Tuesday, February 1, 2022

Convergence EP11 – Reviewing 2021 for the Law and Dispute Resolution

In episode 11, host Oladeji Tiamiyu speaks with Amy Schmitz, the John Deaver Drinko-Baker & Hostetler Chair in Law at the Ohio State University Moritz College of Law, to review 2021 and identify important trends of the year that have impacted the law and dispute resolution.

“Convergence” is a bi-weekly, limited series of conversations with thought-leaders and practitioners at the intersection of dispute resolution and technology. Host Oladeji Tiamiyu will focus on such topics as the role technology has had in resolving disputes during the pandemic, various ways  technological tools have historically been incorporated into dispute resolution, and creative use cases that technology presents for resolving disputes into the future.

Host

Oladeji Tiamiyu

Guests

Woman in suit

Amy Schmitz is the John Deaver Drinko-Baker & Hostetler Chair in Law at the Ohio State University Moritz College of Law. From 2016-2021 Professor Schmitz was the Elwood L. Thomas Missouri Endowed Professor of Law at the University of Missouri School of Law and the Center for Dispute Resolution. Previously she was a Professor at the University of Colorado School of Law for over 16 years. Prior to teaching, Professor Schmitz practiced law with large law firms in Seattle and Minneapolis, and served as a law clerk for the U. S. Court of Appeals for the 8th Circuit.

Professor Schmitz teaches courses in contracts, lawyering, online dispute resolution (ODR), artificial intelligence (AI), data analytics and the law, arbitration, international arbitration, and consumer law. She has been heavily involved in ODR teaching and research for a long time and is a Fellow of the National Center for Technology and Dispute Resolution, as well as the Co-Chair of the ABA Technology Committee of the Dispute Resolution Section and the ODR Task Force. She serves on the Association of American Law Schools Executive Committee on Commercial and Consumer Law, was an External Scientific Fellow of the Max Planck Institute Luxembourg, and is a researcher with the ACT Project exploring AI and ODR.

Professor Schmitz also hosts The Arbitration Conversation, a highly regarded podcast that has reached over 100 episodes. She has published over 60 articles in law journals and books, is a co-author of the leading casebook, Resolving Disputes: Theory, Practice and Law (Aspen/Wolters Kluwer 2021), a new book with Tom Stipanowich, Arbitration: Theory, Practice and Law (Forthcoming Aspen/Wolters Kluwer 2022), and a book with Colin Rule, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection.

Resources

Reviving the ‘New Handshake’ in the Wake of Epidemics

The New Handshake: Online Dispute Resolution and the Future of Consumer Protection

Transcript

Oladeji  00:02

1234 Welcome to convergence with Oladeji Tiamiyu. All right, welcome to 2022. Since this is the first episode of the year, I wanted to use this as an opportunity to reflect on 2021. Today I’ll be speaking and reflecting with Amy Schmitz, a law professor at Ohio State University, and author, public speaker and expert in technology and dispute resolution, we’ll be identifying some of the most noteworthy trends of 2021. Amy also authored the new handshake, a book on online dispute resolution and E commerce. So I wanted to use this time to also explore how the field has changed since she wrote her book. Alright, let’s get to it. Amy Schmitz Welcome to convergence. Thank you so much for joining the conversation.

Amy Schmitz  01:07

So excited. This will be fun.

Oladeji  01:10

Amy, I’ve actually been following your work for a long time now. And so yeah, I’m really excited for the conversation. And I did want to maybe zoom into your childhood, let’s just say, at 14 years old, I was curious what Amy Schmitz was doing at 14, where you were and what you were aspiring to become?

Amy  01:33

Wow, there we go. That’s a hard one. Didn’t expect that one. But actually, you know, I think it’s, I was always one of these very precocious kids, right. And so at 14, well before that, actually, I published my first book, by the way, when I was I think about seven.

Oladeji  01:53

Wow.

Amy  01:54

Yeah, I decided, oh, I’m gonna wake up each day and kind of have a new kind of plan of something I was going to try out. And so I bought hey, I’ll write this book, bunch of copies of it, bounded myself and sold it door to door in the neighborhood. So when I was 14, you know, I wanted to change the world. I wanted to make a difference. In fact, when they asked, you know, in the yearbook, what you want to do, that was my thing, I just wanted to make a difference and change the world and do exciting things. But I wasn’t really sure what that was.

Oladeji  02:24

Well, one, I just have to say, it’s incredible that at seven years old, you are publishing your first book, and also being a salesperson and going door to door. You know, I think those are valuable skill sets at any time in your life to cultivate. And so the fact that you’re doing that it’s seven, both on the writing front and also in like, marketing yourself,  and yeah, yeah,

Amy  02:49

The reason I tell the story, though, is because my poor parents. Can you imagine? A country road, its a true story was on this country road where it was not safe to be walking along this road, okay. And here’s this little kid, my mom didn’t even know where I went. She found out later, because one of the neighbor ladies brought me back to my house and was like, well, do you know what your child is doing? It didn’t go very well and Schmitz’s household, but you know, you got to try new things.

Oladeji  03:19

Absolutely. Absolutely. And I guess you’ve had a really prolific career in the law. And so I also was interested in actually what attracted you to the law, and specifically, what attracted you to dispute resolution?

