Transforming landscapes: Forging new ODR systems with a human face

Abstract
This paper challenges the current paradigms being used for development of online dispute resolution and in particular, its application to regions in Asia that lack telecommunications infrastructure. Instead, it suggests that a perspective that is attendant to the specific challenges in the Global South needs to be taken. In particular, the next generation of online dispute resolution systems will need to both reflect the rich diversity of cultures in the Global South and its unique socio-political textures and is doing so, address issues related to peacebuilding and conflict transformation using technologies already prevalent in the region, like mobile telephony and community internet radio. Practical suggestions are made for future areas of development in ODR after a brief exploration of key challenges that influence the design of such systems.

Author Details
Sanjana Hattotuwa is a Rotary World Peace Fellow, a Research Associate at the Centre for Policy Alternatives, Colombo, Sri Lanka and a Fellow at the Centre for Information Technology and Dispute Resolution. His interest lies in the nexus between technology, peacebuilding and media and has written widely on these topics and maintains an active research interest in developing holistic frameworks that build local capacities of these sectors in the Global South.

At present, Sanjana is the Strategic Manager of Info-Share in Sri Lanka (www.info-share.org), an initiative created to bridge gaps in communication between the main stakeholders in the Sri Lankan peace process and enable greater public participation, accountability and transparency in processes of peacebuilding.

Introduction
Any endeavour to vision new iterations of ODR systems must begin with its evolution in the Global North, its applications in the Global South, the resulting gaps between theory and practice, and finally, ways in which such systems can endogenously build local capacities for the non-violent resolution of disputes. This paper attempts to capture the leitmotifs in current debates on ODR systems that are designed to respond to challenges unique to the Global South and in doing so propose frameworks that will benefit the practice and theory of ODR writ large.

Current theories and experience of ODR
Discussions on online dispute resolution (ODR) most often concentrate on its use in e-commerce applications, domain name dispute resolution mechanisms or as the virtual / online evolution of alternative dispute resolution (ADR) systems (Choi, 2003). ODR’s traditional emphasis on dispute resolution, as opposed to the examination of the underlying structural causes of conflict, has been a foundation upon which many e-commerce disputes have been resolved through web based services such as Squaretrade (www.squaretrade.com), The Claim Room (http://www.theclaimroom.com) and The Mediation Room (http://adr.themediationroom.com) (Katsh, 2002). ODR has been developed in and championed by countries, organizations and individuals in the Global North, countries which have benefited from sophisticated and pervasive internet services and infrastructure, low cost of access, the ubiquity of PC’s and legal frameworks which have evolved over time to give rise to the increasing prevalence of ODR applications to resolve disputes. Authors like Ethan Katsh and Janet Rifkin (2001) identify several generations of ODR, underscoring its maturity and eschewing the notion that it is an underdeveloped technology and services framework that is ill suited to bear the burden of tasks many of its proponents actively argue it can grapple with. From simple email based systems to the increasing sophistication of websites that offer a range of ODR services, from static web pages which give information on ADR and traditional justice mechanisms for redress to portals and dynamic websites that offer the user a range of service tailored for the individual disputes, the technology used by ODR has seen a massive growth in recent years (Conley Tyler and Bretherton 2003), with a consonant increase in its use by participants familiar with ADR and those who have bypassed ADR and have leapfrogged into ODR – as of July 2004, at least 115 ODR services had been launched worldwide, settling more than 1.5 million disputes (Conley Tyler 2005).

Problems with ODR in the Global South
Contrary however to the technological determinism that has swept the Global North – such as recent pronouncements of the ‘flatness’ of the world by authors such as Thomas Friedman (2005) who believes that the internet has helped erase all socio-political differences between States with the advent of global knowledge markets – this paper argues that the development of ODR in the Global South shows different trends and is informed by different dynamics to that of the Global North. While by no means an issue that is irrelevant in the North (Birdsall 2000, Wahab 2004), the digital divide – the inequitable distribution of technology to social elites and on the other hand, the gap between these elites and their use of technology and the realities of the many millions who do not have access to such knowledge and by extension, power – underpins the context of ODR in developing countries (Wahab 2004, Parlade 2003). Such countries, amidst a litany of other issues coterminous with under-development, have skewed IT frameworks, ill-thought e-government initiatives, have high cost of access, vast regions with no electricity and by extension, unable to run and maintain PC’s and have little or no human resources to under-gird sophisticated ODR mechanisms.

