Welcome to the first episode of our new podcast, Convergence: A Podcast on Dispute Resolution and Technology.
In this bi-weekly, limited run series, host Oladeji Tiamiyu will speak with thought-leaders and practitioners at the intersection of dispute resolution and technology, covering topics such as: the role technology has had in resolving disputes during the pandemic; ways that technological tools have historically been incorporated into dispute resolution; and creative use cases that technology presents for resolving disputes into the future.
In Ep1 Colin Rule, the godfather of online dispute resolution, joins Convergence to speak about the origins and evolution of the industry, his vision of the future of dispute resolution systems with greater technological integration, and exciting projects he has been working on as the CEO and President of Mediate.com. You’ll also learn about what Colin’s first words as a child were—no, it was not online dispute resolution.
Colin Rule is President and CEO of Mediate.com and Arbitrate.com. In 2011 Colin co-founded Modria.com, an Online Dispute Resolution (ODR) provider based in Silicon Valley, which was acquired by Tyler Technologies in 2017. From 2017 to 2020 Colin served as Vice President of ODR at Tyler. From 2003 to 2011 Colin was Director of Online Dispute Resolution for eBay and PayPal. He has worked in the dispute resolution field for more than 25 years as a mediator, trainer, and consultant. He is currently Co-Chair of the Advisory Board of the National Center for Technology and Dispute Resolution at UMass-Amherst and a Non-Resident Fellow at the Gould Center for Conflict Resolution at Stanford Law School.
Colin co-founded Online Resolution, one of the first online dispute resolution (ODR) providers, in 1999 and served as its CEO and President. In 2002 Colin co-founded the Online Public Disputes Project which applied ODR to multiparty, public disputes. Colin also worked for several years with the National Institute for Dispute Resolution (now ACR) in Washington, D.C. and the Consensus Building Institute in Cambridge, MA.
Colin has presented and trained around the world for organizations including the Singapore Mediation Center, the Federal Mediation and Conciliation Service, the International Association of Court Administrators, the International Chamber of Commerce, and the CPR Institute for Dispute Resolution. He has also lectured and taught at UMass-Amherst, Harvard, Yale, Stanford, Pepperdine, Southern Methodist University, and Santa Clara University.
Colin is the author of Online Dispute Resolution for Business, published by Jossey-Bass in September 2002, and co-author of The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, published by the ABA in 2017, as well as many dozens of articles in ADR journals and publications. He serves on the boards of the Consensus Building Institute and the PeaceTech Lab at the United States Institute of Peace. Colin received the Frank Sander Award from the American Bar Association in 2019 and the Mary Parker Follett Award from the Association for Conflict Resolution in 2013. He holds a Master’s degree from Harvard University’s Kennedy School of Government in conflict resolution and technology, a graduate certificate in dispute resolution from UMass-Boston, a B.A. from Haverford College, and he served as a Peace Corps volunteer in Eritrea from 1995-1997.
Oladeji Tiamiyu 0:05 Welcome to convergence with Oladeji Tiamiyu. So I am a clinician at the Harvard Negotiation and Mediation Clinical Program. And I’m also deeply passionate about the role that technology has in resolving disputes. Much of this interest developed while I was a law student at Harvard, and after graduating while I was an Online Dispute Resolution Fellow with Resolution Systems Institute in Chicago. In my current role, I am a supervising attorney for law students at Harvard. And also I get to do interesting legal research into the relationship between technology and dispute resolution. This voyage has contributed to the creation of “Convergence,” where I will be speaking with thought leaders working at the frontier of technology and dispute resolution. Today, I have the immense privilege of speaking with Colin Rule, a visionary technologist and also a dear friend. Colin is currently the President and CEO of Mediate.com. And in 2011 he co-founded Modria.com, an ODR-provider based in Silicon Valley. From 2003 to 2011 Colin was the Director of online dispute resolution for eBay and PayPal. So I think that makes him part of the PayPal mafia, a group of PayPal alums that have gone on to do tremendous things in this world. During his time with eBay, Colin pioneered new technological platforms to resolve e-commerce disputes. And this would later serve as a model for Amazon and Alibaba. Colin’s legal research has been featured in numerous law review journals, and he has also given presentations on ODR throughout the world. So let’s get to it. Colin. Rule, the man of the hour. Welcome to “Convergence,” my friend, how are you doing?
Colin Rule 2:16 I’m doing great. I’m doing great, Oladeji, thank you so much for the invitation. And “Convergence.” I love that title.
Oladeji 2:22 So it’s all about technology and it’s all about dispute resolution.
Colin 2:27 Great. That’s my happy place.
Oladeji 2:30 An argument that I’m sure you’re going to illustrate is that the two really are intertwined with one another, hence, “Convergence.”
Colin 2:40 This is why you’re perfect at Harvard, you see all the big picture, it all comes together. You know, it all makes sense when you got a big brain like yours. That’s great.
Oladeji 2:49 So, Colin, we’ve now crossed paths a few times and after every interaction, to be honest, I always ask myself whether your first words as a child was “online dispute resolution.” Because you’re kind of like Michael Jordan, in that it feels like the work you’re doing right now, it feels like you were destined to do it from birth. So I would love for you to set the record straight. What got you interested in online dispute resolution, and around one in your life to that interest begin?
Colin 3:26 Well, it’s, you know, first of all, compliments will get you everywhere, as I’ve said several times, so thank you for that. You know, you’re the first person who’s ever who’s ever asked me on one of these conversations about what my first word was. And oddly, it is relevant, I think, because I was born in 1970, in New York City, and my mom put me in front of Sesame Street. And that was really where I learned my first word ever was cookie, because of Cookie Monster, because I was watching so much Sesame Street. Now, what does that say about my developing brain that I learned to speak from a cathode ray tube? You know, that was kicking out crazy images of Jim Henson’s Muppets, you know, frenetically, you know, shouting words that each other. But there might, I do think, again, one of the things I talked about in my trainings on online dispute resolution is I talk about digital immigrants versus digital natives. And one of the things that I say to the older generation is, you know, look, the younger generation was born into a world where this technology always existed. So their brains have developed around the presence of this technology. It doesn’t feel dehumanizing, it doesn’t feel weird. It’s not out of left field, because it’s just always been there. And I think maybe turning that lens on myself a little bit, and I didn’t think, I didn’t make this connection until right now, you asked me this question. Again, my first word I learned from the TV, and I think that the prior generation would have found that very creepy. So now we think about the younger generation, you know, they’re coming up and they’re learning to read off of iPads. And I think that that does shapes the way that they think about the world as well. So you know, I, one of the things I write about, in I’ve written in several of my books, and in a chapter I just did for a book about personal histories and conflict resolution, I talked about how when I was in middle school, I got really kind of deeply depressed and dropped out of school for a little bit and was sort of working remotely. But, and this was early 80s. So, you know, 10, 11 years after saying cookie after seeing it on Sesame Street. And one of the things that I did was I really got into the bulletin boards, which was a dial up community of kind of computer enthusiasts in North Texas, who, you know, sort of pre internet we would get together and we would talk about books and culture and debate philosophy all night, you know, but it was 300 baud modems, no images, all text. And for me, that connection was really, really helpful for me in a very difficult phase of my life. And, again, I think that was very formative for me, as I got as I moved on, and then ecommerce and the internet emerged, I had this whole notion of, wait all these these channels of communication that had been important to me, and in my life, I think they’re going to be important for people moving forward as society digitizes. And it just seemed inevitable to me that wherever people are, there’s going to be conflict. So there’s going to be conflict online. So, you know, I do think that developmentally, that was how I got exposed to a lot of these ideas, from these very early and formative engagements with technology. So it was very insightful question. I don’t know if you intended to go down that particular rabbit hole, but but I think you hit on something there.
Oladeji 6:38 Oh, I love it. And just to be clear, I don’t think your first word was cookie as in the food, it probably, knowing you and your love of technology, it probably was just cookie for privacy on browsers.
