Thursday, June 26, 2014


Some interesting back-and-forth occurred during the last panel of the day yesterday at the 2014 ODR conference, when David Bilinsky, a legal practice consultant, described the high tech tools he uses in teaching law students. To oversimplify his presentation, these tools allow students to conduct side discussions during lectures in a chat feature that can be employed either during an online or even an in-person class. The theory is that these side chats can expand on the lecture, and reinforce learning by facilitating more interactive participation.

This idea rubbed some people in the room the wrong way, especially those of us who pre-date the online revolution and went to school in the days when teachers constantly told us to stop chatting with our neighbors and pay attention. Even though multi-tasking is now the norm, a lot of us still wonder whether it can really done effectively. Texting while driving, for example, has been known to cause a lot of deadly accidents.

This was the point in the program where the ideas behind using technology to increase efficiency and do things that we are not capable of in the real world, came into direct collision with one of the fundamental ideas behind mediation, which is that active listening and understanding are key to the success of that process. Especially if we are trying to teach conflict resolution and negotiation skills, where we need to impart the importance of paying close attention to what others are saying, staying attuned to the moment, and reflecting empathetically on what is being communicated, does it make sense also to encourage the listeners of those lectures simultaneously to chat with their fellow students about whatever related or unrelated topics may come to mind during the lecture? Well, said some of the panelists, students these days are doing that anyway. I understand that, but wonder whether what we really need to be teaching is how to put down the cell phone and the laptop and just listen carefully to what somebody else is saying without letting your own activities get in the way.

ODR 2014

Attending the 13th International Online Dispute Resolution Forum, being held at Stanford Law School, the first time the conference has taken place in the United States, offers a glimpse into the future of conflict resolution.

Ethan Katsch, dubbed the "father" of online dispute resolution, started the day by telling us that while it began as an outgrowth of ADR, ODR is developing into a distinct field with its own expectations, assumptions and values. I think this might be true, but I'm skeptical based on the evidence so far. Online tools are still mostly applied to allow us to conduct traditional litigation, arbitration, mediation, or negotiation, in more efficient ways.

As a number of speakers told the group, traditional practitioners are often highly resistant to online dispute resolution. John Pardun from JAMS said that about 80 or 90% of their clients are either unfamiliar with ODR or unwilling to use it. India Johnson, the CEO of the American Arbitration Association, mentioned that many of their panel arbitrators are highly resistant to technology. And Kent Walker, general counsel at Google, speaking about patent litigation, thinks that the difficulties of calculating the commercial value of patents, as well as the likelihood that they will be upheld in court, make these cases unsuitable for ADR or ODR. (I wonder about that, since I often find that the great uncertainties of litigation are helpful to mediated resolution of complex commercial disputes: if neither side is sure what something is worth, that leaves a lot of room for potential agreement.)

These attitudes are bound to change, and the change seems to be occurring from the bottom up, rather than the top down. One of the themes of the day concerned the vast numbers of disputes that are too small to be resolved by the traditional justice system, and ODR's potential to efficiently serve this vast market. Services like Rocket Lawyer, Legal Zoom, Smartsettle, Modria, and eLance, all of whom had representatives at the conference, have developed efficient ways of delivering conflict resolution services to parties for whom the traditional court system makes no sense. Many of these consumers are not well served by traditional ADR either.

Potentially this enormous under-served market could even absorb a lot of the lawyers whose workloads have been affected by the shrinking market for traditional legal services. Maybe there is hope that the dawning new age of robot lawyers will create some new opportunities for human lawyers as well.

Sunday, June 22, 2014

Conflict resolution

Mediators often describe the process they lead as antithetical to the traditional justice system. I do it myself, sometimes explaining to the participants in a mediation that we do things in mediation the opposite way from court. For example, I might point out that in a courtroom, the judge is the most important person, and arguments in court are directed at the judge; while in mediation the parties are most important, and arguments are directed at each other.

Mediators also sometimes try to persuade parties that the process is much better than litigation. Litigation is "bad" because it's expensive; or because it's adversarial; or because it produces far from perfect results. Mediation is "good" because it's consensual; or because it's cathartic; or because the parties control the outcome. I use these arguments myself sometimes, in an effort to persuade parties to resolve disputes in a mediated setting to avoid the pain and expense of continued litigation.

