brillopedia
May 21, 20217 min
Author: Deepankar Sharma, Assistant Professor of Law (Senior Scale), Ph.D. (Thesis Submitted), LL.M. (Corporate Laws), BA.LLB. (Hons.), Diploma in Business Laws at Manipal University, Jaipur.
Abstract
Online Dispute Resolution (hereinafter ODR) procedures are similar to that of physical Alternative Dispute Resolution (ADR), the difference being that ODR uses information and communication technology, and the procedure may be partially or entirely online. Online Dispute Resolution will be beneficial in today’s era of the internet, where the parties to a dispute may be staying thousands of miles apart. Artificial Intelligence (hereinafter AI), refers to the ability of a technology-based machine to match a human simulation. AI is now predominantly a part of machines surrounding our daily routine and has increased presence worldwide including India where the potential of AI is still looked at cautiously. The author attempts to answer questions concerning the role of AI in ODR including their capability to supplement human intervention. The paper aims to discuss the legal responsibility associated with AI, and how does the presence of ADR professionals solve this problem? Additionally, in the era of a pandemic, it is further required to be analyzed the future scope of ADR in ODR format. Finally, an analysis of the pros and cons of AI in ODR can be detailed out to sum the point.
Keywords: ODR, Artificial Intelligence, Legal Personality, Risks, Enforceability
AI’s Impact on Online Dispute Resolution
In recent years, automation and AI have profoundly influenced the legal profession in general. According to experts, there will always be room for lawyers offering creative solutions for complex problems. However, basic tasks like document review, routine responses and filing are becoming automated, and these changes shall become mainstream in the coming years.[1] In recent years, AI platforms that can detect patterns in contracts, flagging the issues which do not fit with a company’s policy have emerged, thereby making their review and approval processes faster. Other systems, such as Cambridge University’s ‘Case Cruncher Alpha’, can review and predict the outcome of cases, faster and more accurately than professional litigators. These tools will lead to a decrease in the demand for lawyers and other legal professionals (paralegals and secretaries). Law firms, as well as corporate legal departments, will have to consolidate to account for these changes.[2]
Automation and AI have also gained traction in the field of ODR and are challenging presumptions about whether an algorithm will be able to replace human interaction and decision-making. On one end of the spectrum, there are online court systems and digital mediation platforms. These online platforms have made ADR a more viable option for all parties involved by connecting parties in need of mediators with qualified professionals. They also process claims much faster and have made the filing process more convenient, by providing them with forms that guide them through the transaction. However, at the far end is the world of big data and AI, with companies such as Google willing to harness the vast data potential of ODR platforms. The most conclusive evidence of how far AI has come along was evident in the ‘Brexit’ negotiations between the UK and the European Union, in which ‘Smart Settle’, the AI negotiation system, played a vital role. The system worked by providing ‘ideal world’ solutions to each party on a common set of problems, allowing them to chart out their own ‘ideal world’ (meaning unacceptable to the other party) position on various issues. Then the parties negotiated a series of trades, and the system allowed each party to see the impact of what they were trading on all parties involved. It allowed the parties to chart out their BATNA/WATNA (Best/Worst Alternative to a Negotiated Agreement), thus helping them reach a position where each party could derive some benefits in the transaction. With such advances in AI during our lifetimes and the theory that the processing power of a computer keeps improving every two years (Moore’s law), the author believes that an AI-driven ODR platform, which is better at resolving disputes than humans, may entirely replace human professionals.
Role of Lawyers in ensuring Trustworthiness of ODR
Although the proficiency of AI has proved that sooner or later they can take over the ODR process, they are not immune from politics. As a rule, the general public tends to have deep misgivings about AI, and allegations of bias and rigging could arise against ODR as well. However, given the pace of technological improvement, ODR will become a cheaper and better alternative to hiring professionals. Therefore, if a big enough disruption comes along on the ADR scene, a la Amazon or Uber improving upon functionalities, costs, and user experience, then clients would prefer to shift their attention.
Therefore, in the future, human professionals may not play a significant role in the dispute resolution process itself, but they would still advise the clients about platforms, and ensure that the platforms conform to traditional values and ethics.
According to Suzanne Van Arsdale,[3] five principles govern an ODR platform, which if compromised, may lead to grave problems:
(1) awareness, accessibility, and usability;
(2) disclosure and transparency of the ODR method and terms of use;
(3) due process and fairness;
(4) enforceability of outcomes;
(5) privilege, confidentiality, and privacy of user data.[4]
Clients care about their bottom line, and that is what influences them when choosing a service. Therefore, if parties choose to use an ODR platform that runs on AI to settle their disputes, one party may bear all the costs of using the service, or they may choose to share the costs, or there may be a different model.[5] Furthermore, it is difficult for clients to decide between different methods of dispute resolution relevant to the dispute at hand and whether the platform they are using is fair and impartial.[6] Therefore, a competent lawyer must assist them through the process of choosing the right platform for their disputes.
