission on International Trade Law (UNCITRAL) has hosted a permanent working group on ODR since 2010 that is developing rules to support a global system for resolving cross-border consumer complaints. This working group, consisting of UN member states and members of civil society, is looking at ways to implement ODR mechanisms to handle transnational consumer disputes using ODR tools. This system would seek to craft a new way to resolve international consumer disputes.

In Bilinsky’s opinion, “The future of ODR in both national and international law depends on the judicial systems’ acceptance of it. If judicial systems ignore ODR, I think businesses and individuals will just start to informally use it anyway. Justice systems should seek to incorporate ODR as a formal alternative method to resolve disputes. Fortunately, there is a worldwide discussion going on now of how to do this the best way.”

ODR is not a new concept, though what is new is that it is becoming more frequently used by legal parties because of its ability to resolve small cases quickly, cheaply and easily. Online juggernauts like eBay and PayPal have been resolving millions of online disputes each year for many years, operating completely independently of the legal or courts system using specific ODR technology. It is only a matter of time before other businesses, governments and consumers figure out how ODR can help them.

Colin Rule of Modria is an online dispute resolution expert who built the systems that eBay and PayPal have used to resolve more than 60 million disputes over the years. Modria, an acronym for Modular Online Dispute Resolution, has been built to serve as an online justice system. 90% of the cases are resolved using the technology alone, and 10% of the cases require involvement of a “human neutral,” says Rule.

According to Rule, “Right now the internet creates many more disputes than it solves. People are pursuing cases – just not million dollar ones. The field is opening up for ODR, with even international institutions embracing it. In fact, the EU is building its own system to be completed by 2016.”

The million dollar question (literally) is whether lawyers and legal IT will still have a role with these disputes or whether the automation will exclude them. Rule notes that lawyers and legal IT are both crucial to this process, because they are in the best position to understand the need for new solutions. “We have spoken with law firms interested in using Modria for their matters, particularly commercial arbitration. They want to employ a hybrid approach that combines face-to-face legal services with our technology.”

Another benefit is that online dispute resolution is generally much more affordable than hiring a lawyer or mediator. Rule is working with internet-based intermediaries to provide services at a very low cost. Subscribers can pay a monthly fee or can fund the dispute resolution out of filing fees, which makes the price very reasonable.

Low cost is great, but how about no cost? Rule is partnering with the aforementioned Fair Outcomes that offers its Fair Buy-Sell online process completely free of charge. Attorney James F. Ring, who is CEO of Fair Outcomes, bases his systems on game theory and strategic analysis.

Though Ring’s systems do resolve online disputes, he differentiates them from many other ODR systems. He remarks, “Our systems are not grounded in conventional ADR methods. Instead, they involve an entirely different approach based on work done by game theorists and strategic analysts. Unlike ADR and ODR, Fair Outcomes’ systems have features that negate any incentive for either party to use the system to posture, and also allow the system to be initiated and used productively by one party without the other party’s cooperation or consent.”

Ring gives the example of “cake cutting” to prove his point. Imagine that two children, John and Jane, are dividing a cake into two pieces. If John cuts the cake then Jane chooses the piece she wants first. When he cuts, John has every reason to divide the cake evenly based on what he values so that it won’t matter which piece Jane chooses. Basically, in this scenario, John has an incentive to be fair and to be honest about what he values most from the beginning. If he cuts the cake unevenly, Jane will surely choose the better piece.

Fair Buy-Sell is a simple web-based interface meant for joint owners of property (business partners, joint venturers, shareholders, married couples, etc.) who want to bring their joint ownership to an end for some reason.

Let’s say a divorcing couple is fighting over what will become of their jointly-owned house. With Fair Buy-Sell, the wife logs into the website and enters in a dollar amount that she’s willing to buy or sell at, thereby committing to buying or selling at that number if the husband responds. Then, without seeing the actual number the wife has entered, the husband logs in and enters his price, also demonstrating his commitment to make a deal.