Amy  03:37

Yeah. Originally, I was really interested in international human rights. And when I was in college and law school, and I wanted to, sort of, again, make a difference and solve problems and think about ways that we could use law to solve problems and help people come together. And I really feel that dispute resolution is this kind of corner of the law that really allows for problem solving at a deeper level and multifaceted level. Not as doctrinal, I guess, as other areas of law. But I do think a lot itself is a vehicle for, you know, access to justice, for solving problems, for helping people in their daily lives, but also at larger scale. It’s just, it’s a great tool, right? And so going to law school and thinking about the law. I mean, nobody in my family went to law school. So it wasn’t a family business or anything like that. And I certainly wasn’t thinking, oh, I want to be in a corner office law firm. It was really a matter of using the law as a tool for solving problems and helping to expand access to justice.

Oladeji  04:39

Yeah, and I can see a connection between you as an eighth grader in your yearbook — Amy Schmitz wants to solve the world’s problems — and later in your youth, right, being interested in the love for again, that core justification of addressing the world’s problems and, and I agree with you. One thing I find really beautiful about dispute resolution is that it gives space to address underlying issues that a courtroom or that case law might not be as well equipped or as nimble or flexible in addressing the issues around emotions, issues about relationships, right?

Amy  05:30

Yeah, no, very well, said. I mean, and I think to myself about really shortcomings in the law is, well, it can be disappointing if you want to rely on the rule of law to solve different problems, because sometimes it doesn’t, right. And a lot of the things that we deal with in day to day, I think back to 14 year old Amy Schmitz, and she would be disappointed that I haven’t done more, you know, you want to be ending world wars, right. Yeah, you know, and it’s hard. I mean, I remember in law school, being disappointed to realize a week, it’s not that easy to suddenly just, I want to be an international solve-the-world’s-problem person, right? Like, these are really careers that are so easily found. But you realize, as you learn more about the law, and you learn about doctrinal issues that, wait a minute, we’re talking about real people with everyday problems, and most people never go to a court of law to get those problems solved. Right. And so I think that’s where dispute resolution comes in, because you can use the tools in dispute resolution, in order to get into those things like emotion and relationships, and helping people figure out ways to find resolutions for their problems without having to go to a courtroom or having to hire a lawyer or deal with really the complexities of the law and the legal process.

Oladeji  06:50

Yeah, yeah. And that really resonates with me too, just recognizing the limitations of the law, and then also, being a bit disappointed when you are in law school, or when you’re a lawyer and in your young career, all of a sudden, you you see these complexities that previously may have seemed clearer and less nuanced. But I have one of my favorite quotes, and it’s a quote, actually, that I came up with when I was just thinking about what it means to be wise. And for me, wisdom is the tolerance for ambiguity. Right. So recognizing that problems, and also solutions have nuances and being open to those nuances can be both difficult and at the same time, quite enriching.

Amy  07:52

Absolutely. You know, and it takes maturity to kind of get to that level, because I think this is very true of many law students. Right. And when you first, I don’t know, how did you feel when you first go to law school, right? And you think, Well, gosh, when that’s not fair, or whenever you see injustice, well, why don’t they just sue?

Oladeji  08:10

Yep.

Amy  08:11

And it’s easy to sort of naively think that it’s that, you know, everybody has an opportunity to access justice to fight for their rights. But that’s really not true in the real world. And it’s more ambiguous, right. And it’s more ambiguous in the way that people seek resolutions, because it may not even be beneficial mentally, financially, for somebody to go to a court of law and go through traditional steps in order to seek a remedy. And that allowance for ambiguity, that was really well said. And I do think it’s kind of a more nuanced view of law as problem solving tool within the spectrum of dispute resolution that is pretty exciting when you think about it.

Oladeji  08:55

Yeah. Plenty of wisdom emanating from you. So thank you. And I did want to spend some time actually reflecting on 2021. And before we get into the actual reflections, you know, we’re on the on the other side of New Year’s, so I think it’ll be healthy to kind of reflect on the past year. I also wanted to spend time before we get to that, just thinking about how one, an individual, or specifically Amy Schmitz, how Amy reflects on the prior year. Are you a goal setter, right, when you’re thinking about New Year’s, do you set goals, or do you spend a lot of time reflecting on the prior year or neither?

Amy  09:48

I actually am not big on, I don’t see the date on the calendar as a key to deciding that you’re going to try new things or take on new risks or innovate or come up with ideas or explore ideas. I really do think it’s important to kind of do that every day, right? So every morning, wake up, it’s a new day, and think, how can this day be better than yesterday? Of course, there’s going to be mistakes along the way and you have to give yourself grace to fall forward or fail forward, as they say. So not a huge New Year’s Eve, kind of ponder the year and, and come up with my list of new year’s resolutions. I’m more of an everyday resolution person. Yeah, so I guess I’ve always been that way. I’ve never really been someone who’s, its just a date on the calendar, but I don’t see it as meaningful as just thinking each day okay, you’re gonna pull yourself up by your bootstraps, and take on a new challenge and try new things and think of ways to make today better than yesterday.

Oladeji  10:53

Yeah, yeah, that makes complete sense. I think one of the main challenges for creating resolutions is actually sticking to them. And sometimes, around the New Year’s cycle, we can look at the New Year’s as an opportunity to set a new resolution and then come March or come July, all of a sudden, that resolution is no longer a priority. And what you’ve raised here is the importance of habits, right? So not relying on a specific date, but using every moment as an opportunity to reflect and to prepare for the future. So I really like that.

