Jusletter IT

Dispute resolution is a key governance function and a field where the spread of computational technologies will derive in radical changes and cause unprecedented institutional stir. The growing deployment of digital technologies and automation in the development of self-regulatory options and/or Alternative Dispute Resolution Systems (DRSs) is especially concerning, in view of the crucial role these methods are expected to play in the strengthening of the digital markets. This paper claims that responsibility and responsiveness are two core and interdependent attributes of trustworthy and desirable technology-based dispute resolution systems and discusses measurable design dimensions and criteria (such as standards, principles and factors) that could operationalize their application. These attributes¹ are worth striving for, because they are empowering, functional, and represent pre-digital conflict management goals² and post-digital proactive commitments.³ Building them into processes by design, would reduce some of the transitional tensions that digitalization and automation may cause to the existing regulatory framework.⁴

Computational methods and digital technologies affect judicial proceedings, adjudicative and Alternative Dispute Resolution (ADR) processes alike, but it is in the ADR field where the impact may become the most detrimental. A critical regression could be anticipated because the digital and algorithmic dispute resolution capacities dilute the relational components required in the collaborative management of human exchange interactions. Furthermore, if technology-based systems are deprived of procedural fairness features, no consistency with legal standards can be ensured. For example, self-executing transactions, based on blockchains, are indifferent to the integrity of essential contracting elements, such as informed consent (and its vices), consideration, capacity, and so on.⁵ The proactive design of responsible and responsive DRSs is a fundamental epistemic concern in legal innovation. The institutionalization of procedural fairness and its values and principles and the systematization of advanced design heuristics in law are advancing,⁶ but not to the extent and with the consistency necessary to foster a widespread adoption. A plausible barrier is the proliferation of competing proposals and conceptual fragmentation within the community of practice. This paper proposes parameters of general application and easy uptake,⁷ to facilitate the production and quality assessment of mediated legal artefacts (including products, services, information, documents, activities, processes and/or systems).

The expression procedural fairness will be used broadly to refer to objective⁸ and subjective procedural justice⁹ components and other transaction design standards that add value far beyond the efficiency and scalability of technology-based systems. Responsibility and responsiveness are defined by essentialist criteria of legality and subjective experiences of procedural justice (procedural fairness and other legitimizing¹⁰ components) on the one hand, and strategic and human centered transaction design standards on the other. According to this perspective, the objective and subjective procedural justice requirements could be combined with transaction design principles and legal Usability/User Experience (UX/UXI) factors,¹¹ to increase procedural fairness in legally relevant digital and automated processes and interactive systems.¹² Embedding due process and other procedural fairness features in automated proceedings would meet the objective and some subjective standards in decision-making processes. At the same time, UX/UXI upgrades and transaction friendliness qualities would enhance the subjective experience of justice. These measurable adjustments would mark the trustworthiness and legitimacy extent of automated DRSs.

The next section will present the procedural fairness components amounting to responsible dispute resolution design, and greater legitimacy. It will be followed by a perspective of responsive design that relies on measurable factors (and therefore increases certainty, accountability and trust in a narrow sense). The last section outlines a few concluding remarks.

There are three basic models of dispute resolution processes: umpiring (adjudication), mediation and negotiation.¹³ These basic models can be found in different combinations and be connected to or implemented by technology that may either assist or replace human agents. Adjudication and mediation models are guided by certain fairness standards that show as legal principles, are taken into account by public policies or regulated by the law. Therefore, at least some legal responsibilities stem from procedural fairness considerations and may be evaluated using objective criteria. It is in this light, that responsibility is argued to be a desirable and to a certain extent measurable dispute resolution system attribute.