The party that proposed the higher price becomes the buyer, but the Fair Buy-Sell system sets the sale price at the midpoint of two numbers, so the sale price is always at least equal to and, in most cases, more favorable to each party than what each had originally proposed. The dispute is solved in a matter of minutes with no lawyers or screaming matches, a relatively painless process. Like John cutting the cake, the initiating party is incented to make a reasonable proposal and, by using the system, the opposing party is deprived of incentive or excuse for failing to be equally reasonable and compliant. The company offers several other systems that work in similar ways for other kinds of claims.

In addition to the game-theoretic and other solutions mentioned above, there are a wide variety of more traditional ODR tools on the market, including CyberSettle and The Mediation Room. In October 2011, the Wall Street Journal’s Vanessa O’Connell wrote anarticle about General Electric’s oil and gas division testing CyberSettle in its Italian offices to reduce time and money spent on lawyers for simple disputes. The system was only used to handle disagreements of about $65,000 value or less.

The City of New York also used CyberSettle to settle more than 4,000 personal injury claims. New York City comptroller John C. Liu eventually discontinued use of the system, though, saying that in-house claims adjusters negotiating by phone could do the work less expensively. Liu also pointed out that ODR systems such as CyberSettle have their place but also their limits. Referring to the City of New York’s experienced with CyberSettle, he said, “If someone is checking for account balances, perhaps a computer or phone system could more quickly give that information, but for a more complicated, interactive function, such as claims settlement, or settlement of any kind of dispute, it shouldn’t be surprising that a computer is not up to the task.”

Automated systems are in many cases more cost-effective, time-efficient and sensible especially for smaller, cross-border cases that lawyers don’t want anyway. And since these systems are becoming more intelligent and capable, legal and IT professionals would be well advised examine them and incorporate them as options for certain types of cases.

Online approaches to dispute resolution are clearly here to stay, and are increasingly seen as legitimate by the likes of the UN and EU, but they are not going to replace the need for lawyers or legal IT. Perhaps they are like Atticus’ fabled neighbor, Boo Radley, seemingly a menacing threat but actually turning out to be a harmless – and somewhat helpful – resource after all.

About the Author

Christy Burke is President of Burke & Company a PR and marketing firm based in New York City. Burke specializes in communications consulting for legal and technology companies. Email Christy at cburke@burke-company.com or follow her on Twitter @ChristyBurkePR.

Thanks Christy for giving us an insight on how technology is hitting the dispute resolution process.

Lyrics and music by Jarl, Stenmarck, Andreas Carlsson, recorded by Westlife.

Gentle readers of this blog are aware of my interest in the intersection of business strategy, finance, leadership and technology within a law firm setting.  One of the emerging areas that lies within the  intersection of these disciplines is knowledge management.  I believe it has particular importance within a large firm setting as there is the tendency for lawyers in larger organizations to become ‘silo-ized’ – not for any other reason other than your ability to interact with people on a 1-1 basis diminishes as the size of an organization grows.  For example, if you work in a larger organization, ask yourself how often you speak to someone who works on another floor in your firm?  If you have multiple offices in multiple cities, the situation is compounded even further.  Since 1-1 interaction is at the heart of person-to-person knowledge sharing and transfer, the sheer size of an organization works against 1-1 knowledge transfer.

So to begin: What are we speaking about when we use the phrase “knowledge management”?

My friend Ted Tjaden in his blog (Legal Research and Writing) put it well:

Knowledge Management

Knowledge management (KM) is an important aspect of law practice. The Wikipedia entry describes KM as “the range of strategies and practices to identify, create, represent, distribute, and enable the meaningful use of people’s insights and experiences in an organization” that “seeks to maximize the value of its people’s insights and experiences by cultivating the two common forms of knowledge: explicit knowledge (written knowledge), and tacit knowledge (hidden personal learnings).” (my emphasis)

In a law firm setting, explicit knowledge tends to be precedent agreements, checklists, research memos, opinion letters, and “how to” guides. Equally – if not more important – is the tacit knowledge, being what lawyers know, their experience and their professional judgment. Capturing and organizing explicit legal knowledge can be relatively straightforward and involves a combination of technologies (internal document management systems, search and tagging technology, and intranets). Capturing and organizing tacit legal knowledge can be more challenging. In most firms, tacit knowledge is transferred through mentoring, training and allowing a knowledge-sharing culture to flourish.

