CIArb's Lewis Johnston on ODR Conference

Liverpool provided the backdrop to the 2018 Online Dispute Resolution (ODR) conference “Justice Re-imagined” on 27-28 June. Famed for its rich history of international trade and commercial innovation, the city was an apt backdrop for a forum that highlighted how rapidly the ODR landscape is evolving, and the scale of its impact on the wider ADR sector.

Lord Justice Briggs provided the opening keynote on day one of the conference, and reiterated the proposal from his 2016 Civil Courts Structure Review for the concept of an online court. He also emphasised the importance of applied technology across the entirety of the justice system, and how changing attitudes are crucial to unlocking the full potential of such technology; Lord Briggs cited his own use of dual-screen technology in the Supreme Court as an example of how change can be embraced rather than resisted.

The overarching theme was innovation. ODR is here to stay and is no longer a marginal niche within the ADR profession. As Lord Briggs put it, much like other areas of ADR, ODR is no longer alternative. Furthermore, this shift is being inexorably driven by fundamental economic and social changes, particularly the rise of e-commerce, and it is vital the ADR profession is in a position to embrace these changes to remain relevant. Almost without exception the conference speakers agreed that ODR is an opportunity for ADR practitioners, not a threat.

One of the most commented on but perhaps least understood innovations with the potential to revolutionise dispute resolution is blockchain technology. As in many other areas from monetary systems to electoral processes, speculation has been rife as to the ways in which blockchain can change established models. Reaction has varied, from those who see blockchain facilitating a ‘brave new world’ in which all existing ways of operating become obsolete, to those who see it as an over-hyped myth. At the ODR conference, speakers from Mattereum argued the truth is somewhere in between. One striking parallel drawn was between Bitcoin and the 90s dotcom bubble, in that whilst the mania was irrational, the underlying concept is not – blockchain genuinely is a profound innovation.

Given the status of Blockchain as a ‘trust protocol’ and its ability to provide an undisputable, open-source record of transactions, some have suggested the technology could completely eliminate commercial disputes (and by implication the need for ADR). As the conference speakers pointed out, that is highly unlikely and ignores the importance of the human factor is major historical developments. Disputes will still arise on the context of individual transactions even if their existence can be verified, and interpretation will remain key. The potential for blockchain to facilitate the rise of ‘smart contracts’ was cited by Adam Sanitt as another opportunity for ADR. Adam argued that to be effective, smart contracts must have robust ADR mechanisms ‘baked in’ from the very start. The consensus therefore was very strong that blockchain will not spell the death-knell of ADR – in fact its growth will mean ADR is more important than ever. As one speaker put it, “one of the few certainties of blockchain is that it’ll create lots of work for people who resolve disputes”.

The culmination of the proceedings was a simulation of the UK’s Brexit negotiations, conducted entirely using cutting-edge ODR programmes. This simulation was designed to showcase the latest technology and emphasise how well-formulated algorithms can deliver the optimal outcome for both parties across a multi-variate, highly complex and internally interdependent negotiation, but it also highlighted another key point – ODR is no longer just about small claims. Its applications reach across a whole range of conceivable disputes. The challenge for ADR professionals is to engage fully with these developments and to see ODR as a tool for innovating and driving the profession forward.

If you would like to learn more, please contact Head of Policy, Public Affairs and Research Lewis Johnston via email at ljohnston@ciarb.org.