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Berkman Community Newcomers: Ethan Katsh

This post is part of a series featuring interviews with some of the fascinating individuals who joined our community for the 2014-2015 year. Conducted by our 2014 summer interns (affectionately known as "Berkterns"), these snapshots aim to showcase the diverse backgrounds, interests, and accomplishments of our dynamic 2014-2015 community.

Q&A with Berkman Affiliate Ethan Katsh

Berkman affiliate and Director of the National Center for Technology and Dispute Resolution
Interviewed in summer 2014 by Berktern Emily Andersen

As the founder of Online Dispute Resolution (ODR), can you give a brief description of what that process is and how and when it applies to disputes?

The goal is fairly simple: design software to help parties communicate in a way that builds trust, clarifies interests and goals, reveals options for settlement, facilitates compromise, and responds to challenges and opportunities. Sometimes, software alone can help the parties resolve a dispute. For example, last year Ebay handled over 60 million disputes without any human intervention. More commonly, technology serves as a “Fourth Party,” a set of tools that helps the human third party.

We have had particular success in using software to help resolve high volume/low value disputes. EBay essentially runs the world’s largest small claims court and there is no reason we cannot develop publicly supported online courts. The European Union is already moving in this direction by supporting ODR for cross-border transactions. As we gain experience with relatively simple disputes, we can expect to design systems for more complex problems. ODR began with disputes arising out of online activities and for which there were no other options, but currently the focus is on using software to resolve problems of all kinds.

What led to your development of ODR? Were you fulfilling an apparent need, or was it an experiment to discover if the dispute resolution process could work in the online space?

At the beginning, it was mostly fulfilling a need.  In the mid-1990s, students started coming to us for help when AOL took away their accounts after they did something online that generated a complaint. The students wanted their accounts back. A little later, we saw the beginning of domain name disputes, of harassment occurring on listservs, and of cases that raised free speech issues but were not likely to be litigated. In 1999, eBay asked us if we could design a pilot project to mediate disputes between buyers as sellers. We did that successfully, the beginning of their current system that handles millions of disputes.

While lawyers and the media tend to focus most of their attention on court decisions, only a small percentage of disputes end up in court. At the same time, disputing, as Roger Fisher and William Ury noted, is a “growth industry.” There is so much activity online, so much innovation, so many transactions and new relationships and, often, so much money at stake. In a small percentage of cases, something inevitably goes wrong. Unfortunately, entrepreneurs are often surprised and unprepared when disputes occur. Currently, one can see that most prominently with reputation sites and with Uber, Airbnb and other collaborative economy applications. If handled poorly, disputes can be very damaging to a company, but companies that handle disputes efficiently are building trust and positive relationships with their customers.

Has there been an application or use of ODR that has been surprising or particularly interesting to you?

One area that is a particular interest of mine concerns electronic health records (EHRs). The transition from paper records to electronic records generates privacy issues and also raises accuracy issues. If you have an EHR, take a look at it. The chances are good that you will find an error. You may be listed, incorrectly, as having diabetes, being a former smoker or being male, when you are none of these. One is not allowed to delete information in an EHR so how you correct errors is a challenging question. It is an important question because while inaccurate information can be a problem for the individual patient, it can also affect Big Data applications and the statistics the government generates about health issues.

What is novel about ODR is that the statistics, generated as problems are solved, can be used to identify the sources of problems and then help to prevent them. Alternative dispute resolution was focused only on resolution. Online dispute resolution, at its origins, was also focused on resolution but as time has passed, the use of data for dispute prevention has become increasingly important.

What do you hope to discover as a Berkman affiliate?

I am in the midst of writing a book called Digital Justice, and I hope the Berkman community can be a resource for identifying interesting actual disputes as well as uses of technology that can resolve or prevent disputes.  In his recent book, Tomorrow’s Lawyers, Richard Susskind predicted that “online dispute resolution will…become the dominant way to resolve all but the most complex and high-value disputes.” Alternative Dispute Resolution was not simply a more efficient approach than what happened in court and, over time, it will be clear that ODR is not simply a more efficient process than ADR. ADR brought with it a new mindset and so will ODR. ADR involved not only new tools and techniques but different assumptions, principles and values, and so will ODR. Today, the logic of the field of dispute resolution largely remains as it was in the last quarter of the 20th century. That is inevitably going to change, and I hope the Berkman experience can help me fill in many blanks and build on what we find.

What do you look forward to doing or experiencing during your time as a Berkman affiliate?

It is an opportunity to broaden my circle of colleagues, benefit from their work and see if any find my work to be relevant to them. I would also look forward to possibilities to encourage some actual experiments or software development. Perhaps this might involve collaboration with the Harvard Program on Negotiation.