Depending on the organization, legal knowledge management can potentially involve a wide array of activities, including:

In terms of technologies, in my view, Microsoft Sharepoint and similar collaborative software will be one of the more important foundational tools to implement KM for a larger firm.  Sharepoint enables many of the activities noted by Ted including: records management, document management, precedent repositories, intranets, project management, legal research banks and virtual data rooms, to name a few.

But KM is not about the technology – in fact in my view, it is the least important part of the puzzle.  This is where leadership and strategy come to play.  In order for KM to take hold in an organization, the technology needs to be paired with the learning or knowledge-sharing culture of which Ted is speaking.  A firm needs buy-in and an orientation towards a sharing culture.  If everyone is dug into their silos, collaboration and knowledge sharing isn’t going to work. You have to get the business plan (ie compensation) aligned with the objectives of the firm to produce the kind of results in KM that you desire.  If lawyers and others are not compensated for their time spent in KM in terms of the firm’s compensation formula, the firm will lack the economic motivation to move forward.

Furthermore, the law firm leadership (from the top down) have to communicate in verbal and non-verbal ways that they are fully behind this initiative and it has their full support. The cultural underpinnings for KM sharing to take hold have to be in place.

Once you have the learning culture, the technology, the leadership, the business plan and compensation formula all aligned with the KM initiative, the pieces will have fallen into place to more forward…

Music and lyrics by Brook Benton and originally recorded by Bobby Bland.

This is a guest post from my good friends Sharon Nelson and John Simek, from Sharon’s Blog Ride the Lightning. Sharon and John are life partners as well as business partners in Sensei Enterprises, Inc., a computer forensics and legal technology firm in Fairfax, Virginia. As such their blog post on taking care of your digital assets following your passing struck a nerve with me.  In my view it is typical of Sharon and John’s careful and considerate way of approaching life..and death.  So without any further introduction, here is their advice:

For those of you who have wills, it is my guess that virtually none of them reference digital assets. Until recently, lawyers weren’t thinking about digital assets.

Our friend, attorney Deb Matthews, told us a horror story about a client whose husband had passed away without leaving behind his ID and password for their bank account. The bank would not grant his wife access and she had a devil of a time since her husband had gone paperless and was making online payments each month. She had no way of knowing when bills were due to pay them and she began racking up delinquent accounts as a result.

We’ve heard (many times) the problems with Facebook accounts when the owner dies. There have been parents desperate to know why their child committed suicide, wives who wanted to set up their deceased husband’s page as a memorial and close relatives who wanted to take down the hate-filled postings of someone with a mental disorder who has died.

When we recently redid our own wills (a dismal task but usually good insurance of anything dreadful happening in the near future), we talked to Sam (Samantha) Musso, our own attorney. We all collaborated on some research and I am taking the unusual step of making this a very long blog post by including below my signature the language we came up with for our wills and Powers of Attorney.

I hope some of you will find this useful and thanks to Sam for her willingness to share her work. Pass the language along to anyone who may be interested – there isn’t currently a lot out there on this subject.

E-mail: snelson@senseient.com         Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

POWERS OF ATTORNEY

To give the Agent power over digital assets:

“Digital Assets. My Agent shall have (i) the power to access, use, and control my digital devices, including but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops for the purpose of accessing, modifying, deleting, controlling, or transferring my digital assets, and (ii) the power to access, modify, delete, control, and transfer my digital assets, including but not limited to, my emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, banking accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts, and similar digital items which currently exist or may exist as technology develops, and (iii) the power to obtain, access, modify, delete, and control my passwords and other electronic credentials associated with my digital devices and digital assets described above.”

For greater emphasis to banks, include in the provision giving the Agent powers regarding financial accounts:

“….and to access, modify, delete, control, and transfer my digital financial accounts.”