Colin 6:52 That’s pretty creepy, thinking maybe I got that right. But who knows? Who knows? I wouldn’t I wouldn’t mark it in the realm of impossibility.
Oladeji 7:01 Yeah. And yeah, we always in this community, we’re always talking about, and I know you and Ethan are frequently having conversations about how — Ethan Katsh, that is — how technology solves disputes, but it can also create new types of disputes. So I feel like in your spirit of coming to the Internet and finding and community there, there’s also kind of a prediction that disputes will develop out of this new technology as well. It can heal people, and it can also separate people to a certain extent.
Colin 7:37 Well, definitely. And I think in the early days of the internet, back when I was at Harvard in the late 90s, there was a lot of optimism, kind of idealism, about what the internet was going to usher in, in terms of human interaction. And I think those of us in the conflict resolution field, you know, we might not have gotten sucked into some of the wishful thinking as quickly. I do remember going to a conference in Washington, DC with Ethan Katsh—this probably would have been late 90s — and there was a guy doing a presentation on the hot technology of the day, which was called EDI—electronic document interchange. And the whole vision of EDI was it was going to standardize all the communication between computers. And this guy was saying it’s going to eliminate all conflicts, we’re not going to have any more conflicts because EDI is going to solve them all proactively. And Ethan stood up, I didn’t really know him that well at the time, but he stood up and he said, you know, respectfully, sir, the power of technology to resolve disputes, is dwarfed by the power of technology to generate new disputes. And I remember I turned around and looked at Ethan and said, that’s a smart guy. Because that’s absolutely true. And I think a lot of the rosy predictions about what technology was going to usher in, in terms of human understanding, you know, I think all you just have to do is look around and see that the tools of technology have been used by conflict . . . . I just read a great book that talks about conflict entrepreneurs, but I think of them as conflict exacerbaters — you know, people who see it in their interest to create new conflict, and to seed misunderstanding and for their own purposes. And I think that really, it’s an arms race. It’s an arms race between those of us who want to use technology to build empathy and understanding and resolve disputes, and the people who might use those exact same tools for the opposite purpose. And I do think that this current chaotic period, where we don’t really know what the internet is, or you know, where it’s going, I think that works to the benefit of the chaos agents. But I do think over time, we’re going to civilize cyberspace and we’re going to find ways to build essentially new civic institutions online, that reinforce our values, our shared values, not only within small communities, but you know as as humanity, and I think we’re going to be able . . . . because technology is just a tool. You can use it to do a lot of things. You can use it, use it to do a lot of bad things. You can use it to do a lot of good things. But I do believe that the power and potential of technology to help people resolve their disputes fast — quickly and efficiently and effectively, and most important in a fair manner — I think it’s, it’s obvious to me that we’re barely tapping that potential for technology to help us achieve that.
Oladeji 10:15 And I like how you put it with conflict entrepreneurs. And in one camp, you have conflict entrepreneurs. And then the other camp, you have people like yourself, who are dispute resolution entrepreneurs to a certain extent.
Colin 10:30 Sure
Oladeji 10:31 And so yeah, I think that that tension, or the delineation of those camps are neat to think about when we think about online dispute resolution. So we’ve now, I’ve thrown around the term online dispute resolution a couple of times and both of us have mentioned Ethan Katsh now a couple of times, and Ethan is, at least in our industry, he’s he’s, often called the father of online dispute resolution.
Colin 11:03 Absolutely
Oladeji 11:03 And then and then, you know, you Colin Rule, are the godfather of online dispute resolution.
Colin Rule 11:12 No, I I blame Federico Ast, the CEO of Kleros, for putting that moniker on me. I, he, I was in I was in an interview, and he said, well, you’re the father of one. I said, no, no, I’m not the father. It’s, it’s Ethan Katsh. He wrote the first book in the field. He named the field. Ethan is the father. And he said, Well, if Ethan is the father, then you’re the godfather. And I guess that’s gotten some traction, because I did not disavow the name. So I guess I embraced the name. I’m happy to be the godfather, so long as Ethan’s pioneering role is appropriately acknowledged. So yep.
Oladeji 11:44 And so when when you think of online, since you are the godfather of online dispute resolution, when you think about it as a term, and as a concept, how would you define it? And once again, since you are the godfather, your definition does carry plenty of weight.
Colin Rule 12:02 Well, it also means I’ve been around long enough so that, you know, you got to take everything with a grain of salt, because, you know, I may be colored, you know, I may be colored by the thinking from 20 years ago and not be able to get my head into the new world. But no, so I will say, when we first started doing online dispute resolution, there was a lot of debate about what we were going to call it. And there’s an online conference every year that Ethan hosted starting in the late 90s, called ADR Cyber Week. And I remember we had a discussion forum with the nerds at the beginning of the field, like what are we going to call this? And there was a lot of different proposals. But we eventually settled on ODR, because we wanted to emphasize the connection to ADR. And my friend and colleague and former boss, well current boss to Jim Malamud, who was the CEO and co founder of Mediate.com, is now the Chairman of the Board of Mediate.com. Jim always used to say to me, when we were working together and ’98 and ’99, he would say, you know, if you squint a little bit, it’s pretty hard to tell ODR and ADR apart. And I said, Yeah, that probably is true. You know, as as our society becomes more digitized the notion of this is an online process, or this is an offline process, that’s going to be meaningless question. Because it’s both an online and an offline process, just like our lives now. Do we live online or offline? It’s not an order. It’s a both. I mean, the first thing we do when we wake up in the morning is we check our email, we pick up our phones, you know, we’re living in both both venues. And even if you’re meeting a friend for lunch, you know, you may be texting them on the way there, and then you call them to meet and then you get together face to face, and you send them a photo and you show them things on your phone. And then, you know, you walk away, you send the calendar event for the next lunch. Just this whole notion that it has to be online or offline is clearly a false dichotomy. And I think, you know, so the early days of ODR, because it was such a new idea using technology and ADR at all, the definition that we used, and that I think Ethan and I used for a good 15 years was ODR is the use of information and communications technologies to help people resolve their disputes. Now, eventually, we evolved that to say it’s the use of information communication technologies to help people prevent, manage and resolve their disputes, because it’s not only about dispute resolution. And that’s why I think you see people evolving from the term dispute resolution to more conflict management, because there clearly are conflicts that need to happen, and they need to be bigger. So it’s not just a matter of, well, let’s go resolve all the conflicts because there are a lot of conflicts that are not in a phase where they’re ripe for resolution. And I think that definition served us well in the early days, because it was such a radical proposition to introduce technology into ADR at all. And the reason why we said information and communications technologies is we wanted to make clear that it’s not just the internet. You know, the telephone is very powerful communications technology. The LCD projector is a powerful communications technology. So we wanted to think expansively not only about the technologies we had, but also the technologies yet to come. And I think that that there was some foresight to that because we didn’t know that the iPhone was going to emerge and that everybody was going to have these, you know, little supercomputers that they carry around in their pockets all the time. So that’s a, that’s a huge ODR technology that we didn’t even have when we crafted this definition in the early days. But I think is ODR is sort of hit mass adoption, and it started to be, you know, implemented in courts and, you know, implemented around the world, the limits of that definition, I think, had become more stark. And there are people out there who are doing, you know, I would go to a court and I would say to them, okay, well, let’s get some ODR going. And a month later, they would say, hey, we got ODR going, and I would say, okay, what did you do? And they said, well, when someone’s hearing is coming up, we now automatically send them an email reminder that says they need to come in for their hearing, and we send the date of their hearing. Okay, well, as a mediator, you know — and we talked about online dispute resolution and we say it’s using information and communications technology to help people resolve their dispute — well, yeah, if they’re reminded that their hearing is coming up, and that, you know, that’s automatically kicked out by some server someplace, I guess you could say it fits under that definition. But that’s not really what I think of when I think about ODR. You know, I’m really thinking about certain tools, technologies, approaches, best practices that can help people, diagnose their problems, negotiate resolutions, reach agreement through mutual acceptance, or then potentially rely on a third party to get resolution. And just an email reminder kicked out by the court doesn’t fit that bill. So now what we’re seeing is, the core definition of ODR as technology plus ADR is true, but it’s being elaborated upon. And I really feel like there are two main legs of ODR that are emerging. One is what I what I would call facilitative technologies. And the National Center for State Courts is putting a lot of energy into that side of ODR, which is creating an online collaborative workspace, like an online room where the parties can come together and they can utilize tools, techniques, structures, to try and resolve their disputes through mutual agreement. That’s kind of what the National Center for State Courts is calling ODR. Now, there are some things I don’t like about making that exclusively what ODR is, especially because it doesn’t include the evaluative component, which is a big part of