As such, the ‘benefit’ of ODR is not a given in such contexts, where protracted ethno-political conflict, corruption, disease and humanitarian emergencies, inept governance and a myriad of other social ills prevent society from the enjoying the good life and opportunities for societal advancement taken for granted in the Global North. In this essay, I will attempt to draw the contours for a new generation of ODR technologies and frameworks that will go beyond the current confines of ODR theories and their application. In doing so, I will argue that ODR has great value for countries in the Global South, including for peace. However the expansion of ODR systems will require a coterminous expansion of ODR theory. The emphasis here is on a transition from conflict resolution to conflict transformation, from an understanding of ODR that excludes structural issues to an appreciation that any ODR mechanism is an inextricable part of the social fabric of the context in which it is applied. Writ against a socio-political fabric similar to that of many other countries in the Global South, the frameworks envisaged here constitute a radical revision of current ODR practices, norms, technologies and thinking. This paper will argue that for the pervasive use of ODR in the Global South a radical overhaul of its theories, conceptual underpinning and technologies needs to be undertaken.

Beyond resolution: ODR and conflict transformation
Using ODR systems for conflict transformation or peacebuilding requires a shift from theories which concentrate on dispute resolution to frameworks that engage with conflict and mitigates violence. Conflict transformation is “a process of engaging with and transforming relationships, interests, discourses and, if necessary, the very constitution of society that supports the continuations of violent conflict” (Miall, 2003: 3). The One-Text procedure is a systematic process to elicit underlying interests and needs of parties and providing a mechanism and space to jointly explore and develop many options and deciding on one. Such frameworks would recognise that the ‘resolution’ of protracted ethno-political conflict is untenable and the very best mediation can hope to do is to bring about a transformation of the value systems of disputants so as to achieve a change in the hearts and minds of combatants that in turn de-escalates violence and empowers communities to manage difference peacefully. As such, the author submits that ODR systems are located within the conflict itself and as such, must use culturally acceptable ways to build existing capacities within violently conflictual contexts that helps communities transform such violence.

At present, there are few ODR systems designed for peacebuilding – Info Share in Sri Lanka (www.info-share.org) and Cultures of Peace News Network (CPNN) (www.cpnn.org) stand out as puissant examples in this regard. Few even recognise the difference between dispute resolution and conflict transformation, which necessitates a brief exploration of the term (Hattotuwa 2005). The art of the possible, in countries in the throes of, or coming out, of violent conflict, is often determined by inter-linkages between traditional seats of power and their contestation by new societal forces. The complexity of mapping these forces in order to draw up holistic interventions for peacebuilding is not an easy task. Third parties who are asked to mediate the conflict with the mutual acceptance of the warring factions often become scapegoats when the process gets bogged down by an inability or unwillingness of stakeholders to transform themselves and their actions.

Social discrimination and marginalisation, exacerbated by exclusion from those equipped with the technology and knowledge skills to use ODR systems can severely undermine dispute resolution (alternative or online) in fragile states with complex political emergencies, protracted ethnic conflict, gross underdevelopment or social inequality etc. This means that, to be successful, technologies and frameworks must be resonant to demands from the grassroots, be sustainable, empower communities by taking ODR to the people instead of making the people come to technology hubs and create architectures that can enable ODR to take place from such locations as paddy fields, the post office or the village chieftain’s residence.

The challenge for ODR systems in conflict transformation is to strengthen existing capacities, technologies and social networks to facilitate both the wider use of ODR – spreading its benefits by in contexts where ADR is used through viral networks (social networks that use technology) – and to take ODR to communities who are unfamiliar with ADR / ODR. This means the importance of fully incorporating two technologies with high penetration in almost all regions in the Global South – mobile telephony and community radio – in the creation of ODR solutions that are better able to address the unique challenges of peacebuilding and conflict transformation.

Appropriate Technologies: ODR with a human face
Given its history as an outgrowth of ADR in the West, existing ODR frameworks & technologies are ill suited for anything other than the interesting but short term experimental projects in the Global South. This is because much of what is taken for granted in the West – PC’s, low cost of access, human resources, technical skills, low costs of maintenance, ubiquitous internet access via a very high penetration of broadband services – are absent in many contexts in countries in South Asia.

Realising the potential for the widespread use of ODR in the Global South requires a shift in thinking. This requires heavy emphasis on the process as opposed to the technology, on what is achieved and sustained through ODR, as opposed to what the technology is capable of in ideal lab environments. The arguments here take ODR beyond its comfort zone in the Global North as the ‘fourth party’ in dispute resolution (Katsh 2003), to a facilitator of inter and intra-party dialogues that are inextricably entwined with peace processes, social empowerment, sustainable development and other complex and volatile societal processes that most often define countries and regions in the Global South. The opposition to this revision is palpable – ranging from those who say that ODR was never designed or conceptualised to address or resolve problems of this nature, to others who say that such hybrid frameworks, which use mobile telephony, radio and the internet, are beyond what’s actually possible (http://katsh.org/cyberweek2005/viewtopic.php?t=21).