Amy  11:33

And that in an of itself, becomes really kind of exciting forward-momentum way of thinking, right? If every day you’re, and it becomes a habit, instead of it being this once a year thing, you know, this year, I’m going to learn how to I don’t whatever it might be that falls by the wayside. How about you? Did you set any new year’s resolutions for 2022?

Oladeji  11:57

You know what? So over the past three years, I have my paper journal, actually and every day or every other day, I’m writing down like one or two things. It can be a quote that I really liked. Or it could be something that I just thought of that I want to remember in the future. Or it could be a new principle that I want to live with, or someone that I forgot to contact, right. So every day, I’ll have just a sentence or two to reflect on the day. And for me, the week leading up to New Years, is when I bring out this paper journal, and I just look back on the past 12 months, and maybe identify one or two things that seem to be leading trends. And it’s actually a pretty time consuming process. And,

Amy  12:48

Yeah.

Oladeji  12:49

I’m not sure if it’s the best approach, I’m always looking for better approaches. For me, I was developing a habit in a negative sense where I would journal but I wouldn’t reflect. Right? So it would be 20 months down the line and I would have all of these thoughts. And I’m like, at some point, it would be nice to look back on it. So over the past three years New Year’s has just been that moments where, right, I’m not kicking the can down the road, I’m actually going to reflect on the things I’ve thought of over the year.

Amy  13:22

I like you know, I get that. I’m actually a little like that, because one thing, I do that with bullet points. So I have these little yellow pads of paper, I’m picking one up right now, because I’ve got them with bullet points, right of different things that I’m thinking about or things I want to do or ideas. And then what I do is I rewrite them. And it causes you to have to reflect, knock off the ones that you actually achieved, right? Get rid of the ones that really aren’t great ideas, which I’ve done. You think, oh this wonderful idea, and that’s okay, let’s cross that off. And I rewrite the list. And so it’s a way to kind of reflect at the same time that you’re creating new content. Your idea of the paper journal also brings me back to another sort of funny oddity of the 14 year old Amy Schmitz, which is, no this is true. I had this old desk that my dad had built that I would do my homework at and things like that. But there was like a trick drawer, there was like a drawer underneath the one drawer so you can like hide things in there. And I wasn’t cool enough to hide, you know, I don’t know, a six pack of beer or whatever. No, instead, I would write these little poems and I wrote a lot of poetry and I would just throw it in there. And then every once in a while I go back through and sort of reflect on these ideas that was part of this stash of poetry in the kind of secret drawer and it makes me, I’m picturing you with your journal and that picture this kind of secret drawer where you have all of your ideas, and you go back and you go through, and you think, oh, you know, I like that. I think it’s, you know, maybe it’s time consuming, but it’s probably incredibly useful. Really useful.

Oladeji  15:09

Yeah, yeah, I think that time is both an asset and a liability. And for me, being able to look back on even like two years ago, right, and see what I was thinking on January 18 2020. And thinking about that, and oftentimes, crossing it off, like, yeah, horrible idea. And sometimes I I marvel, I’m, like, beautiful, I thought of that. I’m so glad I was actually thinking about that at that time in my life. But my fear is just forgetting and so journaling is particularly important to me, because I don’t want to forget experiences I have, or emotion I feel or thoughts that come to the surface. I don’t want to let that drift off with time.

Amy  16:03

Definitely, no, I’m a huge believer, I have to have my one of these little yellow pads of paper and a pen with me at all times. And if I don’t, it’s like a phobia or something. Oh no, I can’t write it down. Wait, I didn’t take the note. I’m with you on that, because you don’t want to forget it. Right. And you don’t know what if this is the best idea ever had. You know? Yeah, that’s great, though. And I don’t think it’s a waste of time. I think it’s, and that’s a problem solvers right. And I do think many in the field of dispute resolution are inherently problem solvers. And as a problem solver, I think it’s always really important to allow for brainstorming, right, and to allow creative energy to come up with new solutions and ideas. Which again, kind of goes back to your original question in terms of doctrine. Doctrinal law is fairly regimented. Right? I mean, look at the rules of civil procedure, they don’t allow for the same kind of flexibility that we see in mediation, for example. And I think that problem solving at the core of dispute resolution lends itself to creative thinking and creative thinking begs for brainstorming. And some ideas might be horrible. But one or two of those ideas might be brilliant.

Oladeji  17:19

Love that. Well said well said. So I did want to spend some time thinking about the year 2021. And I know you spent a lot of time thinking about the complexities of dispute resolution and how technology impacts or informs or detracts and impedes dispute resolution. And you’re all into the nuances of that. So I wanted to spend some time actually thinking about 2021. And maybe the first question I’ll ask is, for you, what the three leading trends in dispute resolution were for 2021? It’s a tough question.

