Ms. Kimei, CEO of iResolve @ the 4th ICC Africa Conference on International Arbitration 18-19 June 2019, Lagos Nigeria

  • Ms Kimei participated on the panel discussion ‘smart contracts, blockchain and arbitration’ at the 4th ICC Africa Conference on International Arbitration.
  • The below are some notes on key aspects of her experience developing an ODR platform such as iResolve.

  • Why hasn’t ODR taken off? There is lack of knowledge and awareness or sensitization about ODR and specifically the existence of the existing ODR platforms and providers. There is also the issue of financial support /funding of such projects in Africa, specialized experts in the field and R&D initiatives. 
  • Are there any funding organization for such projects as iResolve? No, not at all. There are no funders at the moment but i do anticipate that those watching the rapid pace of tech & law will take note and funding will not be an issue BUT at the moment, we who have opted to invest in technology dig into our own pockets to develop the platforms on a piecemeal basis and at a slower pace.
  • A perceived disadvantage of ODR is that it can be impersonal, leading to greater distance between the parties. Is this perception valid? Does the nature and size of the dispute make a difference? ODR is not without its limitations—Some practitioners are convinced that ODR cannot work because of no body language, no non verbal cues in online communications and that one cannot be expected to guess ones mood or attitude if they are not facing them physically in a room. there are notable potential downsides to a lack of face-to-face interaction. The reason is that in the latter situation, the parties will inevitably have less control over the arbitration process. The absence of such face-to-face interactions from existing versions of online dispute resolution systems may cause a litigant to perceive a particular judicial process as unfair or produce negative emotional feelings toward the tribunal, as compared to traditional, in-person arbitral proceedings. Therefore In-person interactions have been seen as necessary, or at least better than electronic communication, for building trust between litigants and the Tribunal. The current generation of users of arbitration is fast being replaced by a younger generation that is quicker to adopt new technologies and is highly networked. What impact is this likely to have on the use of ODR? Cyberspace has a different dynamic, one where events are driven both by data and by people. It may be too early to predict what kinds of novel ordering, trust enhancing and dispute resolution institutions will emerge in cyberspace, but it is not too early to be confident that the need and demand for such institutions will continue to grow. In the longer term, however, as people’s preferences and values evolve, these developments will inevitably be disruptive and undermine the pro- fessionalization of ADR. I would describe The next generation as smart Dispute Resolvers. The first thing a lawyer needs to know about blockchain is that you absolutely need to understand it. It’s not optional. Blockchain, particularly as it combines with other newly emerging advanced technologies, will change the practice of law. 
  • As we get closer to the singularity, the point where human and machine intelligence intersects, will we reach a point where decision-making can be completely automated or will users still want a human to be held responsible for the quality of a decision? AI was limited to looking for keywords, whereas now, it can actually extract meaning from written materials, e-mails, and voice conversations. So the most basic use of AI in arbitration or litigation is to help manage massive amounts of documentation that previously had to be reviewed and checked and secondly are tools called “predictive justice,” where you use AI to analyze arbitration or court decisions in order to statistically derive probabilities about how your own case is going to be decided.AI has the potential of making the arbitral process cheaper and more efficient, provided it is kept in its proper place – that of facilitating logistical tasks (legal research, document disclosure). The challenge is to ensure that AI is not used as a substitute, or shortcut, for human decision-making which, although fallible, can factor in elements of fairness and compassion, which are psychologically powerful for disputants to feel that they have “had their day in court”.

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