Future of Jutsice Webinar
Panelists Vincent Polley – Moderator Founder of KnowConnect PLLC
Ethan Katsh – Director, NaAonal Center for Technology and Dispute ResoluAon
Vikki Rogers – Director Inst. of InternaAonal Commercial Law
ChiJu Nagarajan – Head of eBay & Paypal Community Courts
Timothy Sze – Lecturer, Hong Kong University of Science and Technology
Ethan Katsh Director NaAonal Center for Technology and Dispute ResoluAon
The Future of JusAce New processes to achieve jusAce or gain access to jusAce – Why we need new processes – How technology can help • Emergence of Online Dispute ResoluAon (ODR) • What these processes might look like
Why we need new processes Increase in disputes Conﬂict is a growth industry (ﬁrst page of Ge#ng to Yes) – Impact of technology: TransacAons and RelaAonships – What do we know about disputes? • Broad range – numerous and/or novel – simple to complex – low value v. high value – two parAes – mulA-‐party – private and public – large number of categories (commercial, personal, territorial, cultural, etc.)
Wikipedia • Over a million entries • More than 500,000 contributors • Users resolve problems – Dispute resoluAon process – MediaAon Cabal
Technology is a great dispute generator Byproduct of online transacAons Byproduct of online relaAonships Byproduct of increasing value of informaAon Byproduct of broader distribuAon of informaAon Byproduct of virtual goods and virtual property Byproduct of increasing creaAve acAvity Byproduct of increasing complexity Byproduct of acceleraAng pace of change Byproduct of Web 2.0 Can it be a dispute resolver?
How can technology help resolve disputes? • All dispute resoluAon (except perhaps war) involves communicaAng and managing the ﬂow of informaAon • All soaware involves managing the ﬂow of informaAon • Two funcAons of computers – communicate informaAon and process informaAon
What does online dispute resoluAon mean? • Resolving conﬂicts that occur online or • Resolving conﬂicts by using online resources – technology assisted dispute resoluAon
What do ODR systems look like? • Blind bidding -‐ CyberseJle • Technology-‐assisted negoAaAon -‐ SquareTrade/eBay disputes • Online brainstorming -‐ NaAonal MediaAon Board/UMass project • Non-‐binding arbitraAon -‐ ICANN domain name disputes • MediaAon Cabal – Wikipedia • Virtual juries – eBay • Online ombuds oﬃce – U.S. Army • Peace building – maps and single text draaing – Sri Lanka • Courts -‐ ?
Further informaAon hJp://www.odr.info hJp://www.odr2012.com
Vikki Rogers Director InsAtute of InternaAonal Commercial Law
THE FUTURE OF JUSTICE How Technology is Shaping The Dispute Resolution Ecosystem A Webinar brought to you by IBO The Internet Bar Organization
Taming the Wild World Wide Web: Who Will Govern E-Justice? Vikki Rogers Director, Institute of International Commercial Law Pace Law School
Setting Parameters * Technology * Technology Assisted Dispute Resolution vs. Online Dispute Resolution Platform * Justice * Disputes
Devices Used to Access the Internet
Internet Intermediaries Internet access and service providers
Data processing and web hosting providers, including domain name registrars
Internet payment systems
Internet search engines and portals
Participative networking platforms
Source: OECD Report, The Economic and Social Role of Internet Intermediaries, April 2010
Mobile Phones • Mobile phones numbered more than 4.6 billion by the end of 2009* • Mobile broadband subscriptions overtook fixed broadband subscribers in 2008* • Worldwide profits from mobile payments totaled over $68 billion in 2009, and are expected to reach over $630 billion by 2014** • 81.3 million mobile payment users worldwide in 2009, and projected to be 490 million users by 2014** • 5 billion consumers worldwide use mobile phones while only 1.5 have access to financial services** • Mobile payments linked to credit cards offer the strongest protection**
* Source: OECD Report, The Economic and Social Role of Internet Intermediaries, April 2010 * *Source: Consumers Union Report, Mobile Pay or Mobile Mess: Closing the Gap Between Mobile Payment Systems and Consumer Protections, June 2011
Technology Assisted Dispute Resolution
Online Dispute Resolution Platforms
Negotiation * Mediation * Conciliation * Arbitration * Litigation
Part 1: Just Process * Impartiality of ODR Personnel & Decision-Makers* * Accessibility & Convenience* * Efficiency*/Speed of Process * Reasonable Cost* * Transparency* (in process and/or decisions rendered by ODR provider) * Principle of Representation* * Neutral Platforms * Source: Alternative Dispute Resolution Guidelines Agreement reached between Consumers International and the Global Business Dialogue on Electronic Commerce November, 2003
Part 2: Enforcement Can â€œjusticeâ€? be attained if a judgment or agreement cannot be enforced?