Amy  17:59

Yeah, cuz that’s, I only get to choose three. And I actually didn’t expect you to ask it. So now I got really think. You know, I want to start off with something unexpected. Instead of saying, oh, you know, the easy answer is like, oh, blockchain, AI, you know, something cool, right. I think what we’ve learned in 2021, and 2020, and over the course of the pandemic, reinvigorating deeper thought about when, and how we need human interaction in the dispute resolution process. I think the psychology I think, Jean Sternlight and others in some of this work, is really important. And, and even me, somebody who’s very, you know, bullish, as you would say, on ODR, online dispute resolution, and the use of technology in ways that, you know, technology is not going to go away. And we definitely seen with the pandemic how it’s really become incredibly important in dispute resolution, in our daily lives, in our daily interactions. I think what it’s also done, the 2021 experience, has shed light on when and how we absolutely need human interaction in order to properly deal with particular problems, and especially where emotion and human human elements that I think it’s really kind of neat the way that oddly enough, it’s really shined a spotlight on that. So number one, I think, is to highlight how there are times and places and situations where we absolutely need the human element, more than we maybe even realized. I think, secondly, is to be more creative in digital dispute system design, meaning this: one thing that I’ve noticed over the course of 2021 especially, being in this field, and somebody who’s kind of been in the field for a long time. There’s now this kind of idea and expectation that it’s just Zoom, right? Zoom mediations, Zoom, arbitrations, Zoom we’ll just zoom. And you’re missing out on all of the complexities and all of this different propensities and excitement and creativity that can be involved in true digital dispute design. And so I think there’s beginning to be more of an awareness about this. Because we’ve seen some court programs, for example, where they thought, oh, we’ll just use this particular platform without thinking about whether or not that platform actually fits the problem, right? I mean, you don’t just have to fit the forum to the floss, you have to fit the tech to the floss. And so I think another trend and something we’re gonna see on the horizon, especially as we move into 2022, is this need for more thoughtful digital dispute design? I think that’s also kind of one of the big things.

Oladeji  20:49

I’m sorry, I just wanted to intervene on that one, because that’s really interesting. One, when the pandemic started, it felt quite revolutionary, that so much was being Zoom-ified, if you will, right. And people were navigating those connection issues, people were navigating trying to get a subscription to Zoom if their workplace didn’t offer it, or if the they had bandwidth complications, right? They were just navigating everything, but it always related to Zoom specifically, and obviously, at the start of the pandemic Zoom, Zoom’s market capitalization skyrocketed.

Amy  21:34

There’s no question, I know. I was like, oh man I wish I owned Zoom.

Oladeji  21:38

Yeah. And, and so it’s quite interesting, because we’ve kind of reached a almost I want to say a saturation point with Zoom. And in the with the students I supervise and the classes I’ve been involved with, I’ve noticed that students also wants to escape Zoom. And it isn’t, it’s a bit too simple to just call it Zoom-fatigue, because I think that that is often equated with just internet fatigue. But there have been other applications that I’ll use with students  and they’re excited. They’re excited to be somewhere else besides Zoom. And so this all begs the question on this second piece around creativity with digital dispute system design, begs the question of the metaverse and I just have to ask, because the critique initially with Zoom, was that you can’t see everyone’s body language. You can see their face, maybe you can see their shoulders, but it’s a bit harder, it’s more complicated to incorporate their arms, right? Or you can’t see their legs right. And in, in all metaverses, essentially, it’s like a floating hologram. Your digital avatar is a floating hologram. And people have criticized it because you can’t, it’s just the legs, it’s the hips up, but nothing else. And so something I wonder is whether these holograms that exist in the metaverse, particularly in virtual reality, whether that has a role with being creative in digital dispute system design.

Amy  23:26

Yeah, that’s an issue. So this is funny, because way back, in fact, I’m picturing myself when I was a professor at University of Colorado, I can remember I worked on this article that I, do remember Second Life?

Oladeji  23:38

Yes, I do.

Amy  23:39

Yeah. And I was it was all about how we could create [??] Second Life for dispute resolution. And, and I was thinking about avatars and thinking about some of the ideas. And you know, there were law firms in Second Life. And there were legal issues, and it was actually pretty cool stuff. And I always thought, oh, there’s got to be something to this right. And, and then I’ve seen some of the programs. In fact, Harvard has one for negotiation, some of these ideas of using an avatar for like training and virtual reality training for negotiation. For example. I don’t know, you know, I think there’s a role I think there might be a future for it. I think right now, the technology is not sufficiently sophisticated. I wonder your take on it. I know when I’ve seen and tried to play with it myself, I found it a little creepy, but that was my own personal, you know, thought about these avatars. But I wonder if it could play a role in terms of self expression, in terms of allowing people maybe in terms of restorative justice and in other ways, rather than maybe direct negotiations? Yeah. I do think though it’s worth exploring, right. As I said earlier, giving ourselves as a field license to try new things right and explore them and research them and think about how it could perhaps assist different individuals. Because the other thing when you raise a question, it’s such a good one. And really goes back to this creativity question as well, you know, we’ve scratched the surface. I mean, one of the things about the whole reliance of Zoom has been the new kind of ODR. Zoom is a communication platform. Okay. It’s not really built for online dispute resolution. And the one concern I have about constantly just relying on Zoom, is that then you’re just trying to replicate face to face processes using an online platform. And that does kind of limit the creativity, right? And so things like considering avatars, considering modular processes, considering how you might be able to build in, you know, solution explorers and other things that can be helpful for individuals. Then they don’t get the same kind of credence that they need or attention or research, perhaps? I don’t know.

Oladeji  25:58

Yeah, all great points. And, to be honest, the the rule of thumb is to never ask a question that you don’t want to answer. And I feel like I kind of broke that rule of thumb because I truly don’t know the answer that question either. In one instance, it feels similar to how some could think about blockchain-based ODR, where you the technology of using blockchains in the ODR process matches blockchain based-transactions. And so there’s a parallel technology that would make it really effective. So if you were to have blockchain ODR for family law disputes, it would be a waste of time, dare I say that incompatibility, right. And so part of me wonders whether that platform-based or technology-consistent and platform-based dispute resolution, could be consistent with the metaverse right. Like you can have disputes in the metaverse and it would probably be more difficult to to bring in in-person court system to adjudicate metaverse, disputes. or it could also be difficult for in-person mediators, and arbitrators who perhaps understand the technology or the culture of the metaverse less, it could be hard for them to expect metaverse disputes to come to them. Right. So there could be a world where there is a metaverse arbitrator office, where do you go to.