The counter-arguments such criticisms are under-girded by independently verifiable facts. It is a fact that mobile phone use is exploding in the Global South. It is a fact that mobile users, even in countries that have undergone protracted ethno-political conflict, see massive year-on-year growth – in Sri Lanka alone, mobile phone subscribers on all networks grow by tens of thousands every quarter . More generally, mobile phones have a long and varied history that stretches back to the early 1970s in the certain countries in the Global North, though widespread use came about only from the mid-1980’s onwards. Due to decreasing cost of mobile phones after every iteration of technology, their decreasing form factor, the vast improvements in technical sophistication, reliability and the ability for rapid deployment, mobile phone networks have since spread rapidly throughout the world, outstripping the growth of fixed telephony.

In sum, using not just the so-called ‘thumb generation’ but larger communities which have access to mobile phones even if they will never own a PC, innovative social development initiatives like the Grameen Phone System in Bangladesh (http://www.digitaldividend.org/case/case_grameen.htm), features like vernacular text messaging, also known as short messaging service or (SMS) – a service available on digital GSM networks allowing text messages of up to 160 characters to be sent and received via the network operator’s message centre to your mobile phone, or from the Internet – and language independent multimedia (MMS) services (a store-and-forward method of transmitting graphics, video clips, sound files and short text messages over wireless networks similar to SMS), push-to-talk technology and the growing use of phones that can record sound, images and video, mobile telephony continuously pushes the boundaries of work that has hitherto only been possible through the use of PC’s.

ODR frameworks which exploit technologies already in the hands of grassroots communities are better able to ensure their long term sustainability and use by giving ODR a human face – experiences and interfaces that are far more user friendly than PC based systems. The architectonics of such systems must ensure the highest level of experience for individuals, based on their access method, location, the way in which they connect to the system and the specificity of the cultural and socio-political context.

Expanding the Possible
The vision of radically new ODR architectonics is founded upon the work of others who have written on the subject earlier:
Simple communications functions for the ODR process may therefore rely on mobile phones, while moving intelligent functions (such as software-aided negotiations, videoconferencing, extensive real-time or asynchronous communications, case-management) into selected public access points. (Parlade 2003: 14)

Some of these pioneers are starting to put their ideas into practice. For example Claro Parlade has launched Philippine ODR (www.disputeresolution.ph) using mobile messaging technology (Conley Tyler 2005). The author believes that the art-of-the-possible is only limited by our inability to see beyond the PC based ODR paradigms. Given the high prevalence of land disputes in Sri Lanka, it would be useful to explore ways in which ODR systems can augment existing ADR initiatives, not only making them more pervasive and user-centred, but using technology to take mediation to the hinterland of conflict instead of getting disputants to travel to ‘centres of resolution’. In-field ODR opens up new vistas of possibilities that the PC based ODR paradigms cannot match or even hope to achieve. In doing so, as argued earlier, ODR must locate itself within the established canon of conflict transformation and peacebuilding, instead of just dispute resolution in a strict legal sense. This would involve the creation of ODR systems (for instance, large virtual single-text negotiations platforms) that are resonant to the unique and dynamic demands placed on such systems by processes of peace negotiations, spoiler dynamics, grassroots mobilisation and conflict transformation.
Eschewing the tendency for PC based ODR systems to impose top-down hierarchies and sometimes exacerbate the digital-divide in the Global South, technologies that use mobile telephony and radio assume that communities are more comfortable using what is familiar as opposed to what is not, however sophisticated and powerful such systems might be. To this end, ODR systems must identify and develop existing local grassroots capacities. For example, in Sri Lanka this would involve utilising the very high literacy rate (91%), the ubiquity of radios, easy and low cost access to batteries, existing ADR mechanisms with supporting legislation, thousands of trained mediators, multiple village level peace networks and the exponential growth of mobile subscribers and related services (Hattotuwa, 2004).

The ODR processes thus envisaged (note the plural, since the author submits the importance of a multiplicity of such systems, operating concurrently in multiple levels with seamless data exchange using industry standards ) range from grassroots to stakeholders involved in official peace negotiations. Such systems can use their footprint to serve ODR solutions to entire villages, districts and provinces – creating links within and between them, along with links to international ODR experts and mechanisms. Such regional and international ODR systems need to be based on PC architectures, which remain computing devices with the greatest capacity for storage and computing power. While mobile telephony in particular can either be used as a first-mile access or last-mile delivery systems and community internet radio can be a very effective support mechanism in for ADR / ODR processes, the author by no means belittles the importance of PC’s to power the databases and knowledge repositories that power such hybrid systems. With their big screens, sophisticated operating systems, complex databases, vast amounts of storage and well established place in data management (one cannot, for instance, think of large databases of information residing in mobile phones) hybrid ODR systems that use of mobile telephony and radio cannot ignore the use of PC’s.