WILLS

To give the Executor power to access/manage digital assets (or when using the alternate clause, to engage another named person to do so):

“My Executor shall have the power to access, handle, distribute, and dispose of my digital assets, and the power to obtain, access, modify, delete, and control my passwords and other electronic credentials associated with my digital devices and digital assets. [ALTERNATIVE:  I authorize my Executor to engage                                    to assist in accessing, handling, distributing, and disposing of my digital assets.] If I have prepared a memorandum, which may be altered by me from time to time, with instructions concerning my digital assets and their access, handling, distribution, and disposition, I direct my Executor and beneficiaries to follow my instructions as outlined in that memorandum. “Digital assets” includes the following:

(1) Files stored on my digital devices, including but not limited to, desktops, laptops, tablets, peripherals, storage devices, mobile telephones, smartphones, and any similar digital device which currently exists or may exist as technology develops; and

(2) Emails received, email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, banking accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, other online accounts, and similar digital items which currently exist or may exist as technology develops, regardless of the ownership of the physical device upon which the digital item is stored.”

SAMPLE DIGITAL ASSETS MEMORANDUM

In order to assist your Agent and/or Executor, please use this space to give instructions and necessary information regarding your digital assets, including usernames, passwords, PINs, etc. (or the location of such information if stored separately) and instructions on how they should be handled.

DIGITAL DEVICES (computers, tablets, smartphones, etc.):

Item               Access Information                Instructions

__________    _______________________    ___________________

__________    _______________________    ___________________

EMAIL ACCOUNTS:

Account           Access Information                Instructions

__________    _______________________    ___________________

__________    _______________________    ___________________

SOCIAL NETWORKING (Facebook, Twitter, etc.):

Account           Access Information                Instructions

__________    _______________________    ___________________

__________    _______________________    ___________________

ONLINE BANKING/FINANCIAL ACCOUNTS:

Account           Access Information                Instructions

__________    _______________________    ___________________

__________    _______________________    ___________________

ONLINE MEDIA ACCOUNTS (music, photos, etc.):

Account           Access Information                Instructions

__________    _______________________    ___________________

__________    _______________________    ___________________

OTHER DIGITAL ASSETS:

Item/Account  Access Information                Instructions

__________    _______________________    ___________________

__________    _______________________    ___________________

Thanks Sharon and John for your insights in how to properly entrust your digital assets to someone who will take care of them for you.

Lyrics and music by: Benny Andersson & Björn Ulvaeus, recorded by Abba.

While attending the Innovating Justice Forum: Towards  Basic  Justice  Care  for  Everyone in Den Haag, I spoke with Christiane Flaes, Netherlands Council for the Judiciary / Secretariat of ENCJ in The Netherlands; with Peter Van Der Biggelaar, the Director of the Dutch Legal Aid Service and with Alan Paterson of the University of Strathclyde.  They all mentioned a procedure that is operative in The Netherlands, in England, Scotland and Northern Ireland.  This is a Legal Aid Impact Review.

What is remarkable, at least from an North American standpoint, is the requirement to measure the impact of proposed legislation on both the administration of justice, the judiciary as well as on existing legal aid programs.

Rather than just passing legislation and leaving the courts, court administration and legal aid to pick up the additional costs, the legal aid impact review requires the costs of this proposed legislation, as least on the instruments involved in the administration of justice be determined.  For example, Northern Ireland states:

The legal aid impact test -   assessing the implications of government proposals on courts and legal aid

If you are working on government policy development within the Northern Ireland Courts and Tribunals Service or other government departments, you must consider whether there will be either a potential impact on the workload of the courts or a legal aid cost. This section includes guidance to help you determine this; provides a background to the legal aid scheme in Northern Ireland; and includes the contact details of our legal aid team who you should contact to obtain further guidance and help with costing the impact.

This legal aid impact review ensures (assuming it is complied with each time new legislation is being proposed) that the courts, judges and legal aid will know the financial impact of any proposed legislation on their programs before the legislation becomes law.  This allows the legislation to be tweaked to lower its judicial, administrative and legal aid financial impact while still in proposed form and while it is still possible  to make adjustments.

It is interesting how this simple idea is so powerful – you determine whether or not you can afford the cost of proposed legislation alongside its proposed utility. In other words, you can do a cost-benefit analysis.