Amy  27:49

No, that’s what I pictured in my little Second Life dispute resolution, but what you but what you bring up, it goes back, when it comes to a process, right, and it comes to any problem solving process, trust, you need to trust the process. We know that. You need to feel okay, this, it fits, right. You don’t want the square peg round hole, and like you say you don’t want somebody who’s not, if it doesn’t fit, if the tech doesn’t fit, then it’s not going to work. You know, you can’t have blockchain based dispute resolution for family disputes. It just yeah, that’s definitely incongruent. Like, you know, it’s not going to work in terms of trust, because the participants, the individuals, with their family law dispute, they’re probably not going to trust blockchain. I mean, that that’s not going to be necessarily within their realm of thought. I mean, it could be I supppose, but most cases, it won’t be. But what you bring up is a good one. For example, let me just throw this out there. As you were talking, I’m sort of visualizing. All right. What if you have within gamers, okay, now, I’ve had lots of students that are very serious about their gaming, right, and I’m not a gamer. I’m not a huge video game person. But, but but imagine if you are right, and you believe strongly, and you do what to call Twitch, I think it is or something like that, right?

Oladeji  29:05

Yes.

Amy  29:06

And you’re very serious about it. I could see then having like a gamified resolution process that exists in sort of the game metaverse. Right?

Oladeji  29:17

Totally.

Amy  29:18

And why not? I mean, it’s because you trust the process. If you trust gamification, I mean, same with we see with blockchain dispute resolution, if you trust blockchain, right, and you trust smart contracts, it makes sense that you would want to submit to Cleros or [???], especially Cleros with the way that they work their system, because you trust the math, right? You are a crypto economist, and you trust the math and you probably trust the math more than you trust a retired judge, who is the arbitrator, right. Like you might prefer to have a blockchain based solution. So it goes back to trust, doesn’t it? I mean, it seems as though It’s it’s a matter of the particular people involved the type of problem that’s involved, and whether or not in that type of problem those people trust that type of process. And it makes more sense, if it’s a blockchain-related dispute, and you have individuals that believe in the math, I believe in blockchain.

Oladeji  30:20

And so many wise thoughts there. Trust is at the center of empowering disputants to feel comfortable and representated in the process, right? Like, if trust is non-existent, it raises the question of the legitimacy of the outcome.

Amy  30:43

Right.

Oladeji  30:43

If you haveparties who are, you know, I don’t believe in this outcome. And frankly, we’re just about celebrating the anniversary of the attempted coup, right. And I’m not here to defend anyone, right. And there were people saying that I don’t trust the democratic process.

Amy  31:03

Right.

Oladeji  31:04

And they resulted to violence, right. And so at the core of effective dispute system design is trying to prevent that violence from occurring. So you want to ensure that the system has trust. And I’m thinking back to David Deutsch, who is a transhumanist, and all these things, but he’s a, he’s a physicist, and a transhumanist. And he was kind of applying some of the science, the understanding of the scientific method to democracy. And this isn’t a direct quote, to paraphrase he was saying that democracy is effective because people are willing to trust the outcomes, and not result to violence when when they disagree with the outcome. That they feel that their voice can be represented in the future. So even if they lost the election, they still have a future opportunity to engage with it. And so I think that applies here. Right? If, as you’re saying with people in the blockchain and crypto sphere, there’s a lower amount of trust that they would have in court systems. There’s, there’s the case of Cobra, who which is a pseudonym for one of the individuals who hosts the Bitcoin white paper and he was recently sued in British courts by Craig Wright. And Craig Wright is someone who claims to be Satoshi Nakamoto. And Cobra refused to appear in court because he wanted to preserve his pseudonymous nature, didn’t want people to know who he truly was. And there was a default judgment entered against him. So he had to take down the Bitcoin white paper on his on his website, and the default judgment eluded, implied that Craig Wright, who’s kind of who’s clearly not the inventor of Bitcoin, but claims to be. And so the default judgment was entered in Craig Wright’s favor because he was willing to show up and his counterpart refused to appear in court because he valued his pseudonymity.

Amy  33:42

Right.

Oladeji  33:42

So that’s the question of trust, right? Like this is a clear preference that a dispute and has for systems that preserve pseudonymous names and identities. And yet the court system, the formal court system isn’t able to handle that. So I’ve rambled there. So you you mentioned that there was also a third trend that you think was at the forefront of dispute resolution in 2021. What was that trend?