UNCITRAL Working Group III on Online Dispute Resolution • Draft Procedure Rules for Online Dispute Resolution for Cross-Border Electronic Commerce Transactions • Intended for high-volume, low-value cross-border business-to-business and business-to-consumer disputes • Provides two phases: (1) automated negotiation phase + (2) facilitated settlement & arbitration phase
Structure of the Rules (1) Scope of ApplicaAon; (2) DeﬁniAons; (3) CommunicaAons (4) Commencement [of ODR proceedings]; (5) NegoAaAon; (6) Appointment of neutral; (7) Facilitated SeJlement; (8) Conduct of ODR proceedings; (9) [Issuing of][CommunicaAon of][decision][award]; (10) Language of proceedings; (11) RepresentaAon; (12) Exclusion of liability; and (13) Costs.
Lingering Questions • • • • • • • • •
What will be the point of intersection between legal rules and system design? How will the creation of the global ODR system be driven, via the creation of the UNCITRAL instruments or the resolution of the system design issues? Will the UNCITRAL legal instruments be sufficient to provide the necessary backbone for a global system? Can one set of instruments satisfy the procedural needs for the resolution of B2B and B2C disputes? Does an effective resolution system require pre-dispute agreements, arbitrators and awards, or would agreements post-dispute, neutrals and decisions be sufficient? What is going to attract merchants to the system (how can contractual relationships be created to bind merchants?), and who would be the relevant parties to the agreement? ‘Modern’ internet intermediaries revived the work on this subject and logically should be part of the functioning of the system, but where and at what stage? What should be the scope of the substantive principles to base decisions upon – should we have detailed principles for $70 disputes or are ‘symbolic’ principles sufficient? How will voluntary compliance with decisions be encouraged? In the alternative, how will cost-effective and practical enforcement be achieved?
Pushing the Envelope • Ensuring a “just process” in platforms in which users do not realistically have redress back to courts (closed redress systems). • Providing access to a “just process” via ODR platforms when national courts might not otherwise provide access.
Chi2u Nagarajan Director Ebay & Paypal Community Courts
ODR The Indian PerspecAve ChiJu Nagarajan July 27 2011
Dispute ResoluAon • Needs to cater to this vast divide • Diﬀerent methodology tools and design required • EmoAons • Culture • Oﬄine and Online blurring • Service via Internet and Mobile
Urban and Cross border Disputes • Similar to any developing naAon • Internet penetraAon present • Smart phone and 3G technology available • Similar ODR mechanisms can be used • India can be both a consumer of ODR and a technology provider • Great scope
Rural • Internet penetraAon available but limited • Kiosks available • Mobile phones at every nook and corner • Family and Social Disputes
ODR Enablers • AlternaAve Dispute ResoluAon strongly advocated • IT Act 2000 and amendment 2008 • The Electronic Service Delivery Bill, 2011, which aims at delivering all public services to ciAzens in the electronic mode • Consumer Online Resource and empowerment center hJp://www.ccccore.co.in/
First ODR System
Community Review Forum
PayPal Counterfeit Court
Timothy Sze Lecturer Hong Kong University of Science and Technology
The Future of JusAce: How Technology is Shaping the Dispute ResoluAon Ecosystem
Access to Commercial Jus?ce in the Developing World – China Experience Timothy Sze July 2011
Chinese Internet : Ready for third-‐wave growth Technology companies Baidu, Tencent, Shanda rose from the ashes of dot-‐com bust.