ODR. You know, we’ve resolved more than a million disputes with the American Arbitration Association, doing online value evaluations of these cases, so, and even having a hybrid online-offline approach. So I don’t think that the NCSC definition in toto covers the full breadth of ODR practice. But the other leg that I speak to is what I what I think of is algorithmic resolutions. And a lot of people think that that means artificial intelligence and machine learning. And I think that’s part of it. I think that’s where it lives, this notion of having computers play a greater role in helping us kind of understand our disputes, score our disputes, do research into other resolutions to similar kinds of disputes. But I think there’s other exciting things that are happening there in terms of game theory-based processes, crowdsourcing, sort of math based decentralized justice approaches, you look at blind bidding mechanisms, structured negotiation mechanisms, or even tools like Smart Settle that are very sophisticated, multi-variable, algorithmic optimization tools for helping people kind of overcome their stuck negotiating points and get to pareto optimal outcomes. So this whole notion of computers as algorithmic engines that can, you know, very soon in the future, I think they’re going to be able to achieve insight that we as humans will not, it will be beyond our capability to see things as clearly as some of the technology can see them. And the technology doesn’t see the same way that humans see it. But I think understanding the value, that sort of this algorithmic power can bring to dispute resolution, I think is very exciting. And there’s, there’s an incredible amount of potential there. And we need to embrace that. We can’t say, well, computers are good for helping people communicate, so we’re just gonna focus on the facilitative sites. Like no, no, we need to start to think about what we call in ODR the fourth party, where technology has a seat at the table. And we can ask that technology questions, you know, what, what are some alternatives to this resolution for me? What’s the zone of potential agreement? You know, where are some areas where I can get more value, but it doesn’t detract from the value of the other side. So the technology can help us engage in integrated negotiations as opposed to distributed negotiations. So it’s, again, as I said, we’re just barely tapping the potential of computers to help us with all of that, but, and I think, in a sense, I’m maybe a bit more excited about the value yet to be mined in the algorithmic side.
Oladeji 19:35 Yeah, and the fascinating part of all of this and just hearing you share that dichotomy, is that we’re still in the early innings of online dispute resolution. And there’s something that just really excites me is thinking about, if we have these technological tools today, with the rate that technology is evolving, what will we be able to use in the future to resolve disputes even more efficiently, perhaps decentralized way. And I kind of, I wanted to touch on the the idea that you shared earlier about how it was a radical idea to incorporate technology into ADR, going back to when you first met Ethan, at that conference. And it’s, it’s, it’s interesting, because many people should know or may already know that, when you got involved in the field, there was probably plenty of resistance from the established ADR community about incorporating technology into resolving these disputes. And that’s probably in part because ADR does rely on interpersonal communication, if you will, face-to-face engagement, and there can be concerns from some parts of the community that when you move something to an online venue that the same ease or the same level of understanding between parties won’t be present when they can’t see their full body expressions. So what are your thoughts about that?
Colin Rule 21:22 Well, that’s, it’s a very, very rich topic. And I will say, you know, even before we created the field of online dispute resolution, you know, I was, I’m an ADR groupie, you know. I love ADR, I love dispute resolution. As soon as I found it, when I was an undergrad, and I did my first mediation training, with with some trainers from the American Friends Services Committee, I was like, this is it. This is what I’m going to do with my whole life. And that was before there was any technology in ADR. I remember going to my earliest conflict resolution conferences in the early 90s. I remember going to a conference in DC at the Academy of Family Mediators in probably ’93. And sitting with my friend, John Healy, who had started a website called Conflict Net. Again, it was pre-internet. So this is, you know, when people were still dialing up over modems, which as I said, I loved back when I was in middle school. So this was in my sweet spot. But I remember explaining to mediators, you know, well, one of the things you get is you get email. And they would say, what’s that? And I say, well, it’s where, you know, you send like a letter or like a postal net letter, but you type it in on the computer, and it gets sent over the Internet, and then it gets sent to the other side. So you don’t have to use a stamp. And they would look at me like, well, how would that work? Like, they just, you know, and the body language was really interesting. You know, the stereotype about technology in the 70s and 80s was that it was going to somehow dehumanize us, and we were all going to turn into kind of automatons, you know, kind of man machines. There were all these movies about that when I was growing up. And I remember, you know, again, in the 80s, and 90s, they had all this stuff about well, we’re gonna have to change our behavior to work with computers. You know, like the typefaces that they said, these are the typefaces we have to use in the future, because they’re easier for computers to read. And I remember when the Palm Pilot came out, you know, you couldn’t write in the normal alphabet. They made you learn this new alphabet that you had to write in this little screen on the bottom of your palm pilot, because it was easier for the Palm Pilot to understand than the way that we normally write letters. So there was just this whole notion that technology was was about, sort of, wiping out all the emotion, and making us just sort of fit into the rows and columns of spreadsheets. And I just think it was a lot of paranoia in the field in the early days. Now, again, this is before Facebook, this is before iPhones, this is before, you know, all of the technology that was yet to come. The other thing that was a big issue in the early days of the use of technology, late 90s, early 00s, you know it was expensive, it was very expensive to buy a laptop, to get an internet connection, you know, it costs a lot of time and money. And you know it, you had to be a little bit of a nerd to figure it out. And this whole notion that somehow we were going to say, okay, well, now we’re going to build access to justice on the basis of these tools. . . . You know, if only rich people have access to technology, and you’re using technology to provide a doorway to the courthouse, aren’t you just building a special doorway of the courthouse to the courthouse for rich people? And I think the digital divide was really a complete, you know, a, an insurmountable obstacle in the eyes of a lot of people in the field, you know. Like, why would we build these tools, just for the nerds that are willing to buy computers and, you know, get internet accounts? But again, what happened was technology democratized? And if anything, like I said, the younger generation is more comfortable communicating emotional things over technology than they are face-to-face. I mean, that’s the big criticism you hear, particularly from the digital immigrants, the older generation. They’re like, the young people don’t even know how to talk to each other anymore. And they’re, you know, there’s plenty of stories from the, you know, the upbringing of my two sons where, you know, they they had a lot of emotional interactions via technology, because that was preferable for them. And I think that’s now people realize, actually people are much more emotional, and much more frank online, in online communication, than they are face to face, which is a separate problem. So, you know, I do understand the resistance in the early days of the field with technology. And it’s maybe because I’m a nerd, and because I love technology, and I’m an ADR groupie, you know, I would go to a lot of these giants in the field, who would be like, I’m never using technology for the work that I do. I mean, it completely was not on their radar. One of the founders of the Program on Negotiation, I’ll tell you, I was working for him in Cambridge, back in the 90s, and, you know, I, said hey, would you be an advisor for me on this ODR project? And he said, well, you know, you’ve been a great employee. And I know, you’re passionate about dispute resolution. But I think this whole ODR thing is bad for the work that I do. Because I’m all about getting people to sit at the table and look in each other’s eyes and shake their hands, and you’re telling them they can just go to a website and go click, click, click on a forum, and their problems will go away. And I just disagree with that. And I was completely rattled, because this guy’s my hero. But I have some credit, because, you know, I’m such an ADR groupie. And I said, what if we only do the disputes that are online? Like only that arise between two people, they never met, low dollar value disputes, and they’re never going to meet. So if you say to them that they have to do it face-to-face, you’re essentially telling them, they can’t use it. And he sort of stroked his beard a little bit, and then he said, okay, that’s okay. If you do those disputes, it’s okay. But I think that all parties that can get together face-to-face, they should get together face to face. I said, okay, that’s good enough for me. Let’s go. I’ll work on that basis. And I even had a policy at that time, no family disputes, I didn’t build ODR for family disputes. I just didn’t think it was a good fit — 2000, 2001, 2002. And I even had parties come to me and say, but we want to do it online. You know, we’ve moved to different states. We’ve already divorced. We’re just trying to figure out who’s going to get the proceeds from the sale of the house. Can’t you let us have a room to get together and work this out? And I said, nope, I’m sorry. I don’t do family disputes. And now family ODR is the hottest area. I mean, there’s it’s Overeasy.com, there’s Hellodivorce.com, there’s blissdivorce.com, there’s wevorse.com. They’re cropping up all over the world. Because the younger generation in particular, you know, how do they find their spouse? It’s all Match.com, swiping left and swiping left. You know, of course, if the marriage doesn’t work out, all right, what app exists to help us, you know, figure out what to do now? I mean, the whole notion of it being creepy to divorce online, because, you know, online is dehumanizing, I just think that’s gone out the window. That’s not the way people feel about technology anymore. So …
Oladeji 27:28 Yeah.