Amy  34:19

Yeah, so I think one thing, you know, they always say, you know, follow the money, right. And so one thing I’ve done in my research, as well as to kind of follow the legal tech fund and follow other sort of angel investors and see where’s the money going? Where the where are the investments flowing? Right? Obviously, that has huge impact on all different kinds of areas of law and dispute resolution is not escaping that right. I mean, we’re seeing this as well, and the flows of money into building out and developing data analytics and AI I think is really quite astounding to watch. You’re seeing it all different areas, right. We see Westlaw and Lexis you know, having their own different abilities. We see more use of artificial intelligence in courts, China being a prime example. And in different types of dispute resolution processes. And I think we’re going to see more and more of this, you know. I think, you know, we can say, be fearful of the robot judge. But you know, it’s already happening. If you really think about it, many of these processes have been around for a while, where there’s a certain element, especially low dollar disputes. I mean, you look at Amazon, right? When you want your money back, and if it’s a low amount of money, you just get it. And it’s quick, and it’s as fast. There’s probably no human involved in that transaction. Okay. I mean, think of all of us. If you’ve ever had any sort of consumer issues lately, right, and you’re in the chat, it’s usually not a person. Okay. Yeah. If you think it’s a person, you’re kidding yourself, right. And we’ve all seen it and been frustrated by it. But you know, it’s not gonna go away. And so I think it’s up to us to sort of look under the hood and make sure that we agree with how and when it’s used. And then it’s used ethically and in the best way. But I think it’s a trend that’s not going to go away, it’s just going to grow in importance, because companies like the efficiency. They’d like to save money. Now, I would argue that in many circumstances, it doesn’t actually become more efficient, because it might just create more disputes. Like me when I’m getting mad because my cell phone provider is trying to just give me some sort of robo [???] are dealing with the problem,well then it leads to more upset, right. But but I think that that is another trend that we definitely saw in 2021. And I think it’s going to continue. Not going to go away anytime soon.

Oladeji  36:43

Yeah, and that’s such an interesting point, because it relates in a almost paradoxical sense to one trend that I think really stands out for 2021, outside of dispute resolution, would be a new value on labor. And throughout the country, we’re seeing labor shortages, we’re seeing restaurants have to close not because people aren’t ordering from there, but because they just don’t have enough cooks. They don’t have enough, waiters and waitresses. We’re seeing stores, small businesses having to also adapt. And, and then since the pandemic has started, we’ve also seen, in the law we’ve seen big law, we’ve seen law firms increase wages for for junior associates. So and this is all responding to market demands, for the most part, because there, there’s a shortage to a certain extent of lawyers in big law, junior associates in big law. And so they’ve had to increase their salaries to attract more people. And so we see on one hand, this labor shortages in many areas of the economy, and then we also see, technology being incorporated in ways that almost or fully replaces the human. And that is very interesting. I mean, we’ve seen that in the past with when you’re checking out, and there’s no cashier, and you just do your thing.

Amy  38:20

And with deliveries, I mean. Still, you know, I walk on campus, and I’ll see these little robo-delivery, you know, for delivering packages and things and they’re self driving, right, and they are absolutely operating using artificial intelligence, learning their way. It’s very interesting, right? It makes sense. You know, it makes sense in these areas. But what you know, I think really shows how the three trends of 2021 that, that I mentioned, becomes circular. Because this growth of AI and use of artificial intelligence kinda leads you back full circle to number one, which is this fact we it raises and shines a light on these areas where we need humans, because what you’re talking about with needing more associates and needing lawyers, the thing that is needed are lawyers who have good emotional intelligence, right and have these people skills. It actually brings us back and shines a light on the need for dispute resolution education, right? I mean, it shows how these courses and how students can really benefit by learning how to interview, how to counsel, how to negotiate, how to mediate, all of these different sort of more humans skills become really important and not to mention the fact that just people that you trust, it goes back to trust as well right, and people you want to hang out with. I remember when I was working at the law firm in Seattle, we had we had some very expensive consultant come in and look at, you know, trends in the market and look at sort of of how to raise your bottom line and all the rest of it, and what what the clients really want. And time after time, what clients really wanted, they don’t hire law firms, they hire lawyers, they hire people. They want not only someone who’s really smart, and is able to analyze things, but they also want someone who they want to hang out with, someone they want to talk to, right. I mean, there’s the pinky factor, I remember there, I worked with this person who would say, the pinky factor. And I think that just kind of brings us back full circle to this idea that sometimes you just really need the human element.

Oladeji  40:36

You could almost say, making this full circle, again, that the comparative advantage of of humans is that creativity, and, ideally, our ability to connect with one another, right. And in a situation where AI and different technologies are being deployed at scale in a way that reduces contact with humans, those humans that are present need to differentiate themselves from artificial intelligence in a way that makes people want to do deals, or dialogue in exchange with other humans. And if you’re not providing that emotional intelligence, comparative advantage of being a human, then people are going to default to the machines, right? Like, if you have a mean Uber driver, then self driving cars, all of a sudden . . . .

Amy  41:42

. . . look good. But I like but I think the comparative advantage, because, you know, on the one hand, you know, raising salaries, but I also have seen areas where they think, well wait a minute, we don’t need . . . I mean, if all you’re good at it, right is on discovery, if you’re, you know, graduated from law school, you’re like, man, I’m really good at reviewing documents. Well, I hate to say it, but you’re probably not going to stay in your job very long, right? Because that that’s definitely a place where, you know, technology can take over and do a pretty good job, you know, it’s getting better. Not perfect, but it is definitely improving. And I think technology is gonna continue to improve. You know, I think what is really kind of the next wave that I suppose becomes a little more scary to some people, exciting to others is, and I’ve read quite a few articles, especially when you go into the, you know, get out of law school, and you look at other research other departments and you read different white papers about creating artificial intelligence that actually can be creative, can be creative, in ways that maybe humans couldn’t be. Right. And so now you get into this whole question of, how do we keep our competitive advantage? I guess that sounds a little scary. But I think that that’s something to think about, right? I mean, I personally think still, there’s the human element, and connection, and creativity, that is really very important and isn’t going to go away. But at the same time, it’s kind of an interesting thought, right, is maybe you can build models, where it allows for creativity in ways that humans wouldn’t have even thought of, by virtue of using artificial intelligence. We don’t know where it could go. I mean, look how much has happened in the last five years? Right? I mean, look how much has happened in the last two years in terms of technology, you know, and going back to trends from 2021. And the discussion earlier about how, you know, a lot of these individuals who were not even okay with using Zoom, right, and 2019. Now, they’re like, Zoom experts, right? And they’re all over the place and they’re excited about, you know, using Zoom for arbitrations and mediations. And who knows, maybe they’re on to the next thing. I mean, it’s interesting to watch how people are willing to try new things after they feel that they’ve mastered one, right. So they mastered Zoom. Well, hey, maybe to move on to the next step,

