Legal Design and Dispute Tech: Before the Conflict

by Simon Boehme

December 2020

Simon Boehme

Technology continues to create new conflict, and with that, find new ways to resolve that conflict. There are many more ways conflict can be resolved online than through Zoom. It’s probably the most important thing I present to lawyers and mediators: we can expand the pie for all dispute resolution practitioners when we support and encourage new platforms and avenues to blossom reaching customers. With this in mind, we can capture users that we never imagine we could.

Since the beginning of the pandemic, the rush to resolve disputes online reminds me of what originally sparked my interest nearly ten years ago — resolving disputes between friends on a very quickly fading AOL Instant Messenger (AIM) and MySpace and, later, a rapidly growing Facebook. It later evolved into watching Modria simulations at Cornell and how online disputes influenced collective bargaining. We tend to focus on the parties that know they have a dispute: the contractor not paid in full, the employment or divorce contract not honored, the failure to comply with a commercial agreement, and so on. Changing the paradigm and, instead, focusing on those that don’t know they have a dispute opens an enormous opportunity for ODR. Access to justice, and ODR specifically, can’t realize its true potential without equitable technology tools that serve consumers.

Problem: Knowing when you have a dispute

Legal assistance portals in four states (Illinois, Michigan, Minnesota, and Ohio) saw significant increase in online traffic since the beginning of the COVID-19 pandemic (analysis by Pew). These online portals have proved to be invaluable especially in unemployment and housing issues. However, on the consumer side, very few things like this exist (DoNotPay is one).

I wrote about this back in 2018 advocating for greater discussion around dispute tech and much remains true. We don’t need lawyers at every turn and every stage. Through education and self-help portals, a lot of these issues can be surfaced and eventually resolved. One of the easiest ways we can do this is through educating people about what they sign everyday, specifically, what’s in the fine print.

The design, structure, and spirit of terms and conditions in modern contracts suits lawyers needs but not users. We all know too well reading the terms is boring, difficult, and time consuming. Court cases and tricky maneuvers have made it easier to obfuscate when someone is signing a legal document. This is where the real opportunity exists by educating the user:

  1. At “I Agree”
  2. On Contents in Agreement
  3. On Updates to Agreement

These three stages each offer unique opportunities to capture attention, educate users, and provide pathways for next steps.

Even if adhesion contracts don’t offer relief due to terrible policies — that in itself is reason enough to educate consumers to be aware of their lack of rights and to be aware of certain imbalances. That knowledge can empower a future of advocates and advancement of creating rights for those that don’t have much. It’s one reason why I started my first company, Magnify, to tackle this issue. Obviously, it didn’t solve the problem, although it was a start.

Solution: Human-centered legal design in ODR

Yet to accomplish this will require a human-centered approach or, as Margaret Hagan calls it, legal design.

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As the biggest element in helping people understand if they have a conflict, whether in terms of services or elsewhere, legal design must be at the forefront of technology solutions. It’s a framework that doesn’t take the perspective of lawyers but rather the end users. Hagan says it best: legal design is the application of human-centered design to the world of law, to make legal systems and services more human-centered, usable, and satisfying. One of the best examples of taking this approach is to understand the needs of people who are navigating court for the first time (the majority of court users are self-represented litigants). When court systems attempt to put their systems online, we can’t forget that in-person courthouses are filled with opportunities to learn (read posters, collect pamphlets, talk with a clerk), whereas processes simply thrown online don’t provide those same pathways. It’s realizing people have greater access to a cell phone over a Zoom account. It’s realizing that not everyone understands legalese.

When looking at the fine print across the world wide web, Juro’s privacy policy is unique: easy to read bullet points, plain language, color coding, and friendly icons (although their terms do not follow this user-centric style). It’s easy to read and understand.

A leading company in this space is FairShake, recently named a Times 100 Best Inventions of 2020. It provides support if you find yourself wronged by a corporation. Another great example is AirHelp, supporting claims against airlines for missed flights and lost baggage. These handy tools understand their customers and guide them through a dispute in a way that makes sense to humans users. Another is TermScout, the most sophisticated contract platform rating and providing insights into SaaS (software as a service) contracts. I highly recommend trying all three services (I have a financial interest in TermScout).

The problem still exists — people don’t know they have a dispute and, until we solve for that, ODR won’t truly blossom. Once more people know they have a dispute, the powerful potential of creating even more platforms and avenues to resolve disputes online can be realized. The pie can finally be expanded.

That’s how we do it. Through education. Through awareness. Through adaptation. That’s the driving force to ODR’s full, equitable potential. Not siloed, but built with tools so all people can reap the benefits.

Simon Boehme works at the intersection of dispute resolution and legal innovation. As a tech entrepreneur and mediator, he has founded and advised multiple legal tech companies, along with writing and teaching online dispute resolution for the past 10 years. Simon is currently Vice President of Partnerships for Legaler. He was also appointed to serve on the State Bar of California’s Access Through Innovation of Legal Services (ATILS) Task Force. He most recently served as Head of Operations and Chief of Staff, Trust & Safety at Lime. Simon was previously Co-Founder and COO at Disputly (formerly LegalWin). He also founded Magnify, a contract company summarizing terms and conditions of popular websites (recently acquired). He also was a member of the Accord Project Dispute Resolution Working Group (building guidelines and open source code for smart legal contracts). Simon was appointed by the Obama Administration to serve on the U.S. Department of Education's National Advisory Committee for Institutional Quality and Integrity (NACIQI). He served on NACIQI from 2013 to 2019. Simon formerly served as an advisor for NeuCourt, TermScout, BadData, and Bonayo. He also served as a mediator with Conflict Intervention Service aiming to reduce homelessness in San Francisco (along with creating the first online dispute resolution system for landlord-tenant disputes). Simon started Disputes+Blockchain (first-of-its-kind newsletter regarding all things dispute resolution and blockchain). He is a Truman Scholar, Coca-Cola Scholar, and Bezos Scholar. Simon studied at Cornell University (BS in Industrial and Labor Relations) and Mitchell Scholar at Maynooth University in Ireland (MA in Mediation and Conflict Intervention). In 2010, he led his hometown high school to win the first Race to the Top Commencement Challenge, resulting in President Barack Obama speaking at graduation (the first sitting President to do so). He currently lives in San Francisco, California.

Additional articles by Simon Boehme
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