Colin 27:29 So its been a real culture change.
Oladeji 27:32 Yeah, I agree 100%. Because, yeah, you can even go back to all these dating apps, if people are meeting significant others online, then it’s just like, the other side of the coin, quite literally, where people are also going through divorce settlements online as well.
Colin Rule 27:51 Right, or coordinating their co-parenting or pick-up schedules, or who’s going to pay for T-ball, you know, like all of that. It makes sense that online would be a component of that.
Oladeji 28:01 Yeah. And so it sounds like there was some resistance. And that resistance has since been overcome, certainly. Obviously, thanks to you, and Ethan, with all the work you’ve done there. And Ethan also has this concept, I think he was one of the first people to iterate it as being ODR-as-a-fourth party, and you touched on this earlier. And maybe just for listeners who are uncertain around what that means, my understanding is that you have third party neutrals,who are humans, and then you have the “fourth party,” the algorithm, that is providing support, rather than replacing the third party neutral.
Colin Rule 28:43 That’s right. That’s right. Yeah, I mean, we talked about, you know, party one and party two are the disputants. Party three is the human neutral. And that could be conflict coach, it could be a mediator, it could be an arbitrator, you know, there’s lots of different roles that can be played by the third party. But the fourth party also has a seat at the table. And there are certain things that we asked the fourth party to do, you know, maybe we today we say, hey, can you send out our calendar reminders? You know, can you keep track of our documents? Can you, you know, there’s lots of things that we ask computers to do to just make our lives easier and remove some of the administrative burdens that were associated with working it out face-to-face or on paper. But this fourth party is getting smarter all the time. And there are a lot of people who are experimenting with asking the algorithm to do things like, you know, hey, Alexa, what do you think a fair resolution to this dispute would be? Or, you know, hey, Alexa, you know, what’s a fair amount of child support based on our income and healthcare expenditures from the last three or four years? I mean, those are things you can ask algorithms to do. And I think people talk about well, that’s artificial intelligence machine learning. Well, yeah, I think AI and machine learning can play a role in that. But I think that a lot of things that we want computers to do, we don’t want to do through machine learning because machine learning is where machines write their own rules, and we don’t really have control over what rules that they write. We might want to write the rules ourselves. And in California, there’s, there’s something called Digital Master, which is like a big Excel program you can buy. And you go in, you put in all the information about health care costs and tuition and everything, and it says, okay, this is the appropriate amount of child support. And everybody kind of uses this calculator. It’s not machine learning. It’s just, you know, all the rules are put into this kind of algorithmic engine and people can use that. And it’s also not, it’s not binding. So people can use the advice that’s generated by those algorithms on an advisory basis. So they just have a yardstick of, you know, what a fair resolution would be. And if both parties agree to pay more, pay less well, that’s up to them. But I think that this whole notion of technology as the fourth party, it emphasizes that the third party doesn’t necessarily have to be, you know, challenged or threatened by the fourth party. The third party and the fourth party has to work together. And there’s a lot of stuff the third party does way better than the fourth party. Even if the fourth party, you know, even if computers are 100 times more powerful, and they have access to, you know, 100 times faster bandwidth, they’re still not going to be able to do some of the things that human mediators can do, in terms of apologies and human connection and active listening. So I think third parties have to get smarter about how to work with fourth parties. Also, because the fourth parties are moving targets. And there’s and, you know, the fourth parties we have today are going to look incredibly primitive in 10 or 20 years. And we’re the fourth party is going to be way more capable then, but we’re the ones who get to decide what the fourth parties do and how to design them and how to make sure they work in ways that work in the interest of the disputants and the third parties. So that’s what we all need to do is collaborate on envisioning the ideal fourth party that all of us want to partner with.
Oladeji 31:43 Absolutely. And so the third party has to do a better job of working with the fourth party. And you could say, one is because the fourth party can complement the skill sets of the third party, the third party can focus on things that a human is better at addressing, and the fourth party also has its “comparative advantage” of what it can do best, which is probably just sifting through tons of data, and developing some kind of trends that have been discovered from that data. So and relatedly, it’s not just that the third party can benefit from working with a fourth party. I think the present reality today, with the pandemic, is that the fourth party is necessary to a certain extent, you know. There are disputes that can’t really be resolved in person anymore, solely due to the fact that there’s the pandemic.
Colin 32:44 Absolutely.
Oladeji 32:45 And so that kind of creates a door for the fourth party to have a stronger role. And so related to the pandemic, how do you think that this past—it feels like five years, but it’s just 13 or 14 months now—how do you feel like the past 13 or 14 months have impacted both reception of online dispute resolution and also willingness for people to experiment with different use cases of online dispute resolution?