Rather than think of litigation and mediation as two competing systems, however, it might be more accurate to consider that they are both aspects of a more complete whole. When we choose to litigate, for example, we might be surprised to find ourselves in a less than wholly-adversarial process. Disputes between the parties in litigation--from something as mundane as getting an extension of time to file a pleading, to discovery disputes, to more substantive disagreements--are usually best resolved by a process of negotiation. Indeed, many courts require that parties attempt to meet and confer to resolve such disputes before bringing them before a judge. Many judges get very involved in settlement negotiations, or at least encourage the use of settlement conferences, or face-to-face negotiation to settle cases. And the vast majority of contested cases in litigation end in settlement, through a process of negotiation, not by trial.

When we choose to mediate, we do it with the backdrop of the court system and the entire body of legal principles and court cases behind us. We can disregard that backdrop if we choose, allowing the parties to reach results very different from the way the legal system might resolve them. But more often parties, their attorneys, and the mediator, all treat the traditional justice system as a touchstone to guide their private attempts to resolve the dispute. So we often find ourselves in mediation attempting to predict how a judge or jury might decide the controversy before us, assigning weight to the probabilities of an outcome in favor of one side or the other. Or the parties might make the same legal arguments they would make in court, arguing that the result should favor one side or the other because that is the result the law demands. In that situation the legal system can serve as a measuring stick to assess the fairness of a proposed resolution. Some mediators function very much like judges, advising the parties on how the case should be resolved under the law. And parties sometimes look to the mediator for an authoritative-sounding resolution.

It seems that in nearly every dispute, parties use a combination of adversarial and non-adversarial means to reach resolution, and parties always retain the full spectrum of tools at their disposal. So even when parties find themselves in court, they know they will probably negotiate their way out of court. And when parties decide to mediate, they still keep the hammer of the litigation system in their back pockets if they cannot resolve the dispute through mediation. In other words, mediation never operates completely outside of the traditional legal system. Even when we try to ignore it, that system always intrudes, like an elephant in the mediation room.

One reason I decided to change the name of this website to "Conflict Resolution" is to recognize that the process of conflict resolution is all of a piece. Just as von Clausewitz recognized that war is the continuation of politics by other means, so litigation is merely a more adversarial form of conflict resolution. We need not view either litigation or mediation as "bad" or "good," nor see the two competing processes as in irreconcilable conflict with each. They are both tools, to be used as appropriate, to help resolve conflict.

Thursday, June 12, 2014

Patent litigation

While not very impressive grammatically, the statement published today on Tesla's website that "all our patent are belong to you" might have some earthshaking consequences in the intellectual property world. Tesla has decided that in the interest of developing an electric car market and battery infrastructure, they will no longer bring patent infringement lawsuits against anyone using their electric car technology in good faith. Perhaps there is an element of "save the world" altruism in this gesture, as Tesla claims to be motivated by a desire to get all gasoline-powered vehicles off the road. And Tesla acknowledges that they themselves can't possibly build enough electric cars to accomplish that goal. But Tesla's new policy also seems like a remarkable recognition that the usual strategy of protecting intellectual property rights for the purpose of preventing competition or obtaining license revenue, might actually be counter-productive to Tesla's interest in building the electric car market, and creating the necessary support network of charging stations that will sustain it. Non-enforcement might be better for business.

Will Tesla's new stance cause other companies to re-think the value of enforcing their patent rights? Quite possibly if the patent-holder is, like Tesla, trying to expand the market for its products, and encourage the development of related technology. But even apart from that situation, some patent holders might well question whether the pursuit of patent infringement claims is worth the enormous cost and risk, and whether a more open approach to technology might better serve companies' business interests. Elon Musk's explanation of his company's new policy recognizes that receiving a patent often only buys you a ticket to a costly lawsuit, something that many other patent-holders have learned the hard way.

I'm not necessarily endorsing Tesla's new strategy for everyone, as it probably doesn't make sense for a lot of businesses, and I'm not sure whether it's good for my business either. But the question whether to pursue litigation to enforce or defend against intellectual property claims, as opposed to some other strategy, is always worth careful consideration for every business on either side of the issue.