Web portals in late 1990’s created the ﬁrst boom.
We anAcipate an explosive third wave propelled by Mobile Internet, E-‐commerce, Online Gaming and Cloud Compu?ng.
Valua?on of Listed Companies
ONLINE GAMING (casual, mobile, social)
e-‐Commerce Emergence in China
There is a 50x opportunity in E-‐commerce as China grows to match the U.S. ! e-‐Commerce Development • Payment has been solved via escrow, COD • Logis?cs problems also solved! • Taobao = 50% of packages shipped • B2C rapidly growing, gaining trust • In each domain, top 2 B2C will be valuable
• Yet, gap with US is s?ll 50x (!) in e-‐commerce!
e-‐Commerce Accelerates Adver?sing • E-‐commerce makes adver?sing measurable & targetable • E-‐commerce makes adver?sing more valuable
Data Source: iResearch, IAB & emarketer
China e-‐Commerce Analysis & OpportuniAes User
Pre-‐ 1 purchase search
Product search, yelp
Microblog & communiAes
3 Shopping B2B、B2C
4 Payment Bank, carrier, escrow
5 & Service Customer Service
Value proposiAon needs to be clear Amazon: 1-‐6 360 buy: 3, 4, 5 Dianping: 1, 2 Taobao: 3, 4, 6
SaaS, cloud 1
Big opportuni?es in 3, 4, 5; however, it’s “moving boxes” & compe?ng on cost, and not technology play
1, 2, 6 are where the biggest opportuni?es are for technology companies
Another valuable opportunity is to inves?gate higher-‐margin social/entertainment shopping
Cloud CompuAng OpportuniAes 1
Cloud Compu?ng may create a “new somware / IT” industry in China! • China has no somware industry today due to piracy. • Cloud Compu?ng will create opportuni?es for a cloud-‐genera?on somware industry: Soaware installaAon and upgrading shiaing from the user to the cloud Business model shiaing from expensive upgrades to ads-‐sponsored IT management shiaing from end-‐user to cloud-‐services Gaming is now a $20 billion industry thanks to Cloud CompuAng (from $10 million in 1998)
China’s top engineering talent can tackle global opportuni?es ! • Chinese engineers are plen?ful, talented and lower-‐cost. • Find global opportuni?es (e.g. iPhone & Android applica?ons) that can leverage this.
Future opportunity: cloud infrastructure • Chinese websites are not sophis?cated to appreciate elas?c services yet • But as they mature, opportuni?es will be emerge, since no Amazon/Google!
ODR in China • • • •
China has the highest Internet and mobile phone usage rates in the world. SubstanAal changes to the understanding of dispute resoluAons. The applicaAon of online faciliAes to facilitate the dispute resoluAon process has received unprecedented acceptance. Key organizaAons: ADNDRC/CIETAC
Stay in touch email@example.com
Thanks To Our Sponsors
Thank You for A2ending The Future of Jus?ce A short presentaAon of an ODR platorm by one of our sponsors, SmartSeJle, will begin shortly. Please stay on this screen if you wish to conAnue watching.
Property Assessment Disputes By Ernest Thiessen, PEng, PhD, President & Founder For IBO Future of Justice Webinar, 2011 July 26 Sponsored in part by the National Research Council of Canada
Ernest Thiessen, PEng, PhD • • • •
Engineering Systems Analyst PhD from Cornell University Inventor of the Smartsettle eNegotiation System Founder, President & CEO of iCan Systems Inc. located in Vancouver BC • Director, Summit Negotiations Society • Repeat speaker at UN sponsored forums on Online Dispute Resolution • Water conflict management lecturer for UNESCO-IHE
Smartsettle Team here today • • • • •
Ernest Thiessen, PEng, PhD, President, Founder, Inventor Paul Miniato, Senior Systems Analyst Derek Barber, Senior Programmer Bruce Hiebert, PhD, VP Applications and Ethics Kristi Schroots, Senior Administrator
Comprehensive Â Product Â Offering Our advanced decision-maker suite scales from simple, single-issue to complex, multivariate cases Smartsettle One From the simple
Smartsettle Infinity to the Complex
Our Vision Conflict resolution in a more peaceful, collaborative & intelligent way throughout the world
Ordinary Negotiations suffer from Four Serious Problems 1. Huge amounts of TIME and MONEY are wasted with a tedious negoAaAon dance, 2. Signiﬁcant VALUE is lea on the table, 3. RELATIONSHIPS are devastated by using adversarial tacAcs, and 4. WEAKER parAes are inAmidated by
Collaboration & Generosity
Smartsettle addresses these problems with a process using formulas that: • encourage collaboration, and • reward generosity.