I also understand that in some jurisdictions, there should also be a financial transfer from a Ministry proposing new legislation to the Ministry of Justice to cover the additional marginal costs of new legislation.  You have to pay the piper for playing before you are summoned by a tune and have to dance beneath the moon..

Lyrics, music and recorded by John Fogerty.

This is a guest post from Beth Flynn at the Ohio Leadership Center.  Increasingly today, younger lawyers are looking for mentorship and support from the more experienced members of the bar.  However, not everyone is familiar with how to be a good coach.  Accordingly I thought Beth’s post on the personal attributes and qualities of a winning coach would be a great management topic for lawyers.  So without further ado, here are the 14.5 attributes:

1. You have valuable information that people can use.
2. You combine your experience with the real world.
3. You have a sense of humor.
4. You know the game better than they do.
5. You encourage.
6. You are a great presenter.
7. You have standards and ethics that you follow, not just preach.
8. You are enthusiastic.
9. You have great communication skills.
10. Your players like you.
11. Your players believe in you.
12. You inspire others.
13. You tell the truth all the time.
14. Your players respect you.

14.5 You can play (Gitomer, 2011, p. 108-109).

These tips are from: Gitomer, J (2011), “Jeffrey Gitomer’s Little Book of Leadership: The 12.5 Strengths of Responsible, Reliable, Remarkable Leaders that Create Results, Rewards and Resilience”. Hoboken, NJ: Wiley and Sons

Jeffrey Gitomer’s Little Book of Leadaership is available from the OSU Leadership Center. Click here to borrow this resource or any other resource. Once you are on the OSU website, click on the Spectrum icon.

Learn how the Ohio State University Leadership Center is inspiring others to take a leadership role that empowers the world at: http;//leadershipcenter.osu.edu.  To begin receiving Beth’s Leadership Moments newsletter, please click on Join Our Mailing List.

Thanks Beth for another great leadership post on how all of us can become winning coaches and mentors.

Lyrics, music and recorded by Huey Lewis.

On Monday April 2, 2012, Dr. Frank Fowlie, the Internet Ombudsman, Kari Boyle of MediateBC and your humble scribe did a presentation for the University of British Columbia law school.  It was entitled: ODR Around the World and was meant to be an introduction into the emerging field of Online Dispute Resolution and how it is changing the way that people could resolve their disputes using internet technology.

During the presentation, I asked the students to reflect on the inherent structure of the justice system.  Being bright law students, they perceived that it is:

• Synchronous: All parties must attend the court house at the same time.
• Serial:  Each case follows the one before it on the docket in order to be heard or processed by the presiding judge or court official.
• Expensive:  Each bricks and mortar courthouse has to be built and staffed.
• Geographically Tied: All parties must attend the court that is hearing the case.
• Jurisdictionally Tied: For the most part, each case is heard according to the laws of the jurisdiction where it is filed.
• Involves Transactional Costs:  Not only are there hard costs involved in filing the claim or action, the parties involved suffer a loss of opportunity cost – the time that they put into the claim or action represents time that they could have used otherwise.  The longer the resolution time, the greater the transactional costs.
• Involves Delays:  A case takes time to weave its way through the court system. In some cases that delay is relatively short – in other cases it is quite long.  We are seeing headlines today on the increasing delays in the justice system. We all know that justice delayed is justice denied.
• Limited Availability:  It used to be that courts and bankers kept the same hours.  However, today, courtesy of the internet, banks are open 24/7.  Courts, however, are not.
• Involves a Judge:  For the most part, a case must be heard and determined by a judge (yes you can go before Masters and the like but they can’t make final orders). This means that the judge represents a bottleneck in the system.

I then posed a challenge to the students: How can you structure a dispute resolution system that tries to break down one or more of these constraints?  What would that system look like?  Moreover, what would be the advantages to those involved in the dispute that don’t currently exist in the present justice system?  What about disadvantages?

The students immediately picked up on the fact that in some disputes, not having to be geographically tied could lower the emotional temperature of some disputes…such as family  law disputes. Parties could be brought into the  hearing by way of internet or cellular communications and not have to meet face to face.  In cases involving past physical violence, this would be a distinct advantage.  However, in some cases where the emotional energy in the room results in a catharsis of sorts, this would be a disadvantage.  The success of using ODR for family law disputes in Australia has clearly been demonstrated.

