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Ethical Dilemmas in
Editors’ Note: In this chapter, a leading expert on online negotiation and dispute resolution considers the new ethical challenges wrought by his field. Rule finds that the advent of technology as a routine element in all sorts of negotiations has introduced new questions about impartiality, competence, cost, accessibility, confidentiality, privacy, and even the possibility of systemic biases being built into software code. As yet, he argues, few negotiators are thinking about or even aware of most of these factors. Yet they increasingly affect how your case will be handled.
The expansion of information and communications technology has changed many things during our lifetimes, but one significant change that has not received much attention is the way technology has changed the way we negotiate with each other. Computer-mediated communication undoubtedly helps negotiators overcome limitations imposed by time and space, enables instant access to relevant information, and helps parties to be reflective and thoughtful in their interactions with their negotiation partners. But the capabilities of online communication introduce new challenges for negotiators as well, challenges we are just beginning to fully understand [NDR: Rabinovich-Einy & Katsh, ODR].
The field of Online Dispute Resolution, or ODR, is devoted to the study and practice of these challenges. At its highest level, ODR has been defined as the application of information and communications technologies to the task of resolving disputes. As the ODR field has evolved over the past twenty years, this narrow focus on resolving disputes has broadened into a more expansive concept, embracing the use of technology to help people and organizations manage, transform, and better understand their disputes (Wahab et al. 2012).
In this chapter I will present some of the basic concepts of ODR, discuss some of the ethical dilemmas technology can introduce into negotiation and mediation, highlight the new ethical dilemmas faced by ODR systems designers, and then lay out a framework for a set of ethical standards that may address some of these new challenges.
Introducing the Fourth Party
In their seminal book Online Dispute Resolution, Ethan Katsh and Janet Rifkin introduced the concept of the “fourth party,” which describes technology as another participant at the negotiating table (Katsh and Rifkin 2001: 93). Imagine that Party One and Party Two are the disputants, Party Three is the human mediator, and technology is Party Four. (You may picture the Fourth Party as a friendly and patient robot, if you like). The role played by the Fourth Party may be significant or it may be limited in each negotiation, but it is important to be explicit about it, because even if it is not acknowledged it is still likely to be a factor.
This Fourth Party can be very helpful in the course of a negotiation. It can facilitate text-based, asynchronous conversations that help negotiators to be more reflective in their communications, while enabling them to access information relevant to the negotiation in real time. It can enable participation from parties anywhere in the world, or support real-time joint single text negotiation with collaborative editing. It can offer wizards to help negotiators explore their options, or quickly address simple misunderstandings before they escalate. The Fourth Party can even offer a library of creative possibilities to help negotiators craft more durable agreements. It can apply complex software algorithms to keep communication focused on key issues that need to be addressed, while structuring negotiations to keep them moving toward resolution. The range of possibilities in technology-assisted negotiation is truly astounding, and as computer processors get faster and ODR software becomes more powerful, the range will undoubtedly continue to grow.
But as the saying goes, with great power comes great responsibility. The ability to record all negotiation communications can raise concerns about confidentiality and privacy. The ability to instantly access all sorts of information in the midst of a negotiation may lead to the introduction of information that can bias or derail an otherwise promising agreement....
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