However, the central thrust of this paper is the need to move away from systems that do not engage with the potential of technologies that are already entrenched in grassroots communities. This eschews the notion that ODR is simply ADR augmented by the use of the internet via PC’s. For communities that do not have access to PCs, cannot maintain the equipment, cannot afford internet access, do not have the necessary infrastructure (from regular supply of electricity to PSTN telephone lines) and lack the necessary IT skills to avail themselves of sophisticated ODR systems, a purely PC based solution would be sub-optimal and may give rise to even more structural violence on account of the marginalisation of those who do not have access to such technology. The perception that some disputants ‘have it better’ because they have access to computers itself can create societal rifts and increase communal conflict, irrespective of whether the communities that ostensibly visibly have access to ODR systems that use PC’s use the system or not.

It is evident therefore that the argument for the incorporation of mobile telephony and radio in the creation of new ODR systems goes far beyond a mere technical or design issue and is deeply linked to conflict sensitive approaches to the creation of such systems in contexts of nascent peace processes or protracted ethno-political conflict. Low cost of access, their explosive growth, the ubiquity of radios – these are many other factors strengthen the argument that ODR systems that use mobile phones and community radio are better placed to be accepted by communities than frameworks that use PCs .

Challenges
ODR systems for peacebuilding bring up many challenges in not just systems design, but, inter alia, also the ways in which such technology is used, by whom and the wider social implications following the introduction of ODR.

1. Systems architecture
Given that ODR systems for the Global South need to work with technologies that it has hitherto excluded, a period of experimentation and a blossoming of many standards, possibly incompatible with each other, will be followed by a period of consolidation and standardisation. Systems architecture in this interim period will deal with the problems and challenges associated with data exchange, input and dissemination within and between hugely disparate systems with a broad spectrum of users.

2. Mobile telephony
The use of mobile telephony in the Global South, despite its volcanic growth, is by no means a given. There are large swathes of land areas not covered in the cellular footprint of major mobile telephony providers, creating or exacerbating existing digital divides (Wahab, 2004). Furthermore, mobile telephony, though robust, still isn’t sophisticated enough to handle mission critical ODR processes, like those that take place to quell the eruption of violent communal conflict. For areas without local mobile footprints high costs of access may prohibit from widespread use of such systems, especially if funding mechanisms are unsustainable in the long-term.

3. Legal and political context
The volatile political context that is inextricably entwined in nascent peace processes and the very nature of peacebuilding itself can undermine the processes engendered by even the best ODR frameworks. A lack of enabling and supportive legal frameworks can undermine the trust in ODR systems, or at worst, create the perception that such frameworks do not have the clout to ensure compliance and are a waste of time. Collaboration within stakeholders in post-conflict region also requires an attendant knowledge of the culture of politics and its praxis. ODR systems that strengthen the problematic status quo might in the long term be as ineffective as real world processes that are partisan and biased. On the other hand, ODR systems that are not designed to address such local dynamics might be ineffective since they operate with the assumption of cultures of participation that are non-existent. As such, hybrid ODR systems must both attend to and at the same time transform the interactions of the stakeholders using such systems to engender processes of mutual gain that are premised on knowledge sharing on multiple levels.

4. Resistance from l’ancienne régime
Many of the old guard in ODR are suspicious of efforts to broad-base its services, expand its theories, explore new territories of application and create systems for problems that do not lend themselves for resolution. Those who have invested millions of dollars in years of research and development for PC based systems have a vested interest in the promotion of PCs as the central component ODR systems. Theorists and even practitioners of ODR in the Global North, and sometimes, those who have fought hard to establish ODR frameworks in the Global South are oftentimes blinded by their own realities to the possibilities of alternative technologies that can support their work in ways that are far better than what they presently employ. Conflict transformation is a concept and a body of theory that is alien to many lawyers. Given that ODR has evolved from a tradition of law, mediation and arbitration, its transition to non-legal frameworks and contexts will inevitably be challenged as a dilution of core principles of ODR by early adopters.