Procedural fairness has a specific function in dispute resolution regardless of whether the dispute resolution process is adjudicative or consensual. The fairness of processes enhances the legitimacy¹⁴ of outcomes. Objective procedural rules and safeguards justify the bindingness of a decision, and ultimately the availability of State enforcement. They are related to the due process, a universal and fundamental principle manifest in the legal system as the right to a fair trial. In the European Convention on Human Rights (ECHR), it is provided in art. 6 referring to the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The due process requirements are not unique to adjudicative litigation. Due process principles¹⁵ are reflected in the New York Convention, in the international soft law on arbitration, in various national legal systems, and in case law.¹⁶

In consensual forms of dispute resolution the parties’ consent is often considered sufficient to legitimate the outcome of a dispute resolution process. However, these views are too narrow. In mediation, for example, the parties consent to the settlement under the assumption that mediators are impartial and the mediation process fair. Even if the ECHR does not apply, due process principles should be considered. Objective standards of due process, such as the principle of impartiality of the mediator, the self-determination of the parties and fairness requirements have emerged and are consistently invoked by soft-law and legislation on mediation.¹⁷ Due process features increase the acceptability of agreements entered into by the parties and legitimize, together with the consent of the parties, the mediated settlement agreement.¹⁸ The need for legitimation increases when mediated settlements are to be declared enforceable in accordance with the European Union (EU) Mediation Directive.¹⁹

It is evident that every dispute resolution process has its specific characteristics and that due process in litigation has a different meaning than due process in arbitration or mediation. However, from beneath the objective requirements some common core values and perceptions of fairness can be discerned. Psychological procedural justice research has demonstrated the impact of procedural justice experiences on the acceptability and perception of legitimacy of a decision. It has been suggested that factors fostering the perceptions of legitimacy in alternative dispute resolution conform to elements that define the rule of law.²⁰

To identify the core values behind due process it is useful to examine the four elements of procedural justice.²¹ The first is voice; the disputants must have the opportunity to present their case and tell their story. In arbitration this is reflected in the parties’ right to have a reasonable opportunity to present their case and the audiatur et altera pars rule.²² In mediation the parties are directly engaged in decision-making and must be given adequate opportunities to do so.²³ The second element is impartiality of the third party. It represents neutrality and is assessed directly by the parties. Impartiality is anchored in regulation on adjudicative and consensual forms of dispute resolution. Trustworthiness is the third element. It is subjective inference of the disputants, based on the behaviour of the third, neutral party. The last element is dignity or respect, which consist of the parties’ perception of deference and consideration that are dispensed during the process.

Not all of these elements are reflected in legal and quasi-legal instruments in a similar way. While the process related elements voice and impartiality could be expressed in the form of legal principles and rules, the interpersonal elements cannot be easily determined for they constitute complex subjective perceptions that nonetheless strongly influence the acceptability of the decision.²⁴ Their significance in dispute resolution must not be underestimated;²⁵ trust in the neutral third party and the process has a meaning beyond the interpersonal relationship and is connected to the function of the legal system in a wider sense. It enhances – as does the legal system – the peaceful functioning of a society. Closely connected to the trustworthiness of mechanisms of dispute resolution are the requirements for the predictability and transparency. To trust, all parties need to be aware of the nature of the decision-making process and the rules, principles and criteria that will apply, prior to starting the proceedings. For legal procedures presided by courts, it is set forth in art. 6 ECHR: the decision needs to be taken by a tribunal established by law. In arbitration and civil and commercial mediation the forum selection capacity of the parties arises from the principle of self-determination. The parties can only exercise self-determination and take informed decision in respect of the process, if educated about the nature of the process and the rules and principles that will apply.

Trustworthiness, transparency and predictability, the right to an impartial and independent third party and the right to voice can be considered the central values and principles that determine responsibility in dispute resolution. These requirements apply not only to non-digital and traditional procedures, but extend – quite naturally – to DRSs and processes mediated, assisted or carried out by computational systems and technological means. Trustworthiness has also been proclaimed the core value of Artificial Intelligence;²⁶ thus, its operationalization and measurability should be priority concerns in the development of legal technologies and the design or DRSs where AI will find extensive areas of applications.