Not having to have the case determined by a judge removes a bottleneck in the system.  JabberJury and other sites are experimentations in online juries.  EBay and PayPal are  trying online community courts. The cases can be resolved in parallel, since they do not have to wait their turn in line (a serial process)  to be heard by a judge.  This has tremendous value for removing court delays ..which according to Mohamed S. Abdel Wahab can be 10 years or longer in Egypt.

Of course, by definition, online dispute resolution methods are available whenever the Internet is on.  When you combine this with the fact that cases need not be resolved synchronously, then resolutions can take place 24/7/365.  The Mediation Room is an example of an asynchronous ODR provider.

There is still the difficulty of disputes being jurisdictionally-tied.  UNICTRAL, the United Nations Commission on International Trade Law, Working Group III is working on a global Online Dispute Resolution framework for the resolution of cross-border electronic commerce transactions. The Canadian Government submission can be found here.

An ODR method of resolving disputes can lower both hard and transactional costs, since the time loss in resolving the dispute can be cut to a minimum if you reduce or eliminate any travel, construction, staffing and other associated costs.  A website costs much less to build than a courthouse and certainly much less to staff.

Lastly, but certainly not least of all, ODR is effective.  Colin Rule, CEO of Modria.com, a provider that is at the forefront of ODR, has stated that eBay handles over 60 million disputes a year, 90% of which are resolved without any human intervention other than the two parties involved.

When it comes to curing the Justice system’s ills, it seems that we need to look for a new drug…Online Dispute Resolution.

(This post is also cross-posted to slaw.ca)

Lyrics and music by JJ Cale and Christine Lakeland, recorded by JJ Cale.

Having just returned from ABA TECHSHOW in Chicago, I thought I would take a moment and lay out what I believe was the grand theme that was running through this year’s show. Yes, there were great and new technologies. Yes, the conference showed just how deeply the iPad and Apple technologies have penetrated the legal profession (the iPad Apps session was standing room only and iPads were seen everywhere.  The  (near) absence of laptops underscored how lawyers have jumped onto the tablet / iPad platform as their mobile solution.  Yes, there were great presentations by wonderful speakers on cool and upcoming technologies such as the Microsoft phone and Windows 8.  Yes, the Cloud and all kinds of hosted IT services were big. And yes, the exhibit floor was packed with vendors and attendees alike.  But…

In my opinion, the biggest (understated) theme was the open question over the future of the legal profession. You could almost feel the undercurrents. Ben Stein, the noted lawyer, economist and television personality, in his keynote presentation, raised the distinct possibility of the economic collapse of the USA and what that might mean – and not just for lawyers. Certainly he dealt with the changes that the recession has had on the legal profession to date and the fact that these changes may be permanent. While he gave hope that things may improve, it was one of the nicest ‘things are never going to be the same’ speeches I have ever heard.

Jim Calloway in his plenary address “The Future Of Law Practice: Dark Clouds Or Silver Linings” certainly recognized the difficulties that the legal profession is facing. As Jim noted, there is no guarantee that the legal profession will exist in 100 years from now. Certainly corporations are now hiring lawyers in-house in growing numbers rather than continue to use outside firms. There are legions of newly graduated lawyers who simply can’t find a job.  Jim stated that The Association of Corporate Counsel is in effect a union that is changing the way corporations set fee agreements with their outside firms.

My good friend Jim tried to end his intelligent, witty and entertaining presentation by leaving hope for the future. To counter the increasing rise in such corporations such as LegalZoom, Jim stated that he felt that lawyers had to adopt intelligent document production as one of the paths to salvation.

I have the upmost respect for Jim and to be fair, he was given a very tough assignment – to try to find a path forward that didn’t echo Richard Susskind’s “The End of Lawyers“.

If I may, I would say that Jim couldn’t bring himself to say that the remedy ..the tough medicine that the legal profession needs to take …is much more drastic than just adopting intelligent document assembly.