Oladeji  44:15

As as you’ve written about the pandemic has been this moment where the veil is lifted  and we now see greater possibilities with technology in our field. And I actually did want to zoom in on that. So 20, a few years ago, you wrote a book called “The New Handshake.” And at the somewhat the start of the pandemic, late March of 2020, correct me if I’m wrong, you also wrote another article, titled “Reviving the New Handshake in the Wake of Epidemics.” So I wanted to just briefly spend some time thinking about that because I think this applies, those two writings apply here. Maybe for the listeners, what is quote unquote, the new handshake?

Amy  45:08

Yeah, so that was way back a long time ago. And in fact, it’s funny I started writing about, well, I was thinking about the whole Second Life and then as thinking about technology and how it’s disrupting the law, and then how it’s disrupting dispute resolution, and Colin Rule at the time, he was at Modria, and he had reached out and said, hey, you’re writing about ODR? And so then, why don’t you come to one of these ODR conferences. And then, you know, I became a fellow of this National Center for Technology and Dispute Resolution, and then doing research about the tech technology and how it’s disrupting dispute resolution. I was an appointed expert, and so was Colin, for the UNCITRAL working group three, which was, the idea was to create an online process for resolving international e-commerce disputes. It originally it included business to business, but then they kind of narrowed it down. It started in 2012. It ended in 2016 without any really definitive process. They hoped it would continue but but Colin and I thought, well, wait a minute, we could, you know, if you build it, we’ll build this field of dreams. And we’re gonna write a book about what this could look like to really help with consumer protection and really give a new handshake. And I thought about as a kid, I guess we’re full circle, the 14 year old Amy riding my bike to go pick up corn, you know, I’m not kidding, we would go get corn from the farmer who lived down the road. And then you know, you look him in the eye, you give him the cash and he shakes your hand or she shakes your hand. And you know that they’re good for it, you know, that if you open up that you start shucking the corn, and there’s worms in it, or whatever, you can go back and they’re going to, that handshake was like a trust mark. Right? It was trust, it was building trust, and you believe that you’re going to follow through with your promises. And of course, we’ve seen over time how, you know, it’s a free for all and online purchases, especially. And you don’t know. I mean, if you don’t have a process for getting a remedy, you just buy it from some random online company, and you don’t have a remedy, you don’t have that trust and so how can we build a new handshake? And so the idea was, how can we build trust in the marketplace by creating this field of dreams, a perfect kind of online dispute resolution process? You know, we set out a blueprint, we set out reasons for it. And then we set out the actual blueprint of how this would be built in the new handshake. So it’s a book that was really fun to write. Colin and I had a good time kind of brainstorming and thinking through, again, dispute system design, and how you could sort of create this new handshake. So that’s kind of in a nutshell, is how do you sort of revive trust in the marketplace by creating an online dispute resolution system that takes into account the types of problems involved, the stakeholders on the goals, and can be a way to really help consumers and companies connect in ways that are beneficial?

Oladeji  48:00

Absolutely. So. So now that we’re, who knows, is it five years or two years into the pandemic, to what extent is your concept of the new handshake changed as a result of the pandemic?

Amy  48:15

Yeah, so in part of why I wrote that essay was, I was looking at the book cover, and the book cover, you know, you have this cord, a computer cord that’s in the shape of a handshake. And I was thinking about how, in the early days, especially, it was our lifeline, right, I pictured that computer cord, almost like a lifeline. A way that you could connect with your family a way that I could visit with my parents on Zoom, a way that we could have connection, despite the fact that we weren’t connected, right, and how you could continue resolving disputes. And you could continue, for the world to continue using these online mechanisms, and really became like a lifeline, like a new handshake and reviving handshake and saying, hey, maybe this is a moment. Maybe this is the moment in time where we finally can build this out. Because the other thing that happened was this new trust in technology and comfort in using the technologies. We talked about people who never use technology, were suddenly becoming wizards at it. And excited about it, right? Like, yeah, that’s we do bookclub on, you know, and you had my mom and people who never went near computer suddenly connecting using these online mechanisms. And so it kind of made me think, well, gosh, maybe this is the moment maybe we can build it. Right. And I also think a lot of companies have since built their own online mechanisms for resolving disputes, and they might not be as formalized as the new handshake. But I do believe that we’ve seen a growth in different online mechanisms because companies like Amazon, for example, have learned that they increase they, make money by providing, people buy things on Amazon because they know that they can get a remedy if things go wrong, right. you’re more likely to purchase something from a company if you think there’s an online mechanism for getting a remedy. And so those are kind of mini new handshakes that are being created throughout the world. Do I still hope that there’s more of an international scope to it? Yeah. Because I think it could help out, especially economic development, in making you and I feel more comfortable buying things from different vendors anywhere in the world. Right. And creating an online mechanism for that could be good for everybody involved. So so you know, I I still remain hopeful. We did see, again, a kind of mini new handshake that was created in Europe, among the European countries. They have their own online mechanism for resolving disputes regarding e-commerce among member states, individuals from various member states. And so I think, you know, there’s still hope. There are different things, areas where I think it might be revived, for example, tourism. Right. What about that? What about having an online mechanism for getting disputes resolved cross border with respect to tourism disputes? You know, I could see other areas where where this may happen? I have a sense of hope. I’m kind of a hopeful person. I’m not going to give up yet.

