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Lawyers and Online Negotiation
Orna Rabinovich-Einy & Ethan Katsh
Editors’ Note: In the next decade, lawyers' roles will change dramatically because of the expansion of online dispute resolution (ODR). As technology increasingly pervades professional life, demand for efficient negotiation tools and software-supported dispute resolution processes can also be expected to grow. The authors discuss how lawyers’ practice is changing as a result of the advent of high technology specific to their field, and outline both the uses and risks for lawyers that are associated with a whole series of specific platforms and programs that are increasingly being used to transact or settle cases online and offline, including in courts. Finding the technologies to be constantly evolving and disruptive of existing practice, the authors nevertheless conclude that lawyers have little option but to learn, use and advise their clients about these platforms. They point out that some of the new technologies promise to obviate a great deal of unrewarding work, to speed up possible resolution and, if designed appropriately, to enhance fairness and access to justice, reinforcing the negotiation field’s strong interest in “process pluralism”.
Technology and the online environment increasingly influence the work of lawyers. Lawyers today commonly communicate with clients through email. Their expertise, experience and contact information are easy to locate online. In addition to using Web sites, lawyers are often active users of social media platforms. Online tools dominate legal research, document drafting and assembly, and filings. However, when lawyers have a court hearing or an ADR session, they are usually required to attend in person. This will change in the future as the field of online dispute resolution (“ODR”) matures and expands.
ODR tools and systems allow disputing parties to conduct a variety of dispute resolution processes online. Among the most advanced ODR mechanisms currently used are those that facilitate negotiation. These developments are significant for lawyers on several levels. First, lawyers, like other internet users, are likely to encounter disputes that arose online, where parties are in different locations and for which ODR may be the only redress option. Second, as use of ODR expands, lawyers will have to advise their clients as to circumstances where they should use such processes, and in some instances may need to take part in these processes on behalf of their clients. Finally, lawyers can also play a significant role in advising their clients on dispute systems design: How to best prepare for future disputes when setting up their business, structuring a transaction, or thinking of how to manage workplace conflict. In many of these contexts, an understanding of the role of technology in dispute systems design can help lawyers provide valuable advice on how to structure better dispute resolution systems, which both resolve disputes in a fair and effective manner and prevent disputes from arising, thereby bringing value to their clients even before disputes arise.
In Part I below, we provide some background on the rise of ODR. We then expand on the significance of online negotiation, a dominant form of ODR, to the lives and work of lawyers—as internet users (Part II), as counselors to clients in an age in which ODR expands to courts (Part III), and as dispute system designers in an age in which clients need to prepare for future conflict, on- and offline (Part IV). We conclude with a list of key issues for lawyers in the area of online negotiation specifically and ODR more generally.
Part I: What is Online Negotiation?
The Rise of ODR
In the 1990s, as use of the internet began to expand, some scholars believed that the internet was a separate space to which legal norms did not (and should not) apply. This view was highly contested and, to a large extent, disproved over time. Courts and legislatures have made various modifications to existing legal doctrines and statutes in an attempt to....
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