The Huffington Post: In Our Courts ‘Justice’ Is Bought

 

By Lance Soskin
President, eQuibbly

There are few elements more important to a free and democratic society than an open, fair and accessible justice system. This is never more apparent than when your liberty or livelihood is at stake.

The executive director of The Institute for the Advancement of the American Legal System, Rebecca Love Kourlis, summed-up nicely the state of the American justice system when she said, “If you get in a car wreck, and there’s an argument about who should be paying damages, your assumption is that you can go to court to have that case resolved. The truth of the matter is that’s probably the last place you want to be, because the fees and the costs will ultimately be more than your car is worth, even if you drive a really nice car.”

Due to the nature of our adversarial justice system, it’s more often than not going to be the party with the high-priced attorney who wins in court rather than the party with the more meritorious case. Litigation is a multi-billion dollar industry that favors the wealthy. Much of that money simply lines the pockets of attorneys who charge on average between $300 and $700 an hour to tell us what the law is and how it can be manipulated in our favor to vanquish our opponents. That’s great for the small percentage of Americans who can afford a skilled lawyer, but it leaves the rest of the population at a significant disadvantage.

Even if you have a legitimate case, if your opponent has a lot more money to spend on high-priced attorneys who employ delay tactics, as Kevin O’Leary of Shark Tank and Dragon’s Den fame would say, either “you’re going to be squashed like the cockroach you are”, or those high-priced lawyers are going to have you tied-up in hearings and motions and pre-trial discovery for so many months or possibly years that you will go broke before you ever get the chance to present the full merits of your case.

Given the complexity of our laws and legal procedures, if we want any hope in hell of protecting our rights, attorneys are a necessary evil. But why should the average person or business owner need to pay tens of thousands of dollars in legal fees to get the justice they’re due? If “ignorance of the law is no excuse” when it comes to determining liability or culpability, would it not make more sense for the government to ensure that the laws and procedures can easily be understood by the average person? Shouldn’t justice, in the true sense of the word, be available to everyone?

Although America prides itself on having a fair and accessible government-run justice system, the truth is that for most of us, justice is neither fair, nor easily accessible. The American justice system faces serious issues that are not easily resolved and will not be resolved any time soon without drastic reform. Most of us want, and in fact need, options that are cheaper, quicker and less complicated than going to court or hiring an attorney to fight all our battles. We need to make better use of alternative dispute resolution options such as mediation and arbitration. Given our shrinking budgets, both governments and personal, what other options do we have?

Are Arbitrators & Mediators as Knowledgeable about the Law as Judges and Attorneys?

Some eQuibbly users have asked me how an arbitrator or mediator can do as good a job resolving disputes as a judge or an attorney given that they haven’t had the extensive training in the law.

This is a bit of a red herring.One of the main tenets of Alternative Dispute Resolution (ADR), and indeed a significant benefit of ADR, is that it is not subject to the “law of the land” of any one country or state. That’s one reason why arbitration is so popular for cross-border disputes; if they chose to go to court they would have to pick one jurisdiction’s laws to apply to resolve their disagreement.

Although some ADR institutions apply the law of the land when making decisions or steering the negotiation, in the vast majority of mediations and arbitrations, the formal law is not applied. Of course some general laws are taken into consideration as a matter of common sense and fairness; for instance if two people sign an agreement it is generally considered a very good indication that they both intended to honor that agreement. But laws that are applied by a judge in court, such as strict time limits and laws on what is considered admissible evidence, are not applied in ADR or ODR (Online Dispute Resolution which is a type of ADR).

More important than the law, is that the arbitrators and mediators remain unbiased and fair, follow the procedural rules agreed to by the parties (like the “Rules of Arbitration” listed on eQuibbly), and consider the dealings between the parties leading up to the dispute, any contracts or other evidence, and the specific facts and circumstances presented to the extent they’re credible. Decisions are based on fairness, equity, common sense and the specific facts and circumstances, rather than the rigid laws of a court.

So there is no need to know the laws of the land, nor is there a need for an attorney or a judge with expertise in the law to resolve your dispute. That being said, many lawyers and ex-judges do become mediators or arbitrators.

Do you think the law of the land has to be applied to arrive at a good resolution to a dispute?

Why Disputes are Best Resolved Online Rather than In-Person

For most of our day-to-day communication, we rely on the written word to replace much of the in-person and telephone conversations we relied on in the past. There’s no doubt there are instances where the intended meaning of what we write is misinterpreted by the person on the receiving end, which could have been avoided in person. But in certain situations, such where there are disputing Parties, there are many benefits to using the written word online.

How many times have you been in an argument or dispute with someone where simply looking at the person makes your blood boil?  How often does your blood boil over when that person opens their mouth to speak? Anthropologist Ray Birdwhistell found that over 65 percent of communication is nonverbal.