Colin Rule 33:20 Yeah, I mean, it’s a great question. I think, you know, I’ve said multiple times over the last year, we’re never going to go back to the way that it was January 2020. Like that’s gone forever. But we don’t really know what January 2022 is going to look like, you know. If we can get to the point where we all get vaccinated, and we hit herd immunity, and then the concerns about COVID recede, you know, it’s not going to be the same as as it had been prior to COVID. But is it going to be the same that it is now? And I don’t really know the answer to that. I really, I kind of feel like, what the pandemic did in terms of ODR was it accelerated trends that were already happening. And I always felt that, you know, 50% of ADR was going to be technology based at some point in the future. I just didn’t realize that was like that was all gonna, it was gonna go to 100% in about a month. You know, so every mediation was an online mediation for a good six months there. And now as people start to get vaccinated and face-to-face interaction, reopens, I think there are going to be some people that want to go back and do it face-to-face. But I don’t think that it’s ever going to go back below that 50%, because parties have just gotten so comfortable with the benefits. I mean, David Hoffman, who teaches the mediation class at Harvard Law School — I mean, just a giant in the field and a real, you know, mentor and hero to me, you know — I remember having a conversation with him five, six years ago, and he was running Boston Law Collaborative, and he’s essentially did all of his disputes in person. And he said, you know, I just don’t feel like online is a big part of my practice. I just really need to be there with the parties. And now he’s had the experience of mediating a lot of these cases online and, you know, he said to me the other day, at the end of his class, and he said, you know, I don’t think I’m ever gonna go back, because I love it. And I think there’s been a lot of studies now that demonstrate, not only does technology help parties be at their best — because they can be in their happy place, they don’t have to take time away from family, you know, and, and you can have a lot more flexibility in terms of time. Because you don’t have to take time off of work and drive to some office downtown and sit there for a couple hours, you know, you can, what we’ve seen with some of these odr implementations in the courts is 85% of the resolutions happen at a time when the court is closed for business. Because that’s when people are free to engage their cases. So late on a weekday or on the weekends, you know. And I just think there’s something about working out your parenting plan, you know, sitting in bed with a glass of merlot on the bedside table and your laptop open and your mom on speakerphone, you know, trying to figure out, do we want Easter or Christmas, as opposed to driving down to you know, judge’s chambers at 2pm on a Wednesday and having to dress up and sitting across the table from the person you can barely stand to look at because you’re so mad at them. So, you know, I think the parties, what’s happened during the pandemic is kind of the seal has been broken and people have been forced by the virus to try it. And I think now that people have tried it, they’re like, wow, really, that’s great, you know, I like that. And I think what it does is it adds a tool to their toolbox. it doesn’t mean that they’re not going to meet face-to-face. There’s still gonna be plenty of face-to-face mediations. And there are plenty of circumstances where a mediator, if they’re following their ethical obligations, they should, they should say, no, we’re not going to do this online, we’re actually going to get going to get together face-to-face. But I think now when you say to a party, or when you say to, you know, co-counsel or when you say to a business partner, hey, let’s do it on zoom, they go, okay. Like they know exactly what that means. Zoom is a new telephone. Everybody’s got their accounts set up, you know. They got the camera set up on their laptop. So sure, let’s do it on Zoom. That will be easier anyway. So I just think it’s, what my aspiration for ODR was always that it would become the new normal. And then in 20 years, people would look back and say, well, of course, why did you spend so much time advocating for that, because it’s so obvious that that was the future. If we can achieve that we’ve won. And when I go to conferences, and I see, you know, judges or court administrators do a presentation, and they talk about how ODR is the future of civil justice, and it just makes sense, that’s great. I don’t need them to cite me. It means we’ve won, if they think the idea is their idea, and that they’ve come to the conclusion that this is the best way to move forward, awesome. That’s, that’s great. And if it just sort of disappears into the woodwork, because everyone’s sort of using it so seamlessly. We might not even need terminology for it one day, because it’s just going to be the default. So that’s hopefully where we’re headed.
Oladeji 37:42 Yeah, I agree with you. And I like, I just want to hold on to the quote, “the seal has been broken.” Because it does, it does feel like the pandemic has broken the seal. And the seal would be kind of the stranglehold, if you will, that the mediators feel that they need to attach themselves to a real or an in-person situation in order to resolve disputes. And the seal has been broken over the past 14 months where, you know, I’m in Chicago right now, and I’ve spoken with a host of different mediators here. And they are historically have been resistant to online dispute resolution or just even appearing in an online forum to resolve disputes. And since the pandemic has hit, a lot of them are like, wow, I see so many benefits that this can bring. And it’s focused mostly on the flexibility that it brings to mediating parties. You don’t have to sit in traffic to get to the court. You don’t have to take off work, right, to to do mediation to the same extent as with online dispute resolution. So to me, it almost feels like access to justice issue as well, because when you are increasing flexibility for people who can’t take off work, people who can’t get a house sitter or babysitter for their children, and now you’re allowing them to still appear and resolve those disputes without having to sacrifice their income or without having to sacrifice expenses for a babysitter, there’s there is an access to justice angled that feels pretty lucid.
Colin Rule 39:26 Absolutely, absolutely. And if you look at the statistics being generated by these court ODR programs, I think Franklin County, in Ohio released a study their their program that they deployed with Matterhorn, I think they said default judgments have dropped by like 60% because people can show up, you know. A lot of the people, these debtors, you know, they would have decisions kind of automatically filed against them in small claims court because they couldn’t show up to defend themselves. And now they’re actually responding. So you have way fewer default judgments. Now, I don’t know if that necessarily means that those people are all proving that they don’t know the debts that they that the creditor say that they owe. But the point is, why would you set up a system that’s dependent on geographic presence when that so advantages one party over the other. And we never really thought about geographic location as a form of privilege in a case. But if a lawyer is right across the street from the courthouse, and they’re filing a case against somebody who lives two hours away, well, that’s a huge advantage for the person that lives across the street from the courthouse. And I think there’s something about technology that really levels that playing field. So that’s why the Pew Charitable Trusts has put all this money into trying to expand access to justice through ODR. Because, you know, it’s not that hard to see how these tools massively open the courthouse doors and level the playing field, if you do it, right.
Oladeji 40:47 So I did want to transition slightly to talk about eBay, because I would be remiss frankly to not talk about eBay with you.
Oladeji And I’ll disclose that when I was in high school and for part of my undergrad, eBay was one of my primary sources of income.
Oladeji I would buy and sell on there mostly, you know, kind of arbitrage, if you will.
Colin Absolutely, it’s gotta be good business nice if you find a good niche.
Colin If you find underpriced products that are not well described. I’ve certainly done that on eBay.
Oladeji Yeah. And you’ve also been involved with eBay’s online dispute resolution platform. And I think, at least for me, as a merchant, if you will, on the marketplace, I’ve noticed that having clarity in terms of, if I have a disagreement with a buyer this is what my options will be to resolve that. Having clarity that if this dispute develops, that the buyer won’t have complete control over giving me like a one-star rating without any opportunity for a response from me. So, so in many ways, I’m thanking you for all the work you’ve done with eBay, because it’s helped me personally when I was in college, but I was also just curious about, you know, when you were with eBay, and working on the ODR platform there, what some of the system design considerations that you were taking into, you know, into the picture for how to adapt from in-person disputes to a online system where everything is done remotely?
Colin 42:41 Sure. Sure. Well, you’re a savvy eBay user. So, we could really go deep. And I could talk about, you know, all of the insights. I mean, I had to learn a lot about the culture of eBay, and then PayPal while I was there, and it was a real education. You know, it’s funny, I often, when I’m speaking to a crowd of people, and I’m talking about the eBay stuff, I say, you know, “Who here has used the eBay resolution process, resolution center?” And people put up their hands and I say, “Well, did you get your money back?” And if somebody said, “Yeah, I got my money back,” then I say, “Well, it’s because of me, you know, I built that. I built that process.”