Fairness principles are consolidated in the field of dispute resolution irrespectively of the medium used. However, ensuring the adherence of technology based and automated decision making, and even of simple digitalized processes (such as Online Dispute Resolution (ODR)) to these principles, is an extraordinarily complex regulatory challenge. In respect of regulation and compliance, technology-based or assisted dispute resolution is confronted with similar difficulties as ADR.²⁷ Just a few DRSs, for instance technology assisted court litigation, are centralized and can easily be regulated in detail by the law. Most ODR and automated decision-making take place outside the courts, over privately owned platforms, administered by companies or private and semi-private institutions or conducted directly between the disputants. In a globalized and interconnected society traditional dispute resolution institutions and rules are less efficient as the processes and the regulation are fragmented.²⁸ Dispute resolution services may be offered across borders and as a consequence national regulation of the dispute resolution mechanism may be of no effect. Moreover, the person or legal entity that is supposed to uphold these principles is hard to identify, is not subject to effective controls or is unaccountable in practice.²⁹ The technology in use, the actors involved and the standards considered are unknown.³⁰ From the point of view of procedural justice this lack of disclosure and transparency compromises the perception of justice, and consequently the legitimacy and acceptability of the decision and the DRSs.

The standards of responsiveness, in contrast to those of responsibility, are modestly institutionalized. Responsiveness in DRSs is mainly a question of quality in the design of processes and transactions. Human-centered proactive transaction design is seen to play a key role in legitimizing transactional interactions especially in the principled management of conflict, and in dispute prevention and resolution. Proactive design anticipates risks, initiates and controls human-centered interventions, and encourages desirable outcomes using methods and techniques consistent with sector-specific best practices and the institutional exchange relations environment.³¹ It is in this sense that responsiveness is claimed to be a desirable and measurable dispute resolution system attribute.

The subjective procedural fairness elements discussed above overlap with the UX/UXI transaction design factors under satisfaction, and the collaboration principles from the list synthetized by Solarte-Vasquez/Nyman-Metcalf³². Responsiveness is of the nature of the designers’ mind-set and of the tools for the human centered practice, also when these applications in law are allowed, for instance, in the way the proactive law movement scholars have conceptualized and endorsed.³³ Legal design and its proactive applications extend to all subject matters, at all regulatory levels, in the benefit of all the stakeholders and users of legal information. Concretely, in the conflict management and ADR fields, collaboration is to the legitimacy of the processes what information accuracy is to understanding and all these components together, predictors of compliance that may be supported by transaction design strategies.³⁴ Strategic legal design involves responsive techniques similar to the needs and interest based transaction design models popularized by ADR experts decades ago, and it is responsible insofar as strengthening procedural fairness.

Proactive conflict management and dispute resolution or ADR share some of the core assumptions and purposes with transaction design, drawing the two fields phenomenologically and ontologically very close. Both practices aim to provide for efficient, effective and satisfactory transactional experiences, thus, also in in this sense, they are fundamentally responsive.³⁵ Conceptually, principled and proactive conflict management must inform the most innovative and technologically advanced models in the practice, if to enrich dispute resolution progress with lessons learned from the collaborative,³⁶ preventive,³⁷ and relational exchange³⁸ scholarship. Most recently, legal design has been argued to offer a smoothing option or a transitional pathway to the automation of legally relevant processes,³⁹ to prevent the problems that may result from hastening the implementation of computational methods in law. To effectively respond to the call for increase empowerment, accessibility to legal information and to justice at a global scale, dispute resolution systems design should incorporate ample safeguards to the rights that technological progress could negatively affect.

Transaction design risk-reduction and management considerations were proposed in a Taxonomy of Legal UX/UXI Factors and a set of principles to guide the production of balanced and value-driven relational interfacing of legal or legally relevant interactions. In these designs, efficiency is not a leading concern and does not prevail at the expense of other usability standards or/and achievements on the regulation of complex exchange relations (for instance, consumer protection legislation, the principles of good faith, and prohibition of the abuse of rights, etc.).⁴⁰ The principles are six, and coupled as follows: strategic-proactive, principled-collaborative, and interdisciplinary-technical.⁴¹ The UX/UXI factors, which are key categories in the reduction of information asymmetries without degrading the conventional representation of transactions, derive from the three international usability standards:⁴² efficiency, effectiveness and satisfaction, specified as 18 parametric categories. Readability, consistency, organization, information visualization, learnability, flexibility and interaction control are classified under efficiency; Completeness, collaborative features, communication effect on consensus, pleasant memorability and relational sustainability under effectiveness; and awareness, accurate understanding, consensus, associative compliance, positive experience of the exchange and sustainability of the outcomes, under satisfaction. These last factors amount to transaction friendliness and due to their correspondence with the subjective procedural components of fairness would help design and build functional procedural justice experiences in DRSs.