Additionally, without competent representation, due process and fairness concerns may arise in ODR to compound apprehensions of a biased algorithm or one which incorrectly applies the law.[7] This is because the same ethical code which binds lawyers does not apply to ODR platforms and AI-driven systems. The inefficiencies, errors and biases which are present in an algorithm can be hidden behind a sleek user interface.[8] Therefore, anticipating the likelihood of an ODR service providing inadequate or wrong output, the client must be represented by an ADR professional adept in tackling these circumstances.[9]
Furthermore, an algorithm’s primary objective is to produce a decision to the dispute rather than educating the users about the underlying decision-making process. This lack of clarity may create a disparity between the experienced and the beginners.[10]
Regarding enforceability, it is still unclear as to how awards made by ODR platforms could be recognized and enforced by local authorities. For instance, there is debate over whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (CEFAA) applies to online arbitral awards, because of concerns around electronic recordings, digital signatures, and certification coming up from time to time. Furthermore, the terms of service or license agreement of an ODR platform could require a client to submit to specific procedures as the exclusive means for dispute resolution, and the client might accept such user agreements with little or no informed consent.
Lastly, ODR providers retain sensitive communications, personally identifiable information, attorney work product, and other records. Therefore, they must comply with local privacy statutes and the client should be able to enforce confidentiality and privilege rights against the platform.[15] In such situations, the role of ADR professionals changes from facilitators to judges, who have to consider these critical issues and make a decision.
The post-COVID Future of Dispute Resolution
The world changed radically in the year 2019-20 when COVID-19 (hereafter ‘coronavirus’) wreaked havoc on the global population. Now, as social distancing and work-from-home have become the new normal, the world has reached the tipping point from where businesses across all sectors will explore efficient alternatives to human labour. There is a renewed push for automation of the workforce, and investment in AI to supplement humans in specialist sectors such as medicine and law will increase. While living with the coronavirus, the conduct of trials and judicial processes must also evolve to meet the challenge. Such global crises engender instability and panic; these, in turn, generate disputes. Consequently, the need for dispute resolution will all but abate.
As the investment in AI and ODR platforms increases post the coronavirus pandemic, ODR may become synonymous with dispute resolution. However, as discussed above, even if the ODR platforms take centre stage, there is no doubt that the presence of human professionals will be necessary to ensure trust in these systems. Furthermore, we will have to expeditiously resolve the ethical and privacy deficiencies in ODR algorithms. Therefore, the ADR professionals would act as advisers on how to make these platforms more user-friendly.
Conclusion
Because of the COVID-19 outbreak and the declaration of the consequent lockdown, though there has been a complete bar on physical movement, the exercise of civil rights and liberties of an individual cannot stand abrogated. The primary objective of the judicial system is to provide access to justice to an ordinary Indian citizen. Unfortunately, due to the suspension of the functioning of the subordinate courts, the majority of the Indian citizens have no legal recourse. Similarly, the constitutional courts have a large number of pending writ petitions, which deal with the alleged infringement of civil liberties of a large number of individuals. Therefore, the infringement has to be redressed, and suspension of the redressal process would itself be a violation of the fundamental rights of an individual. Thus, we must realize that there is an urgent need for conceiving and developing a virtual form of justice delivery system with the application of ODR and AI technologies to supplement the existing judicial framework. The failure to evolve such a supplementary virtual form for dispensation of justice will defeat the fundamental purpose of the Indian legal system, and thereby, herald the fall of one of the most significant pillars of our democratic structure by trampling citizens’ rights without justice. But, the main challenge for multinational corporations would be to automate processes to remain cost-efficient. Simultaneously, governments will have to work with the corporations to rehabilitate the displaced workers and allow their transition into the new workforce. The test for people involved in professions such as medicine and law would be to augment their skills with AI. Therefore, human mediators and negotiators would have to adapt and reinvent themselves and ensure that ADR does not become an old episode on the road to ODR.
[1] Andrew Yang, The War on Normal People: The Truth about America’s Disappearing Jobs and Why Universal Basic Income Is Our Future 38(2018).
[2] Id
[3] Suzanne Van Arsdale, User Protection in Online Dispute Resolution, 21 Harv. Negot. L.Rev. 123 (2015).
[4] Id at 123
[5] Id at 124
[6] Bashar H. Malkawi, Online Alternative Dispute Resolution and Transparency, 2 Contemp. Asia Arb. J. 101,110 (2009).
[7] Id
[8] Rafal Morek, The Regulatory Framework for Online Dispute Resolution: ACritical View, 38 U. TOL. L. REV. 163, 188-89 (2006).
[9] Id
[10] Id