Colin But then I say to somebody, “Would you get your money back?” And they said, “No, I did get my money back.” I’d say, “Oh, well, I left a long time ago. They really messed it up. And you know, I don’t know, it really doesn’t work the way that we…” But no, I mean, I do think the good news is, we’ve resolved hundreds of millions, if not more than a billion disputes at this point through the ODR systems that we built eBay and PayPal. And you know, one of the things that you said, I think, which is really important, particularly from the merchant side, because merchants are engaging in these transactions at scale, is predictability. And I think this is something we often overlook in the dispute resolution field. You know, we often think about well, in every case, we want to find you know the right outcome for that case. And you know, every case, every dispute is a snowflake. So, we need to come in and fit the form to the fuss and listen to the parties. And, you know, but one of the things that was really important at eBay, as you say, for merchants, is you don’t want to be systemically exposed to buyers that are given sort of rights and powers through the software that they use to abuse you. And there was such a thing as buyer fraud, there was such a thing as seller, extortion, you know, where they would extort a seller and say, “Look, I’m going to give you a bad review, unless you give me another 10 bucks off this item,” or whatever. And I think that by creating certain seller protection programs and saying, you know, sellers, if you do these things, you will be protected. You know, one of the things when I first got to eBay is they evaluated every case on its own merits. So, if the seller, if a buyer said, “Hey, I never got the item,” and the seller said, “Well, hey, I shipped the item,” well, then we had to get a customer service rep to go in and do a whole investigation. And sometimes the sellers would send us a postal receipt that said, “Yeah, I shipped something to this zip code on this date, you know, which is the right date in terms of when it was purchased. And the weight, you know, is appropriate. So, I mean, here’s my receipt, like, it’s proof that I shipped it.” And the buyer would say, “Yeah, but I never got it. Like, it doesn’t matter if the seller has a receipt that said, I mean, it never showed up and never made it to my house.” Now, that may be that it was delivered, and somebody stole it off their porch, maybe. It may be that it’s sitting in some post office someplace, and the seller didn’t pay for tracking. So, their challenge was, we just had a lot of disputes that were kind of unresolvable. And we had to do a lot of work talking to both sides and seeing who we believed. And oftentimes eBay would just take the bullet and say, you know, “I’m so sorry, buyer, you didn’t get it, okay, here’s your money back.” And the seller, you know, would say, “Oh, you can keep the money,” because there’s just no way to resolve the case. So, one of the things that we did was we changed the rules, so it was much more explicit. So, we would say to the seller, you have to get delivery confirmation for your items. And if the buyer says that they never, if they never received it, we’re gonna ask you for your delivery confirmation number. And if you don’t have your delivery confirmation number, you’re gonna lose, which means we’re not asking for proof that you shipped it, we’re asking for proof that the buyer received it. And if you can’t deliver that proof, even if you have a receipt that shows that you shipped it, you’re still going to lose. And the sellers at the beginning, when we announced that they were annoyed, because they said, “Well, now I have to pay more money now to get that delivery confirmation number.” But what it did was it created consistency. And we then went to the postal service, and we got really, really cheap delivery confirmation numbers. So, if they buy their label through eBay, then it’s like you automatically get, you know, tracking. And we also said if the item was over 250 bucks, you need to get signature confirmation, because delivery confirmation, you know, the sort of the higher bar. So, by creating these rules that everybody knew what the rules were, the buyers knew what the rules were, the sellers knew what the rules were, and then we could automate the system. So, the buyer said, I never got the item seller, do you have a delivery confirmation number? Yes, here it is, we can automatically look it up, oh, it’s in Memphis, it should be at the buyer. In two days, everybody’s happier. And the marketplace works way better than if we were to have individual customer service reps, e.g. mediators or arbitrators, going into each case and doing an investigation into each snowflake. So again, you know, maybe what I was talking about before is this whole notion that technology was going to sort of dehumanize and, you know, automate everything. I think to a certain extent that is true in circumstances like eBay. And I think the delivery, the creation of the resolution center, with its sort of centralized console and systematized processes and consistent rules for resolving disputes. I think eventually, everybody within the eBay ecosystem, all of our 250 million users all over the world, that created an enormous amount of trust and confidence in e-commerce. And at the time, when I was at eBay, we were really the biggest e-commerce company in the world. I mean, we were the ones who were figuring out how it’s going to work. Now, Amazon’s taken over and Alibaba has taken over. So, they’re a lot bigger than eBay is now. But they all have their own resolution processes now because they learned from eBay’s experience. So, I think it is interesting what you say Oladeji, about, you know, kind of creating that consistency. That’s not something we often think about in dispute systems design, but from an eBay perspective, I felt like they hired me to build a civil justice system. And it had to be 90% automated. And, you know, we didn’t know how to do it, but they gave us, you know, 10, 20 million bucks. We went out and we built it and it worked. And I think that’s been a very, it’s been kind of a city on a hill for all the ODR implementations that have come afterward.
Oladeji Yeah, I agree. And eBay had this international reach. And really it doesn’t when you think about it, ODR, just feels like the logical outcome of these online transactions because people are transacting with each other from around the world, right? They’re not located in the same state they’re not located in the same country. They’re not even located in the same time zone. Right. And because of that, it seems quite difficult to expect the same historical reliance on court systems to resolve an online dispute or certainly even reliance on ADR practitioners who believe in face-to-face interactions to still resolve these online disputes. So, it feels like you were certainly at the forefront. And now when we look back up at it, it just feels like the logical outcome of e-commerce.
Colin Well, again, one thing, I don’t know if I’ve ever mentioned this to you before, but I’m a descendant of Oliver Wendell Holmes, you know, the Supreme Court Justice, I don’t know, he’s like my great-great-great uncle or something like that. Not a direct line, he didn’t have any kids. But his dad was a professor at Harvard, and I’m in that line through my dad’s mom. And Holmes, so I’ve read a lot of Holmes, and Holmes, you know, he talked a lot about the beauty of the law. Now, at the time, when you know, you’ll talk to some professors at Harvard Law that, you know, they act as if the civil code was brought down off the mountain by Moses on, you know, stone tablets, like, this is the greatest thing. You know, it’s immutable, it’s, it’s perfect. And, you know, we have to constantly revise it. But essentially, this is the best way to do things. But, and I can see at the time in the world that Holmes lived in, you know, end of the 19th, beginning of the 20th century, you know, there was no way to think about the fact that somebody was going to have a little, you know, glass device in their pocket that they could pull out and go swipe, swipe, swipe and buy a $20 item from Hong Kong, you know, I mean, the justice system, as it was created at the time, was very much based on the world that existed at the time. So, you know, but now we have the internet, and it’s enabling all of us, you know, every one of us is like a mini TV studio. And we can connect with anyone around the world with just a couple swipes of our fingers on the screen of our iPhones or Android phones. So you know, you’re right, the courts, the judicial system is bound by geography. It’s like, well, where are you? Well, I’m in Cambridge. Okay, well, that means you’re subject to Massachusetts law, U.S. law, you know, but the internet doesn’t care about Cambridge, or Massachusetts versus Vermont, or U.S. versus Canada, or Canada versus Argentina. You know, we all are interacting in this very streamlined way. And our identities have become much more fluid. And this whole notion of where we are is a very tough question. I mean, I was involved with a U.N. group, we worked on ODR policy at UNCITRAL for six years, and really, the whole thing ran aground on the question of where are you? Like, that’s not really an answerable question anymore. And the whole notion of what jurisdiction should apply when I engage in a transaction? That’s a tough question. I mean, if I’m a U.S. citizen, but I’m in England, and I buy something on eBay, from someone in Argentina, I mean, it’s just, you know, it’s only a $50 transaction, there’s no lawyer, there’s no court that can sort that out. So, we have to build an entirely new justice system, one that works the way the internet works. And I think ODR. And if you think about lex mercatoria like international arbitration provides a lot more guidance for how you can build a system that can cross those borders, and provide those fast and fair resolutions in a consistent way. It’s a much, much better model than what we have in the courts, which is very tied to geography, and judges and jails and laws, and you know, police, and that’s just not going to work on the internet, when you can change your identity as quickly as you change your IP address. So that’s what’s so exciting not only about what we’ve done with ODR in e-commerce, like what’s happened at eBay, and I’m about to do this conference, this three day conference, for APEC, thinking about how do we protect consumers needs cross-border transactions because it’s growing 20% a year, I mean, eventually, it’s going to be the majority of transactions are going to be these online transactions. And all these consumer protection authorities from all these countries around the world are like, what are we going to do with this, but it’s also this notion of decentralized justice, which is where we back our justice system, not with a coercive power of the state, but we back it with math, just like you know, Bitcoin, you know, we have blockchain, we have smart contracts, you and I can reach an agreement. We can memorialize that in a smart contract, which is really a little piece of computer code. We both e-sign it, we put it into this unalterable digital ledger, the blockchain, and it’s self-enforcing. And then, you know, what, we have a contract. It’s not dependent on any law, it’s not dependent on any jurisdiction, I don’t need a judge to enforce it. Because it’s self-enforcing. You know, it’s backed by the algorithm. And I think that that’s a pretty radical rethinking of the way the justice system could work. And there are a lot of people that think well, that’s, you know, that’s George Jetson stuff. That’s just the future, but that’s the way ODR sounded in 2001.
Oladeji Yeah, yeah. Yeah. And you’re, you’re touching on just a really important trend that we’ve seen, really over the past 10 years-ish, but especially during the pandemic, where the really I think the pandemic could be called the rise of cryptocurrencies. And the rise of using smart contracts for legitimate transactions. And, from my perspective, I think it’s hilarious to be here speaking with you about this, because in around November or October of last year.