These standards set by the factors and principles should not only guide the design of dispute resolution processes and systems in the way they instruct transaction design, but also may offer a practical responsiveness assessment checklist to research and monitor their performance.

Responsibility and responsiveness in the design of technology-based DRSs are attributes worth striving for, because they are empowering and represent pre-digital conflict management goals such as fairness, in as much as post-digital proactive commitments. In addition, in DRSs, these attributes are core to being trustworthy and desirable, considering that they must be highly reliable, and centered on human needs. The institutionalization of procedural fairness and its values and principles, and the systematic application and assessment of advanced design heuristics in law should be the first steps in achieving these purposes in practice.⁴³ To that end, this paper explained procedural fairness dimensions and referred to the UX/UXI transaction design factors and principles⁴⁴ that could effectively operationalize the responsibility and responsiveness attributes of dispute resolution processes and DRSs. DRSs and platforms may be modelled with built-in features following legal UX/UXI standards to stage improved experiences during the management, settlement and resolution of disputes.

Procedural fairness was posited to provide general criteria to test the responsibility of dispute resolution processes and systems because it has been largely supported by legal standards and is uncontroversial in the field. This is notwithstanding some limitations regarding the elements of trust and dignity, and transparency, in the case of mediated and automated proceedings. In turn, the transaction design factors and principles promoted in proactive legal strategies were deemed to deliver on responsiveness. They are sensitive to pre-digital dispute resolution values and informed via retrospective learning about the optimization of ADR and smart systems design.

The rise in computational power of legal technologies in dispute resolution will cause more tensions than benefits, if values and principles such as fairness and proactiveness are not effectively operationalized by the systems. Such failure could further compromise people’s access to justice and result in the modelling of dysfunctional conflict management and regressive dispute resolution processes. It was stated that embedding due process and procedural justice features in technology-based and automated processes, combined with adjustments to enhance transactional experiences would increase their legitimacy and trustworthiness.

More discussions about procedural fairness measuring parameters and the development of substantive legal usability criteria are needed. Fostering this dialog could get the ADR and legal design professionals closer to reaching a well substantiated consensus, both at the ontological and the epistemological levels, to consolidate the research field, disseminate legal methods innovation, and smooth the technological transition of dispute resolution practices.

Adrian, Lin, Smart konflikthåndtering-online dispute resolution og access to justice. In: Anita Rønne/Henrik Stevnsborg, Ret Smart, Om Smart Teknologi Og Regulering, Djøf Forlag, 2018, p. 97–119.

Alexander, Nadja, Mediation and the Art of Regulation, Queensland University of Technology Law and Justice Journal 8, 2008, pp. 1–23.

Berger-Walliser, Gerlinde, The past and future of proactive law: an overview of the development of the proactive law movement. Proactive law in a business environment, Gerlinde Berger-Walliser and Kim Østergaard (eds.), 2012. pp. 13–31.

Brown, Louis M., The practice of preventive law. J. Am. Jud. Soc., 35, 1951, pp. 45.

Campbell, David, Ian Macneil and the relational theory of contract, Center for Legal Dynamics of Advanced Market Societies (CDAMS) Discussion Paper, 2004.

Ebner, Noam/Zeleznikow, John, No Sheriff in Town: Governance for Online Dispute Resolution, Negotiation Journal 32(4), 2016, pp. 297–323.

European Code of Conduct for Mediators 2004, available at: available at https://euipo.europa.eu.

Gigerenzer, Gerd/Engel, Christoph eds., Heuristics and the Law, 2006, Mit Press.

Hietanen-Kunwald, Petra, Mediation and the legal system, Extracting the legal principles of Civil and Commercial Mediation, Unigrafia, Helsinki, 2018.