Smartsettle One Negotiation Simulation Taxpayer says that Assessor evaluated his property too high.
Goal of exercise • To use a hypothetical case to demonstrate how Smartsettle One streamlines simple negotiations: – Removes time & meeting constraints – Eliminates tedious negotiation dance – Transforms adversarial negotiations into collaboration – Eliminates single-party dominance • Creates a field of equals
Eight Step Smartsettle Process 1. 2. 3. 4. 5. 6. 7. 8.
Prepare for negotiation Define the problem Build a Framework for Agreement Exchange proposals Negotiate with Visual Blind Bidding Arbitration (optional) Uncover hidden value Implement the deal
Seven Steps (for simple low-value cases) 1. 2. 3. 4. 5. 6.
Prepare for negotiation Define the problem Build a Framework for Agreement Exchange proposals Negotiate with Visual Blind Bidding Arbitration (optional)
idden 7. Uncover Implemenththe deal value
Boil it down to a single issue.
Step 1: Prepare for negotiation • Taxpayer claims assessment is too high. • Assessor is not willing to change assessment. • Taxpayer suggests they go to court. • Assessor suggests that case may be suitable for Smartsettle One. • Taxpayer watches short orientation video. • Taxpayer agrees to use Smartsettle One.
Step 2: Define the problem Taxpayer and Assessor determine that the only issue is the evaluation of the property.
Step 3: Model the problem • Assessor prepares Framework for Agreement with all issues resolved except for one numerical issue, assessment evaluation in this case. • Parties may change the Framework for Agreement later, but it is simple enough that they probably won t
Step 4: Exchange proposals • Parties confidentially enter optimistic proposals at a time and place of each party s choosing • Parties review proposals and make counterproposals • Parties may be face-to-face or anywhere on the Internet • All information remains confidential
Step 5: Negotiate: Visual Blind Bidding • Smartsettle generates Suggestions. • Binding agreement is reached at the end of a session when parties accept the same value. • If there is an overlap among accepted packages, Smartsettle favors the most generous party.
Step 6: Arbitrate if needed (optional) â€˘â€Ż Parties may agree to Dampened Pendulum Arbitration to guarantee a settlement in Final Session.
Step 6: Implement the deal • Framework for Agreement is filled in automatically and may be downloaded by the parties. • Taxpayer is satisfied and the reputation of Property Assessment is preserved.
Visual Blind Bidding
Dispute has been boiled down to a single numerical issue: Assessment
Visual Blind Bidding Initial Optimistic Proposals
Tedious 30 Negotiation Dance Assessor
Visual Blind Bidding Optimistic Proposals
10 13 Taxpayer
Visual Blind Bidding Optimistic Proposals Hidden Acceptances 10 13 Taxpayer
Visual Blind Bidding Optimistic Proposals Hidden Acceptances 10 Â 13 Taxpayer
Visual Blind Bidding
It s a deal! 10 13
(there may sAll be hidden value)
Works with any type of negotiation, any number of parties, and any type or number of issues.
Visual Blind Bidding
Reward for generosity
Visual Blind Bidding Assessor
Assessor s final move
Agreement revealed ? ? by Smartsettle 14
Zone of Agreement Taxpayer s final move Smartsettle considers the party that made the smallest last move as the most generous.
Dampened Pendulum Arbitration Assessor
Final Deal Taxpayer
Rewards generosity Minimizes the need for arbitration Minimizes clear-loser problems
Smartsettle Multivariate Process 100%
Fair & Optimal Solution
Taxpayer Tentative Zone of Potential Agreement