David Allen Larson
May 19, 2011
Nevada Law Journal, Vol. 11, No. 2, p. 523, 2011
Cost reduction is one of the desirable results frequently attributed to Alternative Dispute Resolution (ADR) processes. Although it is reasonable to assume that businesses always are interested in saving money, this goal takes on added importance when the economy is struggling. The cost savings inherent in ADR, which already are significant, can be increased substantially through the strategic adoption of technology. Although I generally do not urge caution when it comes to expanding the ways in which we use technology, we nonetheless must recognize not only technology’s potential benefits but also its possible pitfalls. It is relatively easy to identify some of the cost savings that can be achieved through greater reliance on technology. It can be somewhat more difficult, however, to identify the circumstances in which technology can create unanticipated costs. Fortunately, many of those costs can be avoided.
This article identifies cost efficiencies that technology can bring to dispute resolution processes and also suggest how potential costs can be minimized or avoided. The article begins by examining the Technology Revolution. The emergence of technology mediated dispute resolution (TMDR) as an efficient and cost-effective means of resolving disputes illustrates the significant impact the Technology Revolution has had in the area of ADR. This article suggests why TMDR has not been embraced more enthusiastically. It then explores how we can use technology to make dispute resolution more effective and efficient and explains why, in light of a rapidly maturing technology savvy generation, we might have little choice but to embrace TMDR.
The article next discusses Cybersettle and Smartsettle, two of the established TMDR programs available today. The following section provides additional reasons why the use of TMDR will increase, including the assertion that foreign nations’ decisions to expand TMDR will compel the United States to rely more heavily on TMDR. The article then examines the challenges raised by TMDR. These challenges include power imbalances; the possibility that TMDR software and platforms may exercise greater influence over the dispute resolution process than expected; and questions as to how we can involve artificial intelligence devices, robots, and avatars in our dispute resolution processes. Ideas for integrating artificial intelligence devices into TMDR processes are based upon the manner in which these devices already are being used in the health care industry. The article concludes by examining the dangers and financial costs of relying on avatars and robots, identifies sectors well positioned to use TMDR, and briefly raises the issue of whether we need to regulate TMDR.