Oladeji I was doing a research project. And I was trying to publish something. And I thought it was really innovative. But the basic concept is, with smart contracts, the, the, the perfect way of resolving disputes that come out of smart contracts, is with online dispute resolution. And I was speaking with Allison Carroll, who’s director of Northwestern Law’s, ADR program, and I was like, “This is innovative, like, no one else has thought of this.” And she was like, “Wait, wait Oladeji, hold on a second. I think Colin Rule just wrote about this.” [Laughs]
Colin [Laughs] Well, look, I gotta be clear. That’s Allison and my mutual friend, Amy Schmitz, who is the real mover and shaker behind that piece. But yes, I did co-, I was a co-author with her. And she had some great insights there. But and I know some companies that are doing some great work in that space, smart contract ODR. If you look at Jur, jur.io, if you look at kleros.io. They’re, it’s amazing what they’re doing. And I think that a lot of people look at that. And they go, “What is this? Why is this relevant to me.” But it’s exactly what I was saying. It’s it feels to me very much like where ODR was in 2000, 2001. And people just looked at me, like, I had two heads, like, that’s never gonna happen. And it all happened. So, a lot of the stuff that you that you were talking about the insight that you had, you’re right, it’s just the rest of the world has to catch up with you. And you know, that I’ve had that experience over my lifetime. So now you can have that experience, too. You know, you know what the future is. What’s the old Gandhi quote, you know, first they ignore you, then they make fun of you, then they argue with you. And then they say, “Oh, yeah, we always knew you were right.” And I seen that happen with ODR. And I bet that’s also going to happen with decentralized justice.
Oladeji Yeah, yeah. And so you’ve now mentioned Kleros. And I think Kleros has this really interesting model, right? It’s, it’s a dispute resolution mechanism that’s on Ethereum’s blockchain.
Oladeji And essentially, it’s a crowdsource decentralized way for nodes to resolve disputes that generate mostly on the internet, but it has a potential use case for in person real life transactions that’s off of the internet, which I, which I think is really interesting. And I feel like, I’m not sure, I’ll actually be speaking with Federico and Sophie Nappert in a future episode.
Colin Great, great.
Oladeji About, about this topic, but I do feel like you had the preceding idea that contributed to what Kleros has developed into, because you, you wrote about The Wisdom of the Crowds for eBay’s community court system. And I’m curious there. Maybe some learning lessons that were achieved from having this crowdsourced dispute resolution mechanism for resolving online disputes. And this is kind of distinct from eBay’s resolution center. And now we’re just decentralizing it so that people with a moderate level of experience with eBay can now issue decisions about disputes to develop. So, I’m curious about just learning lessons that you garnered from eBay’s community court.
Colin Sure, well, we all stand on the shoulders of giants. And, you know, I have a poster here on my wall of Frank Sander.
Colin You know, who’s sort of, you know, my hero in, you know, thinking through Multi-door Courthouse and thinking through Fitting the Forum to the Fuss, I couldn’t have done anything that I did without any of Frank’s work. And it’s not just Frank. I mean, there’s a whole generation of innovators and the Program on Negotiation at Harvard was front and center. So, to meet people like Howard Raiffa, and meet people like Roger Fisher, I mean, you know, they, they created all of this, so. But I do think there was a time early on, and again, even in crowdsource dispute resolution, if I think back to the earliest days when I was first getting involved in in the late 90s. You know, there were already some websites that were sort of thinking through, and they were they were really calling them like e-juries. And a lot of them were kind of like entertainment sites, you know, if you had a disagreement, you could go to this website, and you would, both of you can make your case and then they would bring in the public to vote. In essence. I think even the People’s Court had something called People’s Court Online where you could come and vote, you know, whoever got a majority of the votes would win. But right when Chittu Nagaranjan, my co-founder at Modria, and I were both at eBay and PayPal. We started something called the Community Court and it was an attempt to use crowdsourcing to resolve disputes. So, if a, if a buyer and a seller had a disagreement, they could come to the Community Court, they could file it, each kind of lay out their case and respond to the other side’s points. And then we would get a jury of essentially eBay community members who had volunteered to serve we tested to make sure they didn’t have any relationship with the parties in the case. And they would all come in, look at the evidence, render decision, and whoever got the majority eBay would enforce the outcome based on that. So, we, you know, we did, I think we did 10s of 1000s of disputes, which is relatively modest amount, considering we were doing 60 million disputes a year through the resolution center. But we wrote up our results. And I remember we presented them at a conference, I think it was in Hong Kong. And there were some representatives there from Alibaba, which was a competitor ecommerce website to EachNet, which was eBay’s big play in China, kind of our big ecommerce and they turn that into eBay China, and it completely failed. But Alibaba turned into the biggest ecommerce website in the world. And they have really run with that crowdsource dispute resolution model. And my understanding is they’ve resolved 10s of millions of disputes using that crowdsourcing approach. Now, the thing that that Federico has brought to it and this goes far beyond my ability to think about crowdsourcing, I do think some of the early insights we generated were, were, were inspirational to him. But by using the, the Ethereum infrastructure, he’s trying to come up with sort of algorithmic incentives, that would create an ongoing model for how the Kleros system could be self-perpetuating. And by issuing these, you know, the coins that they’ve minted, and then all of the jurors in their system are incentivized to provide good service through Kleros through the use of these coins, and participating on juries. It’s really an innovative idea. And I think, I think Jur is kind of in the same hunt as Kleros. You know, they’ve just announced that they’re going to be doing kind of a more traditional arbitration type service as well that can be integrated into smart contracts. But again, what’s, what’s really innovative is to take this kind of, you know, the, the Bitcoin, Litecoin, Ethereum virtual currency world is a finance system backed by math. And what I’ve been talking about with decentralized justice, and what I think Federico is talking about and Alessandro at Jur is talking about is it’s a justice system backed by math. And so, and they’re thinking, they’re asking questions, complicated questions that are kind of above my paygrade. Like, I, I’m impressed by how much you know, they can think through all of these, you know, game theoretical incentive processes for all the participants in the system to design something that would be self-sustaining and ongoing, but I do think, you know, we’re all standing on each other’s shoulders, as I say, and, you know, it may be that there’s some Zuckerberg and legal tech out there who’s gonna be you know, multi-100 billionaire, you know, that stands on their shoulders, stands on Federico and Alessandro’s shoulders, you know, they could be in third grade and Bangalore right now, like, we don’t know, we don’t know, where, how long it’s going to take or which one of these innovations is going to hit scale. That’s kind of what’s cool about, you know, this Schumpeterian creative destruction is you never know what’s really going to catch the imagination and light on fire. But I really do feel like they’re doing essential work. That, that’s, that’s sketching out some uncharted waters for us. And, and I can’t wait to see, you know, what we, what we build in that newly discovered part of the, of the cyberspace.
Oladeji Yeah, it’s, it’s a really exciting project. And, as you said it best, we’re all standing on the shoulders of giants. And I feel like a lot of the work that they’ve done is directly related to some ideological developments that are related to what you’ve done. And then the work that you’ve done is related to your ancestor, Oliver Wendell Holmes. So, it’s beautiful.
Colin Maybe. I’m not sure what uncle Oliver would make out of all that. You know I think he might be, you know, he’s kind of an ordinary guy. He was very famous for saying, I hate justice. I hate justice. You know, hate when people call me, Justice Holmes. My job is to interpret the law. He loved the law. And I may be doing some things that undermine the law. So, if you’re spinning in your grave, I apologize, Uncle Oliver, but we’re all doing the best that we can.
Oladeji So I did, I did have some questions about you, specifically, Colin.
Colin Uh oh.
Oladeji Because you’re always working on so many interesting things. And actually, one thing I really admire with you is that you publish so much legal material. And at the same time, you’re also at the cutting edge of practice and online dispute resolution. And, and I think that’s just so impressive to both influence the field from your thoughts and also your actions. So, I have to ask you some questions. The first is about the youth conference. So, what’s going on with the youth conference and what was the driving force around its creation?