Oladeji  51:16

Yeah, I think there’s plenty of room to be optimistic, especially when, you know, throughout the pandemic, more systems have been digitized. And when you make that jump, there are going to be people who still have qualms and the only main way to address those qualms is making sure that when conflict arises, there’s a reliable mechanism for resolving that conflict. So I think you have plenty, it’s, you have plenty of room to be optimistic, and it also feels like we’re just scratching the surface of this.

Amy  51:51

Exactly. Oh, I definitely think so. And, you know, picturing the new handshake thinking about trust, it’s really it is, it brings us back to that central issue. And even if you look at sort of the meaning of justice, right, and you think about access to justice, and you look at it, for example, Fordham has an index, and they look at different understandings of access to justice, and perception is so important, right, it really does become important. And that includes trust, do you trust the process? So I think it just brings us back full circle to that question of trusting whatever mechanism it is. And I think, as we see more things being digitized, and people become more and more comfortable with technology, we do see greater trust. Now, I would like to add one little proviso. So however, there’s also kind of this distrust, and I think that’s because of data, data protection and concerns about data protection. And so we’ve got to kind of wrestle with those issues and with cybersecurity. I think that’s got to remain part of the discussion as well.

Oladeji  52:55

And when we think of another potential trend of 2021 was the resurgence, well, let’s say the proliferation of ransomware to a whole new scale we had never seen and that is directly connected with cybersecurity. And, you know, companies that are digitizing at the start of the pandemic that perhaps didn’t have the same levels of cybersecurity as they could have or should have. So, yep, there weaknesses that were exploited as a result.

Amy  53:27

Absolutely. Even with Zoom, you know, its like you put Zoom in the wrong hands, and suddenly [?????] no, it’s absolutely true. It really is. And so it’s got to remain a concern, because you don’t want to kind of ruin any hope for these different processes, because nobody will trust it, because they don’t trust technology in general. And so it’s got to be a concern, cybersecurity and data protection has to become part of the conversation.

Oladeji  53:58

So I have one final question for you, Amy. And here is one that can be from left field, let’s say. So what do you believe about the future of technology and dispute resolution  that very few people in your field believe?

Amy  54:19

I think on the one hand, of course, just shining a light on the human element, how important it is, but but on the other? I think there’s a ton of skepticism out there about the ability to create systems, modular systems using technology to help self-represented litigants. And I’m kind of bullish on that. I think technology especially when you look at apps, and you look at mobile technology, so you know, making things mobile friendly through your cell phone, right. I mean, I think there’s a lot more that can be done for access to justice and helping self represented litigants with creativity. And in fact, I have an article that’s going to be coming out pretty soon of really proposing this kind of idea of a modular system to help self represented litigants. And I am I think there’s a lot more to be done there. And I’m not sure if others really buy into that, you know. You always hear about the digital divide, right? And everyone says, well, wait a minute, that doesn’t make any sense because the digital divide. It’s like well you know what? Mobile phones, they really do help democratize access to technology. And, and I think that many individuals use their phones for all sorts of things. So what’s so wrong with creating different processes in order to obtain remedies, to really help self-represented litigants, and people who are just searching for ways to solve their problems? I mean, there’s a lot more that we can do through mobile technology.

Oladeji  55:51

Yeah, no, that’s a great point. We have the Library of Alexander at our fingertips. And actually, not just that, we also with NFT’s we have, we have the Louvre at our fingertips, you know, we have some of the greatest museums that can be digitized and put it in our fingertips. And so in terms of leveling, the playing field, if a digital version of information that is accessible to large law firms is all of a sudden, accessible to anyone, accessible to pro se litigants, you know, that changes everything about what we think about the law, you know. Some people could think the law is a system that maintains inequities. And when you provide that amount of information and that amount of empowerment, which we I don’t think I’ve ever seen before, it changes what the law can and should do.

Amy  56:54

Absolutely. And I think there’s so much more to be done in that space. I mean I can just picture different ideas that could really help individuals in ways that could be revolutionary, you know. I mean, just knowing your rights, learning about your rights, empowering individuals using technology, and and it’s there, we can do it, we can do it. And I think I think that’s an exciting area. And I’m hopeful about the future and how we might be able to increase access in ways that we never really thought possible just by virtue of. I mean, you know, it really is true, though. You think about nowadays, how cell phones have just become so important to so many individuals as a lifeline, right? Why not create more ability for access to justice? So I just yeah, I think it’s an exciting area. So I think I’m probably more optimistic than others on that point.

Oladeji  57:44

That’s awesome. Great. Well, with that, on that optimistic note, let’s end things there. Thank you so much for for joining the conversation.

Amy  57:52

Thank you so much