5. Culture & language
At present, ODR systems pay scant regard to the entrenched cultures of disputants or ways in which such cultures help or impede mediation processes (Rao, 2004, Law, 2004). Ethnic conflict and other value based conflicts are under-girded by complex cultural constructs that need to be recognised in the design of ODR systems for peacebuilding. Influencing the selection of technology to the modes of service delivery, the study of culture will play a vital role in the creation of ODR systems in the Global South for processes far removed from commercial disputes, domain name resolution or e-commerce disputes in cyberspace. The ability to access and benefit from ODR systems will also rely heavily on the language of use – systems that use English exclusively will alienate large swathes of grassroots communities who do not speak, read or write English. From simultaneous translation to multi-lingual interfaces, new generation ODR systems need to eschew monolingual approaches and design systems with the flexibility to operate in several languages seamlessly. There are some moves towards this in European systems (Conley Tyler 2005).

ODR with a human face: The future of hybrid systems
The vision for ODR in peacebuilding and conflict transformation using mobile telephony and radio is based not just on theory, but a confluence of what is eminently possible in countries such as Sri Lanka and the need to re-write the frameworks on ODR to fully deal with the challenges of new iterations of systems that are specifically designed for conflict transformation.

Inter alia, the author submits that these new generation ODR systems must go beyond the mere replication of web based content for PC on mobile devices. Rather, ODR systems must treat the smaller form factor of mobile devices as an advantage, creating experiences that are designed to effectively make use of phone keypads and smaller screens, pervasive and user independent standard for data exchange between PC and non-PC devices, expert systems that intelligently manipulate information and deliver it in appropriate ways to users of the system, systems that use voice and video to facilitate virtual face-to-face (F2F) interactions and use internet radio to promote ADR mechanisms and most importantly, augment the capacity of existing ADR providers to engage with the complex socio-political issues that result from protracted conflict and peacebuilding. In creating new ODR systems for conflict transformation, the emphasis should firmly be on frameworks that hide the complexities of the technology and present users who with a human face for ODR. Such systems will engage communities rather than overwhelm them with sophisticated systems that bear little or no relation to the problems of their daily lives. Systems that are self-effacing and empower communities resolve conflicts on their own stem from a design perspective that is nourished by a recognising and acknowledging the needs of communities on the ground, as opposed to the imposition of high-end systems in a top-down approach. In doing so, the new iterations of hybrid ODR systems envisaged in this paper are attendant to the rich texture of grassroots needs in post-conflict contexts and develop frameworks with a human face that, inter alia, address the following:

• Defining ODR requirements and systems based on needs and priorities that have been expressed by the communities and users themselves, and not just articulated by political stakeholders or traditional power-centres;
• Given state-of-the-art tools to ignite community aspirations and transfer appropriate skills for fostering sustainable development, while at the same time keeping in mind the fragility of socio-political relations in the context of on-going peace processes;
• Expanding a community’s social capital through enhanced access to ODR, while eschewing the facile notion that the prevalence of PC’s itself is indicative of community empowerment;
• Embedding community-based ODR services within existing economic, governance and social structures, while at the same time creating opportunities for communities to use ODR systems to transcend regressive socio-political architectures and create new social contracts;
• Infusing enhanced capabilities for information access within & between communities, for purposes of grassroots conflict transformation;

Final thoughts
This article was not intended to be a precise blueprint for the advancement of ODR beyond its current frameworks into peacebuilding and conflict transformation but an exploration of how and why such advancement needs to engage with mobile telephony and community internet radio. ODR has a rich history that traces it ontological roots to a general dissatisfaction with traditional court based justice systems. ODR has since sprouted many systems and theories leading to frameworks that deal with e-commerce, domain name resolution and other areas.
Moving beyond such paradigms, we must now engage with the possibilities of ODR in peacebuilding and conflict transformation. In doing so, we must fully recognise the rich possibilities of using mobile telephones and community internet radio to strengthen our existing work and to push it into areas hitherto marginalised by ODR constructs (Ideas which are explored further in http://katsh.org/cyberweek2005/viewforum.php?f=3&sid=21d64159357ab4e974ab8b7911eb74d6)

Although beyond the scope of this paper to explore in detail, such systems could seamlessly feed into issues related to refugees and the re-settlement of those who have been internally displaced, disaster relief management, conflict prevention and early warning, resource based conflicts, support peace support operations, feed into e-government initiatives support youth job creation and help with a myriad of other that challenge societies coming out of protracted ethnic conflict.

ODR is at the cusp of a radical upheaval from its foundations as a PC based framework to one that centres around the possibilities engendered by mobile telephony, ‘old media’ such as radios and existing endeavours of community internet radios. As Whitney M. Young, a leading US civil rights leader said “It is better to be prepared for an opportunity and not have one than to have an opportunity and not be prepared.”
It behoves ODR to prepare for the mobile revolution today.

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