Each gesture or movement can convey meaning and trigger different emotions in others. This is useful in most circumstances, but given a dispute between Parties who are at odds with one another, it can be destructive. Facial expressions, the roll of the eyes, crossing of arms, shrugging of shoulders, or inflection in someone’s voice can set off negative emotions that distort the substance of the message – reason and logic are lost to emotion.

The following are some of the benefits that Online Dispute Resolution (ODR) has over traditional in-person dispute resolution:

1. Online communication is often less emotional since negative verbal and visual communication is absent; it’s easier to focus on the facts and a reasoned resolution.
2. People are less likely to be intimidated by the opposing Party when they’re not physically present due to the absence of visual and vocal tools of intimidation.
3. It levels the playing field for those who are less skilled at expressing themselves verbally, suffer from stage fright, or who have speech impediments that cause them to be self-conscious. People also are less likely to be caught off guard or become flustered in the heat of the moment.
4. It provides the Parties time to organize their thoughts and state their case in the clearest manner possible. There is time to consider what the other Party’s position is and to prepare a reasoned response.
5. It eliminates the difficulties created by physical distance, other travel barriers, and scheduling conflicts.
6. There’s a written record of what has been discussed making it difficult to deny what was said.

 

Crowdsourcing Online Dispute Resolution – The New ADR

A relatively new type of litigation alternative called Crowdsourced Online Dispute Resolution (CODR) has the potential to offer an even faster and cheaper means of resolving disputes than traditional Alternative Dispute Resolution (ADR –  which includes mediation and arbitration).

In June of 2006, Jeff Howe first coined the term “crowdsourcing”, when referring to tasks that were being performed by ‘crowd outsourcing’ that previously would have been outsourced to other companies. In essence, harnessing the power of group intelligence.

Crowdsourcing isn’t just a fad. Many large corporations have jumped into crowdsourcing head-first. Some of the best examples have been through social media channels where big brands like Domino’s Pizza, Coca Cola, Heineken and Sam Adams have crowdsourced a new pizza, song, bottle design and beer. GE has conducted multiple million dollar open innovation projects. Amazon built one of the largest crowdsourcing platforms called Mechanical Turk. General Motors, Procter & Gamble, and PepsiCo continue to execute crowdsourcing projects – not just one-off publicity stunts.

Crowdsourcing is still in the early adoption phase with smaller businesses and individuals. A very small percentage of people are familiar with everything crowdsourcing can do. Threadless.com is just one example: it selects the t-shirts it sells by having users provide designs and vote on the ones they like, which are then printed and available for purchase. These examples use a form of CODR called “crowdvoting”.

Crowdvoting takes advantage of what is known as the “wisdom of the crowd” which is based on the idea that under the right circumstances a group of people is often more intelligent than an individual. This idea of collective intelligence proves particularly effective on the web because people with very diverse backgrounds can contribute. There is a body of literature asserting that a diverse untrained crowd can outperform experts under certain conditions (Page 2007; Surowiecki 2004)

Financial journalist and staff writer of “The Financial Page” for the “New Yorker”, James Surowiecki explains how large groups of people are often smarter than an elite few in his book “The Wisdom of Crowds“. He says that four elements are required to form a wise crowd:

1. Diversity of opinion – Each person should have private information even if it’s just an eccentric interpretation of the known facts.
2. Independence – People’s opinions aren’t determined by the opinions of those around them.
3. Decentralization – People are able to specialize and draw on local knowledge.
4. Aggregation – Some mechanism exists for turning private judgments into a collective decision.

Based on Surowiecki’s book, Prof. Harri Oinas-Kukkonen – Professor of information systems at the Department of Information Processing Science, University of Oul in Finland – captures the wisdom of crowds approach with the following eight conjectures:

1. It is possible to describe how people in a group think as a whole.
2. In some cases, groups are remarkably intelligent and are often smarter than the smartest people in them.
3. The three conditions for a group to be intelligent are diversity, independence, and decentralization.
4. The best decisions are a product of disagreement and contest.
5. Too much communication can make the group as a whole less intelligent.
6. Information aggregation functionality is needed.
7. The right information needs to be delivered to the right people in the right place, at the right time, and in the right way.
8. There is no need to chase the expert.

CODR may be the beginning of a new era in affordable and effective dispute resolution. It could be an era in which dispute are solved by the collective intelligence of your ‘community’, whatever that community may be. Whether you are involved in a family or neighborhood dispute or a potential lawsuit involving many thousands of dollars, these processes should be considered. They are often more affordable and effective methods of dispute resolution and can result in a fair, just, reasonable solution for both you and the other party.

(Contributions to this post were made by Danel Dimov – PhD Student at Leiden University)

Other Resources of Note:

1. Crowdsourcing: How the power of the crowd is driving the future of business. Jeff Howe. Random House, 2008.
2. http://www.businessesgrow.com/2011/08/31/the-top-five-crowdsourcing-mega-trends/
3. http://en.wikipedia.org/wiki/List_of_crowdsourcing_projects
4. http://en.wikipedia.org/wiki/Crowdsourcing#.22Wisdom_of_the_crowd.22