Colin Oh, thank you for raising that. Um yeah the, we actually did a conference last year as part of Mediate.com. That was when I took on the CEO role of Mediate.com in June. And Jim Melamed who had been the CEO prior to me, he had been planning for multiple years to do a conference called Mediation 2020, which was sort of looking at the next 10 years of mediation, and then the pandemic hit, so we couldn’t do it in person. So, we ended up doing it online. And it was really a great conference. I mean, very inspirational to have all these thought leaders from the growth of mediation come together, and sort of sketch out, excuse me where we’re headed. But one of the takeaways, the big takeaway from that conferences, you know, we’re an aging field. A lot of the people who do the keynotes at these conferences are 70 plus. And you know, there’s a lot of young people who probably have a better idea as to where all of this not only is heading, but should be heading than we do. And oftentimes, those people don’t get spots, speaking spots, at conferences. So one of the things that we resolved as one of our takeaways from Mediation 2020, was we wanted to have a conference where the presenters and the designers were all younger practitioners, preferably under 30, who can talk about what did they see, where do they see this going, what’s the work that inspires them. And, you know, hopefully, they’re also going to, you know, give it to the dinosaurs, like me straight and say, “Look, this is what you got wrong, like this is we don’t think this is where the field needs to be going.” These are, you know, there are certain pieties that we hold in the field, that the younger generation is in a very welcome way questioning. And I think that that’s what we really want this youth conference to be. So, I know, we’ve reached out to you. And we reached out to some other folks in the Harvard ecosystem, but we, Clare Fowler, from the Mediate.com team is really running this, and I could not be more excited about it. And I plan to just shut up and listen, that’s going to be my, my focus for the days. But if anyone hearing this is, is eager to learn more or join, it’s free for anybody under 30. We are charging the dinosaurs a little bit of money to cover some of our costs. But I think it’s gonna be really, really great gathering. And it’s, it’s coming together in a very exciting way.
Oladeji And for our listeners, where would they go to sign up and register?
Colin I think if you just go into Google and you put “mediate youth conference,” it’ll come right up. But I know there’s a banner ad for at Mediate.com. So, you can go there and just click on it. And you’ll see all the details.
Oladeji Perfect, perfect. And also related to Mediate.com, you’re the CEO there. What are some interesting projects that you’ve been working on since taking over?
Colin Oh, my gosh, yeah, there’s so much going on. Well, one of the things I’m really enjoying is we’ve done a six month task force on envisioning the future of mediation training online. And because again, once the pandemic hit all mediations became online mediations. But also, all mediation trainings became online mediation trainings. And the question is, how can we ensure that we are doing a good job educating the next generation of mediators, not only in the US, but around the world? So right now, we’re having a series of readouts from all the different working groups that are under that task force. And it’s happening every Friday morning from 9 to 11. Again, it’s totally free. We just had readout from all of the global participants last Friday. So, we heard from Morineke Obi-Farinde about ODR in Africa, we heard from Alberto Elisavetsky, about what’s happening in South America. We’ve heard about Russia, we heard about India, it’s, and again, I think this has been a shortcoming of the field, I think it’s been the dispute resolution field has been a little bit North America and Europe, European centric. And I do feel like one of the benefits of technology is that’s being completely changed, because the dialogue can go in both directions. There’s such cross fertilization. So, I would highly encourage everybody to check out that series of forum readouts. Again, there’s a big banner ad on, on Mediate.com about that. But it’s, but I find it fascinating. And it’s, it’s pushing the practice of the field in directions that I hadn’t anticipated. So that’s just another example. But I do encourage everyone, and also not only Mediate.com, which is a vibrant community, we’ve got more than 25,000 mediators there. We’ve also launched Arbitrate.com, and we’re doing the same things on the arbitration side of the field. The next one is ombuds.org.
Colin Which I’m very excited about. So, stay tuned for that. But yeah, we’re building lots of new tools, and we’re really trying to push the practice into the 21st century. So, it’s, I feel like I’m in the absolute right place for me, and I love hanging out with all my mediation friends every day, so I couldn’t be happier.
Oladeji That’s beautiful. That’s all we can ask for right happiness and work. Yeah.
Colin That’s it.
Oladeji So, one final question Colin Rule, the godfather of online dispute resolution. What do you believe about the future of technology and dispute resolution that very few people in this industry believe?
Colin Hmm, that’s a good question.
Oladeji I know, tough one. Tough one [chuckles].
Colin Well, I will say, again, it’s not that hard, you can probably just tell from this conversation with me, it’s easy to have me spin off into my futuristic nonsense. One of the things that’s good about being a prognosticator of the future is nobody ever comes back to you in 10 years and says, “Hey, you were wrong.” So, you know, and there’s no way to prove or disprove any of my assertions. But I really do think, I do think, I’m an optimist at heart, and I do think that technology can be a force for human empathy. I think they talk, you know, Richard Susskind, in his book, Online Courts and the Future of Justice, he talks about, you know, that we talk about the unbanked, these are people around the world that don’t have access to banks or…
Colin The financial system. And, you know, in this world, if you don’t have access to that system, you’re gonna get rolled over. You know, even if you’re making money and stuffing it in your mattress, you’re losing value every day. And I think we need to think about the unjusticed. And I think what’s exciting about the fact that the future of justice is decentralized, and it’s, it’s a service not a place. I think we’re going to be able to provide access to the 50% of people in the world that don’t have access to a working justice system. And I think that’s going to create fairness, I think that’s going to help us deliver on our goals of equality, and, and justice for all in a way that would have been inconceivable to my great-great-great uncle Oliver you know. And it’s going to be disruptive, there’s no question that it’s going to be disruptive. I also think you know, that this whole sort of vision that we’re all going to be dressed in the same gray jumpsuits, and we’re all going to have the same values, I just don’t think that’s the way humans work. I think we’re going to reserve in person interaction for our friends and our family members and our immediate community. And pretty much everything that is not that is going to go online, every professional interaction, every academic interaction, you know, talking to your lawyer talking to your dentist, all of that is going to move online. And the tools that we have now, you know, Zoom is amazing thing. I mean, it’s incredible. It’s like a miracle compared to where we were 20 years ago. In 20 years, they’re going to look back on Zoom, and they’re going to scoff at how primitive it was, and all the connection issues. And I think you’re on mute, you know, because we’re going to have full, 8k holograms, you know, surround sound.
Colin Augmented reality, goggles piped directly into our optic nerve. I mean, it’s eventually, somebody, who knows the technology that is going to come in the next 20 years is going to make the technology that came in the last 20 years look very primitive. Somebody’s going to invent a hat at Google that reads your brainwaves and then you can communicate with everybody else who’s wearing a hat without saying anything. And it’s going to change everything, it’s going to change everything. And it’s going to be chaotic, and it’s going to help, it’s going to force us to rethink about what it means to be a person, what it means to be an American, what it means to be a man, what it means to be a woman. All of those things, we’re gonna have to answer a lot of hard questions. But I’m optimistic that the, by asking these questions and wrestling with these, the arc of history bends towards justice, and eventually we’re going to figure it out. So, we just have to weather these storms and do the best we can at each point and build a strong foundation so that the, so that, as I said, when future generations stand on our on our shoulders, they won’t feel rickety. So, I don’t know. There’s, there’s a few thoughts for you.
Oladeji Yeah. All beautiful. And, Colin, I just, I have to thank you because you are such a visionary. And this hour chatting with you has been a complete joy for me. So, so thanks for taking time out. Thanks for just sharing all the work you’ve done in this field and also your view of the future with our listeners. We appreciate it. Thank you so much.
Colin Thank you so much Oladeji, it was absolutely the pleasure was mine.
Oladeji So, thanks so much for listening to the very first episode of “Convergence.” Similarly to Colin, I also believe in the wisdom of the crowds. So, if you have any thoughts, questions or recommendations for me, feel free to email me at [email protected]. That’s [email protected]. Peace.