There is no one, simple and straightforward ‘fix’ to our current economic malaise and to the future of the legal profession. We need to do a number of things.

We need to equip lawyers to be better business people. We need to change law schools so law graduates come out prepared to not just research the law, but to practice it. We need to change the dispute resolution system so it is just, speedy and inexpensive and utilizes the latest in technology.  After all the current court process has largely escaped the changes that have occurred in most areas of society courtesy of technology and the internet.   Of course how to apply technology to transform the existing court-based dispute resolution system is one area that is noticeably absent from TECHSHOW (or indeed virtually every other legal technology conference).  I, for one, would love to see a focus on ODR (online dispute resolution) at Techshow and other programs in order that lawyers and court administration folks work together on innovative solutions to dispute resolution.  We are using apps like TrialPad on iPads to litigate the same way we have done for decades if not centuries.

We need more than just a return to the economy of the past, assuming that that this could ever happen.

But there is one big change that we definitely need to have happen.  We need lawyers to come together in large organizations that will focus on servicing the needs of the lower to middle class.  We already have big firms that focus on meeting the needs of big business as well as those who can afford ‘white shoe’ legal services.  Legal regulators, in my view, need to adjust how the legal profession can be regulated to allow innovative management to bloom to allow this to happen.  The consequence of not figuring this out will be the replacement of lawyers by businesses such as LegalZoom that will meet these and other (currently unmet) needs in ways that are speedy and inexpensive.

These new providers and their services will be seen by lawyers as providing something that falls short of being just.  They will see these new (online) services as being fraught with peril for those who use them.  But lawyers, law schools and legal regulators have to realize that it isn’t they who determine the fate of the legal profession – it is the consumer.  These consumers – each one acting alone – will collectively determine with their wallets where they buy their legal solutions and thereby shape the future of the legal profession. As Richard Susskind says, the day of the bespoke legal solution is (quickly) coming to an end.

This is an unprecedented multi-faceted crisis. And it cries out for an unprecedented multifaceted solution ..or series of solutions. As we all know, ultimately the money does the talking.  I for one, don’t think I like what it is saying…

Music and lyrics by Wendell Mobley, recorded by Carrie Underwood.

Most lawyers are as yet unaware of the growing discipline known as Online Dispute Resolution (ODR). ODR taps into technology (principally the communication abilities of the Internet) to help resolve disputes between parties. While it is seen as the online equivalent of ADR, it really is much much more.

ODR was born by the combination of ADR and Information and Communication Technologies. In ADR, there are three parties: the plaintiff, the defendant and the third neutral party (a mediator or arbitrator for example). However, ODR differs from this three party system by introducing computers and software – an independent fourth party that can help manage the dispute. Indeed, at the highest and most sophisticated levels of ODR, the technology applies mathematical models and algorithms based on group theory to resolve the dispute. www.SmartSettle.com, one ODR e-Negotiation system, states as follows:

“As the world’s most advanced negotiation system, Smartsettle Infinity can do what human minds alone cannot – model the problem, manage preference information, and quickly optimize solutions. Infinity supports an unlimited number of quantitative or qualitative issues between any number of parties in any combination of real-time and asynchronous negotiations, whether face-to-face or over great distances, anywhere on Earth.”

There are, of course, many other implementations of ODR systems, that range from simple blind-bidding systems (one variable, two parties) where the system does not reveal what each person is willing to accept unless a settlement is reached (the software compares each party’s position and declares a settlement once the positions become sufficiently close), to assisted negotiation, to adjudicative methods and others.

Is this science-fiction? Not in the least. For example:

“The European Consumer Centers Network (ECC-Net) consists of 29 centers in the European Union, Norway and Iceland. Financed by the European Commission and members states, and staffed by individuals trained in law, the network seeks to increase consumer confidence in its internal market. Mr. Knudsen explained that 40,000 to 60,000 complaints and information requests are typically addressed each year, and that eCommerce complaints outstrip on-premise and non-eCommerce distance sales on an order of 2:1. Approximately half of the complaints the ECC-Net oversee are resolved through mediation.”