Hollander-Blumoff, Rebecca/Tyler, Tom R., Procedural Justice and the Rule of Law: Fostering Legitimacy in Alternative Dispute Resolution, Journal of Dispute Resolution, 2011, pp. 1–19.

Hopt, Klaus J./Steffek, Felix, Mediation: Comparison of Laws, Regulatory Models, Fundamental Issues. In: Klaus J. Hopt/Felix Steffek, Mediation Principles and Regulation in Comparative Perspective, Oxford University Press, Oxford, 2013, pp. 3–130.

Independent High-Level Expert Group on Artifical Intelligence, 2018. Ethics Guidelines for Trustworthy AI, European Commission, available at https://ec.europa.eu/digital-single-market/en/news/ethics-guidelines-trustworthy-ai.

Jokela, Tiimo/Iivari, Netta/Matero, Juha/Karukka, Miina, The standard of user-centered design and the standard definition of usability: analyzing ISO 13407 against ISO 9241-11. In Proceedings of the Latin American conference on Human-computer interaction, ACM, 2003, pp. 53–60.

Katsh, Ethan/Rule, Colin, What We Know and Need to Know about Online Dispute Resolution, South Carolina Law Review 67, 2016, pp. 329–344.

Katsh, Ethan/Rabinovich-Einy, Orna, Digital justice, Technology and the internet of disputes, Oxford University Press, New York, NY, 2017.

Kurkela, Matti S./Turunen, Santtu, Due Process in International Commercial Arbitration, Oxford University Press, New York, NY [etc.], 2010.

Lind, E. Allan/Tyler, Tom R., The social psychology of procedural justice, Springer Science & Business Media, 1988.

Luhmann, Niklas, Legitimation durch Verfahren, Suhrkamp, Frankfurt am Main, 1983.

Menkel-Meadow/Carrie, Is ODR ADR: Reflections of an ADR Founder from 15th ODR Conference, The Hague, Netherlands, IJODR, 2016, 3, pp. 4.

Parker, C., Twenty years of responsive regulation: An appreciation and appraisal. Regulation & Governance, 7(1), 2013, pp. 2–13.

Peppet, Scott R., The ethics of collaborative law. J. Disp. Resol., 208, p. 131.

Pohjonen, Soile, Proactive law in the field of law. Scandinavian Studies in Law, 2006, 49, pp. 49-4.

Pratt, J. M., Three Tiers for Collaborative Law: A Moderate Solution. Resolved: J. Alternative Disp. Resol., 2015, 5, pp. 4.

Roberts, Simon/Palmer, Michael, Dispute Processes, ADR and the Primary Forms of Decision-making, Cambridge University Press, Cambridge, 2005.

Sela, Ayelet, Can Computers Be Fair: How Automated and Human-Powered Online Dispute Resolution Affect Procedural Justice in Mediation and Arbitration, Ohio St. J. on Disp. Resol. 33, 2018, pp. 91–148.

Siedel, George/Haapio, Helena, Using proactive law for competitive advantage. American Business Law Journal, 47(4), 2010, pp. 641–686.

Solarte-Vasquez, Maria Claudia, Regulatory patterns of the internet development: Expanding the role of private Stakeholders through Mediatized «Self-regulation». Baltic Journal of European Studies, 3(1), 2013, pp. 84–120.

Solarte-Vasquez, Maria Claudia/Järv, Natalia/Nyman-Metcalf, Katrin, M., Usability factors in transactional design and smart contracting. In The Future of Law and eTechnologies, 2016, pp. 149–176.

Solarte-Vasquez, Maria Claudia/Nyman-Metcalf, Katrin, M., Smart contracting: a multidisciplinary and proactive approach for the EU digital single market. Baltic Journal of European Studies, 7(2), 2017, pp. 208–246.

Thibaut, John W./Walker, Laurens, Procedural justice, A Psychological Analysis, L. Erlbaum Associates; Distributed by the Halsted Press Division of Wiley, Hillsdale, N.J., New York, 1975.

Tyler, Tom R., Why people obey the law, Yale University Press, New Haven and London, 1990.