How important is the field of ODR? It is recognized that low value e-commerce, or sales/purchases conducted over the web, is stalled due to the lack of any effective enforcement mechanism where the purchaser and vendors are in different jurisdictions. Accordingly, the United Nations Commission on International Trade Law (UNCITRAL) has created an ODR Working Group to focus exclusively on a global ODR system for low-value eCommerce disputes and to craft recommendations that can be taken back to the full UN General Assembly. This represents a major development in the effort to build a global ODR system, since it is the first time a body with representation from every sovereign nation in the world has so seriously tackled this complex subject.

Furthermore, governments are looking at more localized ODR systems for small claims, custody and family disputes, among others. Businesses are looking at building in ODR to their contracts of sale to provide a low-cost and effective method to resolve consumer disputes.

One thing is clear: the world is turning to ODR as a way to bridge distances and time zones and implement a dispute resolution mechanism that will allow e-commerce disputes to be settled in a way that is just not possible using the current dispute resolution systems that are otherwise too tied to geography, too expensive or too complex for these types of disputes.

The next ODR Conference will take place in Prague, Czech Republic on June 27-29, 2012.  For more information click here.  This conference will continue the dialogue on how to effectively create a world-wide ODR system for e-commerce disputes.

Once this type of ODR system is effectively built – it will not be long before it is applied to many other types of disputes, since it will all be lessons learned.

(This post was originally written for the Canadian Bar Association – British Columbia Branch’s newsletter “BarTalk” in the column “PracticeTalk”).

Music by Secret Garden‘s Rolf Løvland and the lyrics byBrendan Graham, recorded by Josh Groban.

This is a guest post from Beth Flynn’s Leadership Moments newsletter at the OSU Leadership Center. It speaks to how we can lift up others in our workplace and in so doing, uplift ourselves.

Make it unfashionable to be a downer.  Inspiration doesn’t survive in an energy-sapping context.  This doesn’t mean that tough realities are denied and not faced.

The electrifier always has a positive spin on a setback.  After all, inspiration stems from our spirit and our inner spirit is stronger than our outer circumstances.  Earlier we defined our spirit as our unlimited resource that transcends, and adds strength to our weary physical bodies and fragile psychological egos.  When our bodies and minds are down, an insight from our spirits gives us the jolt!

The first way of energizing our work environment is by inspiring the development of a culture of people who are filled with energy, hope and positive motivation.  Each person moves from the highest part of his or her mind, heart, and spirit (Losoncy & Walsh, 2011, p. 82).

Lyrics, music and recorded by 10cc.

The America Bar Association (ABA) established the 20/20 Commission almost 3 years ago to report on the:

“Impact of Internet technology on the delivery of legal services, both globally and within the United States”

Today, the revised drafts of a number of the 20/20 Commission’s proposals were released on the ABA Site-tation website in the following areas:

• Technology and Confidentiality (PDF)
  Addresses lawyers’ obligations and responsibilities in handling the storage and security of clients’ confidential data.
• Technology and Client Development (PDF)
  Addresses lawyers’ use of web-based technology, including social networking, to market their practices and attract new clients.
• Outsourcing (PDF)
  Addresses the ethical responsibilities associated with the outsourcing of legal and law-related work, both domestically and offshore.
• Model Rule 1.1 (Duty of Confidentiality) (PDF)
  Addresses disclosure of confidential information particularly in the context of detecting conflicts of interest.
• Practice Pending Admission (PDF)
  Addresses issues relating to the establishment of a practice in a new jurisdiction in the context of an increasingly mobile, multi-jurisdictional profession.
• Admission by Motion (PDF)
  Addresses the number of years required for admission by motion, again addressing movement towards multi-jurisdictional practices and mobile lawyers.

As the ABA site-tation website states, considerably more information, including comments and news, can be found on the Commission’s official website.

The deadline for submitting comments on these final proposals is April 2, 2012. Comments should be directed to Senior Research Paralegal Natalia Vera at natalia.vera@americanbar.org.

These proposals are sure to give us food for thought…(hat tip to Ann Halkett, BA, SSIS, Litigation Support Coordinator, Alexander Holburn Beaudin & Lang LLP).